Petition — McArthur v. Nourse

Supreme Court, U. &.

FILED

APR 14 %% ³ n

“a

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 977-1473

NADEAN O. McARTHUR,

Petitioner,

versus

THE HONORABLE PHILIP G. NOURSE,

Circuit Judge of the

Nineteenth Judicial Circuit of Florida,

in and for Okeechobee County,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

CHESTER BEDELL

1500 Barnett Bank Bldg.

Jacksonville, Florida 32202

RAYMOND E. FORD

Post Office Box 3307

Arcade Building

121 North Fourth Street

Fort Pierce, Florida 33450

| Counsel for Petitioner

| Of Counsel:

PETER D. WEBSTER

Bedell, Bedell, Dittmar

| & Zehmer

Professional Association

1500 Barnett Bank Building

Jacksonville, Florida 32202

SCOFIELDS’ QUALITY PRINTERS, P.O. BOX 5309° N O. LA. 70163 - 604/822-1611

} Page

J... EE sc cecccndececccnccscessvesseees 2

FED Cae e bb iwddekctecscccaeedintevakses 2

.. SEED cc cccccccccccccsccccccess 2

CONSTITUTIONAL PROVISIONS INVOLVED ... 3

STATEMENT OF THE CASE ..................... 4

REASONS FOR GRANTING THE WRIT ......... 8

r q 20

APPENDIX A (Supreme Court of Florida

. ee 1a

APPENDIX B (Circuit Court Order —

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APPENDIX C (Supreme Court of Florida

Opinion — September 30, 1977) ᷑ łm77m7m1:n:: 3a

CITATIONS

Cases

Benton v. Maryland, 395 U.S. 784 (1969) .......... 11

Breed v. Jones, 421 U.S. 519 (1975) ................ 12

Bryan v. United States, 338 U.S. 552 (1950) . . 10. 11. 12.

13,14,19

Fong Foo v. United States, 369 U.S. 141 (1982) 14

Francis v. Resweber, 329 U.S. 459 (1947) ......... 11

Greene v. Massey, 546 F.2d 51 (5th Cir.), cert.

granted, 432 U.S. 905 (1977) (No. 76-6617) ..... 2,9

Green v. United States, 355 U.S. 184 (1957) 12

Hervey v. People, 178 Colo. 38, 495 P.2d 204

%% ͤ ͤ˙Alrr.., ⅛ ?) 16

ii

CITATIONS (Continued)

Page

McArthur v. State, 351 So.2d 972 (Fla. 1977) . 6,10

People v. Banks, 37 Mich.App.280, 194 N.W.2d

, dicen caddnadensanaddease 16

People v. Brown, 99 III. App. 2d 281, 241 N.E.2d

EE oe bbstecondesecasese aad one 16,17

People v. Rutt, 179 Colo. 180, 500 P.2d 362

11yr*³˙—Ü1ð86 ⁰ ̃ f.,... ˙ duc 16

People v. Woodall, 61 III. 2d 60, 329 N. E. 2d 203

% ⁰—1TT4Ä—ʃñ2x2x—— ̃ K ͤ cévex 16

Sapir v. United States, 348 U.S. 373 (1955) 12

State v. Alston, 26N.C.App.418, 216 S.E.2d 416 |

/// ̃ c ˙˙»m . 16

State v. Moreno, 69 N. M. 113. 364 P. 2d 594

% 16

State v. Torres, 109 Ariz. 421, 510 P. 2d 737

/ ²⅛˙:wrrr.. T 16

Sumpter v. DeGroote, 552 F.2d 1206 (7th

% ͤͤ U A A 13

Trono v. United States, 199 U.S. 521 (1905) 12

United States v. Ball, 163 U.S. 662 (1895) ......... 11

United States v. DiSilvio, 520 F.2d 247 (3d

Cir.), cert. denied, 423 U.S. 1015 (1975) .......... 14

United States v. Martin Linen Supply Com- ü

inne.. . . 14.15

United States v. Tateo, 377 U.S. 463 (1984) 12

iii

CITATIONS (Continued)

Page

United States v. Wiley, 517 F.2d 1212

r eee se eee neee 14

United States v. Wilson, 420 U.S. 332 (1975) ...... 12

Constitutions and Statutes

U.S. Const., amend. “““... passim

We. Game. GUNG, TEES cccccccscccvesvccvess passim

BD Fs GPE eee sees 2

Other Authorities

8A J. Moore, Federal Practice 7 29.092] (1977

157—„»ẽếœvbt ,, 18

2 C. Wright, Federal Practice and Procedure

(Criminal) 5470 (1969 ed.) ))fĩĩ „„ 18

C. Thompson, Reversals for Insufficient

Evidence: The Emerging Doctrine of

Appeilate Acquittal,” 8 Ind.L.Rev. 497

1 ssebnedsuaweneseesserssecsss Rix

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

NADEAN O. MeARTHUR.

Petitioner,

versus

THE HONORABLE PHILIP G. NOURSE,

Circuit Judge of the

Nineteenth Judicial Circuit of Florida,

in and for Okeechobee County,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Petitioner, Nadean O. McArthur, respectfully prays

that a writ of certiorari issue to review the final order

of the Supreme Court of Florida entered in this case on

March 31, 1978. That final order denied a suggestion

for writ of prohibition seeking to prevent respondent

Circuit Judge from proceeding to retry petitioner on

an indictment charging murder in the first degree,

after a prior conviction for that offense had been re-

versed by the Supreme Court of Florida on the sole

ground that the evidence had been legally insufficient

to support the conviction.

2

The question presented by this petition for writ of

certiorari is identical to that presented to this Courtin

Greene v. Massey, 546 F. 2d 51 (5th Cir.), cert. granted,

432 U.S. 905 (1977) (No. 76-6617), which case was ar-

gued before this Court on November 28, 1977.

OPINIONS BELOW

The order of the Supreme Court of Florida denying

petitioner's suggestion for writ of prohibition is as yet

unreported, but is reproduced as Appendix A hereto.

The order of the Circuit Court of the Nineteenth

Judicial Circuit of Florida, in and for Okeechobee

County, denying petitioner’s motion to dismiss the in-

dictment on the ground that a retrial would place

petitioner twice in jeopardy for the same offense in

violation of the Fifth and Fourteenth Amendments to

the United States Constitution is likewise unreported,

but is reproduced as Appendix B hereto. The opinion

of the Supreme Court of Florida reversing petitioner's

prior conviction for the offense of first degree murder

is reported at 351 So.2d 972, and is reproduced as

Appendix C hereto.

