Chaffin v. Stynchcombe

• Decision Date: 29 February 1972
• Docket Number: No. 71-2016.,71-2016.
• Citation: 455 F.2d 640
• Parties: James CHAFFIN, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 640 (1972)

James CHAFFIN, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.

No. 71-2016.

United States Court of Appeals, Fifth Circuit.

February 8, 1972.

Rehearing Denied February 29, 1972.

Glenn Zell, Atlanta, Ga. (Court-appointed), for petitioner-appellant.

Joel M. Feldman, Asst. Dist. Atty., Atlanta, Ga., for respondent-appellee; Lewis R. Slaton, Dist. Atty., Atlanta Judicial Circuit, Amber W. Anderson, Asst. Dist. Atty., of counsel.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GEWIN, Circuit Judge:

This case brings into focus obliquely the importance and weight to be accorded (a) conceptual abstractions as to crime and punishment, (b) principles which should govern the sound administration of justice in criminal cases, and (c) the societal interest in dealing fairly and effectively with those whose guilt is clearly established after being afforded a second trial following an appeal or postconviction proceeding in which a new trial was sought and granted.¹ We do not discuss these concepts separately or in detail. They underlie our consideration of the case at hand.

James Chaffin was convicted of the offense of robbery by open force and violence in a Georgia state court. In accordance with Georgia law² the jury fixed the punishment at 15 years imprisonment. His conviction was affirmed by the Georgia Supreme Court.³ Thereafter he applied to the United States District Court for a writ of habeas corpus. The district court granted relief and ordered that Chaffin be retried. Upon retrial the jury again found him guilty and recommended mercy. Georgia law mandates that punishment under such a verdict shall be life imprisonment⁴ and Chaffin was so sentenced. The Georgia Supreme Court again affirmed his conviction.⁵ The record and the assertions of counsel for both parties during oral argument and in their briefs clearly indicate that the second trial was conducted by a different judge, before an entirely new jury, and with a different defense lawyer. A new defense was interposed and additional witnesses were called by both the state and the defense.

After his second trial Chaffin filed a petition for the writ of habeas corpus which was denied by the United States District Court. It is from the district court's order denying relief that Chaffin appeals. The sole issue⁶ presented on this appeal is whether the harsher sentence imposed by the jury on retrial violates constitutional principles. We hold that it does not and affirm.

Chaffin urgently contends that an increased sentence constitutes a per se violation of the double jeopardy provisions of the fifth amendment and the equal protection and due process clauses of the fourteenth amendment.⁷ We begin by noting that the United States Supreme Court over 50 years ago in Stroud v. United States⁸ held there was no per se constitutional prohibition against imposing an increased sentence upon retrial.

More recently in North Carolina v. Pearce⁹ the Court explicitly rejected double jeopardy and equal protection principles as grounds for precluding a harsher sentence upon retrial.¹⁰ The Court did, however, recognize a narrow circumstance in which due process may bar an increase in sentence. In Pearce upon retrial following an appeal the trial judge had increased the sentence which he had imposed after the first trial. The Supreme Court found no reasons or justifications in the record for the increased sentence. In such a case the Court said there is a possibility of vindictiveness on the part of the sentencing judge, and that such vindictiveness might "unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction."¹¹ The Court held that due process requires that a defendant be freed of the apprehension of a retaliatory motive on the part of the trial judge. To ensure due process the Court established the requirement that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear."¹² As a further requirement the Court added that the reasons must be based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."¹³

The Court was concerned with the elimination of the possibility of vindictiveness as a threat to a defendant weighing the merits and the advisability of seeking post conviction relief. There was no denunciation of increased sentences as such. Moon v. Maryland,¹⁴ where the writ of certiorari was dismissed as being improvidently granted, strengthens this interpretation of Pearce. In Moon the Court granted the writ to consider the retroactivity of Pearce. Subsequently, the sentencing judge in the second trial filed an affidavit setting forth valid reasons for the increased sentence. But more importantly the Court found conclusively that vindictiveness played no part in the imposition of an increased sentence. In dismissing the writ, the Court said:

