Spidle v. Swenson, Civ. A. No. 18136-3.

• Decision Date: 15 April 1970
• Docket Number: Civ. A. No. 18136-3.
• Parties: Louis Otto SPIDLE, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

313 F. Supp. 203

Louis Otto SPIDLE, Petitioner, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Jefferson City, Missouri, Respondent.

Civ. A. No. 18136-3.

United States District Court, W. D. Missouri, W. D.

April 15, 1970.

Philip Schwarz, Legal Aid & Public Defender Society, Kansas City, Mo., for petitioner.

Gene Voigts, Asst. Atty. Gen., Jefferson City, Mo., for respondent.

ORDER GRANTING WRIT OF HABEAS CORPUS

BECKER, Chief Judge.

Petitioner, a state convict confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus invalidating his state conviction for assault with intent to kill with malice.

Petitioner originally presented his contentions in this Court in his petition for habeas corpus in Spidle v. Swenson (W.D.Mo.) Civil Action No. 17886-3. After the entry of a show cause order, response to the show cause order and petitioner's traverse therein, the cause was dismissed without prejudice at petitioner's request. Petitioner has now refiled the same petition under the above number. Leave will therefore be granted to proceed in forma pauperis.

Petitioner was originally tried on an information charging assault with intent to kill with malice and convicted by a jury in the Circuit Court of Buchanan County of the offense of assault with intent to kill without malice. Petitioner states that he was sentenced on that conviction to a term of five years' imprisonment; that he appealed from the judgment of conviction and imposition of sentence to the Missouri Supreme Court; that, on appeal, the Missouri Supreme Court reversed the conviction and sentence for failure of the trial court to excuse a juror for cause and remanded the case to the state trial court for a retrial (State v. Spidle, Mo., 413 S.W.2d 509); that petitioner was again tried in the state trial court and found guilty by a jury of the greater offense of assault with intent to kill with malice; that petitioner did not appeal that judgment of conviction or imposition of sentence; that he filed a motion to vacate sentence in the state trial court under Missouri Criminal Rule 27.26, V.A.M.R., on September 25, 1968; that the state trial court overruled the motion to vacate; that petitioner appealed the overruling of the 27.26 motion to the Missouri Supreme Court, which affirmed the trial court judgment on November 10, 1969 (Spidle v. State, Mo., 446 S.W.2d 793); and that no other applications, motions or petitions have been filed by petitioner with respect to this conviction.

Petitioner states the following as grounds for his contention that he is unlawfully in the custody of the respondent:

"Petitioner was charged in the Buchanan County Circuit Court with assault with intent to kill with malice aforethought. A jury found him guilty, by verdict returned June 8, 1965 of the lesser included offense of assault without malice.

"Petitioner's punishment was fixed at five years imprisonment. On appeal, the conviction was reversed because of error in the trial court's failure to excuse a juror for cause. State v. Spidle, Mo.Sup., 413 S.W.2d 509. Upon a second trial on the original information, a jury on December 14, 1967 found the defendant guilty of assault with intent to kill with malice and fixed the punishment at eight years imprisonment. No appeal was taken from this sentence and the defendant entered the Missouri State Penitentiary on March 29, 1968.

"Petitioner contends that he has been denied his constitutional right under the United States Constitution, Fifth Amendment, not to be placed in jeopardy twice for the same offense by the actions of the Circuit Court of Buchanan County, Missouri. Moreover, petitioner contends that he has been denied his right under the United States Constitution, Fourteenth Amendment, to equal protection under the law and to due process of law by action of the Buchanan County Circuit Court."

Petitioner thus claims that his retrial on a charge of assault with intent to kill with malice, after the first verdict of a jury finding him guilty only of assault with intent to kill without malice (and thus, impliedly, acquitting him of the offense of assault with intent to kill with malice) was in direct violation of his Fifth Amendment right not to be placed twice in jeopardy for the same offense under the 1969 ruling in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2506, 23 L. Ed.2d 707. Petitioner also contends that the greater sentence assessed against him following his conviction at his second trial violates the principles recently pronounced by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

At the outset it is noted that in the Benton case the accused was acquitted of larceny at the first trial and convicted of larceny at the second trial, presenting a clear cut case of former (or double) jeopardy.

The case at bar presents a less clear violation of the double jeopardy rule because the petitioner was convicted of assault with intent to kill without malice at his first trial, and of the greater offense of assault with intent to kill with malice aforethought at his second trial. The difference in this and the Benton case is not one of principle but of degree. Under the federal standards, enunciated in Benton, conviction of a lesser included offense is in legal effect acquittal of the greater offense. See 5 Wharton's Criminal Procedure § 2131, p. 325 (1957 ed.). This federal standard is applicable to the states under the Benton case.

With respect to the first contention, the Missouri Supreme Court, on the 27.26 appeal, found that Benton v. Maryland, supra, if applicable, would have precluded petitioner's retrial on the charge of assault with intent to kill with malice, after the jury earlier found him guilty of the lesser offense, assault with intent to kill without malice, after it had been instructed on the greater offense, also. The Missouri Supreme Court found Benton inapplicable to petitioner's case, assuming that Benton had no retroactive application. Then the Missouri Supreme Court proceeded to consider the three criteria for determining whether decisions were retroactive. These criteria were set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L. Ed.2d 1199, as follows: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards and (3) the effect of retroactivity on the administration of justice. With respect to criteria (2) and (3), the Missouri Supreme Court concluded that the reliance of Missouri law enforcement authorities on the Missouri Constitutional provision had been complete since the 1880 decision in State v. Simms, 71 Mo. 538; and that since 19 states permit retrial for the greater offense, the administration of justice would be severely hampered by applying the Benton standard retroactively.

With respect to the first criterion, the purpose of the Benton standard, the Missouri Supreme Court reasoned as follows:

"The purpose of the Benton decision is to make applicable throughout the United States `a fundamental ideal in our constitutional heritage.' 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707. The court so stated, in equating the right recognized in Benton, with the right of trial by jury, held in Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491, to be `fundamental to the American scheme of justice.' However, as above noted, the court declined, in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, to apply Duncan retroactively. The supreme court's analogizing the fundamental nature of the rights involved in Duncan and Benton justifies the conclusion that the purpose to be served by Benton does not require its retroactive application." 446 S.W.2d at 795.

In Benton, however, the United States Supreme Court equated Benton and Duncan v. Louisiana, supra, only generically, in that they both protected rights "fundamental to the American scheme of justice." This was presented by the United States Supreme Court, in Duncan and Benton, as the necessary condition to determine the binding character of federal standards upon the States through the applicability of the Fourteenth Amendment. The necessity that the right be "fundamental," then, is not decisive. Accordingly, the equation of Duncan and Benton in this respect was not determinative of the issue of retroactivity. This is especially true in the light of the Supreme Court's pronouncement in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, 889, that the "choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved." In Benton, by contrast, the United States Supreme Court compared the principles enunciated in Benton and those set forth in the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799:

"Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, which held that the double jeopardy provision was inapplicable to the states and which Benton overruled represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was `shocking to the universal sense of justice.' Id., at 462, 62 S. Ct., at 1256, 86 L.Ed. at 1602. It relied upon Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Twining, by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)." 395 U.S. at 794, 89 S.Ct. at 2062

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