Freer v. Dugger

• Citation: 935 F.2d 213
• Decision Date: 09 July 1991
• Docket Number: No. 89-4052,89-4052
• Parties: Albert Herman FREER, Petitioner-Appellee, v. Richard L. DUGGER, Secretary, Department of Corrections, Robert A. Butterworth, Attorney General, State of Florida, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 213

935 F.2d 213

Albert Herman FREER, Petitioner-Appellee, v. Richard L. DUGGER, Secretary, Department of Corrections, Robert A. Butterworth, Attorney General, State of

Florida, Respondents-Appellants.

No. 89-4052.

United States Court of Appeals,

Eleventh Circuit.

July 9, 1991.

Gypsy Bailey, Asst. Atty. Gen., William A. Hatch, Charlie McCoy, Dept. of Legal Affairs, Tallahassee, Fla., for respondents-appellants.

Federal Public Defender, Pensacola, Fla., Carl S. McGinnes, Public Defender, 2nd Judicial Circuit, Tallahassee, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before CLARK, and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

CLARK, Circuit Judge:

FACTS

Appellee, Albert Herman Freer, was indicted on charges of first degree murder and armed robbery in the circuit court in and for Escambia County, Florida. At the end of the first trial, the jury returned a verdict of guilty to the lesser included offenses of second degree murder and grand theft. The state's case at trial was based exclusively on circumstantial evidence. At a hearing held on defendant's motion for Of course, the Court having sat through the trial, the testimony as I recall it was first that Mrs. Hall had twice driven to the bowling alley. At neither time was Albert Freer to my recollection seen in the van. Second, Mrs. Hall testified, being a co-defendant, that Mr. Freer was not with her in the van at the time she redelivered the pistol to Mr. Perry. The nurse at the scene ... testified that she did not see Mr. Freer at the scene of the crime and he was allegedly not in the van. There are some points that, like the palm print that was in the van that lead you to believe that Mr. Freer might have been in the van, but he had been in the van earlier where that palm print might have been there. Under the circumstances, the Court is going to set aside the verdict. ¹

judgment of acquittal, defense counsel argued that the state failed to prove its case beyond a reasonable doubt. The trial judge after hearing argument on both sides, ruled that he would set aside the verdict:

At this time, the state responded, "If the Court is in consideration of setting aside the verdict can I ask the Court to treat it in the nature of a motion for new trial so that the State can appeal that decision?" ² The judge agreed, stating:

I will grant the motion for a new trial, because I'm not satisfied the evidence proves guilt beyond every reasonable doubt and grant a new trial on the issue--that will give the State a chance to appeal, and we'll see what the appellate court has to say. ³

The above-quoted statements by the trial judge are the only statements that he made regarding his basis for granting the motion for a new trial. On its own motion, the judge, pursuant to Florida Rule of Criminal Procedure 3.580, granted the defendant a new trial. ⁴

On appeal to the Florida First District Court of Appeal, two judges agreed to affirm the granting of a new trial. ⁵ On retrial, after hearing additional evidence that was not presented in the first trial, the jury returned a verdict identical to that in the first trial. Freer appealed, and the state district court of appeal affirmed the judgment without discussion of the double jeopardy argument, other than to say: "We have examined appellant's argument that his second trial was conducted in violation of his double jeopardy rights and find it to be without merit." ⁶

DISTRICT COURT

A. Magistrate's Report and Recommendation.

On Freer's habeas corpus petition to the federal district court, the magistrate concluded that the trial court's grant of a new trial, and resubmission of the charges against Freer to the jury, did not violate petitioner's guaranteed protection against double jeopardy. ⁷ Reviewing the trial judge's reasons for granting the new trial, the magistrate concluded that the granting of the new trial was based on the trial court's evaluation of the weight of the circumstantial evidence, rather than on a finding of evidentiary insufficiency. The magistrate based her determination on an "independent review of the trial record" and concluded that a "rational finder of fact would be able upon the evidence admitted at trial to find the defendant guilty beyond a reasonable doubt." ⁸

