Petition for Writ of Certiorari — Lockhart v. Nelson

No ;

IN THE

SUPREME COURT OF THE UNITED STATES

OC LOBER TERM, 1987

\. L. Locknartr, DIRECTOR

ARKANSAS DEPARTMENT OF CORRECTION ........6. Petitioney

VS.

FOOUNNY L.BE NELRON 2. ccc cccccccccceseccecees Respondent

PETITION FOR WRIT OF CERTIORARI

1O THE UNTETEDSTATES COURT OF APPEALS

FOR THE EIGHTH CIRCUTI

JouN STEVEN CLARK, Esq.

Arkansas Attorney General

By: Caint MILLER, Eso.

Assistant Attorney General

HeriracGe West BUILDING

20) East MARKHAM STREEI

Lirrte Rock, ARKANSAS 72201

(501) 371-3657

Counsel for Petitiones

ARKANSAS LEGISLATIVE DIGEST. INC

QUESTION PRESENTED

WHETHER, IN A CRIMINAL CASE, AN APPELLATE

COURT, AFTER HOLDING THAT CERTAIN EVI-

DENCE WAS IMPROPERLY ADMITTED AGAINST

THE DEFENDANT, SHOULD DETERMINE THE SUF-

FICIENCY OF THE STATE'S CASE BY CONSIDERING

ALL. THE STATE’S PROOF THAT WAS ADMITTED

INTO EVIDENCE OR BY CONSIDERING ONLY THE

REMAINDER OF THE STATE'S PROOF THAT HAD

BEEN PROPERLY ADMITTED INTO EVIDENCE.

TABLE OF CONTENTS TABLE OF AUTHORITIES

Page CASES: Dee

GESTION PRESENTED .. occccscccececssssusnu i

Benton v. Maryland, 395 U.S. 784 (1969) ...............5

TABLE Gi CASS TEN BS oo cccccecccescnucaueuneuee il

Burks v. United States, 437 U.S. 1 (1978) 2.2.0.0. 0002026095

py’ Bae Pligg 6 ig 5 1 Se ill Commonwealth v. Mattingly, 722 $.W.2d 288

EE GGL ca cenéccccecccccecsceces 7

OPTNSON BELG 2.0 cccccscccecseeseueneeee !

; : Commonwealth v. Taylor, 383 Mass. 272,

yt at ee 2 418 N.E.2d 12296 (1981).......0cccceee. “ee 7

CONSTITUTIONAL PROVISIONS INVOLVED ..... 2 Duncan v. State, 254 Ark. 449,

es ccc cascccccoscosccccccced

STATEMENT OF THGE CAGE «uo ccccccauccunuaneeel oS

Cpreene v. Massey, 437 U.S. 19 (1978)..............6262505

REASON FOR GRANTING THE WRIT .............5

uv. State, 244 Ga. 86, 259 S_E.2d - a 7

This Court should grant certiorari and reverse the eer a seer, 208 Sia. OS, 259 S.E-2d 41 (1979)

Signe Cacalt Coust 65 Apgetes eee Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). 22... 7

tation of the Fifth and Fourteenth Amendments

former jeopardy clause is in conflict with those , teens see cer. oe

scached by 0 Gussie: of cies Gee Hobbs v. Commonwealth, 655 S.W.2d 472 (Ky. 1983)... .7

of Appeal and nee appt: ae eee In ve M.L.H., 399 A.2d 556 (D.C. App. 1979).......0006. 6

senting the same issue.

Lockhari v. Nelson, 828 F.2d 446 (1987)............. 1,4

CONCLDIGIOIN .ccccccccccccsccesssuaunen nee 10

| Mulry v. State, 399 N.E.2d 413 (Ind. App. 1980) ......... 7

APPENMEEE 2c cccccccesccessessusuesnene A-1—A-12

, Nelson v. Lockhart, 641 S. Supp. 174 (E.D. Ark. 1986) ...4

People v. Sisneros, 44 Colo. App. 65,

ET CUED Su cccncsccsccccsecccsccccccse 7

~!

People v. Taylor, 76 W1.2d 289, 291 N.E.2d 366 (1979)....

