Com. v. Eldred, No. 96-SC-788-TG

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtJOHNSTONE; STEPHENS; LAMBERT, J., dissents by separate opinion, with STEPHENS, C.J., and STUMBO; STEPHENS; LAMBERT; STEPHENS, C.J., and STUMBO
Citation973 S.W.2d 43
PartiesCOMMONWEALTH of Kentucky, Appellant, v. Frank ELDRED, Appellee.
Decision Date19 March 1998
Docket NumberNo. 96-SC-788-TG

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973 S.W.2d 43
COMMONWEALTH of Kentucky, Appellant,
v.
Frank ELDRED, Appellee.
No. 96-SC-788-TG.
Supreme Court of Kentucky.
March 19, 1998.
As Modified on Denial of Rehearing
Sept. 3, 1998.

A.B. Chandler, III, Attorney General, David A. Sexton, David A. Smith, Paul D. Gilbert, Assistant Attorneys General, Criminal Appellate Division, Frankfort, for Appellant.

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Marie Allison, Assistant Public Advocate, Department for Public Advocacy, Frankfort, for Appellee.

JOHNSTONE, Justice.

We address a single issue in this appeal: whether the holding of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), precludes the Commonwealth from seeking the death penalty at a defendant's retrial, where during the penalty phase of the defendant's first trial the jury found, beyond a reasonable doubt, the existence of a statutory aggravating factor but did not recommend a sentence of death.

In Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1995), we overturned Frank Eldred's conviction of first-degree arson and murder for reasons unrelated to this appeal. The Commonwealth sought the death penalty at Eldred's first trial. During the penalty phase of his trial, the jury found the statutory aggravating circumstance of murder for profit and designated this finding in writing. The jury recommended a sentence of life without the possibility of parole for twenty-five years (hereinafter Life-25), rather than death. Subsequently, the trial court imposed a sentence of Life-25 for the murder conviction.

Upon retrial, the Commonwealth notified Eldred that it would again seek the death penalty. Eldred moved the trial court to prohibit the Commonwealth from seeking the death penalty under the authority of Bullington, supra, and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). The trial court granted Eldred's motion. The Commonwealth appealed the trial court's ruling to this court. We find that Kentucky's capital sentencing procedure does not bar the Commonwealth from seeking the death penalty at Eldred's new trial. We, therefore, reverse.

THE GENERAL RULE

Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), has long stood for the proposition that the Double Jeopardy Clause does not prevent a defendant whose conviction is reversed from receiving a more severe sentence upon retrial than he received at his first trial. The Stroud Court found that the imposition of the death penalty at retrial, after the defendant had received a lesser sentence for the same offense at a previous trial, did not place the defendant in second jeopardy within the meaning of the United States Constitution. Id. at 18, 40 S.Ct. at 51-52, 64 L.Ed. at 103. This general principle was reaffirmed in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The principle that the Double Jeopardy Clause is no bar to receiving a more severe sentence at retrial was again reaffirmed in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The same principle has been affirmed by this Court as well. See, e.g., Bruce v. Commonwealth, Ky., 465 S.W.2d 60 (1971).

THE BULLINGTON EXCEPTION

Six months after DiFrancesco was decided, the Supreme Court decided Bullington, and, for the first time, held that the protection of the Double Jeopardy Clause applied equally to sentencing and to determinations of guilt or innocence. Bullington at 449, 101 S.Ct. at 1863-64, 68 L.Ed.2d at 286 (Powell, J. dissenting). In Bullington, the defendant was found guilty of capital murder at his first trial. During the penalty phase of his first trial, the jury was given only two sentencing options: death or life without eligibility for probation or parole for 50 years. The jury returned a verdict of life without eligibility for probation or parole for 50 years. The defendant then successfully appealed his conviction and was granted a new trial. Upon retrial, the prosecution gave notice to the defendant that it would again seek the death penalty.

The Bullington Court held that the imposition of the death penalty at the defendant's new trial was barred by the Fifth Amendment to the United States Constitution "[b]ecause the sentencing proceeding at [the defendant's] first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his

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retrial." Bullington at 446, 101 S.Ct. at 1862, 68 L.Ed.2d at 284. At the heart of the Court's reasoning was that the Missouri capital sentencing procedure explicitly required a jury to determine whether the prosecution had "proved its case." Id. at 444, 101 S.Ct. at 1860-61, 68 L.Ed.2d at 282. Subsequent cases make clear that "the case" that the prosecution failed to prove in Bullington was whether Bullington deserved the death penalty. See, e.g., Poland v. Arizona, 476 U.S. 147, 153 n. 3, 106 S.Ct. 1749, 1754 n. 3, 90 L.Ed.2d 123, 131 n. 3 (1986). Thus, the question we answer today is whether Kentucky's capital sentencing procedure so closely resembles Missouri's capital sentencing procedure that Eldred's sentence of Life-25 at his first trial precludes the Commonwealth from seeking the death penalty at Eldred's retrial, due to the Commonwealth's failure to prove that Eldred deserved the death penalty at his first trial.

Bullington was reaffirmed in Arizona v. Rumsey, supra. In Rumsey, the defendant was sentenced to death at retrial after having been sentenced to life without parole for 25 years at his first trial. The Rumsey Court concluded that Bullington controlled and, therefore, the imposition of the death penalty violated the Double Jeopardy Clause. Rumsey at 210, 104 S.Ct. at 2309-10, 81 L.Ed.2d at 171. The Rumsey Court reached this conclusion by comparing Arizona's capital sentencing procedure to Missouri's capital sentencing procedure as described in Bullington. The Rumsey Court first identified the characteristics of the Missouri capital sentencing procedure that made it comparable to a trial for purposes of the Double Jeopardy Clause:

The discretion of the sentencer--the jury in Missouri--is restricted to precisely two options: death, and life imprisonment without possibility of release for 50 years. In addition, the sentencer is to make its decision guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembles a trial. Finally, the prosecution has to prove certain statutorily defined facts beyond a reasonable doubt in order to support a sentence of death.