B. District Court Order.

The district court rejected the magistrate's report and recommendation and granted the habeas corpus petition, holding that the Double Jeopardy Clause barred Freer's retrial and subsequent conviction. The issue, as the district court stated it, was "whether the judge's stated rationale is based on the weight of the evidence, rather than ... [on] the insufficiency." ⁹ The court also reasoned that "an independent review of the trial record is not appropriate. The only question to decide is what rationale the trial judge used when he granted a new trial." ¹⁰

In examining the trial judge's comments, the district court found that the trial judge's determination prior to the state's motion for a new trial was based on a sufficiency determination:

The judge's recitation of evidentiary gaps in the state's case--that the prosecution had failed to place the defendant at the crime scene or in the crime vehicle at the relevant time--make it apparent that the judge felt that the prosecution had failed to prove its case. ¹¹

The trial judge's statement in ultimately concluding that he would instead grant the state's motion for a new trial--the judge said that he was not satisfied the evidence proved guilt beyond a reasonable doubt--also indicated that he was basing his ruling on the sufficiency of the evidence. ¹² As to the trial judge's comment that granting the motion for a new trial would "give the State a chance to appeal," the district court concluded that the judge was attempting "to put form over substance" in an attempt "to mollify the effect of overturning the guilty verdict." ¹³ The district court concluded that because the trial judge had determined that the state had failed to prove guilt beyond a reasonable doubt, the state "cannot then ask for, and get, another bite at the apple." ¹⁴

DISCUSSION

The question presented is whether the district court erred in granting appellee's petition for writ of habeas corpus based upon the determination that appellee's second trial in state court was conducted in violation of his right not to be twice placed in jeopardy for the same offense. Regarding the standard of review, conclusions of law by the district court are not binding on appellate courts and this court is free to substitute its judgment for the district court's on matters of law. ¹⁵ Thus, the court in Baker v. Metcalfe ¹⁶ concluded that "[s]ince violation of the double jeopardy clause is a question of law, United States v. Nickerson, 211 F.2d 909, 912 (7th Cir.1954), we are not bound by the clearly erroneous standard." We note, however, that the eleventh circuit, in deciding the double jeopardy issue in Delap v. Dugger, ¹⁷ assumed that a clearly erroneous standard of review applied to the district court's finding that, based on its review of the record, petitioner was acquitted of felony murder at his first trial; the acquittal determination, the court reasoned, was a question of fact. In Delap, however, the court was not required conclusively to determine the applicable standard of review, as it reasoned that it would reach the same conclusion on the issue of double jeopardy upon an independent review of the record. ¹⁸ Similarly, here, we need not conclusively

determine the standard of review applicable in deciding whether the trial judge's comments at Freer's first trial resulted in his acquittal, as our conclusion, as discussed below, is the same whether our review is deferential or de novo.

A. Trial Court Determination of Insufficiency Bars Retrial.

A determination by the trial judge that the evidence is legally insufficient to sustain a guilty verdict is an acquittal for purposes of the Double Jeopardy Clause. ¹⁹ If a trial court has evaluated the government's evidence and determined that it was legally insufficient to sustain a conviction, that determination of insufficiency triggers double jeopardy protections; further proceedings--appeal by the prosecution or retrial--are barred. ²⁰ Where, however, the trial judge finds a jury's verdict contrary to the "weight" of the evidence, retrial, as occurred in this case, does not offend double jeopardy. ²¹ Thus, the distinction between "insufficiency" and "weight," and on what basis the trial judge made his ruling, is crucial.

In Burks v. United States, ²² the Supreme Court held that where an appellate reversal is based on insufficiency of the evidence at trial to sustain a guilty verdict--the Court described it as a "failure of proof at trial"--remand for retrial is inconsistent with the double jeopardy prohibition. In Burks, the appellate court had stated that "the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense has been raised." ²³ The court went on to hold that the United States had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively rebut" petitioner's proof with respect to insanity and criminal responsibility. ²⁴ A unanimous Supreme Court emphasized that if the trial court had done what the reviewing court said should have been done, i.e., if it had determined that the evidence was insufficient to establish guilt beyond a reasonable doubt, "a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense." ²⁵ The Court noted that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient...." ²⁶ Thus, as the Supreme Court held in Tibbs v. Florida, ²⁷ if the...