1\

TABLE OF AUTHORITIES

CASES: Page

Ponier v. State, 662 S.W.2d 602 (Tex. Crim. App. 1984). ..7

Roeder wv. State, 688 S.W.2d 856

CDGM, CHR. ROU Te 56-6066 0604508600006 ee8ees 7

Sloan v. State, 584 S.W.2d 461 (Tenn. 1978) ............ 6

State v. Abel, 600 P.2d 994 (Utah 1979) ............0008- 6

State v. Alexander, 281 N.W.2d 349 (Minn. 1979)........ 6

State v. Bannister, 60 Haw. 658, 594 P.2d 132 (1979) ..... 6

State v. Boone, 284 Md. 1, 393 A.2d 1361 (1978) ......... 7

State v. Frazer, 162 W.Va. 602, 252 S.F.2d 39 (1979) ..... 7

State v. Gray, 200 Conn. 523, 512 A.2d 217 (1986)........ 7

State v. Lamorie, 610 P.2d 242 (Utah 1980) ............. 7

State v. Van Isler, 168 W.Va. 185, 283 S.E.2d 836 (1981) ..7

State v. Verdine, 290 Or. 553, 624 P.2d 580 (1981)........ 7

State v. Wood, 596 S.W.2d 394 (Mo. 1980) 2.6.6... ee eee 7

United States v. Bibbero, 749 F.2d 581 (9th Cir. 1984)... .6

United States v. Gonzalez-Sanchez, 825 F.2d 572

(Rad Cie. TGs cvincvccdesecdccecucccsuedsuneduesd 6

United States v. Harmon, 632 F.2d 812 (9th Cir. 1980) ...7

United States v. Hodges, 770 F.2d 1475 (9th Cir. 1985) ...6

TABLE OF AUTHORITIES

CASES: Pene

United States v. Key, 725 F.2d 1123 (7th Cir. 1984).......

United States v. Mandel, 591 F.2d 1347 (Ath Cir.),

aff'd., 602 F.2d 653 (4th Cir. 1979) 2.2... eee eee eee

United States v. Marshall, 762 F.2d 419 (5th Cir. 1985)...

U'nited States v. Sarmiento-Perez, 667 F.2d 1239

Siete Ge. SD 5 kon cade ceesccucnsevisdtncevasecas

United States v. Tranowski, 702 F.2d 668

Ce Ee, GD 6. o.nd6bnndbecccse cane eunewnsaences

Webster v. Duckworth, 767 F.2d 1206 (7th Cir. 1985).....

STATUTES:

Ark. Stat. Ann. §841-1001—03 (Repl. 1977) .........465-

CONSTITUTIONAL PROVISIONS:

I NO igo kk kb o8 0026 64 SbHSEEMNC KOO R EBON

Fourteenth Amendment. ..........-00eee ee eee eee eeees

TREATISES:

3 LaFave and Israel, Criminal Procedure §24.4 (1979)....

fm 7)

6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

A. L: LOCKHART, DIRECTOR

ARKANSAS DEPARTMENT OF CORRECTION .......... Petitioner

VS.

DROS LO TURD RUU io 6's ok neck ds cceccccaveses Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

A. L. Lockhart, Director, Arkansas Department of Cor-

rection, the petitioner, petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Eighth Circuit.

OPINION BELOW

The opinion of the United States Eighth Circuit Court of

Appeals is reported as Lockhart v. Nelson, 828 F.2d 446 (1987),

and is reprinted in the appendix to this petition. The appendix

also includes the Eighth Circuit's judgment in this case and an

order issued by Justice Blackmun on November 9, 1987,

extending the time in which petitioner Lockhart must file his

petition for a writ of certiorari up to and including December

31, 1987.

2

JURISDICTION

The Eighth Circuit Court of Appeals decided the instant

case on September 3, 1987. The Court of Appeals entered its

mandate in this case on November 2, 1987. On November 9,

1987, Justice Blackmun granted an extension of time until

December 31, 1987, for petitioner to file a petition for a writ of

certiorart. This Court has discretionary jurisdiction to review

this case pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

“.. .[NJorshall any person be subject for the same offense

to be twice put in jeopardy of life or limb; . . .”’

The Fourteenth Amendment to the United States Consu-

tuuion provides in pertinent part:

“{N Jor shall any state deprive any person of life, liberty, on

property, without due process of law; . . ."

STATEMENT OF THE CASE

On March 12, 1982, a jury in Union County, Arkansas,

sentenced respondent Johnny Lee Nelson to twenty vears

imprisonment in the Arkansas Department of Correction,

Nelson had pleaded guilty to underlying charges o. »surglars

and theft of property and had agreed to be sentenced by a jury.

Ncison was sentenced as an habitual offender pursuant to Ark.

“Star. Ann. §841-1001--03 (Repl. 1977). The State introduced

four prior convictions into evidence against Nelson. Pursuant

to §41-1001(2) and §$41-1008, the State had to prove bevond

# reasonable doubt that *.clson had four prior felony con-

victions in order to make him eligible for sentencing as an

habitual offender. Both the State and Nelson's trial consnsel

had fark <{ to discover that Nelson had received a gubernaiorial

pardon tor one of the prior convictions. The parcon was ot

great srenificance because pardoned prior convictions are

inadmissible im Arkansas in habitual offender seatencine

proceedings. See Duncan v. State, 254 Ark. 449, 455, 494 SW 2d

127, 129 (1973). The tial court admitted the prior conviction

that had been pardoned into evidence because Nelson's trial

counse! did not know that the prior conviction had been

pardoned and, therefore, did mot ask the tial court to cule that

it was inadmussible.

After Nelson was incarcerated in the Arkansas Depart-

ment of Correction, he decided to challenge the validity of his

guilty pha. After exhausting his available state court remedies,

Netson filed a petition seeking rehef pursuant to 28 U.S.C.