JURISDICTION

The order of the Supreme Court of Florida denying

petitioner's suggestion for writ of prohibition was en-

tered on March 31, 1978. This Court has jurisdiction to

review that order by writ of certiorari pursuant to Ti-

tle 28, United States Code, Section 1257(3).

QUESTION PRESENTED

Whether, when the highest court of a state has

previously reversed a conviction of first degree mur-

3

der on the sole ground that the evidence was legally in-

sufficient to support the conviction after petitioner

had unsuccessfully moved for a judgment of acquittal

on that ground in the trial court, retrial of petitioner

for the same offense is barred by the double jeopardy

clause of the Fifth Amendment to the United States

Constitution, as applied to the states by the Four-

teenth Amendment to the United States Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

“No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensa-

tion.” ;

Constitution of the United States, Amendment XIV,

Section 1:

All persons born or naturalized in the Unit-

ed States, and subject to the jurisdiction

thereof, are citizens of the United States and of

4

the State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.“

STATEMENT OF THE CASE

Petitioner's husband, Charles M. McArthur, died on

June 10, 1973, as a result of a gunshot wound. On

August 30, 1973, petitioner was indicted by an

Okeechobee County, Florida, Grand Jury. The indict-

ment charged petitioner with the first degree murder

of her husband.

Petitioner's trial on that indictment commenced on

April 14, 1975. At the conclusion of the State’s case,

petitioner moved for entry of a judgment of acquittal

on the ground that the evidence presented by the State

failed to prove that the death of Charles M. McArthur

was anything other than an accident, and that

therefore the evidence was insufficient to prove the

offense charged in the indictment beyond and to the

exclusion of a reasonable doubt. This motion was de-

nied by the trial judge.

At the conclusion of all the evidence, petitioner

again moved for a judgment of acquittal, contending

that the evidence was insufficient to support a convic-

tion of the offense charged in that it failed to exclude at

least three hypotheses concerning the manner of

Charles M. McArthur’s death, all of which hypotheses

were consistent with a finding that the discharge of the

gun was accidental, and that, therefore, petitioner was

innocent. The motion for judgment of acquittal was

again denied by the trial judge.

The trial was concluded on April 23, 1975, when the

jury returned a verdict of guilty of murder in the first

degree. Petitioner then renewed her motion for judg-

ment of acquittal, again contending that the evidence

was insufficient to support a conviction of the offense

charged in the indictment, or any lesser included

offense, because the evidence failed to exclude several

reasonable hypotheses, all of which were consistent

with the conclusion that the death of Charles M.

McArthur had been accidental. In an order denying

petitioner’s renewed motion for judgment of acquittal,

the trial judge concluded that the evidence had been

legally sufficient to support the verdict.

On May 9, 1975, the trial judge adjudged petitioner

guilty of the offense of murder in the first degree as

charged in the indictment, and sentenced her to life

imprisonment, with a provision that she be required to

serve no less than 25 years before becoming eligible

for parole.

Petitioner appealed the conviction, contending in

her first three assignments of error that the trial

judge’s repeated denials of her motion for judgment of

acquittal had been erroneous. The principal point ar-

gued to the Supreme Court of Florida on that appeal

was that the evidence relied upon by the State to prove

petitioner’s guilt had been entirely circumstantial,

and was insufficient to exclude every reasonable

hypothesis of innocence, so that the trial judge erred

in denying petitioner’s repeated motion for a judg-

ment of acquittal. The relief requested by petitioner

was reversal of the conviction and a remand with

directions that petitioner be discharged.

On September 30, 1977, the Supreme Court of Florida

rendered its opinion reversing the conviction on the

sole ground that the evidence was legally insufficient

to support that conviction. McArthur v. State, 351

So.2d 972 (Fla.1977) (A. 3).* In the course of its opin-

ion, the Supreme Court of Florida found that the

evidence presented at petitioner's trial was not incon-

sistent with all reasonable hypotheses of innocence

(351 So.2d at 976; A. 11); that the evidence was not in-

consistent with the conclusion that the death of

petitioner’s husband had been accidental (351 So.2d at

978; A. 14); that petitioner’s “innocence hald] not been

disproved” (351 So.2d at 978; A. 15); and that Itjhe

state simply did not carry its burden of proof” (351

So.2d at 978; A. 15). However, the opinion concluded by

directing that petitioner, “if the state so elects, be

afforded a new trial.” (351 So.2d at 978; A. 15.)

The State filed a petition for rehearing, claiming

that the evidence had been legally sufficient to justify

petitioner’s conviction; that the homicide could not

have been an accident; and that petitioner had failed to

show that any reasonable hypothesis of innocence

existed. The petition for rehearing was denied by the

Supreme Court of Florida without opinion on

* Hereinafter, (A. ) shall refer to the appendices hereto.

7

December 6, 1977. On the same day, the Supreme Court

of Florida issued its mandate to the circuit court,

directing that further proceedings be had in ac-

cordance with said opinion, the rules of this Court and

the laws of the State of Florida.”

On December 20, 1977, the State filed a “Motion to Set

Cause for Trial,” thereby evincing its intent to retry

petitioner on the charge of first degree murder made in

the indictment returned on August 30, 1973. This was

the same charge on which petitioner was previously

tried and convicted, and the same charge which the

Supreme Court of Florida concluded the State had

failed, as a matter of law, to prove.

On January 4, 1978, petitioner filed in the circuit

court a motion to dismiss, contending that compelling

her to again stand trial on the charge of first degree

murder would violate her right, under the Fifth and

Fourteenth Amendments to the United States Con-

stitution, not to be twice put in jeopardy for the same

offense (Motion to Dismiss, at 1).

In an order dated January 20, 1978, and filed on

January 23, 1978, the respondent Circuit Judge denied

petitioner’s motion to dismiss and granted the State’s

motion to set the cause for trial, directing that retrial

of the cause shall commence on July 10, 1978 (A. 2).

On February 23, 1978, petitioner filed in the Supreme

Court of Florida a suggestion for writ of prohibition,

asking that court to grant a writ of prohibition

directed to respondent Circuit Judge, prohibiting

respondent Circuit Judge from attempting to exercise

any further jurisdiction over petitioner based upon

the indictment returned on August 30, 1973. The

suggestion for writ of prohibition stated that:

“Respondent Circuit Judge is without

jurisdiction to proceed further in the cause

because, this Court having concluded that the

evidence offered by the State at petitioner's

previous trial was legally insufficient to

justify her conviction, a retrial of petitioner on

the same indictment for which she was

previously tried would deprive petitioner oi

her right, guaranteed by the Fifth and Four-

teenth Amendments to the United States Con-

stitution and Article I, Section 9, of the Florida

Constitution, not to be twice placed in jeopar-

dy for the same offense.” (Suggestion for Writ

of Prohibition, at 4.)

