Patten v. State

• Decision Date: 29 March 1968
• Citation: 221 Tenn. 337,426 S.W.2d 503,25 McCanless 337
• Parties: , 221 Tenn. 337 Kenneth L. PATTEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 503

426 S.W.2d 503

25 McCanless 337, 221 Tenn. 337

Kenneth L. PATTEN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

March 29, 1968.

Paul W. Sorrick, Jr., Chattanooga, for plaintiff in error.

George F. McCanless, Atty. Gen., and Robert F. Hedgepath, Asst. Atty. Gen., Nashville, for defendant in error; and Edward E. Davis, Dist. Atty. Gen., Chattanooga, prosecuted the case in the trial court.

OPINION

CRESON, Justice.

This appeal comes from the Criminal Court of Hamilton County, Tennessee. The parties will be referred to herein as they appeared in the trial court; that is, plaintiff in error, Kenneth L. Patten, as defendant, and defendant in error as the State.

On January 29, 1964, the defendant was indicted for armed robbery. He was tried and found guilty as charged in the indictment. Judgment was entered on March 19, 1964, sentencing the defendant to forty years in the State Penitentiary. No appeal was taken from this judgment. On January 21, 1966, a petition for writ of habeas corpus was filed in the United States District Court for the Middle District of Tennessee.

On July 27, 1966, a judgment was entered in the District Court for the Middle District of Tennessee, concluding that the defendant's prior conviction for armed robbery was void, and ordering that the defendant be released from further custody, or remanded to the custody of the Sheriff of Hamilton County, Tennessee, for retrial.

The cause having been reinstated on the docket of the Hamilton County Criminal Court, the usual procedure to bring the case to issue followed.

On August 26, 1966, the defendant filed a 'special plea of former conviction.' This special plea made the point that his retrial was prohibited by Article 1, Section 10 of the Constitution of the State of Tennessee, and by Amendments 5 and 14 to the Constitution of the United States of America. This plea was subsequently overruled. The defendant was retried on November 18, 1966. The jury again found the defendant guilty of armed robbery, and fixed his punishment at twenty years in the State Penitentiary. Judgment was entered in accord with the jury's verdict. A motion for a new trial was timely made and was overruled.

Appeal was perfected to this Court, assigning several errors. Seeing that reversal was necessary, this Court considered only two of those assignments in an opinion released, but not for publication, June 16, 1967. Petitions to rehear were filed by both the defendant and the State. These petitions were granted, the case restored to the docket, and further oral argument presented. The present opinion disposes of every material aspect of the case.

As the case must be reversed, consideration will be directed to those issues which will, or might, affect the retrial. Those questions involve (1) the plea of double jeopardy, (2) the admissibility of evidence seized in a search of defendant's room, (3) the admissibility of defendant's confession, and (4) the validity of the verdict.

The defendant first asserts that the retrial, and any further retrial, would violate his right not to be put in jeopardy twice for the same offense. In the recent case of State ex rel. Austin v. Johnson (1966) Tenn., 404 S.W.2d 244, this Court held that the defense of double jeopardy was not available to a defendant on retrial when the original decision was set aside on appeal. The Court stated as follows:

'(7, 8) When the trial court sustained the petition for habeas corpus in the first of these cases the man was then turned loose and when there was a subsequent indictment and conviction he cannot assert the defense of this former conviction. We have many decisions that agree under both Federal and State Constitutions when the accused, himself procures a judgment to be set aside upon his own initiative and he voluntarily accepts the result, then he cannot be his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy. Davis v. State, 199 Tenn. 51, 282 S.W.2d 357, and cases there cited. In the Davis case we said this:

'* * * a defendant, who, upon his own motion, extricates himself from jeopardy will not be permitted to take advantage in a subsequent trial of the court's action in the removal of the jeopardy from him.'

Many authorities are there cited, including Etter v. State, supra (185 Tenn. 218, 205 S.W.2d 1), and others. This line of reasoning has been followed by the Supreme Court of the United States so far as we know, or can find, down through the history of their cases, such as Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412, and many others.

Thus it is, as we see it, regardless of what the basis was in setting aside these first judgments on the petition for habeas corpus what we said in Etter v. State, supra, is equally applicable here, when he said:

'How can the accused say he has been injured, that any injustice has been done? We frankly cannot see how. At the succeeding term he clearly had all rights that he originally had in the selection of a new jury. He was not prejudiced by the evidence of the prosecution which had been introduced. The fact is he should be materially benefited. Then too, we know that ordinarily the longer a trial of the kind is postponed, the better for the accused."

From the above it must be concluded that for the purpose of double jeopardy the retrial is a continuation of the original proceeding. The defendant seeks to distinguish his case from the above cited cases by saying that the defect here was not 'leading to conviction' but a deprivation of constitutional rights 'after the conviction'. In the present case the defendant had been in prison for approximately two years when the Federal District Court granted his writ of habeas corpus. The defendant states that he did not ask for a new trial in his writ of habeas corpus to the Federal Court but merely challenged the validity of his confinement. What this overlooks is that in order to grant his release, the Federal District Court re-examined the previous trial and declared the judgment void. The effect of this ruling is substantially the same as where the judgment is reversed on appeal. In both instances, the old judgment is completely emasculated and a new trial is made possible. Many of the preliminary steps of the original proceeding remain valid, including the indictment.

Defendant next complains that...