# Petition for Writ of Certiorari — Lockhart v. Nelson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 33

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0646%3A2. Public record. Not legal advice.