§2254 in Federal District Court for the Eastern District of

Arkansas. Lockhart moved to dismiss Nelson's petition

seeking habeas corpus relief. Upon the order of the District

Court, Lockhart’s counsel made inquiries, discovered the

existence of Neison’s pardon and supplemented Lockhart’s

motion to dismiss to admit the existence of a pardon tor one of

the prior convictions that had been admitted into evidence

against Nelson.

After learning of the existence of the pardon the District

Court issued a preliminary order on September 20, 1985, in

which it held that Nelson was entitled to be resentenced. The

District Court appointed counsel to advise Nelson of the risk of

going forward with the resentencing. Nelson's appointed

counsel filed a response to a subsequent order by the District

Court in which he raised the possibility that Nelson may have

a Fifth and Fourteenth Amendment forme: jeopardy defense

to any effort by the State to resentence him as an habitual

offender. In response to this argument by Nelson's appointed

counsel, the District Court issued an order on June 6, 1986

(published as Nelson v. Lockhart, 641 8S. Supp. 174[E.D. Ark.

1986]), in which the District Court held that Nelson did have a

former jeopardy defense that barred any effort by the State to

resentence him as an habitual offender. The Eighth Circuit

Court of Appeals affirmed the District Court's order in

Lockhart v. Nelson, 828 F.2d 446 (1987). Petitioner Lockhart

seeks a petition for a writ of certiorari from this Court to review

the decision of the Eighth Circuit Court of Appeals that

respondent Nelson has a former jeopardy detense arising from

the Fifth and Fourteenth Amendments which bars any effort by

the State of Arkansas to resentence him as an habitual offender.

ARGUMENT

THIS COURT SHOULD GRANT CERTIORARI AND

REVERSE THE EIGHTH CIRCUIT COURT OF

APPEALS BECAUSE ITS INTERPRETATION OF THE

FIFTH AND FOURTEENTH AMENDMENTS FORMER

JEOPARDY CLAUSE IS IN CONFLICT WITH THOSE

REACHED BY A NUMBER OF OTHER FEDERAL CIR-

CUIT COURTS OF APPEAL AND STATE APPELLATE

COURTS IN CASES PRESENTING THE SAME ISSUE.

This isa Burks-type case. Burks v. United States, 437 U.S.

| (1978) holds that for former jeopardy purposes an appellate

court's decision that the evidence against a defendant was

insufficient is the equivalent of a jury’s verdict of acquittal.

The iastant case presents the issue left open by this Court in

Burks’ companion case, Greene v. Massey, 437 U.S. 19, 26.9

(1978): once an appellate court nas concluded that a criminal

defendant's trial should be reversed because the jury received

and considered inadmissible evidence, should the court

consider the inadmissible evidence and the remainder of the

state's proof or should the court Consider only the remainder of

the state’s case in deciding whether the defendant Nas a Fitth

and Fourteenth Amendment former jeopardy right not to be

retried because the State failed to put sufficient evidence betore

the jury.! In the instant case the Fighth Circuit Court of

Appeals evaluated respondent Nelson's former jeopardy claim

by considering only that part of the State's case that had been

properly admitted against him.

Specifically, the Eighth Circuit concluded that Nelson's

Fifth and Fourteenth Amendment right not to be punished

‘The due process clause of the Fourteenth Amendment incor-

porates the Fifth Amendment's prohibition aganst placing a

defendant twice in jeopardy. Benton v. Maryland, 395 U.S. 784 (1969).

twice for the same offense barred the State from resentencing

Nelson as an habitual offender because one of the four prior

convicuons that the jury had considered in sentencing Nelson

as an habitual offender was inadmissible, as a matter of state

law, in habitual offender sentencing proceedings. There had

been no objection at Nelson's state sentencing hearing to the

admission into evidence of the inadmissible prior conviction

because Nelson's trial counsel failed to realize that the priot

conviction was inadmissible.

In refusing to consider all of the State's evidence,

inadmissible as well as admissible, in deciding whether Nelson

hasa former jeopardy right not to be resentenced as an habitual

offender by the State of Arkansas, the Eighth Circuit joined five

other lower appellate courts that evaluate Burks-type formes

jeopardy claims only on the basis of evidence that was properly

before the jury. These lower appellate courts are as follows: In

re M.L.H., 399 A.2d 556, 558-59 (D.C. App. 1979); State wv.

