Clark v. State

• Decision Date: 12 September 1974
• Citation: 318 So.2d 805,294 Ala. 485
• Parties: In re Billy Don CLARK v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 822.
• Court: Alabama Supreme Court

Page 805

318 So.2d 805

294 Ala. 485

In re Billy Don CLARK v. STATE of Alabama.

Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

SC 822.

Supreme Court of Alabama.

Sept. 12, 1974.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, petitioner.

William M. Dawson, Jr., Birmingham, for respondent.

HARWOOD, Justice:

The petitioner, Billy Don Clark, in the matter now before us by virtue of the state's petition for a writ of certiorari, was originally indicted for murder in the first degree. He entered pleas of not guilty, and not guilty by reason of insanity. Later Clark, accompanied by highly competent counsel, appeared in open court, withdrew his pleas of not guilty, and not guilty by reason of insanity, and entered a plea of guilty of murder in the second degree. Thereafter, he was adjudged guilty of murder in the second degree by the court and sentenced to life imprisonment.

We think it reasonably inferable that this action was the result of plea bargaining, a procedure not to be frowned upon. As observed by Chief Justice Burger in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427:

'* * * The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.'

An appeal was perfected from the judgment thus entered, and the Court of Criminal Appeals reversed the judgment on the grounds that the record did not affirmatively reflect that the trial judge advised Clark as to his privilege against self-incrimination, nor was he advised as to the maximum and minimum sentence that might be imposed upon him by reason of his plea of guilty. See Clark v. State, 48 Ala.App. 108, 262 So.2d 310. Such is the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

On the basis of this finding by the Court of Criminal Appeals, this court properly denied the state's petition for a writ of certiorari. Clark v. State, Ex parte State, etc., 288 Ala. 736, 262 So.2d 312.

On 24 October 1972, after remandment of the cause to the Circuit Court of Tuscaloosa County, Clark was re-arraigned. He entered a plea of not guilty, and not guilty by reason of insanity. On this same day, counsel for Clark filed a demurrer to the indictment on the ground that the indictment encompassed murder in the first degree and Clark could not be found guilty of an offense greater than murder in the second degree. This demurrer was defective because of the lack of specificity of the ground assigned. Further, autrefois acquit can only be raised by a special plea. Rule 30, Circuit and Inferior Court Rules, Title 7, Code of Alabama 1940; Anthony v. State, 49 Ala.App. 462, 273 So.2d 222.

On this same day counsel for Clark filed a motion to strike those allegations in the indictment charging murder in the first degree, asserting that the reversal of Clark's case on his plea of guilty of murder in the second degree precluded further consideration of murder in the first degree.

While this document is entitled a motion, it appears to be in essence a plea of autrefois acquit, and we shall so treat it. This motion or plea was overruled by the court.

Thereupon Clark again entered pleas of not guilty, and not guilty by reason of insanity. After a lengthy trial, the court submitted to the jury the charge of murder in the first degree, as well as the lesser offenses included in the indictment. The jury returned a verdict finding Clark guilty of murder in the first degree, and his punishment was again fixed at life imprisonment.

Upon appeal, this second judgment was reversed by the Court of Criminal Appeals on the grounds that the lower court erred in overruling Clark's plea of autrefois acquit as to murder in the first degree. We granted the state's petition for a writ of certiorari. Our conclusion is that the Court of Criminal Appeals erred in reversing the second judgment.

In the course of its opinion, 56 Ala.App. 63, 318 So.2d 801, the Court of Criminal Appeals writes:

'* * * A review of the Alabama authorities leads us to the conclusion that such former conviction (of murder in the second degree) (here on a guilty plea) properly plead constitutes an acquittal of the charge of first degree murder. This is the settled law in Alabama.'

The court cites some fifteen cases in support of the above statement. We have examined each and every one of the cases cited. Lewis v. State, 51 Ala. 1, and Ison v. State, 252 Ala. 25, 39 So.2d 249, among the above cited cases, do not, as we read them, in any wise support the statement.

The principle enunciated in the remaining citations is to the effect that when one is Tried under an indictment charging murder in the first degree, and is found guilty of a lesser included homicide, such finding is an acquittal of murder in the first degree, and such acquittal may be pleaded as a bar to the higher charge of murder in the first degree in the event of a second trial on the indictment, if the defendant so desires. Such principle, however, presupposes a prior Trial and acquittal of the higher offense. Thus, having been acquitted after a trial and full evidential hearing of the greater offense of murder in the first degree, he cannot, over proper plea, be again tried for the same offense. Otherwise the provisions of Article 1, Section 9 of our Constitution of 1901 prohibiting double jeopardy would be violated, as well as the Fifth Amendment to the Constitution of the United States, which is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

In a full evidentiary adversary hearing, a concomitant of every trial, the jury, or the judge, is presented with facts upon which a determination of the degree of a crime may be made. If the trier of fact determines that the evidence supports a finding of guilty of only a lesser included crime than the one charged, then it should be, and is, presumed that the accused is thereby acquitted of the higher offense.

Should this presumption be indulged where the judgment of guilt is based on a plea of guilty?

In a plea of guilty proceedings the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea. Further, the judge should be satisfied that there is a factual basis for the plea. See Fed.Rule Crim.Proc., Rule 11; ABA Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Secs. 1.3--1.8, at 22--36.

In such proceedings a trier of fact does not seek to determine if the accused's actions would justify a conviction on the full charge contained in an indictment, but only if such action satisfies the degree of guilt admitted by the plea.

As stated in Woodard v. State, 42 Ala.App. 552, 171 So.2d 462:

'A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need be advanced, except as expressly provided by statute (e.g., T. 15, § 277). It supplies both evidence and verdict, ending controversy. Wigmore, Evidence (3d Ed.), §§ 1064, 2588; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302.'

In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, the Supreme Court of the United States wrote:

'A defendant who enters such a plea (of guilty) simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process And is therefore void.' (Emphasis ours.)

To the same effect see Howard v. State, 280 Ala. 430, 194 So.2d 834.

It would seem to be a necessary corollary that a judgment entered on a void plea of guilty is itself void.

We have found no cases from the United States Supreme Court directly in point on the question now being considered, though strong inferences can be drawn from at least one of the cases from that court. This case will be commented on later.

There seems to be a split of authority between the 10th and the Second Federal Circuit Courts on the one hand, and the 6th Federal Circuit Court on the other hand, as to whether a judgment on a plea of guilty to a lesser included offense constitutes jeopardy as to the greater offense after reversal of the judgment entered on the plea of guilty to the lesser offense.

In Mullreed v. Kropp, Warden, 425 F.2d 1095 (6 Cir.1970), it appears that Mullreed and a companion Passow were in a bar together. One or the other struck the bar attendant with a chair and Mullreed took $40.00 from the cash register. Both men were later arrested and charged with armed robbery and also with unarmed robbery. Both agreed to, and did, plead guilty to the lesser charged offense of unarmed robbery. However, according to the statement of facts in Mullreed, Passow withdrew his agreement to plead guilty, obtained counsel and was taken before a different judge and was sentenced to sixty days in prison.

Mullreed stuck by his plea of guilty and was sentenced by the judge before whom the plea had originally been entered, to ten to fifteen years in the state prison. Mullreed appealed and the judgment was reversed on the grounds that Mullreed had been denied the assistance of counsel. On his second...