The Supreme Court of Florida denied petitioner's

application for oral argument on her suggestion for

writ of prohibition, and, without requiring any

response to be filed by either the State or respondent

Circuit Judge, on March 31, 1978, entered a one line or-

der stating that: Upon consideration of the Sugges-

tion for Writ of Prohibition, it is ordered by the Court

that said suggestion be and the same is hereby denied”

(A. 1).

REASONS FOR GRANTING THE WRIT

Retrial of petitioner on the charge of first

degree murder, after a successful appeal in

which the Florida Supreme Court found that

the evidence was legally insufficient to sup-

port the conviction, will deprive petitioner of

her right under the Fifth and Fourteenth

Amendments to the United States Constitu-

tion not to be placed twice in jeopardy for the

same offense.

The instant petition presents the same question for

review by this Court as does Greene v. Massey, 546

F.2d 51 (5th Cir.), cert. granted, 432 U.S. 905 (1977) (No.

76-6617), which case was argued before this.Court on

November 28, 1977. However, petitioner submits that

the instant petition should be granted because the

facts presented by this petition portray much more

graphically than do the facts in the Greene case the

fundamental unfairness of allowing a retrial on a

charge which an appellate court has previously

concluded the State failed, as a maiter of law, to prove

at the previous trial.

In the instant case, petitioner was indicted by an

Okeechobee County, Florida, Grand Jury, which

charged her with the first degree murder of ..er hus-

band. She was tried and convicted of that offense,

despite the fact that during and after the trial she

repeatedly moved the trial judge to enter a judgment of

acquittal, contending that the circumstantial evidence

presented by the State was legally insufficient to

prove her guilt beyond a reasonable doubt; that the

evidence failed to show that the death of her husband

could not have been accidental; and that the evidence

failed to exclude several reasonable hypotheses, all of

which were consistent with her innocence. All of these

motions were denied by the trial judge.

10

On appeal of petitioner’s conviction, the Supreme

Court of Florida concluded that the evidence was not

inconsistent with petitioner’s innocence (351 So.2d at

976; A. 11); “that the prosecution’s proof of Mr.

McArthur’s intentional murder was not inconsistent

with his accidental death” (351 So.2d at 978; A. 14); that

petitioner’s “innocence hald] not been disproved” (351

So.2d at 978; A. 15); and that Itjhe state simply did not

carry its burden of proof“ (351 So.2d at 978; A. 15).

These findings are susceptible to but one conclusion —

the trial judge should have granted petitioner's

repeated motion for judgment of acquittal, made dur-

ing the trial. Yet, when petitioner sought to preventa

second trial on the ground that such a trial would

deprive her of her right under the Fifth and Four-

teenth Amendments to the United States Constitution

not to be twice placed in jeopardy for the same offense,

her motion was perfunctorily denied by respondent

Circuit Judge. And when she attempted to invoke the

assistance of the Supreme Court of Florida by means

of a suggestion for writ of prohibition, that court,

without allowing oral argument or requiring any re-

ply by the respondent, summarily denied petitioner's

request with a one sentence order.

In Bryan v. United States, 338 U.S. 552 (1950), this

Court dealt for the first and only time with the conten-

tion that a second trial after reversal of a conviction

for the same offense by an appellate court on the

ground that the evidence was legally insufficient to

justify that conviction deprived a defendant of his

rights under the Fifth Amendment to the United States

Constitution, which provides, in its relevant part, that

1i

Injo person shall. . . be subject for the same offence to

be twice put in jeopardy of life or limb.“

In a somewhat cryptic opinion, this Court dealt with

what appeared to be a well-founded claim in one para-

graph, saying merely that:

“Petitioner’s contention that to require him

to stand trial again would be to place him

twice in jeopardy is not persuasive. He sought

and obtained the reversal of his conviction,

assigning a number of alleged errors on

appeal, including denial of his motion for

judgment of acquittal. ‘* * where the accused

successfully seeks review of a conviction,

there is no double jeopardy upon a new trial.’

Francis v. Resweber, 329 U.S. 459, 462, 67 S.Ct.

374, 375, 91 L.Ed. 422. See Trono v. United

States, 199 U.S. 521, 533-534, 26 S.Ct. 121, 124,50

L.Ed. 292, 4 Ann. Cas 773. 338 U.S. at 560.

Admittedly, the Bryan decision would appear at

first glance to lend support to the decisions of the

courts below. However, if one examines the cases re-

lied upon for the conclusion reached in Bryan, it soon

becomes apparent that the conclusion rests upon an

unsound foundation. In the first place, the quotation

from Francis v. Resweber (329 U.S. at 462) is dictum.

Furthermore, the authority cited to support that state-

ment was United States v. Ball, 163 U.S. 662 (1895), a

* In Benton v. Maryland, 395 U.S. 784, 794 (1969), this Court

concluded that “the double jeopardy prohibition of the Fifth

Amendment represents a fundamental ideal in our constitutional

heritage,” which “should apply to the States through the

Fourteenth Amendment.”

12

case in which this Court concluded that there was no

double jeopardy problem when the previous convic-

tion had been reversed for trial errors; it had nothing

to do with the propriety of a second trial after the

previous conviction had been reversed because of in-

sufficient evidence. Finally, it should be noted that

Trono v. United States, 199 U.S. 521 (1905), the other

case cited as authority by this Court in the Bryan deci-

sion, has since been severely limited, if not overruled

completely, by this Court’s decision in Green v. Unit-

ed States, 355 U.S. 184 (1957).

Green and other decisions of this Court subsequent

to Bryan have eroded, if not discarded altogether, the

waiver theory used in Bryan to justify the conclusion

that a second trial after appellate reversal for insuf-

ficient evidence does not constitute double jeopardy.

See Breed v. Jones, 421 U.S. 519 (1975); United States v.