Bannister, 60 Haw. 658, 594 P.2d 132 (1979); State v. Alexander,

281 N.W.2d 349, 354 (Minn. 1979); Sloan wv. State, 584 S.W.2d

461, 472 (Tenn. 1978); and State v. Abel, 600 P.2d 994, 998-9

(Utah 1979). This disposition of a Burks-type former jeopardy

issue in cases where evidence was improperly before the jury

conflicts with the analytical approach taken by the majority of

lower court jurisdictions. The majority of lower appellate

courts consider the entire state's case in deciding a Burks-type

former jeopardy claim where some of the state's evidence was

improperly before the jury. This majority of lower appellate

courts is as follows: United States v. Gonzalez-Sanchez, 825

F.2d 572, 588 n.57 (1st Cir. 1987); United States v. Marshall, 762

F.2d 419, 423 (5th Cir. 1985); Webster v. Duckworth, 767 F.2d

1206, 1214-16 (7th Cir. 1985); United States v. Hodges, 770 F.2d

1475, 1477-78 (9th Cir. 1985); United States v. Bibbero, 749 F.2d

581, 586n.3 (9th Cir. 1984); LU’ nited States v. Key, 725 F.2d 1123,

1127 (7th Cir. 1984); U'nited States v. Tranowski, 702 F.2d 668,

671 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984); United

States v. Sarmiento-Perez, 667 F.2d 1239 (5th Cir.), cert. denied,

459 U.S. 834 (1982); United States v. Harmon, 632 F.2d 812 (9th

Cir. 1980); United States v. Mandel, 591 F.2d 1347, 1373-74 (4th

Cir.), aff'd., 602 F.2d 653 (4th Cir. 1979), cert. denied, 445 U.S.

961 (1980); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984);

People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980); State

v. Gray, 200 Conn. 523, 538-40, 512 A.2d 217, 225-6 (1986); Hall

uv. State, 244 Ga. 86, 259 S.E.2d 41 (1979); People v. Taylor,

76 I1.2d 289, 309, 291 N.E.2d 366, 375 (1979); Mulry v. State,

399 N.E.2d 413, 419 (Ind. App. 1980); Commonwealth v.

Mattingly, 722 S.W.2d 288 (Ky. 1986); Hobbs v. Common-

wealth, 655 S.W.2d 472 (Ky. 1983); State v. Boone, 284 Md. 1,

16-7, 393 A.2d 1361, 1369 (1978); Commonwealth v. Taylor, 383

Mass. 272, 281-82, 418 N.E.2d 1226, 1233 (1981); Statev. Wood,

596 S.W.2d 394 (Mo.), cert. denied, 449 U.S. 876 (1980); State v.

Verdine, 290 Or. 553, 624 P.2d 580 ( 1987); Roeder v. State, 688

S.W.2d 856 (Tex. Crim. App. 1985); Porier v. State, 662 S.W.2d

602, 606 (Tex. Crim. App. 1984); State v. Lamorie, 610 P.2d 242,

346 (Utah 1980); State v. Van Isler, 168 W.Va. 185, 283 S.E.2d

836 (1981); and State v. Frazier, 162 W.Va. 602, 614-15, 252

S.E.2d 39, 50-3 (1979). The federal courts of appeal and state

supreme courts that consider the state's entire case in deciding

Burks-type cases do so to avoid invading the province of the

jury and to make sure that the state has the benefit of correct

trial court rulings excluding evidence. As the Fourth Circuit

Court of Appeals held in Mandel, supra, had the improperly

admitted evidence not been admitted, it is impossible to say

what other evidence the government might have brought

forward or what other theory of the case the government might

have pursued. Jd. at 1374. The procedure followed by the

Fourth Circuit Court of Appeals in Mandel and in the other

lower appellate courts that follow Mandel furthers judicial

economy because it spares the state from the necessity of

overtrying its case by offering into evidence every scrap of

proof, no matter how questionable. The state is forced to

“throw in the kitchen sink" to avoid reversal and dismissal by

appellate courts that separate the admissible evidence from the

inadmissible and review only the admissible evidence in

deciding the Burks issue. See Boone, supra and Wood, supra.

Professors LaFave and Israel note that the Mandel procedure is

the better procedure. 3 W. LaFave and J. Israel, Criminal

Procedure, §24.4 n.29 (1984). As LaFave and Israel observe at

page 91 of 3 Criminal Procedure, if the Mandel rule is not

followed, the State has not received “one fair opportunity”

to make its proof. Where the state has not received “one

fair Opportunity” to present its case, former jeopardy con-

siderations do not bar a retrial of the defendant. Burks, supra at

15-6. Moreover, the Mandel procedure is consistent with Burks’

literal equation of an appellate court's decision that the state's

proof was insufficient with a jury's verdict of acquittal. In

Burks-type cases like the instant case, the evidence found by the

appellate court to be inadmissible had been before the jury and

the jury, of course, had no right to find that certain pieces of

evidence offered by the state were inadmissible — if an

appellate court's decision that the state's evidence was not

sufficient is to be a true equivalent of a jury's verdict of

acquittal for former jeopardy purposes, then appellate courts

should consider the same state's case that the yury considered.

The continued existence of this conflict among lower appel-

late courts is unjust — the protection against former jeopardy

decided by the Fifth and Fourteenth Amendments cannot be

greater for defendants who happen to be tied in the Eighth

Circuit Court of Appeals’ jurisdiction and lesser for defendants

who happen to be tried in jurisdictions that follow the Mandel

procedure.

