552 F.2d 1206 (7th Cir. 1977), 76-1849, Sumpter v. DeGroote

Docket Nº:76-1849.
Citation:552 F.2d 1206
Party Name:Johnnie Marie SUMPTER, Petitioner-Appellant, v. James DeGROOTE, Sheriff of Vanderburgh County, Indiana, Respondent-Appellee.
Case Date:April 01, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1206

552 F.2d 1206 (7th Cir. 1977)

Johnnie Marie SUMPTER, Petitioner-Appellant,

v.

James DeGROOTE, Sheriff of Vanderburgh County, Indiana,

Respondent-Appellee.

No. 76-1849.

United States Court of Appeals, Seventh Circuit

April 1, 1977

Argued Jan. 18, 1977.

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John D. Clouse, Edwin R. Smith, Jr., Evansville, Ind., for petitioner-appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before BAUER, and WOOD, Circuit Judges, and FOREMAN, District Judge. [*]

BAUER, Circuit Judge.

Johnnie Marie Sumpter, now serving a two-to-five year sentence for prostitution, appeals the district court's dismissal of her petition for a writ of habeas corpus, which alleges that the State of Indiana is holding her in custody in violation of several provisions of the United States Constitution. 1 We reverse the district court for the reason that Sumpter was twice placed in jeopardy for the same offense in violation of the Fifth Amendment, as incorporated in the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

I.

Sumpter was charged with prostitution under an Indiana statute providing that

"(a)ny female who frequents or lives in a house or houses of ill fame, knowing the same to be a house of ill fame, or who commits or offers to commit one (1) or more acts of sexual intercourse or sodomy for hire, shall be deemed guilty of prostitution, and on conviction thereof shall either be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500); and imprisonment not to exceed 180 days or such person may be imprisoned in the Indiana women's prison not less than two (2) years nor more than five (5) years." 35 Ind.Code § 30-1-1 (1971) (emphasis added).

Following a jury trial, Sumpter was found guilty of prostitution 2 and sentenced to the maximum term of two to five years in the women's penitentiary.

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Her conviction was reversed by the Indiana Court of Appeals because the State had neglected to present any evidence that Sumpter was a female, an essential element of the crime set out in the statute. Sumpter v. State, Ind.App., 296 N.E.2d 131 (1973).

The State appealed, and the Indiana Supreme Court reversed. Although noting that the court of appeals had "correctly applied existing law in reversing the trial court," the supreme court determined that the "method and sequence of proof" of a defendant's sex was "in need of modification." Sumpter v. State, 261 Ind. 471, 473-74, 306 N.E.2d 95, 98-99 (1974). Under the new procedure established, lower courts were to take judicial notice of a defendant's sex. Only if the defendant produced evidence sufficient to rebut the presumption created by the court's action, would the State then be required to prove the defendant's sex beyond a reasonable doubt by affirmative evidence. Believing that the interests of justice required retroactive application of the new procedure, the Indiana Supreme Court affirmed Sumpter's conviction "in part" and remanded the case to the trial court for "determination of (her) sex pursuant to the (new) procedure." Id. at 483, 306 N.E.2d at 104.

Sumpter then sought review by the United States Supreme Court, which dismissed the appeal for want of jurisdiction. Sumpter v. Indiana, 419 U.S. 811, 95 S.Ct. 25, 42 L.Ed.2d 38 (1974).

On remand, Sumpter raised a timely double jeopardy objection to retrial of the sex issue. The trial court overruled the objection, denied a motion for a jury trial, took judicial notice that "she" was a female, rejected rebuttal evidence, 3 and found "her" guilty.

Sumpter appealed, and the case was transferred directly to the Indiana Supreme Court. She argued, inter alia, that the effect of the remand was to place her in double jeopardy. The court recognized that "the proceedings on remand were 'devoted to the resolution of factual issues going to the elements of the offense charged,' and therefore at odds with the constitutional policy against multiple trials." Sumpter v. State, Ind. 340 N.E.2d 764, 766 (1976), quoting United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Nevertheless, relying on cases establishing that the double jeopardy clause does not bar retrial of a defendant whose conviction is reversed on appeal, 4 the court rejected Sumpter's claim and affirmed her conviction.

