Pryor v. Rose

• Decision Date: 06 January 1984
• Docket Number: No. 81-5401,81-5401
• Citation: 724 F.2d 525
• Parties: Robert Earl PRYOR, Petitioner-Appellee, v. James H. ROSE, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 525

724 F.2d 525

Robert Earl PRYOR, Petitioner-Appellee, v. James H. ROSE, Warden, Respondent-Appellant.

No. 81-5401.

United States Court of Appeals Sixth Circuit.

Argued June 20, 1983.

Decided Jan. 6, 1984.

William M. Leech, Jr., Atty. Gen. of Tenn., Nashville, Tenn., Jennifer Helton Small, J. Andrew Hoyal argued, Asst. Attys. Gen., for respondent-appellant.

Robert Earl Pryor, pro se, William H. Farmer, Federal Public Defender, argued, Ross E. Alderman, Nashville, Tenn., for petitioner-appellee.

Before LIVELY, Chief Judge, and EDWARDS, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY and WELLFORD, Circuit Judges. ^*

CONTIE, Circuit Judge.

This is the rehearing of an appeal from a district court order which granted relief to the appellee, Robert Pryor, on a petition for habeas corpus brought pursuant to 28 U.S.C. Sec. 2254. The court held that the imposition of consecutive sentences for assault with intent to commit robbery with a deadly weapon and assault with intent to commit first degree murder violated the double jeopardy clause of the United States Constitution. It therefore granted the writ as to the conviction for assault with intent to commit first degree murder. We affirm.

I.

Pryor was tried in the Criminal Court of Shelby County, Tennessee. The record reflects that on August 20, 1977, John Winbush was at a manufacturing plant in Memphis. As he walked through an alley behind the plant in search of cigarettes, he encountered the petitioner. Winbush testified that the following events then occurred:

A. Okay, uh-huh. He called me--came up to me just like that, so I turned and walked away from him. So he hit me right here (indicating). It burst this a loose and knocked me down, got blood all in my eyes and everything. ' Course however this has been sewed up now, you know. Since I went to the hospital and everything. Then after he knocked me down he start beating on me with that pipe, that stick, or whatever you call it, you know. And ah, the money that I had in my front pocket he went in there and got that.

* * *

* * *

Q. All right, Mr. Winbush, you stated that you were struck with a cane or metal--

A. Yeah, something made like a walking stick.

Q. Let me hand you this object and ask if you can identify it?

A. Yeah, that's what he had. He had it in his hand when he called me up to him. That's right, show did and start beating me with this thang. After he knocked me down, kept on beating me and he told me, I'm going to kill you man, I'm going to kill you. Give me some more money.

* * *

* * *

Q. All right sir,--

A. He kept telling me that, at the time he was beating me with this (indicating).

* * *

* * *

Q. Mr. Winbush, how many times were you struck with this pipe?

A. Well, all I know, I was hit lots of times with that pipe I couldn't just say exactly how many times. I know I was hit a lots of times with it. I couldn't tell you the exact amount of licks that he did hit me with it. I'd say quite a few times, he did.

Two indictments arose from this incident. The first accused the petitioner of assaulting Winbush with the intent to commit a willful, malicious, deliberate and premeditated murder. The second indictment charged Pryor with robbery with a deadly weapon. At trial, the jury found the petitioner guilty of assault with intent to commit first degree murder and imposed a penalty of six to twenty-one years imprisonment. The jury also found Pryor guilty of assault with intent to commit robbery with a deadly weapon, a lesser included offense of robbery with a deadly weapon. It affixed a sentence of ten to twenty-one years imprisonment. The trial judge ordered that these sentences be served consecutively.

Under then applicable Tennessee law, the jury was entitled to convict Pryor on the first indictment only if the petitioner would have been guilty of first degree murder had the victim died. Accordingly, Tennessee's first degree murder statute is relevant: ¹

39.2402. Murder in the first degree.--An individual commits murder in the first degree if:

(1) He commits a willful, deliberate, malicious and premeditated killing or murder;

(2) He commits a willful, deliberate, and malicious killing or murder, and:

(a) The victim is an employee of the department of correction having custody of the actor,

(b) The victim is a prison inmate in custody with the actor,

(c) The victim is known to the actor to be a peace officer or fireman acting in the course of his employment,

(d) The victim is a judge acting in the course of his judicial duties,

(e) The victim is a popularly elected public official,

(f) The offense is committed for hire; or,

(g) The offense is committed while attempting to evade law enforcement officials;

(3) He hires another to commit a willful, deliberate, malicious and premeditated killing or murder, and such hiring causes the death of the victim; or

(4) He commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb.

In defining first degree murder, the trial judge instructed the jury under options 1 and 4 of this statute:

An individual commits murder in the first degree if: (1) he commits a willful, deliberate, and malicious and premeditated killing or murder; or (4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb. When the act of killing is not done in the commission of some one of the felonies named in the definition of murder above, in order that it be murder in the first degree, the killing must be done willfully, this is, of purpose, with the intent that the act by which the life of the party is taken, should have that effect; deliberately, that is, with a cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design to kill must be formed before the act is performed, by which death is produced. In other words, proof must be adduced to satisfy the mind of the jury that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused sought. [Emphasis supplied.]

The petitioner contends that the felony-murder theory contained in the instruction permitted the requirement of premeditation to be satisfied by a finding of intent to commit robbery. He argues that the two crimes for which he was convicted are thus the "same" for double jeopardy purposes, and that he therefore can neither be convicted of both crimes nor given consecutive sentences.

II.

Before considering the merits of this question, we must address the appellant's claim that certain state court findings are entitled to a presumption of correctness under Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The parties agree that the double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The Tennessee Court of Criminal Appeals held, however, that the offenses committed by Pryor were not the same:

The proof accredited by the jury verdict clearly establishes there was an assault and taking of the money from the victim's front pocket.... Then after appellant had knocked the victim down and gotten his money, appellant told the victim, "I'm going to kill you man, I'm going to kill you. Give me some more money." ... The appellant had completed the assault with the intent to commit robbery when the money was taken.

Appellant resumed beating the victim and expressed the intent to kill. The jury adduced from the facts the appellant intended to carry out this new exclamation. There were two separate and distinct offenses committed. [Citations omitted.]

The appellant argues that since the petitioner does not rely on any of the exceptions listed in 28 U.S.C. Sec. 2254(d), the quoted statement is a finding of fact which is binding on this court. We disagree. Whether multiple crimes committed during a single transaction are the same offense under the standard approved by the Supreme Court is a question of law. The presumption of correctness attaches neither to state court conclusions of law, Marshall v. Lonberger, --- U.S. ----, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983), nor to state court applications of law to the facts of individual cases. Sumner, 449 U.S. at 544, 101 S.Ct. at 767. Moreover, the Tennessee Court of Criminal Appeals was not entitled to examine the evidence or arguments actually introduced at trial in deciding whether the offenses were the same for double jeopardy purposes. The court should instead have focused on the proof necessary to establish the statutory elements of each offense. See Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Pandelli v. United States, 635 F.2d 533, 538 (6th Cir.1980). Consequently, this court will fully review the petitioner's double jeopardy claim.

III.

In Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the Supreme Court adopted the rule of statutory construction set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), for determining whether two offenses are the same under the double jeopardy clause:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....

As has been indicated, this test focuses upon the proof necessary to establish the statutory elements of each offense, rather than on the specific...