The Eighth Circuit attempts to avoid a conflict with the

Mandel line of cases by noting that in the instant case there was

no Burks-type ‘trial error’ because the state trial court did not

specifically rule on the admissibility of the prior conviction

that subsequently turned out to be inadmissible. (A-6) In

making this facile distinction, the Eighth Circuit fails to

9

explain why ut is that a defendant's former jeopardy right

should depend upon whether his Counsel made an objection at

trial. Presumably, had Nelson's trial Counsel made an objec -

tion to the admissibility of the prior conviction that was later

discovered to be inadmissible and had this objection been

overruled, then the Eighth Circuit would have reversed and

remanded. See Burks at 15 and Hobbs v. Commonwealth,

supra. Moreover, the Eighth Circuit's insistence that there can

be no trial error in the absence of explicit ruling, albeit

erroneous, by the trial court ts contrary to this Court's teaching

in Burks that incorrect recerpt of evidence is trial error — this

Court did not hold in Burks that the tial court mustexplicitly

rule on the admissibility of the state's evidence, but held merely

that trial error occurs if evidence that is before the pury creates

a’... judicial process which is defective in some fundamental

respect...’ Burks at 15. There is no doubt that Nelson's jury

had before it evidence — the inadmissible priot Conviction —

that preyudiced him in a fundamental way.

In summary, the instant case gives the Court the oppor-

tunity to resoWwe the issue left unresolved in Greene vu. Massey,

supra and, in so doing, resolve a split of authority between

lower state and federal courts of appeal. At present, the

existence of this splitof authority Creates an unjust differential

in the level of former jeopardy protection accorded to

defendants in criminal cases. Petitioner Lockhart respecttulls

requests that this Court grant a writ of certiorari to the Eighth

Circuit Court of Appeals, reverse that court’s decison in

Lockhart». Nelson, 828 F.2d 446 (1987) and adopt as a matter

of Fifth and Fourteenth Amendment former jeopardy jurts-

prudence the holding of Mandel v. United States, supra,

discussed above.

A-]

Johnny Lee NELSON, Appellee,

v.

A. L. LOCKHART, Director, Arkansas

Dept. of Correction, Appellant.

No. 86-1872.

United States Court of Appeals, Eighth Circuit.

Submitted April 13, 1987.

Decided Sept. 3, 1987.

Clint Miller, Asst. Atty. Gen., Litthe Rock, Ark., for

appellant.

John Wesley Hall, Jr.. Litthe Rock, Ark., for appellee.

Betore LAY, Chief Judge, and ARNOLD and WOLL-

MAN, Circuit Judges.

LAY, Chief Judge.

Johnny Lee Nelson pled guilty in Arkansas state Court to

burglary and theft after taking forty-five dollars from a

vending machine. He agreed to be sentenced by a jury pursuant

to the state’s habitual criminal offender act. Ark. Stat. Ann.

§41-1001(2)(c) (Repl. 1977). After the state introduced foun

prior felony convictions, Nelson received a twenty year

sentence. The state now concedes that one of the felonies had,

in fact, been pardoned. Nelson sought a writ of habeas corpus

in the federal district court on the ground that use of the

pardoned offense bars a second enhancement proceeding

under principles of double jeopardy. The United States

District Court for the Eastern District of Arkansas, the

Honorable G. Thomas Eisele, Chief Judge, presiding, held

that the Double Jeopardy Clause precludes a retrial under the

A-2

habitual offender statute.' Nelson v. Lockhart, 641 F.Supp. 174

(E.D. Ark. 1986). We affirm.

As the district court observed, the Supreme Court held that

double jeopardy attaches in a hearing on sentencing where the

sentencing procedure ‘‘was itself a trial on the punishment

°°?” Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct.

1852, 1858, 68 L.Ed.2d 270 (1981). In the instant case, the

district court found that the sentencing procedure constituted a

trial on the issue of sentencing. Nelson v. Lockhart, 641

F.Supp. at 180. The procedure of introducing evidence of prion

convicuions ‘‘resemble(d] a trial wherein both sides present

evidence, examine and cross-examine witnesses, and the

prosecuuion carries the burden of proof beyond a reasonable

doubt.’"? 7d. at 180.

‘Petitioner was incarcerated on July 22, 1980. On July 24, 1986,

subsequent to the issuance of this writ of habeas corpus, petitioner

was released on bail by the state court pending this appeal. At the

time of his release, petitioner had served six years. The range for

punishment under the habitual offenders act 1s twenty to forty years.

Ark. Stat. Ann. §41-1001(2)(c) (Repl. 1977). If the petitioner cannot be

sentenced under the act, the range of punishment on the underlying

charge is only five to twenty years. Ark. Stat. Ann. §41-901(1)(c)

(Repl. 1977).

?Under the practice followed in Arkansas, 1t had been the jury's

responsibility to determine if there was adequate proof of the

defendant's conviction of prior felonies. The 1977 Replacement to

the Arkansas Statutes Annotated, however, changed this so that now

the trial court has the responsibility of making a finding as to the

defendant's guilt of prior felonies. Ark. Stat. Ann. §41-1005(2) (Repl.

1977). After the prosecutor has introduced evidence of the defendant's

guilt of other felonies, the defendant may controvert the prosecutor's

proof. Jd. Although the revised statute was in force at the time of

Nelson's trial, the state trial court nonetheless followed the old

procedure in submitting the determination of Nelson's guilt of other

felonies and his over-all sentencing to the jury. No objection was

made by either side and we review the double jeopardy issue under the

procedure actually followed.

