Davis v. Herring
| Decision Date | 26 September 1986 |
| Docket Number | No. 83-4421,83-4421 |
| Citation | 800 F.2d 513 |
| Parties | Stanley L. DAVIS, Petitioner-Appellee, v. Robert HERRING, Sheriff of Lee County, Mississippi and Edwin L. Pittman, Attorney General of the State of Mississippi, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bill Patterson, Donald G. Barlow, Edwin L. Pittman, Atty. Gen., Jackson, Miss., for respondents-appellants.
Duncan Lott (Court Appointed Co-Counsel) Joe Ray Langston, Booneville, (Court Appointed), Booneville, Miss., for petitioner-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before RUBIN, RANDALL, and WILLIAMS, Circuit Judges.
The panel has decided, sua sponte, to vacate its earlier opinion in this case, 1 and to substitute instead the following.
The habeas corpus petitioner fired his pistol into a tavern, killing the owner. Indicted separately for both murder and the felony of shooting into an occupied building, he was tried on the murder indictment alone. When the jury convicted him only of manslaughter, the State attempted to prosecute him in a second trial for the shooting felony. He objected on double jeopardy grounds, and, after exhausting his state remedies, obtained an injunction in federal court against the second prosecution.
The murder statute under which Davis was tried requires the State to prove, in the alternative, either a deliberate design to kill or an unintentional killing that resulted from the commission of either a felony or a dangerous and depraved act. When the accused was tried for murder, the state failed to adduce any evidence of a deliberate design to kill. The murder charge, therefore, must have rested on a charge either of committing a dangerous act or on the underlying felony of shooting into an occupied building for which he had already been indicted. Comments by the judge at trial support this conclusion. Although a mistake in the jury charge prevented the jury from returning a verdict of felony murder, the error cannot justify a second prosecution. We hold that proof of either the felony or dangerous act was a necessary element of the murder charge and, therefore, a lesser-included offense. The jury verdict implicitly acquitted the accused of murder and the double jeopardy clause precludes his retrial on either lesser-included offense. Accordingly, we affirm the judgment of the district court.
On the night of October 27, 1981, Stanley L. Davis started a barroom brawl. The owner of the bar, Wayne Watson, broke up the fight and Davis left. Shortly after midnight he returned in a pickup truck, accompanied by his stepson, and fired six shots into the bar as he drove past. One bullet struck and killed Watson.
Davis was indicted for murder in violation of the Mississippi statute set forth in full in the footnote. 2 That statute defines murder as the killing of a human being either with deliberate design to cause death; or when done in the commission of an act eminently dangerous to others and evincing a depraved heart; or when done without intent to kill by a person engaged in the commission of any felony other than one that is chargeable as a capital offense. A separate provision of the Mississippi Code, set forth in the footnote, 3 makes shooting into a building which is usually occupied a felony, hence a charge on which felony murder may be based. After obtaining the murder indictment, but before bringing it to trial, the State sought and obtained a separate indictment against Davis for committing this felony.
At the murder trial, no evidence was presented to show that Davis intended to kill Watson, or even that Watson was visible through the curtained windows of the bar as Davis drove by more than one hundred feet away. The State directed its efforts toward proving that Davis had been the person who shot into the bar, as the jury found, while Davis had contended that he had been elsewhere, and implied that his stepson was the culprit who had fired the gun. His stepson testified, however, that Davis had committed the crime in his presence, and the jury evidently credited his testimony.
After the evidence had been adduced, the trial judge discussed jury instructions with counsel. Counsel for the State referred to the felony of shooting into an occupied building as an underlying offense that eliminated the necessity of proving intent. The judge commented, Thus, it is likely that, in the trial judge's opinion, a verdict might have been directed on the issue of deliberate design to kill and the State's evidence supporting the murder charge would have depended solely on proof of an underlying "eminently dangerous act" or on the felony for which he had been separately indicted.
Both murder and manslaughter charges were given to the jury. An erroneous charge was also given, instructing the jury that they must find Davis guilty of manslaughter, rather than murder, if they believed that he shot out the windows of the bar without malice aforethought, and without any intent to kill Watson. This charge prevented the jury from convicting Davis under the felony-murder provision of the statute, but the error could not have been appealed by the State. 4 Despite the efforts of the prosecution to obtain a murder conviction, Davis was convicted only of manslaughter and sentenced to 18 years of imprisonment.
The State then attempted to prosecute Davis on the same facts for the felony of shooting into an occupied building. Patently, the prosecutor was not satisfied with the punishment imposed at the first trial and sought a second conviction in order to obtain a consecutive sentence. Davis moved to dismiss the indictment as twice jeopardizing him, but his motion was denied by the Mississippi state courts. Davis then brought this habeas corpus action in federal court to enjoin the second prosecution.
An evidentiary hearing was held before a federal magistrate at which the State acknowledged that it had no newly discovered evidence and that the testimony presented at the second trial would be identical to that already presented at the murder trial. Although Davis had fired five or six shots into the tavern, the State conceded at the hearing that the shots were fired in such rapid succession and within such a brief period of time that they were the result of a single impulse and constituted no more than a single criminal act. The State does not now attempt to qualify this concession.
The magistrate, in his report, first attempted to ascertain whether the state legislature had intended the two offenses of murder and shooting into an occupied building to be punished separately. Finding no indication of legislative intent either way, he concluded, under the test established in Blockburger v. United States, 5 that each offense required proof of an element that the other did not and, that, therefore, the offenses were not the same for double jeopardy purposes. He noted that the shooting felony may have been a lesser-included offense of the felony-murder provision of the statute under which Davis had been indicted. He held, however, that, at the second trial, the State would do no more than attempt to prove on identical evidence that Davis was guilty of an act that had already been necessarily established as an essential element of the murder charge for which he had been tried and implicitly acquitted. The magistrate found, therefore, that the second trial was prohibited under the "same evidence" test of Illinois v. Vitale 6 and Brown v. Ohio. 7
The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." 8 It protects against three different governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. 9 In order to protect against successive prosecutions, as well as multiple convictions, federal courts have the power to enjoin state criminal proceedings that would constitute double jeopardy 10 as an exception to the comity doctrine of Younger v. Harris. 11
When multiple punishments are imposed at a single trial, their propriety has consistently been described by the Supreme Court as a matter solely of statutory construction. 12 The legislature may impose whatever punishments it sees fit for any combination of crimes subject only to the limitations of the eighth amendment. A court, therefore, may impose consecutive sentences whenever the legislature intended them. If the legislative intent is clear, the Constitution requires only that it be obeyed by the sentencing court. 13 If the legislature's intent is uncertain, however, the Supreme Court has instructed that courts apply the test of Blockburger v. United States 14 as a "rule of statutory construction" to determine whether the legislature intended that the two offenses be punished cumulatively. 15 Blockburger upheld the imposition of multiple sentences imposed at one trial, holding that "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not." 16 The Court has further specified that the Blockburger test is to be applied to the elements of proof required by the statute and not to the actual evidence or proof adduced at trial in a given case. 17
In this case, the statutory elements of the crimes of premeditated murder and of shooting into an occupied...
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