Wilson, 420 U.S. 332 (1975); United States v. Tateo, 377

U.S. 463 (1964); Sapir v. United States, 348 U.S. 373

(1955). Thus, in Green, supra, this Court dealt with the

waiver theory in general as follows:

“[T]he Government contends that Green

‘waived’ his constitutional defense of former

jeopardy to a second prosecution on the first

degree murder charge by making asuccessful

appeal of his improper conviction of second

degree murder. We cannot accept this para-

doxical contention. ‘Waiver’ is a vague term

used for a great variety of purposes, good and

bad, in the law. In any normal sense, however,

it connotes some kind of voluntary knowing

relinquishment of a right... When a man has

13

been convicted of second degree murder and

given a long term of imprisonment it is wholly

fictional to say that he ‘chooses’ to forego his

constitutional defense of former jeopardy ona

charge of murder in the first degree in order to

secure a reversal of an erroneous conviction

of the lesser offense. In short, he has no

meaningful choice.” 355 U.S. at 191-92.

Several lower federal courts have expressed their

disagreement with the rule promulgated in Bryan and

the frustrations they have in attempting to apply such

a rule:

“Unlike reversals due to procedural errors of

law that impair effective presentation of the

defendant’s case, reversals based on the

failure of the prosecution’s proof represent the

judgment of an appellate court that the defen-

dant was entitled to a directed acquittal at

trial. By subjecting defendants who win such

appellate reversals to retrial, Bryan serves to

heighten rather than mollify disparities in-

herent in our criminal justice system, for, had

the defendants been before other trial judges,

they may well have received the directed ac-

quittals to which they were entitled — acquit-

tals from which the prosecution would have

no appeal. ... By permitting defendants sim-

ilarly situated with respect to their right toa

directed acquittal to be treated differently,

Bryan works to undermine rather than

promote the fair and impartial adminis-

tration of criminal justice.” Sumpter v.

DeGroote, 552 F 2d 1206, 1211-12 (7th Cir. 1977).

14

Similar frustration has been expressed by the District

of Columbia Circuit in United States v. Wiley, 517 F. ad

1212 (D.C. Cir. 1975). And the Third Circuit has said.

completely disregarding Bryan, that “[rJjeversals or

mistrials granted on the basis of insufficient evidence

or any other assessment of the facts presented at trial

... bar reprosecution.” United States v. DiSilvio, 520

F. 2d 247, 249 n.3 (3rd Cir.), cert. denied, 423 U.S. 1015

(1975).

The findings made by the Supreme Court of Florida

on petitioner’s direct appeal of her conviction are

susceptible to but one conclusion — the trial judge

should have granted petitioner’s repeated motion for

judgment of acquittal, made during the trial. It isclear

that, had the trial judge properly followed the law and

granted petitioner’s motion for judgment of acquittal,

the State could not force her again to stand trial on the

charge of first degree murder made in the indictment,

even if it were subsequently found that the judgment

of acquittal had been improperly granted. See

generally United States v. Martin Linen Supply Com-

pany, 430 U.S. 564 (1977); Fong Foo v. United States, 369

U.S. 141 (1962).

The Fifth Amendment to the United States Constitu-

tion provides, in its relevant part, that Inlo person

shall... be subject for the same offence to be twice put

in jeopardy of life or limb.“ This Court has said, con-

cerning that provision, that:

“The Clause, therefore, guarantees that the

State shall not be permitted to make repeated

attempts to convict the accused, ‘thereby

15

subjecting him to embarrassment, expense

and ordeal and compelling him to live in acon-

tinuing state of anxiety and insecurity as well

as enhancing the possibility that even though

innocent he may be found guilty.’ Green v.

United States, 355 U.S. 184, 187-188, 78 S.Ct.

221, 223, 2 L.Ed.2d 199 (1957); see also Downum

v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033,

1034, 10 L.Ed.2d 100 (1963). ‘[S]ociety’s

awareness of the heavy personal strain which

a criminal trial represents for the individual

defendant is manifested in the willingness to

limit the Government to a single criminal

proceeding to vindicate its very vital interest

in enforcement of criminal laws.’ United

States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547,

554, 27 L.Ed.2d 543 (1971) (Harlan, J.).“ United

States v. Martin Linen Supply Company, 430

U.S. 564, 569 (1977).

Assuming this statement of purpose to be of con-

tinuing vitality, there is no logical basis whatsoever

for concluding that, while a defendant who has been

successful in obtaining a judgment of acquittal upon

motion made to the trial judge may not be tried again

for the same offense, a defendant whose motion for

judgment of acquittal was erroneously denied by the

trial judge but who was successful in obtaining rever-

sal on appeal solely because the evidence was legally

insufficient to justify the conviction, may be tried

again. As one court has said:

“We can see no essential difference — except

one of unfairness — between a defendant who

16

is acquitted at trial and one who has to appeal

to obtain reversal of a conviction on the

ground of insufficient evidence. Surely, it

would compound the unfairness to require

that the latter also submit to a retrial.” People

v. Brown, 99 III. App. 2d 281, 241 N.E.2d 653, 659

n.2 (Ct.App.1968).

In this regard, a growing vanguard of state

appellate courts has concluded that retrial of a defen-

dant whose conviction has been reversed on the

ground that the evidence offered at the previous trial

was insufficient to justify the conviction is prohibit-

éd by principles of double jeopardy. See, e.g., State v.

Torres, 109 Ariz. 421,510 P.2d 737 (1973); People v. Rutt,

179 Colo. 180, 500 P.2d 362 (1972); Hervey v. People, 178

Colo. 38, 495 P.2d 204 (1972); People v. Woodall, 61 I11.2d

60, 329 N.E.2d 203 (1975); People v. Brown, 99 III. App. 2d

281, 241 N.E.2d 653 (Ct.App.1968); People v. Banks, 37

Mich.App. 280, 194 N.W.2d 488 (Ct.App.1971); State v.

Moreno, 69 N.M.113, 364 P.2d 594 (1961); State v. Alston,

26 N.C.App. 418, 216 S.E.2d 416 (Ct.App.1975).

In State v. Moreno, supra, the Supreme Court of New

Mexico, reviewing a conviction for possession of

marijuana with intent to unlawfully sell and deliver it,

examined the record and found it to be devoid of

evidence to support the conviction. The court re-

versed and remanded with instructions to discharge

the defendant, saying:

“The effect of a reversal for lack of sufficient

evidence to support a conviction is not

different from an acquittal by the jury and re-

17

quires that the defendant be discharged.” 364

P.2d at 595.

