Ex parte Beverly

• Decision Date: 08 August 1986
• Citation: 497 So.2d 519
• Parties: Ex parte Matthew L. BEVERLY (Re: Matthew L. Beverly v. State). 84-653.
• Court: Alabama Supreme Court

Page 519

497 So.2d 519

Ex parte Matthew L. BEVERLY (Re: Matthew L. Beverly v. State).

84-653.

Supreme Court of Alabama.

Aug. 8, 1986.

Walter W. Kennedy III of Nash, Walker & Kennedy, Oneonta, for petitioner.

Charles A. Graddick, Atty. Gen., and Rivard Melson and Joseph G.L. Marston, Asst. Attys. Gen., for respondent.

HOUSTON, Justice.

In May 1979, Matthew L. Beverly, the petitioner herein, was indicted for the intentional killing of Scott Deroo while robbing him, a capital offense. ¹ At the same time, he was also indicted for the rape of Melissa Hefner. Following trial on the robbery-intentional killing charge, the petitioner was convicted and sentenced to death. The Court of Criminal Appeals reversed the conviction and remanded the cause for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Beck v. State, 396 So.2d 645 (Ala.1980), and Ritter v. State, 403 So.2d 154 (Ala.1981).

The petitioner was reindicted in the fall of 1981 and tried for that same offense. The case was submitted to the jury with instructions on the robbery-intentional killing charge and on the lesser offenses of murder in the first degree, murder in the second degree, and manslaughter in the first degree. The jury was not instructed on grand larceny, which, under the facts in this case, is a lesser offense included in the robbery-intentional killing charge. He was again convicted of the robbery-intentional killing of Deroo and on April 9, 1982, was sentenced to life imprisonment without parole. On the same date, the 1979 rape indictment was nol-prossed by the trial court on motion of the state. The Court of Criminal Appeals again, on May 31, 1983, reversed the conviction and remanded the cause, holding that there was insufficient evidence of the essential elements of common law robbery because there was no evidence to prove that the victim was deprived of his property by force or fear as charged in the indictment. ² This court denied certiorari. See Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983).

In February 1984, the petitioner was charged in a four-count indictment with murder in the first degree, rape, kidnapping, and grand larceny. He was tried and convicted of murder in the first degree, rape, and grand larceny in May 1984, and was sentenced to consecutive terms of life imprisonment, 60 years, and 10 years, respectively. The Court of Criminal Appeals affirmed the convictions and sentences on February 12, 1985, and later overruled the petitioner's application for rehearing. He then filed a petition for writ of certiorari, which was granted.

A detailed statement of the facts is contained in the opinion of the Court of Criminal Appeals. Beverly v. State, 497 So.2d 513 (Ala.Cr.App.1985).

The petitioner contends that once his second conviction for the robbery-intentional killing of Deroo was reversed by the Court of Criminal Appeals on the basis of insufficient evidence, the state was precluded from thereafter retrying him for the lesser included offenses of murder in the first degree and grand larceny. He argues that his right, under the Alabama and United States Constitutions, to be free from being twice placed in jeopardy for the same offense has been violated. For the following reasons, we affirm the petitioner's conviction for murder in the first degree; however, we reverse his conviction for grand larceny and render judgment in his favor on that charge. ³

Both the Alabama and United States Constitutions prohibit a person from being twice placed in jeopardy for the same offense. Const. of Ala. of 1901, Art. I, § 9; U.S. Const., Amend V.

The double jeopardy prohibition contained in the Fifth Amendment has been made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

It is a well established principle of constitutional law that the prohibition against double jeopardy does not generally preclude the retrial of a defendant whose conviction has been reversed on appeal because of an error in the trial proceedings. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Ex parte Collins, 385 So.2d 1005 (Ala.1980); Robinson v. State, 405 So.2d 1328 (Ala.Cr.App.), cert. denied, 405 So.2d 1334 (Ala.1981); 21 Am.Jur.2d, Criminal Law, § 309 (1981).

In Tateo, the Supreme Court stated that the reasoning behind this principle is firmly embedded in the sound administration of justice:

"Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest...." 377 U.S. at 466, 84 S.Ct. at 1589.

The Supreme Court reaffirmed this reasoning in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978):

"The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow 'the State ... to make repeated attempts to convict an individual for an alleged offense,' since '[t]he constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); see Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1061-1062, 43 L.Ed.2d 265 (1975); United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).

"....

"We have no doubt that [United States v. Ball ], 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)," was correct in allowing a new trial to rectify trial error:

" 'The principle that [the Double Jeopardy Clause] does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.' United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (emphasis supplied).

See United States v. Wilson, 420 U.S. 332, 341 n. 9, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975); Forman [v. United States ], supra, 361 U.S. at 425, 80 S.Ct. at 486 [4 L.Ed.2d 412 (1960) ]. As we have seen in Part II, supra, the cases which have arisen since Ball generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency. We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law. Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis.

"Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by Tateo, supra, 377 U.S., at 466, 84 S.Ct., at 1589:

" 'It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.'

See Wilson, supra, 420 U.S., at 343-344, n. 11, 95 S.Ct., at 1021-1022; Wade v. Hunter, 336 U.S. 684, 688-689, 69 S.Ct. 834, 836-837, 93 L.Ed. 974 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt, or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy:

A new Trial After Appellate Reversal for Insufficient Evidence, 31 U.Chic.L.Rev. 365, 370 (1964).

"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government's case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury's verdict of acquittal--no matter how erronous its decision--it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." 437 U.S. at 11-16, 98 S.Ct. at 2147-2150.

In Burks the Court held that the reversal of a judgment of conviction on the basis of insufficient evidence bars a retrial on the same offense upon which the conviction was laid. However, the Court did not have before it the precise...