State ex rel. Westfall v. Mason, No. 61499

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRENDLEN; DONNELLY; WELLIVER; BARDGETT; SEILER; DONNELLY; BARDGETT; Capital murder is not treated as two offenses. Nor do I think the dissent of Seiler; SEILER
Citation594 S.W.2d 908
Decision Date11 February 1980
Docket NumberNo. 61499
PartiesSTATE ex rel. George R. WESTFALL, Relator, v. Hon. Donald L. MASON, Judge, 16th Judicial Circuit, Respondent.

Page 908

594 S.W.2d 908
STATE ex rel. George R. WESTFALL, Relator,
v.
Hon. Donald L. MASON, Judge, 16th Judicial Circuit, Respondent.
No. 61499.
Supreme Court of Missouri, En Banc.
Feb. 11, 1980.
As Modified On Denial of Rehearing March 11, 1980.

Page 909

James J. Cook, Asst. Pros. Atty., for relator.

Richard H. Sindel, St. Louis, Gail Gaus, Clayton, for respondent.

RENDLEN, Judge.

I

Prohibition, to prevent respondent, the Honorable Donald L. Mason 1 Judge of the Sixteenth Judicial Circuit, from proceeding in the retrial of Robert Bullington for capital murder (the indictment charged numerous offenses) without allowing the prosecution to seek imposition of the death penalty.

Prior to trial in 1978 the State under § 565.006(2), RSMo 1978, 2 filed a "Notice of Evidence in Aggravation" announcing its intention to seek the death penalty in the capital murder charge. That trial resulted in a verdict of guilty on all counts including capital murder, October 11, 1978. A hearing was conducted the next day under the bifurcated procedure mandated by § 565.006, RSMo 1978, in which the jury was presented additional evidence in "extenuation, mitigation, and aggravation" of punishment. The jury directed that defendant be sentenced to life imprisonment without probation or parole for not less than fifty years.

Page 910

Defendant's motion for new trial, challenging the constitutionality of the Jackson County jury panel, was sustained February 13, 1979, in light of the United States Supreme Court's holding in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). In preparation for Bullington's retrial the State has filed a second "Notice of Evidence in Aggravation" indicating its continued intention to seek the death penalty. 3 Responding, defendant moved to strike that "Notice" and to exclude from trial all evidence in aggravation of punishment. Respondent announced his intention to enter an order sustaining defendant's motion to strike, "to the extent that the state will not be permitted to seek the death penalty, should the defendant again be found guilty of capital murder." Relator then sought prohibition and for reasons now discussed, our preliminary rule heretofore entered is made absolute.

II

Respondent first contends prohibition is inappropriate procedurally because (1) relator (Prosecuting Attorney of St. Louis County) failed to allege the State had no adequate remedy at law, (2) that the state's limited right of appeal forecloses resort to prohibition, and (3) the issue does not involve the jurisdiction of the trial court. The first contention may be disposed of summarily. On October 2, 1979, by order of this Court relator was permitted to amend its petition and allege the State had no adequate remedy at law. As to respondent's second argument it is precisely because the state has an extremely limited right of appeal under § 547.210, RSMo 1978, and Rule 28:04 (now Rule 30.02) that extraordinary relief is proper to review interlocutory orders in criminal cases. See State ex rel. Corcoran v. Buder, 428 S.W.2d 935, 939 (Mo.App.1968). Further, it is settled law that, "The writ is properly invoked to restrain the enforcement of orders beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction." State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo. banc 1974). Because, as we shall presently discuss, neither the federal nor state constitutions nor Missouri law prevent Bullington from being subject to the death penalty on retrial, the trial court exceeded (or by its announced order would have exceeded) its authority in denying the state leave to seek imposition of the death penalty. Accordingly, prohibition lies. See State ex rel. Peach v. Bloom, 576 S.W.2d 744 (Mo. banc 1979).

III

The principal question for our determination is whether on retrial the death penalty under § 565.008, RSMo 1978 is barred as possible punishment by constitutional or statutory considerations. Respondent argues that because the jury in the first trial convicted Bullington of capital murder but sentenced him to life, the fifth amendment's prohibition against double jeopardy, the eighth amendment's proscription of cruel and unusual punishment, the fourteenth amendment's guarantee of due process and § 565.014.3(3), RSMo 1978, prevent the State from continuing to seek the death penalty. Long settled constitutional doctrine enunciated by this Court and reiterated in recent decisions of the United States Supreme Court leads to rejection of these challenges.

A defendant successfully overturning a conviction for a particular offense may in most instances be retried for that offense notwithstanding double jeopardy

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doctrine. 4 United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896); Forman v. United States, 361 U.S. 416, 425, 80 S.Ct. 481, 486, 4 L.Ed.2d 412 (1960); United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). In some cases the rationale for such results has been couched in language of a waiver theory and in others that retrial constitutes but continuing jeopardy. However the rule is more usually described in terms of policy considerations. As Mr. Justice Harlan explained in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964),

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for 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.

Essentially respondent argues that the federal double jeopardy clause prohibits not the retrial for the offense of capital murder (Bullington was convicted of that offense ) but only the imposition of a more severe punishment upon retrial. Such contention was squarely rejected sixty years ago in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919). There defendant 5 was convicted in a second trial for the murder of a prison guard and sentenced to life imprisonment by the jury. On retrial (his third) secured by Stroud, the new jury also convicted him of first degree murder and he was sentenced to death. The Court held the fact that Stroud was subjected to the increased punishment of death upon retrial did not place him in double jeopardy. In North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969), the Court reaffirmed that a necessary corollary of the power to retry a defendant is the state's power to impose any legally authorized sentence upon reconviction, though greater than the sentence originally imposed. In refusing to depart from an unbroken 75 year line of decision supporting this principle, the court explained, "(T)he original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." Id. at 721, 89 S.Ct. at 2078. Recently the Court referred to Stroud as a "well-established part of our constitutional jurisprudence" and specifically declined an invitation to discard the principles stated there. Chaffin v. Stynchcombe, 412 U.S. 17, 24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714 (1973). Within the past year the United States Court of Appeals for the Sixth Circuit, following Stroud and rejecting this same argument, held that the fifth amendment does not forbid imposition of the death penalty on retrial of defendant for an offense upon which he was originally sentenced to life. Gully v. Kunzman, 592 F.2d 283, 289 (6th Cir. 1979), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979).