In People v. Brown, supra, a case containing an ex-

cellent discussion of the question, the court dealt with

the argument, sometimes raised, that when a defen-

dant moves for a new trial as well as for a judgment of

acquittal, he waives his right to stand behind the dou-

ble jeopardy clause, even though the appellate court

finds that the evidence was legally insufficient, anda

new trial may be awarded. The court said:

“We can think of no reason in fairness and

justice why a defendant on appeal should be

required to discard his right to seek a new trial

based on trial errors, in order to validate his

right to seek an outright reversal for lack of

evidence. In any sensible consideration of his

position the former is seen to be a second-

choice alternative to the latter. If his double

jeopardy rights are deemed to have been waiv-

ed by his request for a new trial, the waiver

should then take effect only if the reversal is

granted for the reasons contained in the new-

trial request, and, if the conviction is re-

versed for lack of evidence, the waiver con-

tained in an accompanying request for a new

trial would never become operative.” 241

N.E.2d at 662.

Commentators addressing this subject have over-

whelmingly questioned the fundamental fairness of

decisions which conclude that compelling a defendant

to stand trial a second time after his prior conviction

18

was reversed on appeal for insufficient evidence does

not place him twice in jeopardy for the same offense.

The two leading authorities on federal practice have

called such decisions “illogical” and “fundamentally

inconsistent with the Double Jeopardy clause.” See 8A

J. Moore, Federal Practice 7 29.09[2] (1977 ed.); 2 C.

Wright, Federal Practice and Procedure (Criminal)

§470 (1969 ed.).

One author has noted a recent trend toward applica-

tion of the double jeopardy clause to prohibit retrial

after reversal by an appellate court for insufficient

evidence. See C. Thompson, “Reversals for Insuf-

ficient Evidence: The Emerging Doctrine of Appellate

Acquittal,” 8 Ind.L.Rev. 497 (1975). The author con-

cludes that: N

The arguments favoring application of the

double jeopardy clause to appellate reversals

for insufficient evidence are compelling. At

the first trial the State exercised its oppor-

tunity to convict the accused and, as a matter

of law, the evidence failed to establish guilt.

Should the State be given the opportunity to

buttress its case at a second trial or, for

harassment only, seek a second guilty verdict

on the same insufficient evidence? By reason

of the insufficiency the judgment of convic-

tion was reversed. Clearly, the defendant

should have been acquitted in the trial court,

and that acquittal would have barred a second

trial for the same offense. Logic would dictate

a similar result when the acquittal comes at

the appellate level, for it is a miscarriage of

19

justice that the defendant was not acquitted at

trial. Id. at 501-02.

If it is permissible for the State to try petitioner a

second time for the same offense, at what point is it no

longer permissible for the State to retry petitioner?

Suppose that petitioner is again convicted, again

appeals, and the evidence is again found legally insuf-

ficient. May the State try her again? This is precisely

why the prohibition upon placing an individual twice

in jeopardy for the same offense was included in the

Bill of Rights. Without such a safeguard, the State

must, because of the vast resources it possesses,

sooner or later emerge successful in breaking, if not

convicting, the defendant in a criminal prosecution of

this type.

Fundamental concepts of justice dictate that the

State should be given only one fair opportunity to in-

troduce evidence sufficient to convict an individual

whom it charges with a crime. To the extent that the

decision of this Court in Bryan v. United States, supra,

suggests a contrary result, that decision is illogical,

arbitrary and fundamentally unfair, and should be

overruled. The State has had one fair opportunity to

present evidence sufficient to justify petitioner's con-

viction, and has failed. It should not be permitted to try

petitioner again.

CONCLUSION

For the foregoing reasons, this Court should issue a

writ of certiorari to review the order of the Supreme

Court of Florida denying petitioner’s suggestion for

writ of prohibition.

Respectfully submitted,

CHESTER BEDELL

1500 Barnett Bank Building

Jacksonville, Florida 32202

RAYMOND E. FORD

Post Office Box 3307

Arcade Building

121 North Fourth Street

Fort Pierce, Florida 33450

Counsel for Petitioner

Of Counsel: —

PETER D. WEBSTER

Bedell, Bedell, Dittmar & Zehmer

Professional Association

1500 Barnett Bank Building

Jacksonville, Florida 32202

— Sm

A.1

APPENDIX A

SUPREME COURT OF FLORIDA

FRIDAY, MARCH 31, 1978

NADEAN O. McARTHUR,

Petitioner,

versus Case No. 53,465

PHILIP G. NOURSE, Circuit Judge, etc.,

Respondent.

Upon consideration of the Suggestion for Writ of

Prohibition, it is ordered by the Court that said

suggestion be and the same is hereby denied.

OVERTON. C. J., SUNDBERG, HATCHETT and

KARL, JJ., concur

ENGLAND, J., dissents

A.2

APPENDIX B

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR

OKEECHOBEE COUNTY

STATE OF FLORIDA

versus Case No. 73-74-CF

NADEAN O. McARTHUR,

Defendant.

ORDER

The Court has before it the motion to set cause for

trial filed by the State on December 20, 1977, and the

motion to dismiss the indictment on the ground of dou-

ble ierpardy filed by the defendant on January 4, 1978.

The Court having considered these motions, and hav-

ing heard argument of counsel thereon, it is

ORDERED that:

1. The motion to dismiss the indictment on the

ground that a retrial of defendant would place her

twice in jeopardy for the same offense in violation of

the United States and Florida Constitutions, filed by

defendant on January 4, 1978, is denied.

2. The motion to set cause for trial, filed by the

State on December 20, 1977, is granted, and retrial of

this case shall commence on July 10, 1978.

A. 3

3. This order is without prejudice to the right of

either the State or defendant to seek a change of venue.

DONE AND ORDERED in Chambers, at Ft. Pierce,

St. Lucie County, Florida, this 20th day of January,

1978.

/s/ Philip G. Nourse

Circuit Judge

APPENDIX C

IN THE SUPREME COURT OF FLORIDA

JULY TERM, 1977

NADEAN O. McARTHUR,

Appellant,

versus Case No. 49,526

Circuit Court

Case No. 73-74-CF

STATE OF FLORIDA,

— Appellee.

Opinion filed September 30, 1977

An Appeal from the Circuit Court in and for

Okeechobee County. James E. Alderman, Judge

Chester Bedell, Jacksonville; Eugene P. Spellman,

Miami; and Raymond E. Ford, Fort Pierce, for

Appellant

E ˙¹ bwl ᷑ B 8:3ͥin ¼ p ⁰ . ⁰—wÄßn. .

A. 4

Robert L. Shevin, Attorney General, Tallahassee;

Harry M. Hipler, and Basil S. Diamond, Assistant At-

torney Generals, West Palm Beacn, for Appellee

ENGLAND, J.

