Parker v. Lockhart

• Decision Date: 07 July 1992
• Docket Number: No. PB-C-91-548.,PB-C-91-548.
• Citation: 797 F. Supp. 718
• Parties: William Frank PARKER, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

797 F. Supp. 718

William Frank PARKER, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.

No. PB-C-91-548.

United States District Court, E.D. Arkansas, Pine Bluff Division.

July 7, 1992.

Jeffrey M. Rosenzweig, Little Rock, Ark., for petitioner.

Kyle Ray Wilson, Atty. Gen.'s Office, Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

William Frank Parker was twice tried, convicted, and sentenced to death for murdering James and Sandra Warren, the parents of his ex-wife. He now challenges the constitutionality of his conviction and sentence under 28 U.S.C. § 2254. The single issue before the Court on Parker's motion for partial summary judgment is whether his second trial violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. For the reasons that follow, the Court finds that it did not.

I.

Parker initially was convicted for capital felony murder on the theory that he had murdered the Warrens while burglarizing their home. The statute under which he had been charged required the state to prove that the defendant caused the death of another "in the course of and in furtherance of the underlying felony." Ark. Code Ann. § 5-10-101(a)(1) (1987). The Arkansas Supreme Court reversed his conviction because that statute could not be construed to encompass the facts established at Parker's trial.¹Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987) (Parker I). "The state's proof showed that Parker followed Mr. Warren into the house for only one purpose — to commit the murders of the Warrens." Id. at 425, 731 S.W.2d at 758. However, as the court read the statute, burglary cannot be the predicate felony in a capital felony murder formulation where the murder itself is the object of the burglary. Given this, the court noted, Parker should have been prosecuted under Ark. Code Ann. § 5-10-101(a)(4) (Supp.1987) for causing the death of two or more persons in the course of the same criminal episode, but "instead, the prosecutor elected to proceed under subsection (a)(1), which was wrong." Id. at 426-27, 731 S.W.2d at 758.

The state subsequently charged, tried, and convicted Parker under section 5-10-101(a)(4). On appeal, the Arkansas Supreme Court rejected the argument that Parker's second prosecution violated the Double Jeopardy Clause. Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989) (Parker II). Reviewing Parker I, the court said that Parker's original conviction was not reversed because the evidence was insufficient, but because the state had committed "trial error" in "charging and trying Parker under the wrong capital murder provision." Id. at 364, 779 S.W.2d at 157. "When holding Parker had been convicted under an improper provision, we never suggested insufficient evidence existed to prove he committed capital murder if charged and convicted under the correct law." Id. at 364, 779 S.W.2d at 157.

II.

The Double Jeopardy Clause, made applicable to the states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), says that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Clause does not permit "the State ... to make repeated attempts to convict an individual for an alleged offense." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple prosecutions for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).

It has long been settled that where a conviction has been set aside on appeal because of some error in the proceedings leading to conviction, there is no double jeopardy upon retrial. See, e.g., Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (per curiam); Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Allowing retrial to correct trial error is necessary to ensure 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.

Tateo, 377 U.S. at 466, 84 S.Ct. at 1589.

An exception to this rule was recognized in Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978), which held that the Double Jeopardy Clause bars a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the jury's verdict. See also Hudson v. Louisiana, 450 U.S. 40, 42-43, 101 S.Ct. 970, 971-72, 67 L.Ed.2d 30 (1981); Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978). Reversal for failure to prove guilt beyond a reasonable doubt means "that the government's case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury." Nelson, 488 U.S. at 39, 109 S.Ct. at 290. For double jeopardy purposes, this is no different from the defendant who obtains a jury verdict of acquittal at the trial level; in both instances, there is absolute immunity from further prosecution for the same offense. Id.; Burks, 437 U.S. at 16, 98 S.Ct. at 2149. Burks was careful to distinguish between evidentiary insufficiency, that is, a finding "that the government has failed to prove its case," 437 U.S. at 15, 98 S.Ct. at 2149, and trial error, which "implies nothing with respect to the guilt or innocence of the defendant," but is simply "a determination that he has been convicted through a judicial process which is defective in some fundamental respect," id.

III.

Justice Thurgood Marshall, in his dissent from the denial of certiorari in Parker v. Arkansas, ___ U.S. ___, 111 S.Ct. 218, 112 L.Ed.2d 186 (1990), read Parker I as reversing Parker's conviction for insufficient evidence. Parker argues that view here. He urges that the Arkansas Supreme Court in Parker II erroneously characterized as "trial error" the prosecutor's decision to prosecute Parker under the "wrong" capital murder statute, and thus misapplied Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987), which permitted a retrial after the state relied on a criminal statute that was legally inapplicable to the defendant's conduct.

Justice Marshall's assessment is based largely on language in Parker I and what he understood to be a concession made by the state in its brief to the Court.

Based on "the facts of the case," and on "the state's proof," the Arkansas Supreme Court concluded that the murders with which petitioner has been charged "were not committed `in the course of and in furtherance of' the charged burglary." 292 Ark., at 425, 731 S.W.2d, at 758. Even the respondent thus concedes that petitioner's conviction was reversed because the State "failed to prove its case" with regard to an essential element of Arkansas' capital felony murder statute. Brief for Respondent in Opposition to Petition for Writ of Certiorari at 3 ("According to the Court's opinion, the State adequately proved burglary and murder, but failed to prove that the murders were committed during the course of or in furtherance of the burglary" (emphasis added)).

111 S.Ct. at 220. Citing Burks, he emphasized that "the unmistakable teaching of our double jeopardy jurisprudence is that the State may not avail itself of a second trial to remedy its mistake when it prosecutes a defendant for an offense that it is unable to prove." Id.

The phrases "facts of the case" and "state's proof" carry no talismanic qualities that render the Arkansas court's reversal of Parker's conviction a decision to the effect that the government failed to prove its case. The real question is, why did the facts or proof not comport with the elements of the crime charged? Was the state "unable to prove" its case due to a legal impossibility (Parker was tried and convicted under a statute that could not be applied to his offense) or a factual impossibility (the state was not able to supply sufficient evidence to convict under a properly-applied statute)?

A close look at both Parker I and II, as well as Hall, persuades this Court that Parker's initial conviction was reversed due to an error in the judicial proceedings rather than evidentiary insufficiency. The proof "failed" only because the Arkansas Supreme Court construed the capital felony murder law not to apply to the facts all agreed were proved at Parker's first trial. There, the state proved exactly what it set out to prove: Parker unlawfully entered the Warren's home with the intent to commit murder. The prosecutor and the trial judge apparently thought that this constituted capital felony murder based on the underlying felony of burglary. If they had been right, the conviction would have been upheld, as the state had mustered all the...