Boyd v. Meachum

• Decision Date: 23 February 1996
• Docket Number: No. 550,550
• Citation: 77 F.3d 60
• Parties: Terrence BOYD, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Correction, Respondent-Appellee. Docket 95-2252.
• Court: U.S. Court of Appeals — Second Circuit

Page 60

77 F.3d 60

Terrence BOYD, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Correction, Respondent-Appellee.

No. 550.

Docket 95-2252.

United States Court of Appeals, Second Circuit.

Argued Nov. 27, 1995.

Decided Feb. 23, 1996.

Jonathan L. Mannina, Silver, Golub & Teitell, Stamford, CT (Ernest F. Teitell, Silver, Golub & Teitell, Stamford, CT, of counsel), for Petitioner-Appellant.

Harry D. Weller, Assistant State's Attorney, Wallingford, CT, for Respondent-Appellee.

Before OAKES, McLAUGHLIN and LEVAL, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Terrence Boyd was charged in Connecticut state court with: (1) burglary in the first degree, in violation of Conn.Gen.Stat. § 53a-101(a)(2); (2) larceny in the first degree, in violation of Conn.Gen.Stat. §§ 53a-119 and 53a-122(a)(3); (3) larceny in the third degree, in violation of Conn.Gen.Stat. §§ 53a-119 and 53a-124(a)(1); and (4) felony murder, in violation of Conn.Gen.Stat. § 53a-54c. He was convicted after a jury trial of all counts except larceny in the first degree.

Boyd appealed just his felony murder conviction on the ground that, at a pre-trial hearing, as required by the Connecticut Constitution, see Conn. Const. art. I, § 8, the state had failed to establish probable cause to try him for that crime. The Connecticut Supreme Court reversed Boyd's felony murder conviction, agreeing that the state had indeed failed to establish probable cause to try him for that crime. See State v. Boyd, 214 Conn. 132, 570 A.2d 1125, 1129 (1990) ("Boyd I "). The case was remanded for further proceedings.

The state recharged Boyd with felony murder. Boyd moved to dismiss the indictment on double jeopardy grounds. The motion was denied. Boyd again appealed to the Supreme Court of Connecticut, which ruled that his retrial would not violate double jeopardy. See State v. Boyd, 221 Conn. 685, 607 A.2d 376, 380-82 (Conn.1992) ("Boyd II "). The United States Supreme Court denied Boyd's petition for a writ of certiorari. See Boyd v. Connecticut, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992).

Boyd then filed a petition for habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the District of Connecticut (Peter C. Dorsey, Chief Judge ), renewing his argument that the impending retrial would violate double jeopardy. The district court denied the petition, but granted Boyd's motion for a certificate of probable cause to appeal to this Court.

BACKGROUND

Terrence Boyd and Tyrone Wilson robbed Ann Viner's house in New Canaan, Connecticut, while Viner was in the house. Viner was found dead at the scene. Boyd and Wilson were charged with: (1) burglary in the first degree; (2) larceny in the first degree; (3) larceny in the third degree; and (4) felony murder. Wilson pled guilty under a cooperation agreement with the state.

The Connecticut Constitution provides that no person can be "held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing," Conn. Const. art. I, § 8. Accordingly, the state court conducted a probable cause hearing on the felony murder charge against Boyd. At that hearing, the state presented little more than Wilson's written statement admitting that he had participated in the burglary, but blaming Boyd for the actual murder. The court found probable cause to try Boyd for felony murder, and a jury trial was ordered in Connecticut state court.

After the jury trial, Boyd was convicted of all counts except larceny in the first degree. The court sentenced Boyd to forty-five years' imprisonment. Boyd appealed only his felony murder conviction, arguing that, at the pre-trial hearing, the state had failed to establish probable cause to try him for that crime. Specifically, Boyd argued that Wilson's written statement introduced at the probable cause hearing was hearsay, and its admission into evidence violated Boyd's constitutional right to confrontation. The Connecticut Supreme Court agreed with Boyd's hearsay argument:

[W]e hold that Wilson's statement was inadmissible on evidentiary grounds. Therefore, the trial court erred in admitting the statement at [Boyd's] probable cause hearing. Thus, since Wilson's statement was the only evidence offered by the state at the probable cause hearing that effectively implicated [Boyd] in Ann Viner's murder, and since our decision in State v. McPhail, 567 A.2d 812 [ (Conn.1989) ], states that "insufficiency of the evidence presented at the probable cause hearing will deprive the trial court of jurisdiction over the person of the defendant," [Boyd's] subsequent prosecution and conviction is rendered moot.