A-3

While conceding that it “erred in introducing into evi-

dence a prior conviction of Nelson's that had been pardoned,”

the state argues that this was simply trial error and that the

state is entitled to retry petitioner by using proof of other valid

convictions. Petitioner contends that double jeopardy bars a

second hearing on enhanced punishment.

{1} Adefendant cannot invoke immunity trom a second

prosecution under the Double Jeopardy Clause if the first

conviction was reversed due solely to trial error. United States

wv. Tateo, 377 U.S. 4603, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448

(1964). Unlike reversal for insufficiency of evidence, reversal

for trial error:

imphes nothing with respect to the guilt or innocence of

the defendant. Rather, im is a determination that a

defendant has been convicted through a pudicial process

which is defective in some tundamental respect, e.g..

iIncOTreEcE receipt or reyection of evidence, incorrect

Instructions, or prosecutorial misconduct.

Burks v. United States, 437 U.S. 1, 15, 98 S-Cr. 2141, 2149, 57

L..Ed.2d 1 (1977).

{2} In support of its argument that admitung the

pardoned conviction was mere trial error, the state urges this

court to follow the rule set outin United States v. Mandel, 59)

F.2d 1347, 1373-74 (Ath Cir. 1979), cert. denied, 445 U.S. 961,

100 S.Ct. 1647, 64 L.Ed. 2d 236 (1980). While Mandel recognizes

the traditional rules that reversal for evidentiary insufficiency

precludes granting the government a second Opportunity to

prosecute, id. at 1373, and that reversal for trial error does not

preclude a second prosecution, id., Mandel applies a special

‘Under Arkansas law a pardoned conviction may not serve as a

basis for sentence enhancement under the recidivist statute. Duncan

v. State, 254 Ark. 449, 452, 494 S.\W.2d 127, 129 (1973).

A-4

rule in cases where there is both tial error and insufficient

evidence. In those cases, where the trial error was to admit

evidence that should have been held inadmissible, Mandel

suggests that appellate courts not “to adjudicate the suffi-

ciency of the balance of the evidence,” rd. at 1374, because

appellate courts should not act as triers of fact. Id. at 1374.

Whatever the merits or concerns of such a rule, itis settled that

if the state fails to provide sufficient evidence to establish the

defendant's guilt, then principles of double jeopardy apply.

Burks «. United States, 437 U.S. at 11, 98 S.Ct. at 2147.

The essence of the Double Jeopardy Clause is that it

“forbids a second tial tor the purpose of affording the

prosecution another opportunity to supply evidence which it

failed to muster in the first proceeding.”’ Burks, 437 U.S. at 1),

98 S.Ct. at 2147. Thus, if the pury’s determination on Nelson's

additional sentence was equivalent toa trial on that issue, then

a second prosecution is barred under the Double Jeopardy

Clause. The district court found that the proceedings had “‘all

the ‘hallmarks of the wial on guilt or innocence’. Nelson v.

Lockhart, 641 F.Supp. at 180 (quoting Bullington v. Missouri,

451 U.S. at 439, 101 S.Ct. at 1858). The state had the “burden of

proving some factual proposition beyond a reasonable doubt

as a predicate to the jury's having discretion to impose a more

serious sentence.” Nelson v. Lockhart, 641 F.Supp. at 180.4

Bullington, upon which the district court relied in

finding that there was a tial on the issue of punishment, states

clearly the relevant factors in determining whether the

‘Arkansas law imposed on the prosecutor the conventional

burden of proof to invoke the state's habitual offender statute:

A previous conviction or finding of guilt of a felony may be

proved by any evidence that satisfies the trial court beyond a

reasonable doubt that the defendant was convicted or found

guilty.

Ark. Stat. Ann. §41-1003 (Repl. 1977).

A-5

sentencing hearing constituted a trial on that issuc. In

Bullington the petitioner had been convicted of first degree

murder. 451 U.S. at 435, 101 S.Ct. at 1856. The applicable

Missoun statuie required a pre-sentence hearing of any

defendant convicted of Capital murder. Jd. at 433 .n.4, LOLS -Cr.

at 1855 n. 4. After hearing argument by the defendant and the

prosecutor, 7d. at 435-44, LOLS Ca. at '855-56. the pury had to

determine if the prosecutor had established aggravatite cir-

cumstances beyond a reasonable doubt. Phe jury found

Bullington guilty of Capital marder and the same pury recurned

an additional verdict tixing Bullington’s pumishment at lit

Imprisonment withe at eligibiiity of probation or parole tes

fifty vears. Jd. at 135-36. LOLS Cs. at 1856-57

Atter the pury’s verdict was received, Bullington mor ed tor

and was granted a new tral? Because there wa. to be a now

tial, dhe prosecution served notice that it intended to uy to

obiam the death penalty even though the eariner purs had

granted only a lite sentence. Bullington moved to strike the

note, arguine bat the Double Jeonoardy Clause barred ‘the

Imposition of the pevelty of death when the turst tury had

declined to mmpose the death senrence Id. at 186, 101 S-Cr at

13! The Supreme Court found thai because the “‘sen-

tencing proceeding at petitioner's first tiial was like the tial on

the question of guilt or innocence, the protection attorded by

the Double Jeopardy Clause to one acquitted by a jury [was]

available to him, with respect to the death penalty, at his

*Atter Bullington tiled this motion for anew trial, the Supre.ne

Court held that Missouri's practice of allowing women an automati

exemption from juty service was uncenstitutional because i

deprived the defendant of his right ‘oa pur, drawn from a fair cross

section of the community. Duren uv. Missourn, 439 US. 357, 99 8.Cr.

