65 F.3d 104 (8th Cir. 1995), 95-1465, Bally v. Kemna

Docket Nº:95-1465.
Citation:65 F.3d 104
Party Name:James E. BALLY, Appellee, v. Mike KEMNA, Superintendent, Western Missouri Correctional Center; Attorney General of the State of Missouri, Appellants.
Case Date:September 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 104

65 F.3d 104 (8th Cir. 1995)

James E. BALLY, Appellee,

v.

Mike KEMNA, Superintendent, Western Missouri Correctional

Center; Attorney General of the State of

Missouri, Appellants.

No. 95-1465.

United States Court of Appeals, Eighth Circuit

September 7, 1995

Submitted June 13, 1995.

Page 105

Stephen D. Hawke, Jefferson City, MO, argued, for appellant.

Thomas J. Cox, Kansas City, MO, argued, for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

The State of Missouri appeals from a judgment of the district court granting James E. Bally's petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We reverse.

The parties do not dispute the following:

Bally was intoxicated on November 28, 1991 ... when he drove his car past a stop sign without stopping. His car crashed into the side of another car in which Robert Thomason, Thomason's wife, and their one-year old son were riding. Thomason and his wife were seriously injured. Their son sustained minor injuries. In two separate cases, the state charged Bally with driving while intoxicated [DWI] and second degree vehicular assault. Thomason died ten days later. The next day, on December 9, Bally surprised the state by suddenly pleading guilty to the DWI charge in an unscheduled hearing he arranged.

The state did not object to the proceeding. The court accepted Bally's plea but delayed sentencing until an investigation was completed. On December 27, before the investigation was complete, the state asked the court for leave to nolle prosequi the DWI charge. The court granted the request on January 3, 1992, after a hearing. After the state dismissed the DWI charge, it amended the still-pending vehicular assault charge to add an involuntary manslaughter charge and prosecuted Bally for both.

State v. Bally, 869 S.W.2d 777, 778 (Mo.Ct.App.1994) (footnote omitted).

Bally moved to dismiss the indictment for vehicular assault and manslaughter on double jeopardy grounds. The trial court denied the motion and the case proceeded to trial. The jury convicted Bally on both counts.

Bally appealed, arguing that because DWI was a lesser included offense of vehicular assault and manslaughter and because jeopardy attached when the trial court accepted his guilty plea to DWI, the state could not prosecute him on the greater offenses. The state appellate court rejected his argument. The court did not dispute that DWI was a lesser included offense of vehicular assault and manslaughter and that double jeopardy bars prosecution for a greater offense after a defendant has been acquitted of a lesser included offense. Id. at 779. The court also acknowledged that the general rule appeared to be that jeopardy attached when a court unconditionally accepted a guilty plea. Id. at n. 5. However, the court found it unnecessary to decide when jeopardy attached because it believed that a nolle prosequi dismissal

Page 106

with leave of the court was not the "functional equivalent of an acquittal." Id. at 779.

The state court also relied on the so-called "sword" exception of Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). In Johnson, the Supreme Court held that double jeopardy did not bar prosecution on the remaining counts of an indictment after a trial court, over the state's objection, accepted a defendant's pleas to lesser included offenses. Id. at 494, 104 S.Ct. at 2538. In the facts of the case, the Court believed that "[n]otwithstanding the trial court's acceptance of respondent's guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution of the remaining charges." Id. at 502, 104 S.Ct. at 2542. In Bally, the state court believed that "Bally's decision to plead guilty to DWI, with only minutes notice to the prosecutor ... constitute[d] an impermissible use of the Fifth Amendment as a 'sword.' " 869 S.W.2d at 780. 1

Bally then filed this habeas petition, which the district court granted. Relying on United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978), the district court agreed with Bally that jeopardy attached when the trial court accepted his guilty plea to DWI. The court reasoned that because jeopardy had attached double jeopardy barred prosecution of the greater offenses of vehicular assault and manslaughter. The court also believed that Ohio v. Johnson did not apply, because in that case the prosecutor had charged the defendant in a single indictment charging greater and lesser offenses and had objected to acceptance of guilty pleas to the lesser offenses, whereas in the instant case the prosecutor had charged Bally in two separate indictments and had not objected to acceptance of the plea.

"The Double Jeopardy Clause ... affords a defendant three basic protections[.]" 2 Ohio v. Johnson, 467 U.S. at 497-98, 104 S.Ct. at 2540. " '[I]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after...

To continue reading

FREE SIGN UP