Harris v. State
| Decision Date | 17 December 1984 |
| Docket Number | No. CR,CR |
| Citation | 284 Ark. 247,681 S.W.2d 334 |
| Parties | Cullen Reed HARRIS and Sandra Kay Harris, Appellants, v. STATE of Arkansas, Appellee. 84-121. |
| Court | Arkansas Supreme Court |
James E. Davis, Texarkana, for appellants.
Steve Clark, Atty. Gen. by Leslie M. Powell, Asst. Atty. Gen., Little Rock, for appellee.
We granted the petition of Cullen and Sandra Harris to review the decision of the Court of Appeals [See Harris and Harris v. State, 12 Ark.App. 181, 672 S.W.2d 905 (1984) ], to decide whether an appellant who has challenged the sufficiency of the evidence, along with other assignments of error, is entitled to have that issue decided when the case is reversed and remanded on other grounds. The Court of Appeals declined to address the sufficiency argument since the case was reversed for procedural errors. That position was reaffirmed by a supplemental opinion denying appellants' petition for rehearing. (12 Ark.App. at 189, 672 S.W.2d 905). We take a different view from the Court of Appeals and, accordingly, we reverse.
Appellants, Cullen and Sandra Harris, were tried and convicted of manufacturing a controlled substance. They argued five points for reversal before the Court of Appeals, which found two reversible errors: 1) Failure of the trial court to grant a continuance to appellants when the state produced a witness for an out-of-court identification of one of the appellants, contrary to information supplied to the defense in pre-trial discovery; 2) refusal by the trial court to grant a mistrial when the prosecutor argued outside the record.
In their petition for rehearing, appellants contended that under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Arkansas Court of Appeals should have considered their challenge to the sufficiency of the evidence prior to considering other allegations of error.
In Burks the United States Supreme Court reconsidered its position with respect to a retrial when a case was reversed because of insufficiency of the evidence. The Court held the double jeopardy clause precluded a second trial when conviction in a prior trial was reversed solely for lack of evidence. For the purpose of determining whether the double jeopardy clause precluded a second trial after the reversal of a conviction, a reversal based on the insufficiency of the evidence was to be distinguished from a reversal for trial error. The court found that in holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. Thus, it would defeat the purpose of the double jeopardy clause if the prosecution were afforded a second opportunity to supply evidence it had failed to muster in the first trial. We find under Burks the general rule would, as appellants submit, require a review of the sufficiency of the evidence prior to the consideration of trial errors.
Initially we point out that under Burks the sufficiency of the evidence should be reviewed even if other arguments are raised. The essence of the reasoning in Burks is based on the premise the prosecution has had one fair opportunity to offer whatever proof it could assemble and should not be given a "second bite at the apple." Because of unfortuitous errors by the trial court and the defendant's right to object to those errors, the defendant should not be precluded from a review of the sufficiency or, in the alternative, forced to gamble entirely on the sufficiency issue by electing to forego all other objections. For an appellate court to avoid the argument by reversing on other grounds would ignore the protection intended by the double jeopardy clause as interpreted in Burks. We find no cases in disagreement with this conclusion, and see United States v. Palzer, 731 F.2d 1484 (11th Cir.1984).
The one distinction from the above cases raised in appellants' argument is that the sufficiency review brings up consideration of admissible as well as inadmissible evidence. The only reason this distinction has arisen is because the Court of Appeals did not consider the sufficiency question first and since evidentiary error was found, it is clear when considering the sufficiency of the evidence we would be including a consideration of otherwise inadmissible evidence. Disregarding other possible trial errors to review the sufficiency first does not present this dilemma. Were we not to make such a review, the alternative is to avoid the sufficiency argument by remanding for retrial on the other grounds. But unless the reasons for a new trial are defeated by reviewing the sufficiency first, including the inadmissible evidence, generally the review should be granted. That is what Burks requires.
The reasons for retrial, as opposed to dismissal on reversible error, were stated in Burks. The opinion notes the distinction between trial error and evidentiary insufficiency, the former not barring retrial under the double jeopardy clause:
["Trial error does not constitute a decision to the effect that the government has failed to prove its case and implies nothing with respect to 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. Burks, 437 U.S. at 15, 98 S.Ct. at 2149.
The Burks court points out if acquittal is granted on the sufficiency argument the prosecution cannot complain of prejudice for it has been given one fair opportunity to offer whatever proof it could assemble. Id. at 16, 98 S.Ct. at 2149.
Although trial error does not constitute a decision that the state has failed to prosecute its case, neither does it preclude such a finding. The basis for retrial when there has been trial error would not be defeated by a decision to consider the sufficiency, including any erroneously admitted evidence, before considering reversal on other grounds. The defendant is not prejudiced by that method. He has as strong an interest in being acquitted by a review of the sufficiency as he...
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