664, 58 L..Ed.2d 579(1979). Relying on Duren, the trial court granted

Bullington’s motion for a new tial.

Aeb

retnal.” 7d. at 446, 101 S-Ct. at 1862. Under Bullington, then,

double jeopardy attaches to sentencing proceedings if the

process of determining the defendant's punishment was

similar to the process of determining guilt. Because the pury's

determination of Nelson's sentencing had the same procedural

protections as his tial tor theft and burglary, we agree with the

trial court’s holding that the principles of Budllorgton are

convuolling.

We reyect the state's argument for several reasons. First, the

tacts here show that the state tailed to prove that the detendant

had been convicted of four felonies. The state proved only three

valid convictions and the pury verdict of guilt under the

habitual offender act. which requires tour felony com ictions,

was mistaken. Second, the admission of the pardoned con-

viction was not trial error: the tral court did not rule on the

admissibility of the conviction that the defendant claimed was

pardoned by Governor Faubus.° While the comviction im

"The state seeks to capitalize on this tact by clarmuing detonse

counsel was unettective. This argument borders on absurdity. Based

on the tial record, as meticulously set forth by Judge Eisele, the proot

of the pardoned conviction was pursued by the state notwithstanding

the petutroner’s testifying that he had been pardoned tor the specitn

offense in question. The prosecutor stated:

PROSECUTOR: Your Honor, I feel compelled at this time

to make a motion to strike this testimony because I think the

defendant is in error. Tthink he's contused as to the meaning

of the pardon and a commutation. Now I hesitate to allow

the pury to hear this and become contused and I would ask the

Court to strike the testirmony. It's hearsay — would be

another stated obyection. [think the records are clear that are

in the court and perhaps some comment by the Court to the

jury could clear the matter up.

THE COURT: think he cleared it up himself when he said

it was commuted to time served. Is that what you said?

NELSON: Yes, sur.

THE COURT: Does that answer vaqyr question? It was

A-7

question was indeed submitted to the pury, Nelson had not

engaged im any misconduct. For example, the petitioner did

not deceive the court or the prosecutor as to the status of the

pardoned conviction. In fact, he did all he could have been

expected to do to make the court and prosecutor aware of his

pardon. Responsibility for the evidence submitted remained

with the prosecution.

Thorn, the Mandel case, upon which the state relies

heavily, isimnappheable. In Mandel there wasa ‘vast volume of

evidence 2. 591 F.2d at 1373. By contrast, the State of

commuted to time served. Its not a pardon. Do vou agree,

Mr. Keaton?

DEFENSE COUNSEL: Well that’s the way it sounds to me.

DHE COURT. That's what he said im this hast statement.

DEFENSE COUNSEL: All right.

Nelvon ov. Lockhart, OAL F-Supp. at 182-85.

The prosecutor, who had the burden of proof, moved un-

fhachinely ahead without veritving the authenticity of the state's

proot. DPhe state now attempts to blame the defendant tor not proving

the pardon. This convemrenth overlooks that the state had the

burden of prool, Nevertheless, itis cleat the trial court had mo motion

on objection to strike the state's proof of the invalid conviction. As

Judge Fisele observed.

The truth os that the state could not have provided amy

evidence to rebut the petitioner's contention because it did

notexist. The Arkansas Supreme Court has clearly held that

the prosecutor must carry the significant burden of ferreting

out information regarding the validity of prior comvictions

whenever he seeks enhancement. Roach v. State, 255 Ark.

773, 778, 503 S.W_2d 467 (1973). It is the prosecutor who can

and should check out the validity of the convictions he

wishes to rely on. The state's responsibility to thorough!

mvestigate its claams im oa criminal proceeding is always

acute. And this should be especially evident to prosecutors

who seek to send someone to the penitentiary fora term of 20

to years ona predicate felony involving the theft of $45.00.

They may ignore this incumbent obligation at the perl of

them case tor enhancement.

A-8

Arkansas had introduced only four felony convictions in

this case. In addition, Mandel was concerned with needless

multiplicity of evidence, and the rule in that case was

concerned with the competency of appellate courts to act as

triers of fact. Neither of these concerns are raised in this case

because there was no repetitious or duplicative evidence

submitted on the habitual offenders count nor is there any

difficulty for the appellate court in determining if the

pardoned conviction was inadmissible. It unarguably was not

admissible. Without the fourth conviciton, the state has failed

to provide sufficient evidence. Thus, even if we were to adopt

Mandel, which we do not, the rule in that case would not

support the state's position,

Finally, we reject the state's argument because the district

court was correct in its application of Bullington v. Missouri.