By direct appeal we have before us for review the

1975 conviction of Nadean McArthur for the first

degree murder of her husband, Charles McArthur. We

have jurisdiction because the trial court upheld the

validity of two statutes, Sections 40.01(1) and

775.082(1), Florida Statutes (1975).!

Appellant argues that, in addition to the two

constitutionally infirm statutes, reversal of her con-

viction is required by six errors which occurred dur-

ing her trial. After careful examination of the record,

find that five of these contentions require neither

rc versal nor extensive discussion.? Appellant's

1 Appeal was first taken to the Fourth District Court of Appeal,

but pursuant to Fla.App.Rule 2.1(a)(5)(d) that court on its own mo-

tion transferred the appeal here.

2 First, the exclusion of lay opinion regarding appellant's

emotional state immediately after her husband's death, though

technically error, was not so prejudicial as to require reversal in

light of other testimony which was adduced as to her conduct and

statements. Second, the requested jury instruction on circum-

stantial evidence was generally repetitive of an instruction which

was given, and though it would not have been error to give the in-

struction to the jury by the same token its rejection was not an

abuse of the trial court's discretion. Third, the pretrial publicity

which attended appellant's trial did not make it impossible to

select an impartial jury as a matter of law or fact. Murphy v.

Florida, 421 U.S. 794 (1975); Dobbert v. State, 328 So.2d 433 (Fla.

1976), aff'd, 45 U.S.L.W. 4721 (June 17, 1977).

Fourth, the limitations placed on defense couns¢: voir dire ex-

amination of prospective jurors were carefully drawn to avoid

tainting the jury panel with the substance of rumors which some

A.5

constitutional challenges require more detailed

analysis, but similarly do not warrant reversal.

Appellant’s challenge to the jury selection statute,

Section 40.01(1), Florida Statutes (1975), essentially

asks that we reconsider Wilson v. State, 330 So.2d 457

(Fla.1976), in which we sustained this statute, in light

of the United States Supreme Court’s decision in

Taylor v. Louisiana, 419 U.S. 522 (1975). That case held

unconstitutional a Louisiana jury selection statute

which operated to exclude women from jury service,

since they were exempt unless requesting to serve, on

the ground that the statute deprived defendants of

their right to a jury selected “from a fair cross section

of the community”.® At the time of trial the Florida

statute provided in relevant part that

“expectant mothers and mothers with chil-

dren under eighteen years of age, upon their

request, shall be exempted from grand and

petit jury duty.“

The record fairly depicts the operation of the stat-

ute. Several mothers with children under the age of 18

prospective jurors might have heard. Accord, Jones v. State, 343

So.2d 921 (Fla. 3d DCA 1977). In fact, the record quite clearly shows

that the jurors were not preconditioned to find for or against

appellant, and that they were able to reach their conclusions solely

on the basis of the evidence presented at trial. Finally, the trial

judge did not abuse his discretion by refusing to sequester the

jury. Fla.R.Crim.P. 3.370(a). On the contrary, he made a careful and

determined inquiry into the need for sequestration and found that

the fears of defense counsel, and his own preliminary concerns,

were without basis in fact.

3 Taylor v. Louisiana, 419 U.S. at 530 (1975).

4 The 1975 Legislature lowered the statutory age from 18 to 15.

Ch. 75-78, Laws of Florida.

A. 6

were excused from jury service on the representation

that hardship would be suffered if they could not be at

home to care for their children. Some mothers were ex-

cused under the statute simply “upon their request”,

even though they held jobs outside the home and made

no plea of hardship. One father asked to be excused

because of the hardship to his seven motherless chil-

dren if he could not earn his $110 weekly income. His

request was denied by the court; however, counsel for

both sides later requested that he be excused and the

trial judge acceded. No expectant mothers were pres-

ent to request exemption from jury duty.5

Since mothers with children under 18 were

exonerated from jury duty simply on request, our con-

cern is whether their absence denied defendants the

opportunity to select a jury from a fair cross section of

the community. We think not. The sixth amendment to

the United States Constitution requires that no “large,

distinctive groups are excluded from the [jury] pool“.

This standard establishes two tests, and although the

excluded group here appears sufficiently large to pass

the size of group“ test, it fails what may be called the

“nature of the group” test.

To evoke constitutional concern, the group exclud-

ed must be sufficiently distinctive“ to eliminate the

5 No suggestion is made in this case that the state lacks a

justification for providing expectant mothers with an exemption.

In Taylor, the Supreme Court said:

“The States are free to grant exemptions from jury servic?

to individuals in case of special hardship or incapacity

and to those engaged in particular occupations the unin-

terrupted performance of which is critical to the com-

munity's welfare.“ 419 U.S. at 534.

See also Kahn v. Shevin, 416 U.S. 351 (1974).

6 Taylor v. Louisiana, 419 U.S. at 530.

A.7

subtle interplay of influence” or the “distinct quality

[which] is lost if either sex is excluded” totally.’

Mothers of young children are not, we believe, so

distinctive a class as to evoke sixth amendment con-

cerns. Those eligible for jury service include mothers

of older children, women without children, and fathers

with children of all ages. No distinctive quality of

parenthood or sex is lost by the exclusion of mothers

who presently have children under 18.5 Thus, while the

legislative exclusion does not require hardship and

may therefore operate automatically to exempt from

jury service mothers who have no more compelling

need to tend young children than fathers or the parents

of older children, the class excluded is not constitu-

tionally significant.

Appellant’s second constitutional challenge asserts

the invalidity of Section 775.082(1), Florida Statutes

(1975), which requires a person convicte . of a capital

felony and sentenced to life imprisonment to serve no

less than 25 years before becoming eligible for parole

.... We have already upheld this statute against an

assertion that it is an impermissible legislative

7 Ballard v. United States, 329 U.S. 187, 193-94 (1946), cited with

approval in Taylor v. Louisiana, 319 U.S. at 531-532.

8 Although mothers of young children in contemporary society

may have different attitudes or experiences than mothers of older

children, our concern is a constitutional imperative. That there is

an arguable sociological distinction of importance is a matter for

the Legislature to consider.

“The fair-cross-section principle must have much leeway

in application. The States remain free to prescribe rele-

vant qualifications for their jurors and to provide

reasonable exemptions so long as it may be fairly said that

the jury lists or panels are representative of the communi-

Taylor v. Louisiana, 419 U.S. at 537-38.

