Edwards v. State

PARKS, Presiding Judge,

concurring in part/dissenting in part:

I first wish to voice my disagreement with the majority’s treatment of appellant’s second double jeopardy argument. It continues to be the opinion of this writer “that the ‘same transaction’ test for double jeopardy, as skillfully explained by Justice Brennen in Ashe v. Swenson, 397 U.S. 436, 448 , 90 S.Ct. 1189, 1197 , 25 L.Ed.2d 469 *675 (1970), is eminently correct, and affords the proper interpretation of both the Fifth Amendment to the U.S. Constitution and article 2, section 21 of the Oklahoma Constitution.” Stohler v. State ex rel. Lamm, 696 P.2d 1038, 1041 (Okl.Cr.1985) (Parks, P.J., dissenting). However, I yield my view to that of the majority of this Court on the basis of stare decisis. Accordingly, I must concur in the affirmance of appellant’s conviction for Robbery With a Firearm.

With respect to appellant’s first double jeopardy argument, I agree that the kidnapping convictions must be reversed, but I respectfully dissent to remanding the same for new trial. In Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), the Supreme Court distinguished between “trial error” and “evidentiary insufficiency” for purposes of double jeopardy claims. Where a reviewing court determines that a convicted defendant has been deprived of a fair trial on the basis of trial error, that court may remand the cause for new trial. However, a case reversed due to evidentiary insufficiency must, under the Double Jeopardy Clause of the Fifth Amendment, be dismissed.

[Rjeversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect. ...

⅝: * ⅜ ⅜ * *

The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.

Id., 437 U.S. at 15-16 , 98 S.Ct. at 2149-50 .

In overruling Carter to arrive at its ultimate conclusion, the majority herein apparently finds that the reversal in this case is based upon a defective information 1 and not insufficiency of the evidence presented at trial. I find that the majority’s reliance upon Montana v. Hall, 481 U.S. 400 , 107 S.Ct. 1825 , 95 L.Ed.2d 354 (1987), is misplaced and that such case may easily be distinguished from the case at bar.

The defendant in Hall was charged and convicted of incest. As stated by the majority, Hall’s conviction was not reversed because of insufficiency of the evidence to prove the crime of incest, but because incest by its definition at the time of trial did not apply to the defendant. Stated otherwise, the crime of incest as was then defined by statute was legally inapplicable to defendant Hall’s conduct. Indeed, such legal inapplicability would have required the dismissal of the State’s Information had Hall properly raised such by motion before trial.

By contrast, the “inapplicability” of the crimes charged in the present case was factual, not legal. The reason for reversal of appellant’s convictions for kidnapping are because the State could not present facts sufficient to prove that appellant held his victims to service against their will. Their has been no allegation that the Information so charging appellant was defective in any respect, except that it charged him with the wrong crime. Again, a crime that was factually, not legally, inapplicable to appellant’s conduct. It is utterly inconceivable that such a mistake on the part of the charging authority can fairly be considered as the type of information/indictment defect contemplated by the Supreme Court in deciding Burks and its progeny. Rather, it is my opinion that the State presented insufficient evidence to prove the crimes charged. Although the district attorney erroneously charged appellant with such crimes, the Information so charging him was without defect. Accordingly, I dissent to the overruling of Carter and to this *676 Court’s decision to remand appellants kidnapping charges for new trial.

. A defective indictment has been cited by the Supreme Court as an example of "trial error.” Burks, 437 U.S. at 14 , 98 S.Ct. at 2148 .