Ex parte Ziglar, CR-95-0694

• Decision Date: 01 March 1996
• Docket Number: CR-95-0694
• Citation: 675 So.2d 543
• Parties: Ex parte Spencer Owen ZIGLAR. (In re STATE of Alabama v. Spencer Owen ZIGLAR).
• Court: Alabama Court of Criminal Appeals

Page 543

675 So.2d 543

Ex parte Spencer Owen ZIGLAR (In re STATE of Alabama v. Spencer Owen ZIGLAR).

CR-95-0694.

Court of Criminal Appeals of Alabama.

March 1, 1996.

Joe S. Pittman, Jr., Richard W. Whittaker, Enterprise, for Petitioner.

Jeff Sessions, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for Respondent.

TAYLOR, Presiding Judge.

The petitioner, Spencer Owen Ziglar, filed this petition for a writ of mandamus, asking us to direct the Honorable Robert W. Barr, circuit judge for the Twelfth Judicial Circuit, not to retry the criminal case against him. He contends that to retry him for manslaughter would subject him to double jeopardy.

The petitioner was initially indicted for murder, a violation of § 13A-6-2, Code of Alabama 1975, but was convicted of the lesser included offense of manslaughter, a violation of § 13A-6-3, Code of Alabama 1975. We reversed that conviction because the petitioner's wife had been compelled to testify against him in violation of the spousal privilege. Ziglar v. State, 629 So.2d 43 (Ala.Cr.App.1993). The petitioner's retrial, on the charge of manslaughter, was scheduled to begin in November 1994. The petitioner then filed with this court a petition for a writ of mandamus arguing that a retrial would subject him to double jeopardy. We denied the petition without an opinion, on the authority of Ex parte Spears, 621 So.2d 1255 (Ala.1993). Ex parte Ziglar, 668 So.2d 936 (Ala.Cr.App.1994) (table). On the same day this court denied his petition, Ziglar filed a petition for a writ of mandamus in the Alabama Supreme Court. Before the Alabama Supreme Court ruled on the petition, the second trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Ziglar then filed a second petition for a writ of mandamus in the Alabama Supreme Court, asking that Court to bar any further retrials. The Supreme Court denied that petition, stating that it was premature because he did not present with his petition any evidence that he had raised in the trial court the issue of double jeopardy. Ex parte Ziglar, 669 So.2d 133 (Ala.1995). In response, the petitioner filed a motion to dismiss in the trial court. A hearing was held on the petitioner's motion, and the motion was denied by the trial court. The petitioner then filed this petition for a writ of mandamus with this court.

Initially, we must determine if a petition for a writ of mandamus is the appropriate method to challenge a pretrial ruling on a motion to dismiss based on double jeopardy grounds. The Alabama Supreme Court addressed this issue in its opinion in this case. The Alabama Supreme Court stated:

"We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial judge's erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. Rule 21(e), Ala.R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) ], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial."

669 So.2d at 135. Thus, a petition for a writ of mandamus is a viable method by which to challenge a trial court's ruling on a motion to dismiss based on double jeopardy grounds.

The petitioner contends that the doctrine of double jeopardy and/or the doctrine of collateral estoppel bar his third trial on a charge of manslaughter.

The Code section defining manslaughter, § 13A-6-3, Code of Alabama 1975, establishes two separate manslaughter offenses: subsection (a)(1) defines "reckless" manslaughter; and subsection (a)(2) defines "heat-of-passion" manslaughter. The petitioner contends that in his first trial, the jury was given, in addition to instructions on murder, instructions on heat-of-passion manslaughter, § 13A-6-3(a)(2), but was not instructed as to reckless manslaughter, § 13A-6-3(a)(1), because, he says, the trial court found that no evidence was presented to support a charge of reckless manslaughter. The petitioner claims that he was therefore acquitted of reckless manslaughter. Likewise, in his second trial, the petitioner contends that the jury was given instructions only on reckless manslaughter because the trial court refused to instruct on heat-of-passion manslaughter and he argues that he was therefore likewise acquitted of heat-of-passion manslaughter in his second trial.

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This right is echoed in Article I, § 9, of the Constitution of Alabama of 1901, which states:

"That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury."

The petitioner was acquitted of the charge of murder when he was convicted of manslaughter in his first trial. The conviction for a lesser included offense is an implied acquittal as to the greater offense. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). The fact that the petitioner's first conviction of manslaughter, was reversed by the court does not prevent the State from trying him again on charges of manslaughter or any lesser offense of manslaughter. "The Double Jeopardy Clause does not preclude the State's retrying a defendant whose conviction is set aside because of an error in the proceedings." Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). Also, a mistrial due to a deadlocked jury in the second trial does not preclude petitioner's retrial on manslaughter.

"A mistrial, declared after a trial judge has determined that the jury cannot agree upon a verdict, does not terminate the original jeopardy to which the defendant was subjected. Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). Thus, a defendant's retrial following a hung jury does not constitute double jeopardy under the Alabama or United States Constitutions."

McKinney v. State, 567 So.2d 870, 874 (Ala.Cr.App.), cert. denied, 567 So.2d 877 (Ala.1990). See also Article I, § 9, Alabama Constitution of 1901.

The petitioner's contention that he was subjected to double jeopardy because of the trial court's refusal to give instructions on a particular type of manslaughter in each of his two previous trials and that the trial court's refusal to do so resulted in an acquittal as to those offenses is not supported by prior case law. Although there are two distinct and mutually exclusive types of manslaughter, "[t]hese subsections do not ... constitute separate offenses for purposes of jeopardy." Quinlivan v. State, 627 So.2d 1082, 1088 (Ala.Cr.App.1992).

"The appellant cites Ex parte Washington, 448 So.2d 404 (Ala.1984), for the proposition that intentional murder and reckless murder are separate offenses outlined in §§ 13A-6-2(a)(1) and -(a)(2). He then argues by analogy that reckless manslaughter and heat-of-passion manslaughter are separate offenses under subsections (a)(1) and (a)(2) of the manslaughter statute. Ex parte Washington referred to the 'intentional murder and reckless murder alternatives ... contained in different subsections of § 13A-6-2.' 448 So.2d at 407 (emphasis added). That case held that one alternative is not a lesser included offense of the other. It did not hold that intentional murder and reckless murder are 'separate offenses' for purposes of determining whether jeopardy had attached.

"By the same token, in McLaughlin v. State, [586 So.2d 267 (Ala.Cr.A...