A. 8

usurpation of executive branch powers.“ Appellant

here contends that the statute imposes a cruel and un-

usual punishment, since it operates without regard to

the circumstances of individual defendants or the

crimes for which the defendants have been convicted.

The state argues that the severity of the penalty is

commensurate with the severity of the crime.

This very issue was recently addressed by the Sec-

ond District Court of Appeal in Quick v. State, 342

So.2d 850 (Fla.2d DCA), aff'd per curiam, No. 51,246

(Fla.Sept. 29, 1977), in which a majority of the court up-

held the statute. Judge McNuity filed a forceful dissent

analogizing the situation to Woodson v. North

Carolina. — U.S.. 96 S.Ct. 2978, 49 L.Ed.2d 944

(1976), where the United States Supreme Court ruled

that a mandatory death penalty for first degree mur-

der is cruel and unusual punishment. We believe the

Quick majority was correct, for in Woodson the Court

recognized that term sentencing minima are

significantly different from death sentences as

regards federal constitutional criteria. The Court said:

While the prevailing practice of in-

dividualizing sentencing determinations

generally reflects simply enlightened policy

rather than a constitutional imperative, we

believe that in capital cases the fundamental

respect for humanity underlying the Eighth

Amendment... requires consideration of the

character and record of the individual offender

and the circumstances of the particular

9 Owens v. State, 316 So.2d 537 (Fla. 1975): Dorminey v. State, 314

So.2d 134 (Fla.1975).

A. 9

offense as a constitutionally indispensable

part of the process of inflicting the penalty of

death.

This conclusion rests squarely on the

predicate that the penalty of death is qualita-

tively different from a sentence of imprison-

ment, however long.“ 10 (emphasis supplied.)

Relevant to the same concerns under Florida's Con-

stitution is O’Donnell v. State, 326 So.2d 4 (Fla. 1975). in

which we upheld a statute imposing a mandatory

minimum sentence of 30 years imprisonment for kid-

napping. 11 In O’Donnell we reaffirmed the time-

honored principle that any sentence imposed within

statutory limits will not violate Article I, Section 8 of

the Florida Constitution, and the reasoning used there

is persuasive here. The correlation in seriousness and

potential deterrent value between a minimum 30 year

sentence and the crime of kidnapping is similar to the

correlation between the minimum mandatory

sentence imposed by Section 775.082(1) and the

palpably more serious crime of premeditated murder.

All this, of course, was at the heart of Banks v. tate,

342 So.2d 469 (Fla. 1976), in which we rejected the very

contention which appellant now raises. We held in

Banks that this statute did not impose constitu-

tionally proscribed cruel] and unusual punishment,

and we now reiterate that view.

10 Woodson v. North Carolina, US. 96 S.Ct. 2978, 2991-

92, 49 L.Ed.2d 944, 961 (1976).

11 § 775.082(4)(a), Fla. Stat. (1973).

A. 10

We come to appellant's last and principal contention

before us, that as a matter of law there was insufficient

evidence of her guilt to support her conviction.

Appellant and the state agree as to the legal standard

to be applied in cases where a conviction is based on

circumstantial evidence, 12 as here, but they sharply

disagree as to the application of that standard to the

record in this case.

A review of prior decisions of this Court in similar

cases'* is not helpful to the analysis required here,

since the nature and quantity of circumstantial

evidence in each case is unique. Moreover, while we

have examined all of the evidence in the record before

us, we Can see no jurisprudential value in a lengthy

12 Where the only proof of guilt is circumstantial, no matter ho

strongly the evidence may suggest guilt a conviction cannot —

sustained unless the evidence is inconsistent with any reasonable

hypothesis of innocence. Davis v. State, 90 So. 2d 629 (Fla. 1956)

Mayo v. State, 71 So. 2d 899 (Fla. 1984): Head v. State, 62 So.2d 41

(Fla. 1952). (The meaning of not inconsistent” may be sufficiently

different from “consistent” as to prevent a substitution of terms.)

In applying the standard, the version of events related by the

defense must be believed if the circumstances do not show that ver-

sion to be false. Mayo v. State, above: H

2 ve; Holton v. State, 87 Fla. 65, 99

13 This case is not similar to those in which a articu

cumstance is consistent only with one — In a —

State. n. 12 above. for example, the state's own witness in a murder

trial placed the time of the victim's death at a time when the ac-

cused was assisting law enforcement officers in a search for the

victim. In Dewey v. State, 135 Fla. 443, 186 So. 224 (1938), the ac-

cused 8 pretrial story that his wife’s death was caused by asingle

self-inflicted gunshot was totally discredited by proof that two

shots had been fired. Nor is this case in any way similar to those in

— the only hypothesis of innocence is wholly incredible. In

— — — —— 73 — 74 — —— (1917). for example. the only

nnocence was as

to be inherently unbelievable. — eatin

A. 11

recitation of that evidence in this opinion. Alengthy

summary will suffice.

In general, the jury received two categories of

circumstantial evidence — scientific and non-

scientific. Our study of both types leads us to conclude

that, on balance, neither is inconsistent with in-

nocence.'4

The non-scientific evidence in the record, con-

sisting of witness testimony from the funeral home

owner, ambulance drivers, police officials, and a local

merchant,'5 is reasonably consistent with the version

of events which appellant conveyed to investigating

officers when they first arrived at the scene of her

husband's death. She had told the officers that her hus-

band had been concerned about her and their child's

14 Minor inconsistencies between appellant's statements and

acts at the scene of the death and the proof relied upon by the state

to evidence appellant's guilt create ambiguities in the tenor of

proof, at best. Two examples will indicate the nature of these

inconsistencies. Evidence was adduced regarding appellant's

emotional state following the shooting. That evidence is consis-

tent both with the state's theory that she was a calm murderess,

calculating how to conceal her guilt, and with the defense’s theory

that she was in a state of shock. The state also presented evidence

that appellant did not wait on her front doorstep for the ambulance

to arrive and that she made coffee for the ambulance driver when

he requested it. Both alone and with other facts, however, the

damning effect of this evidence can be classed as ambiguous, if not

explainable. The state, of course, draws from these bare facts a

behavioral sketch of calm calculation, consistent with cold-

blooded murder. The defense would explain them as being a

product of shock. The defense also contradicted the adverse im-

plication of the coffee facts by the testimony of the operator of the

ambulance service who received Mrs. McArthur's call for as-

sistance. The operator testified she had to)“ appellant not to go

into the bedroom where her husband's body lay, but rather to go

out to the kitchen and be busy making coffee, do something and our

attendant would be there in a few minutes.”