The United States Supreme Court then denied Sumpter's petition for a writ of certiorari. Sumpter v. Indiana, 425 U.S. 952, 96 S.Ct. 1727, 48 L.Ed.2d 196 (1976).

Sumpter subsequently brought the petition for a writ of habeas corpus now before us on appeal from the district court's dismissal. She raises a host of federal constitutional claims for our consideration.

Specifically, Sumpter contends that the Indiana prostitution statute under which she was convicted violates (1) the equal protection clause of the Fourteenth Amendment, because it applies only to females 5

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and imposes a harsher sentence than does a companion statute that applies to males who frequent houses of ill fame; 6 (2) the due process clause of the Fourteenth Amendment, because the terms "house of ill fame" are unconstitutionally vague and archaic; 7 and (3) the cruel and unusual punishment clause of the Eighth Amendment, both because the statute criminalizes the "status" of living in a house of ill fame, 8 and because it imposes a harsher sentence for that offense than does a companion statute for the allegedly greater offense of keeping a house of ill fame. 9

In addition to her constitutional attacks on the statute, Sumpter claims that a new criminal procedure unconstitutionally shifting the burden of proving a material element of the crime charged, 10 i.e., her sex, was retroactively imposed on her in violation of the due process clause of the Fourteenth Amendment and what she calls the "ex post facto principle" embodied in Article I, section 10. 11 Finally, Sumpter says that she was denied her right to a jury trial under the Sixth Amendment, 12 and placed in double jeopardy in violation of the Fifth Amendment, 13 when her case was remanded for retrial of the issue of her sex.

Because we agree that Sumpter was twice placed in jeopardy for the same offense, we need not address the merits of her other constitutional claims. By resting our decision on this ground, we can afford Sumpter the unconditional release from custody to which she is entitled without having to rule on the constitutionality of the statute under which she was convicted and sentenced.

II.

The State finds "baffling" Sumpter's claim that the Indiana Supreme Court placed her in double jeopardy by remanding her case solely to give the prosecution a chance to retry one element of its fatally defective case. Noting that the double jeopardy clause permits retrial of a defendant after reversal of his conviction, the State reasons that its remand must be permissible a fortiori because it imposed a "lesser burden" of reprosecution on Sumpter than an outright reversal and trial de novo would have.

As the Indiana Supreme Court observed, United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), construes the double jeopardy clause as permitting retrial of a defendant whose conviction has been set aside on appeal. Moreover, Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335 (1950), extends the Ball rule to cases where reversal results from want of sufficient evidence to support a jury's verdict. Because the remand at issue here was caused by a like defect in the

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State's case against Sumpter, the Indiana Supreme Court thought the Ball rule as applied in Bryan controlling. Sumpter v. State, Ind., 340 N.E.2d 764, 766-67, cert. denied, 425 U.S. 952, 96 S.Ct. 1727, 48 L.Ed.2d 196 (1976). We respectfully disagree.

We believe Ball and Bryan are distinguishable from the case at bar because retrials were permitted in those cases only after an outright reversal of a conviction that required the prosecution on remand to again meet its burden of proving every essential element of the crime charged. Here, in contrast, Sumpter did not start off on an equal footing with the State on remand because her conviction was affirmed in part on appeal. An examination of the premises underlying the Ball rule provides, we think, an appropriate backdrop against which to elaborate the significance of the distinction we advance here.

III.

Although several theoretical justifications have been proposed to support the Ball rule, 14 the Supreme Court's current explanation for the rule is "the practical justification" that it "is simply . . . fairer to both the defendant and the Government." United States v. Wilson, 420 U.S. 332, 343 n.11, 95 S.Ct. 1013, 1022, 43 L.Ed.2d 232 (1975). The Court's "fairness" rationale draws upon Justice Harlan's opinion in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), for analytical support:

"While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair

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trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate...

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