Boyd I, 570 A.2d at 1129 (not reaching the confrontation argument). The court set aside Boyd's felony murder conviction, and remanded the case for further proceedings.

The state recharged Boyd with felony murder, and a second probable cause hearing was held. Again the court found that probable cause existed to try Boyd for felony murder predicated on the burglary for which he had now been convicted (and which conviction Boyd had not appealed). Boyd then moved to dismiss the indictment on the ground that retrial for felony murder would violate double jeopardy. The trial court denied Boyd's motion to dismiss. Boyd filed an interlocutory appeal; that appeal was transferred to the Supreme Court of Connecticut, which ruled that retrial would not violate double jeopardy. See Boyd II, 607 A.2d at 380-82. The United States Supreme Court denied Boyd's petition for a writ of certiorari. See Boyd v. Connecticut, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992).

Boyd then filed a petition for habeas corpus, pursuant to 28 U.S.C. § 2254, in the District of Connecticut, again arguing that

                the impending retrial for felony murder would violate double jeopardy.  (The state court stayed further prosecution pending the resolution of his habeas petition.)   The district court denied the petition, and granted Boyd's motion for a certificate of probable cause to appeal to this Court.   Boyd now appeals, renewing the same arguments raised below
                

DISCUSSION

There is but one question: will a second trial for felony murder violate double jeopardy? We conclude that it will not and, thus, affirm the district court.

The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Due Process Clause of the Fourteenth Amendment extends this guarantee to state proceedings. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The prohibition on double jeopardy protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). For purposes of double jeopardy, a greater offense is the "same offense" as any lesser included offense, and vice versa, Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977); therefore, a prior conviction for the lesser included offense prohibits a later prosecution for the greater offense. Id.; see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (explaining the "same elements" test for determining whether two crimes are the "same offense" for double jeopardy purposes); United States v. Dixon, 509 U.S. 688, ----, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993) (same).

If a defendant obtains the reversal of a conviction after a successful appeal, retrial for the same offense is permissible. Several justifications have been proffered for this rule, including the notion that by appealing his conviction the defendant has waived the double jeopardy defense. See Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224-25, 2 L.Ed.2d 199 (1957). Perhaps the most persuasive theory is that the first jeopardy does not end with conviction, but rather continues through the appeal, and if successful, the remand and retrial are part of the original jeopardy. See id.; United States ex rel. Jackson v. Follette, 462 F.2d 1041, 1045-46 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 496 (1972). In other words the second trial, obtained at the defendant's own request, is a facet of the original jeopardy and is not a second prosecution for the same offense. Another settled principle is that no jeopardy attaches unless the trial court had "jurisdiction" to try the defendant. See Serfass v. United States, 420 U.S. 377, 391-93, 95 S.Ct. 1055, 1064-65, 43 L.Ed.2d 265 (1975); Benton, 395 U.S. at 797, 89 S.Ct. at 2064 (1969).

Boyd's argument creatively braids these principles. He recognizes the general theory of continuing jeopardy to retry a defendant who has mounted a successful appeal. He contends, however, that under Connecticut law, the state's failure to establish probable cause to try Boyd for felony murder before his first trial deprived the trial court of "personal jurisdiction" over him with regard to that offense. And that appears to be the law of Connecticut. See State v. McPhail, 213 Conn. 161, 567 A.2d 812, 817 (1989); Boyd I, 570 A.2d at 1129. Because jeopardy never attached when there was no jurisdiction, his argument runs, there was no original jeopardy on his felony murder charge that could properly "continue" during his successful appeal and subsequent remand.

By this argument Boyd seems headed to the conclusion that he may be retried for felony murder because he has never yet been in jeopardy. But now--deus ex machina--he finds his salvation in the burglary conviction. Boyd argues that his burglary conviction, as a conviction on a lesser included offense of burglary-based felony murder, is a conviction on the "same offense" as felony murder for purposes of double jeopardy. See Brown, 432 U.S. at 168,...