But the dispositive development is that counsel for the petitioner has now made clear that there is no claim in this case that the due process standard of Pearce was violated. As counsel forthrightly stated in the course of oral argument, "I have never contended that Judge Pugh was vindictive."¹⁵

As the district court recognized it is possible to conceive of circumstances where a jury might impose a harsher sentence upon retrial motivated by the type of vindictiveness denounced in Pearce. But a jury will normally be unaware of the prior trial, much less the sentence. Under the facts and circumstances presented in this case the likelihood of vindictiveness is so remote that we feel the burden must be upon the defendant to show that the jury acted out of vindictiveness in imposing an increased sentence. We have carefully studied the record and briefs in this case and find no evidence of vindictiveness.¹⁶ There is nothing to suggest that the jury which sentenced Chaffin to life imprisonment did so because of a desire to punish him for appealing his case.¹⁷

We are not unmindful of the fact that the Fourth Circuit in Levine v. Peyton¹⁸ had held Pearce to apply to jury sentencing. That circuit concluded that the Supreme Court in Pearce was concerned "that a defendant be freed of the apprehension of a harsher sentence after retrial," and upon that basis decided that jury sentencing does not provide the requisite freedom. While the Pearce court was concerned with the apprehensions of the defendant, we think it limited its concern to fears of a retaliatory motivation. The Fourth Circuit has, in our view, extended Pearce beyond the rationale upon which it was decided.

We note in conclusion that the result we now reach is in accord with this court's decision in Salisbury v. Grimes,¹⁹ a pre-Pearce case. In Salisbury the court held that the imposition of a greater sentence by a Georgia jury upon retrial violated no constitutional principles.

In our view, it would be wholly incongruous, and without Constitutional foundation, to hold that a state is forever bound by and may not increase a jury imposed sentence but that the defendant may nevertheless shoot for its reduction with a guarantee in advance that the next jury cannot increase the penalty, although acting on the evidence it has heard and entirely free of any knowledge from which it might impose punishment for taking the appeal.²⁰

We find no conflict between the Salisbury rationale and that set forth in Pearce. Various state courts and at least one federal district court are in accord²¹ with our conclusion.

Judgment affirmed.

1 See United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); North Carolina v. Pearce, 395 U.S. 711, 721 n. 18, 89 S.Ct. 2072, 2079 n. 18, 23 L.Ed.2d 656, 667 n. 18 (1969).

2 Ga.Code Ann. § 26-2502:

Robbery by open force or violence shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than four years nor longer than 20 years, in the discretion of the court.

3 Chaffin v. State, 225 Ga. 602, 170 S.E. 2d 426 (1969).

4 See note 2 supra.

5 Chaffin v. State, 227 Ga. 327, 180 S.E.2d 741 (1971).

6 After oral argument Chaffin, acting pro se, filed several letters with this court apparently seeking to raise a claim of ineffective assistance of counsel. The claim was not presented to the district court and there is nothing in the record to indicate that the state courts have been given the opportunity to consider it.

In addition to the brief filed by his appointed counsel, Chaffin filed a "supplemental brief" which he prepared himself. In his brief Chaffin contends that his original conviction was on a charge of "robbery by hands" and not robbery by force. If this were so the issue would be raised of a conviction upon retrial of an offense greater than that for which he was originally tried. Neither of the preceding contentions were presented either to the district or to the state courts. We therefore do not consider these matters on this appeal. Watkins v. Wilson, 408 F.2d 351 (9th Cir. 1969); see, Dryden v. United States, 403 F.2d 1008 (5th Cir. 1968). See also Jones v. Vineyard, 438 F.2d 1231 (5th Cir. 1971).

7 Chaffin also suggests that if a jury is permitted to increase the sentence on a retrial a defendant would be forced either to waive a jury trial in the second trial or to plead guilty so that the trial judge could not increase the sentence. He claims this to be a violation of his sixth amendment right to a jury trial. There is no merit to this claim. The jury might decrease his sentence and the trial judge, giving full consideration to the principles set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d...