Despite respondent's stated intention to circumvent the effect of Stroud and the decisions following it, we find nothing in

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the federal constitutional guarantee against double jeopardy to prevent the state from seeking the death penalty on Bullington's retrial for capital murder.

Respondent quite untenably suggests that the legislature has bisected the crime of capital murder defined in § 565.001, RSMo 1978. 6 He argues that if life imprisonment is the penalty imposed, the offense is somehow transfigured and changed into a lesser included offense of capital murder with capital punishment and becomes the crime of capital murder without capital punishment. Thus, he concludes, the jury's imposition of life imprisonment implicitly constitutes an acquittal of the greater offense. We are unwilling and indeed are unauthorized to indulge such fiction. It is not our prerogative to create separate crimes from those defined by statute. The simple fact is that capital murder under § 565.001, RSMo 1978 is a single crime with the range of punishment established by the legislature at life imprisonment without probation or parole for 50 years to the death penalty. Respondent's argument not only runs contrary to the decided cases, it ignores the statutory sections which define capital murder, prescribe the punishments for that offense, and detail the procedures for imposing those punishments. As noted above, there is but one crime defined as capital murder and the acts proscribed are specified in § 565.001. It was for that offense...

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27 practice notes
  • James v. Paul
    • United States
    • Court of Appeal of Missouri (US)
    • May 29, 2001
    ...App. 1976). See also Ashe v. Swenson, 397 U.S. 436, 445 (1969). 6. Simmons, 955 S.W.2d at 760. See also State ex rel. Westfall v. Mason, 594 S.W.2d 908, 913 (Mo. banc 1980); Booker, 540 S.W.2d at 93; United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir. 1974); United States v. Cioffi, 487......
  • State v. Newlon, No. 61798
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1982
    ...Constitution. We declared § 565.008, RSMo 1978, valid against such attack under Art. I, § 21, in State ex rel. Westfall v. Mason, 594 S.W.2d 908, 916-17 (Mo. banc 1980), vacated on other grounds, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). In so deciding we ......
  • United States v. Johnson, No. CR 01-3046-MWB
    • United States
    • U.S. District Court — Northern District of Iowa
    • January 16, 2013
    ...Clause bars a State from seeking the death penalty on retrial. Id. , at 445, 101 S.Ct. 1852 (quoting State ex rel. Westfall v. Mason, 594 S.W.2d 908, 922 (Mo.1980) (Bardgett, C. J., dissenting)).We were, however, careful to emphasize that it is not the mere imposition of a life sentence tha......
  • People v. Monge, No. S055881
    • United States
    • United States State Supreme Court (California)
    • August 27, 1997
    ..." (Bullington v. Missouri, supra, 451 U.S. at p. 445, 101 S.Ct. at p. 1861, quoting State ex rel. Westfall v. Mason (Mo.Sup.Ct.1980) 594 S.W.2d 908, 922 (dis. opn. of Bardgett, C.J.)), is strongly reminiscent of the court's decision in Green v. United States (1957) 355 U.S. 184, 78 S.C......
  • Request a trial to view additional results
27 cases
  • James v. Paul
    • United States
    • Court of Appeal of Missouri (US)
    • May 29, 2001
    ...App. 1976). See also Ashe v. Swenson, 397 U.S. 436, 445 (1969). 6. Simmons, 955 S.W.2d at 760. See also State ex rel. Westfall v. Mason, 594 S.W.2d 908, 913 (Mo. banc 1980); Booker, 540 S.W.2d at 93; United States v. Tramunti, 500 F.2d 1334, 1346 (2d Cir. 1974); United States v. Cioffi, 487......
  • State v. Newlon, No. 61798
    • United States
    • United States State Supreme Court of Missouri
    • February 9, 1982
    ...Constitution. We declared § 565.008, RSMo 1978, valid against such attack under Art. I, § 21, in State ex rel. Westfall v. Mason, 594 S.W.2d 908, 916-17 (Mo. banc 1980), vacated on other grounds, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). In so deciding we ......
  • United States v. Johnson, No. CR 01-3046-MWB
    • United States
    • U.S. District Court — Northern District of Iowa
    • January 16, 2013
    ...Clause bars a State from seeking the death penalty on retrial. Id. , at 445, 101 S.Ct. 1852 (quoting State ex rel. Westfall v. Mason, 594 S.W.2d 908, 922 (Mo.1980) (Bardgett, C. J., dissenting)).We were, however, careful to emphasize that it is not the mere imposition of a life sentence tha......
  • People v. Monge, No. S055881
    • United States
    • United States State Supreme Court (California)
    • August 27, 1997
    ..." (Bullington v. Missouri, supra, 451 U.S. at p. 445, 101 S.Ct. at p. 1861, quoting State ex rel. Westfall v. Mason (Mo.Sup.Ct.1980) 594 S.W.2d 908, 922 (dis. opn. of Bardgett, C.J.)), is strongly reminiscent of the court's decision in Green v. United States (1957) 355 U.S. 184, 78 S.Ct. 22......
  • Request a trial to view additional results

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