15 Appellant herself did not testify at the trial.

A. 12

safety during his many absences, and that he had

asked her to take out and check a gun which had been

purchased two years before, in order to be sure she

could handle it. While her husband lay in bed on his left

side, she sat with the gun indian-style on the bed fac-

ing him, half o.. a pillow and half off. She told the of-

ficers that she had forgotten how the gun functioned

and was fumbling with it, apparently while it was still

inside a cloth bag. Her husband became impatient,

grabbed for the gun, it went off, and he was shot in the

head.

Appellant related the same outline of events to each

other person who inquired as to what had occurred, ex-

cept to one officer who stated that he was told the “gun

fell. hit her knee, and went off“. Although this officer

was present at the scene of death with others who re-

ceived a different explanation, no inquiry was made as

to the conflict in statements, and the one officer's

recitation is the only conflicting explanation in the

record. Another witness to the same conversation in

fact had no recollection of this statement by appellant.

All attempts by the state and by the defense to elicit

from witnesses more details of appellant's statements

at the time of death were unsuccessful. Based on the

non-scientific conflicting evidence, we cannot accept

the state’s view that all reasonable hypotheses of in-

nocence are incompatible with the record.

Both sides introduced fairly complex scientific

evidence to explain or defeat appellant’s hypothesis of

an accidental shooting. Experts testified that it would

have been possible for the gun to fire accidentally if

A. 13

Mr. McArthur had grabbed for the gun and any one of

three alternative acts had occurred: (1) he had hit the

trigger while the hammer was in a full-cocked pos

tion, (2) he had caused the hammer to be released while

the gun was held partially cocked by appellant, or (3)

he had hit against the hammer, pushed it toa partially

cocked position and then it automatically fell back.

The gun also might have fired accidentally if it had

been held upside down in the bag with portions of the

cloth wrapped around the hammer or trigger in a par-

ticular manner, and if Mr. McArthur had grabbed and

pulled the bag. There is no evidence that the gun had

been or had not been in the full-cocked position when

appellant was fumbling with it.

The gun was fired at a distance of about seven inches

from Mr. McArthur, which is consistent with

appellant’s theory that Mr. McArthur leaned forward

to grab for the gun. The presence of smudge marks

(cylinder flare) on the underside of one pillow shows

that the gun was fired when very close to the pillow,

another fact consistent with appellant’s contention

that she was sitting partially on the pillow, thereby

causing the other half to rise slightly. (The location of

these marks, we recognize, is also consistent with the

state’s suggestion that she was holding the gun close

to the pillow when she intentionally murdered her

husband.'*) The presence of barium and antimony on

16 The prosecution took conflicting positions on this point before

the trial court and jury. In closing argument the prosecution

theorized that appellant held the pillow over the gun when she

murdered her husband in order to muffle the sound, but when the

defense attempted to elicit expert testimony that the pillow could

not have been wrapped over the gun without causing double

cylinder flare marks, the state conceded to the trial judge that the

first theory was untenable. As a consequence the expert was

allowed to testify that the pillow could not have been held over the

gun.

A. 14

Mr. McArthur’s hands is consistent both with the gun

having been fired intentionally while his hands were

raised in a defensive posture, as the state suggests,

and with the gun having fired accidentally when one of

Mr. McArthur’s hands hit the hammer as he braced his

weight and leaned forward to grab the weapon.

The angle by which the bullet entered Mr.

McArthur’s head, and the pattern of blood on the wall,

are consistent both with his leaning forward to grab

the weapon and appellant’s having shot him while his

head was raised at least one foot off the bed. Similarly,

the pattern of blood on the pillow was consistent with

appellant’s version of the pillow’s placement where

she was sitting.“

From the totality of scientific and non-scientific

evidence at appellant's trial, we are forced to conclude

that the prosecution’s proof of Mr. McArthur’s inten-

tional murder was not inconsistent with his accidental

death. The jury could reasonably have concluded, and

obviously did conclude, that it was more likely that

appellant murdered her husband than that she did not.

Yet “even though the circumstantial evidence is suf-

17 The evidence is uncontradicted that the pillow was moved at

least once before police photographed the scene, so it became im-

possible to prove how the pillow was positioned at the time the gun

was fired. However, the bloodstains and tissue on the pillow in-

dicate that, at least very shortly after the shot, the pillow was

positioned where appellant said it had been. The state argued to the

jury that appellant moved the pillow to the place on the bed where

it was found when the police photographed the scene. This

suggested a theory itself inconsistent with her guilt because it as-

sumed a murderess would rearrange physical evidence so that it

would be inconsistent with her story. Obviously, no inference rele-

vant to appellant's guilt can be drawn from the fact that the pillow

may have been negligently moved by one of the police officers or

one of the ambulance attendants.

———

A. 15

ficient to suggest a probability of guilt, it is not

thereby adequate to support a conviction if it is

likewise consistent with a reasonable hypothesis of

innocence' is On this record appellant’s innocence

has not been disproved. Only she knows the truth, and

it was and is her constitutional right not to offer her

explanation, her demeanor, her candor and her credi-

bility to the jury. The state simply did not carry its

burden of proof. Our jurisprudence and the justice of

the cause require that the conviction entered below be

reversed and that appellant, if the state so elects, be af-

forded a new trial.

It is so ordered.

OVERTON, C. J., HATCHETT and KARL, JJ., Concur

BOYD, J., Concurs in part and dissents in part with an

opinion

ADKINS and SUNDBERG, JJ., Dissent

BOYD, J., Concurring in part and dissenting in part.

I concur in that part of the majority opinion quash-

ing the murder conviction of appellant. If a new trial is

to be held, the venue should be changed.

In Griffis v. Hill, 230 So.2d 143 (Fla. 1969), this Court

held that whenever an appellate court concludes that a

jury of reasonable people could not have reached the

verdict under consideration without a mistake of law

or fact, itis the duty of the court to quash the judgment.

A careful review of all of the evidence in this case

18 Davis v. State, n. 12 above at 632.

A. 16

leads me to conclude that the quantum of proof against

appellant at the trial was inadequate to prove

appellant’s guilt beyond and to the exclusion of any

reasonable doubt.

Although some jurisdictions permit a new trial of an

accused person by the government when convictions

are reversed due to insufficient evidence, it is my opin-

ion that such action constitutes double jeopardy, in

contravention of the Fifth Amendment to the Constitu-

tion of the United States and Article I, Section 9 of the

Florida Constitution. I therefore would dissent to that

portion of the opinion requiring a new trial.