Lowe v. State

• Decision Date: 30 October 1987
• Docket Number: No. 59746,59746
• Parties: James Salvatore LOWE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 856

744 P.2d 856

242 Kan. 64

James Salvatore LOWE, Appellant, v. STATE of Kansas, Appellee.

No. 59746.

Supreme Court of Kansas.

Oct. 30, 1987.

Syllabus by the Court

In a criminal case where there has been an acquittal of a criminal charge, a reinstatement of that charge is a violation of the Fifth Amendment prohibition against double jeopardy if such reinstatement results in further proceedings of some sort devoted to the resolution of factual issues going to the elements of the offense charged. Following Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).

James F. Vano, Overland Park, argued the cause and was on brief, for appellant.

Bruce W. Beye, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on brief, for appellee.

HOLMES, Justice:

This case comes before the court on a petition for review of an unpublished decision of the Court of Appeals which affirmed the trial court's denial of petitioner's K.S.A. 60-1507 motion. (See Lowe v. State, # 59,746, opinion filed June 4, 1987.) Appellant, James Salvatore Lowe, was originally charged with one count of burglary (K.S.A. 21-3715) and one count of misdemeanor theft (K.S.A. 1986 Supp. 21-3701). He was convicted by a jury of the theft charge and that conviction was affirmed by this court in a direct appeal in State v. Lowe, 238 Kan. 755, 715 P.2d 404 (1986).

The facts leading to appellant's original conviction are fully set forth in State v. Lowe and need not be repeated here. Only the procedural aspects of the original trial are germane to the issue now before the court. In the original trial the State rested its case late in the afternoon at which time motions were heard outside the presence of the jury in the court's chambers. The petitioner's motion to dismiss for lack of subject matter jurisdiction and a renewal of an earlier motion for mistrial were both denied. However, the court, on its own motion, dismissed the charge of misdemeanor theft finding insufficient evidence to support the charge. The following morning, again in the court's chambers and outside the presence of the jury, the judge reversed his earlier ruling and reinstated the theft charge. Petitioner's counsel objected, arguing such reinstatement violated the Fifth Amendment prohibition against double jeopardy. The trial on both charges then resumed and the jury acquitted the petitioner on the burglary charge but found him guilty of theft.

In State v. Lowe we affirmed the conviction and held the double jeopardy clause had not been violated, with Justice Herd dissenting. In that decision, rendered February 21, 1986, we stated:

"We hold that, under the facts of this case, where the proceedings were not terminated, no intervening proceedings took place before the jury, and no prejudice to the defendant's ability to proceed on both counts has been shown, double jeopardy did not bar resumed prosecution of the theft count. If the court had merely stated that it was going to take the matter under advisement and then ruled the next morning, as it did here, there would be no error and the appellant would have been in the identical situation as resulted in this case. We find no error." 238 Kan. at 763, 715 P.2d 404.

We also found that the court's dismissal of the theft charge constituted an acquittal, stating:

"We have no difficulty in finding that the trial court's action constituted an acquittal of the charge of theft even though it was not stated in those precise terms." 238 Kan. at 760, 715 P.2d 404.

Appellant's K.S.A. 60-1507 motion, and his appeal from the denial of that motion, are based upon the decision of the United States Supreme Court in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), decided May 5, 1986, subsequent to our decision in State v. Lowe.

In Smalis, a husband and wife, who owned a building housing a restaurant and apartment, were charged with various crimes in connection with a fire in the building. At the close of the prosecution's case in chief, the defendants challenged the sufficiency of the evidence by filing a demurrer. The trial court sustained the demurrer, saying it was not satisfied there was sufficient evidence from which it could be concluded that either of the defendants were guilty beyond a reasonable doubt. The issue was whether the State's attempt to appeal that decision would violate the double jeopardy clause. The Superior Court of Pennsylvania granted review, affirmed the trial court, and held the appeal was improper as it was barred by the double jeopardy clause. Com. v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984). In a consolidated appeal by the Commonwealth, the Supreme Court of Pennsylvania reversed, finding no double jeopardy violation. Com. v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). The United States Supreme Court granted certiorari and reversed the Pennsylvania Supreme Court.

In Smalis, the Supreme Court found first that sustaining a demurrer is an acquittal under the double jeopardy clause. Second, the Court rejected the Commonwealth's argument that resuming the trial following a reversal on appeal would simply constitute "con...