Rumsey at 209, 104 S.Ct. at 2309, 81 L.Ed.2d at 170 (emphasis added). The Rumsey Court then set forth the characteristics of the Arizona capital sentencing procedure that likewise made it comparable to a trial for purposes of the Double Jeopardy Clause:

The sentencer--the trial judge in Arizona--is required to choose between two options: death, and life imprisonment without possibility of parole for 25 years. The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances; in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument. The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt.

Rumsey at 209-210, 104 S.Ct. at 2309-10, 81 L.Ed.2d at 170-171 (emphasis added).

Because of the similarities between the two sentencing procedures, the Rumsey Court found that Arizona's capital sentencing procedure was indistinguishable from Missouri's for purposes of the Double Jeopardy Clause. Id. at 210, 104 S.Ct. at 2309-10, 81 L.Ed.2d at 171. The Rumsey Court ultimately held that "[a]pplication of the Bullington principle renders respondent's death sentence a violation of the Double Jeopardy Clause because respondent's initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding--whether death was the appropriate punishment for respondent's offense." Id. at 211, 104 S.Ct. at 2310, 81 L.Ed.2d at 171.

Kentucky's capital sentencing procedure shares a number of characteristics with both Missouri's and Arizona's capital sentencing procedures that were found to be determinative by the Rumsey Court: Kentucky has a

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bifurcated proceeding for sentencing in capital cases; the jury is guided by detailed statutory guidelines as to aggravating and mitigating circumstances; the death penalty cannot be recommended by a jury unless it finds the presence of least one of the statutory aggravating factors and so designates this finding in writing; the sentencing hearing involves the submission of evidence and presentation of argument in a trial-like proceeding; and the Commonwealth has the burden of proving beyond a reasonable doubt the existence of any aggravating factors. The only discernible and relevant difference between Kentucky's capital sentencing procedure and the procedures of Missouri and Arizona, is that, under Kentucky's procedure, the jury is not restricted to only two choices in the range of punishment that it may recommend. In Kentucky, upon finding a defendant guilty of a capital crime, the jury may recommend death, life without possibility of parole for 25 years, life imprisonment, or a term of years not less than...

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9 practice notes
  • Baze v. Parker, No. 03-5112.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 9, 2004
    ...statutory guidelines as to aggravating and mitigating circumstances in deciding the penalty in a capital case. Commonwealth v. Eldred, 973 S.W.2d 43, 46 (1998). An independent sentence that might reassure a jury that the defendant will spend his natural life in prison is not on the list of ......
  • Brown v. Com., No. 2006-SC-000654-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 17, 2010
    ...precluded from seeking the death penalty a second time. Because this conclusion departs from, indeed overrules, Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998), and Salinas v. Payne, 169 S.W.3d 536 (Ky.2005), we must address in some detail the evolution of controlling United States Supreme ......
  • Haight v. White, CIVIL ACTION NO. 3:02-CV-00206-GNS-DW
    • United States
    • U.S. District Court — Western District of Kentucky
    • August 18, 2017
    ...jeopardy would not attach to Haight's original sentence even if he had been sentenced by a jury of his peers. See Commonwealth v. Eldred, 973 S.W.2d 43, 48-49 (Ky. 1998). 7. The Court cannot perceive how Herrera or Sheppard would apply. Herrera concerns claims of actual innocence based on n......
  • Gill v. State, No. 25344.
    • United States
    • United States State Supreme Court of South Carolina
    • August 20, 2001
    ...this decision did not have a chilling effect so as to constitute a de facto denial of defendant's right to appeal); Kentucky v. Eldred, 973 S.W.2d 43 (Ky.1998) (finding Double Jeopardy did not bar capital prosecution on retrial where a jury in the first trial found the presence of aggravati......
  • Request a trial to view additional results
9 cases
  • Baze v. Parker, No. 03-5112.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 9, 2004
    ...statutory guidelines as to aggravating and mitigating circumstances in deciding the penalty in a capital case. Commonwealth v. Eldred, 973 S.W.2d 43, 46 (1998). An independent sentence that might reassure a jury that the defendant will spend his natural life in prison is not on the list of ......
  • Brown v. Com., No. 2006-SC-000654-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 17, 2010
    ...precluded from seeking the death penalty a second time. Because this conclusion departs from, indeed overrules, Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998), and Salinas v. Payne, 169 S.W.3d 536 (Ky.2005), we must address in some detail the evolution of controlling United States Supreme ......
  • Haight v. White, CIVIL ACTION NO. 3:02-CV-00206-GNS-DW
    • United States
    • U.S. District Court — Western District of Kentucky
    • August 18, 2017
    ...jeopardy would not attach to Haight's original sentence even if he had been sentenced by a jury of his peers. See Commonwealth v. Eldred, 973 S.W.2d 43, 48-49 (Ky. 1998). 7. The Court cannot perceive how Herrera or Sheppard would apply. Herrera concerns claims of actual innocence based on n......
  • Gill v. State, No. 25344.
    • United States
    • United States State Supreme Court of South Carolina
    • August 20, 2001
    ...this decision did not have a chilling effect so as to constitute a de facto denial of defendant's right to appeal); Kentucky v. Eldred, 973 S.W.2d 43 (Ky.1998) (finding Double Jeopardy did not bar capital prosecution on retrial where a jury in the first trial found the presence of aggravati......
  • Request a trial to view additional results

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