Greene v. Massey

• Citation: 98 S.Ct. 2151,437 U.S. 19,57 L.Ed.2d 15
• Decision Date: 14 June 1978
• Docket Number: No. 76-6617,76-6617
• Parties: Richard Austin GREENE, Petitioner, v. Raymond D. MASSEY, Superintendent, Union Correctional Institution
• Court: United States Supreme Court

437 U.S. 19

98 S.Ct. 2151

57 L.Ed.2d 15

Richard Austin GREENE, Petitioner,

v Raymond D. MASSEY, Superintendent, Union Correctional Institution.

No. 76-6617.

Argued Nov. 28, 1977.

Decided June 14, 1978.

Syllabus

On appeal of the first-degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial. That opinion, which a majority of four justices joined, stated that "the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," and that the "interests of justice require a new trial." Three justices dissented without opinion. Three of the justices who had joined the per curiam also filed a "special concurrence," which, though concerned only with trial error, concluded that "[f]or the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Before the second trial defendants unsuccessfully contended in the state courts that the per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty and that a second trial for first-degree murder would constitute double jeopardy; and the defendants were retried and convicted of first-degree murder. Petitioner and his codefendant, by appeal in the state courts and petitioner by application for habeas corpus in the District Court and Court of Appeals, unavailingly pressed their double jeopardy claims. Held: Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, precludes a second trial once a reviewing court has determined that the evidence introduced at trial is insufficient to sustain the verdict. Standing by itself, the per curiam would therefore clearly compel the conclusion that petitioner's second trial violated the Double Jeopardy Clause. But the special concurrence leaves open the possibility that three of the justices who joined the per curiam were concerned simply with trial error and joined in the remand solely to give the defendants an error-free trial—even though they were satisfied that the evidence was sufficient to support the verdict. So that the ambiguity can be resolved, the case is remanded to the Court of Appeals for reconsideration in light of the Court's opinion and Burks, supra. Pp. 24-27.

546 F.2d 51, reversed and remanded.

John T. Chandler, Gainesville, Fla., for petitioner, pro hac vice, by special leave of Court.

Harry M. Hipler, West Palm Beach, Fla., for respondent, pro hac vice, by special leave of Court.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a State may retry a defendant after his conviction has been reversed by an appellate court on the ground that the evidence introduced at the prior trial was insufficient, as a matter of law, to sustain the jury's verdict.

I

On September 7, 1965, petitioner Greene and Jose Manuel Sosa were indicted by a Florida grand jury for the murder of Nicanor Martinez. The indictment charged that Sosa "did hire, procure, aid, abet and counsel" Greene to murder Martinez and that petitioner had carried out the premeditated plan, shooting the victim to death with a pistol. A state-court jury subsequently found the defendants guilty of first-degree murder, without a recommendation of mercy. Pursuant to Florida law at the time, the trial court sentenced both defendants to death.

On appeal to the Florida Supreme Court, the convictions of Greene and Sosa were reversed and new trials ordered. The reviewing court was sharply divided, however, with a majority composed of four justices joining a brief per curiam opinion which disposed of the case in the following terms:

"After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial." Sosa v. State, 215 So.2d 736, 737 (1968). (Emphasis added.)

Three justices dissented without opinion; we can do no more than speculate that the dissenting justices concluded there was sufficient evidence to support the jury verdict. In addition, a separate "special concurrence" was filed on behalf of three of the four justices who had also joined the per curiam opinion remanding for a new trial. These three concurring justices undertook a detailed examination of various asserted trial errors and found that on at least one claim the trial court had committed reversible error.¹ This point concerned the improper admission of certain hearsay evidence which, in the opinion of the concurring justices, had a "potential probative force" that could have been "highly incriminating or critical to the establishment of an ultimate fact in dispute." Id., at 745. While the concurrence of the three justices makes no mention of evidentiary insufficiency as such, the opinion concludes:

"For the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Id., at 746.

The "reasons stated" by the concurring justices thus concerned trial error, but paradoxically, the three explicitly joined the Court's per curiam opinion which rested exclusively on the ground that the evidence was insufficient to support the verdict.

The case was then remanded, and after some intervening procedural maneuvering, the defendants were ordered retried in the Circuit Court of Orange County, Fla. Prior to their second trial, however, the defendants filed a suggestion for a writ of prohibition, claiming that their retrial would violate the Double Jeopardy Clause of the Federal Consti ution, as it was applied to the States by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). They contended that the per curiam opinion of the State Supreme Court was tantamount to a finding that the trial court should have directed a verdict of not guilty and hence a second trial for first-degree murder would constitute double jeopardy. When the trial court refused to issue the writ, review was sought in the Second District Court of Appeal of Florida. That court likewise declined to issue a writ of prohibition, but expressly stated that it was not rendering "an opinion as to the propriety of a new trial after a reversal for lack of sufficient evidence to establish, as a matter of law, the essential elements of the crime charged." Sosa v. Maxwell, 234 So.2d 690, 692 (1970). Rather, the District Court of Appeal was of the view that the Supreme Court's reversal "appear[ed] to be based on a finding that the evidence, though technically sufficient, [was] so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial." Id., at 691.² Considering the case in this posture, the court indicated that it could find no precedent in Florida law which would bar a retrial on double jeopardy grounds.³ Certiorari was subsequently sought in the Supreme Court of Florida, which denied the petition without comment. 240 So.2d 640 (1970).

Greene and Sosa were then retried. On January 15, 1972, they were convicted of first-degree murder and each received a life sentence, the second jury having recommended mercy. From this judgment they appealed to the Fourth District Court of Appeal of Florida, raising again their contention that the second trial violated the Double Jeopardy Clause. While conceding "the point to be academically intriguing," Greene v. State, 302 So.2d 202, 203 (1974), that court refused to reach the merits of the double jeopardy claim, holding instead that the Court of Appeal's earlier disposition of the issue was res judicata. Greene and Sosa applied for a writ of certiorari in this Court and certiorari was denied. Greene v. Florida, 421 U.S. 932, 95 S.Ct. 1660, 44 L.Ed.2d 89 (1975).

Having exhausted all avenues of direct relief, petitioner Greene ⁴ applied for a writ of habeas corpus in the United States District Court, arguing once more that his second trial was held in violation of the Double Jeopardy Clause. Although the District Court was sympathetic to petitioner's claim,⁵ it felt constrained by prior Fifth Circuit precedent to dismiss the petition. From this ruling petitioner appealed to the Court of Appeals, which affirmed the District Court on the basis of an earlier Fifth Circuit case, United States v. Musquiz, 445 F.2d 963 (1971). 546 F.2d 51 (1977). The Musquiz decision had interpreted several of this Court's cases ⁶ to mean that under 28 U.S.C § 2106, a court of appeals could order a new trial after a conviction had been reversed due to evidentiary insufficiency "if a motion for a new trial was made in the trial court." Greene, 546 F.2d at 56. Noting that Greene had made a motion for a new trial after his first conviction, and that the Florida Supreme Court had "review power at least equal to that possessed by this Court [of Appeals] under § 2106," ibid., the court held that a new trial had been a constitutionally permissible remedy.

We granted certiorari, 432 U.S. 905, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977), to review the judgment of the United States Court of Appeals.

II

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, decided today, we have held that the Double Jeopardy Clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, supra, we are bound to apply the standard announced in Burks to the case now under review.

If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow. The per...