As stated earlier, Bullington held that the Double Jeopardy

Clause was invoked where ‘the sentencing procedure at

petitioner's first trial was like the trial on the question of guilt

or innocence... .”’ Id. at 446, 101 S.Ct. at 1862. The statute in

question is an evidentiary statute which requires the state to

prove Nelson's prior felonies beyond a reasonable doubt.

Nelson v. Lockhart, 641 F.Supp. at 1790

*The procedure used in sentencing under the habitual offender

act supports a finding that double jeopardy attached. Arkansas law

construes the habitual offender act as a statute allowing the jury to

enhance punishment for an underlying felony, Finch v. State, 262

Ark. 313, 317, 556 S.W.2d 434, 436, (1977), and not as a distinct

offense, Harrison v. State, 287 Ark. 102, 104, 696 S.W.2d 501, 502

(1985). Even though the habitual offender statute merely served to

enhance Nelson's sentence, however, the sentencing procedure

constituted a trial on the issue of punishment. That is, the jury had to

decide whether the prosecutor had proved beyond a reasonable doubt

that the defendant had committed four felonies. Furthermore, and as

is required under the habitual offender act, the defendant was given

the opportunity to controvert the state's evidence. Because of the

similarities between the trial on the underlying felony and the

hearing on sentencing, Bullington v. Missour:, 45 U.S. at 446, 101

§.Ct. at 1862 bars a second trial on enhancement of punishment.

AY

The Fifth Circuit has addressed the issue we are faced with

and held in Briggs v. Procunier, 764 F.2d 368, 372 (Sth Cir.

1985) that double jeopardy attaches to an initial hearing on a

defendant's status as an habitual offender:

We hold that double jeopardy prevented the retrial of

Briggs as an habitual offender even though the state

alleged different prior felonies in its second indictment.

* * * In other words, once the state has failed to prove that

the defendant is an habitual offender with respect to one

predicate offense, for example, the burglary here, it may

not seek to sentence him as an habitual offender for that

underlying crime. Briggs, 764 F.2d at 372-73."

We adopt the reasoning in Briggs. Accordingly, the

judgement and order of the district court are affirmed.’

‘Several cases trom the Fifth Circuit Court of Appeals hold that

where the state has tailed to prove a prior conviction, double peopardy

precluded retrial under a recidivist statute. See Briges uv. Procunier,

764 F.2d 368 (5th Car. 1985): French vo. Estelle, 692 F.2d 1021 (oth Cu

1982), cert. denrved, 461 US. 937, 108. 8.C1. 2108, 77 L.Ed 2d 313 (1983):

Bullard v. Estelle, 665 F.2d 1347 (oth Car, 1982), vacated on other

grounds, 499US. 1199, 1088.01. 776, 74 LB. 2d 987 (1983). The state

urges that these decisions, however, did not involve the admission of

inadmissible evidence at trial, the exclusion of which would have

tainted the factual findings and rendered them insufficrent. In each

case, however, the evidence as submitted was patently insufficrent to

support the convictions. See Briggs, 764 F.2d at 369 (after jury

empaneled, state dismissed enhancement counts barred by double

jeopardy); French, 692 F.2d at 1350 (failure to prove defendant »

identity as convicted felon in a prior conviction rendered eviden««

insulficrent to support findings as an habitual criminal ) Because the

evidence as submitted at Nelson's sentencime was tnsutteceont. the

rationale of these Fifth Cancun decisions supports our holding

*Because Bullington applies, a second trial on the issue

sentence enhancement ts barred. Accordimelsy. Nelson s scot:

be reduced to remove the prepudice stemming trom oy

offender act. Arkansas state courts would treat theo

Upon finding defects in the prosecutor s proot as | -

A-10

Arkansas courts reduce the defendant's punishment to the minimum

possible sentence. Leggins vu. State, 267 Ark. 293, 297, 590 S.W.2d 22.

24 (1979); McConahay wv. State, 257 Ark. 328, 331-32, 516 S.W. 2d 887,

889 (1974); Roach v. State, 255 Ark. 773, 779, 503 S.W.2d 467, 471

(1973). Reductions in sentencing were typically contingent upon the

prosecution's decision not to retry the case. Leggins v. State, 267 Ark.

at 297, 590 S.W 2d at 25; McConahay v. State, 257 Ark. at 331-32, 516

S.W.2d at 889; Roach wv. State, 255 Ark. at 779, 503 S.W.2d at 471.

A-11

Supreme Court of the United States

No. A-364

A. L. LOCKHART, Director, Arkansas

Department of Corrections............... Applicant

Vv.

Johnny Lee NELSON

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI!

UPON CONSIDERATION of the application of coun-

sel for the applicant,

IT iS ORDERED that the time for filing a petition for a

writ of certiorari in the above-entitied cause be, and the

same is hereby, extended to and including December 31,

1987.

/s/ Harry A. Blackmun

Associate Justice of the Supreme

Court of the United States

Dated this 9th day of November, 1987.

Hat

3

Clerk, US. Court of

MANDATE ISSUED IL.

A tue copy.

ATTEST