State v. Hudson

• Decision Date: 25 June 1979
• Docket Number: No. 63450,63450
• Citation: 373 So.2d 1294
• Parties: STATE of Louisiana v. Tracy Lee HUDSON.
• Court: Louisiana Supreme Court

Page 1294

373 So.2d 1294

STATE of Louisiana v. Tracy Lee HUDSON.

No. 63450.

Supreme Court of Louisiana.

June 25, 1979.

Rehearing Denied Sept. 4, 1979. ^*

S. Patrick Phillips, Chief Asst. Indigent Defender, Indigent Defender Bd., 26th Judicial Dist., Bossier City, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., for plaintiff-respondent.

BLANCHE, Justice.

The issue presented is whether the double jeopardy clause of the Fifth Amendment precludes a second trial after a jury's guilty verdict has been set aside and a new trial ordered pursuant to LSA-C.Cr.P. art. 851 solely for lack of sufficient evidence to sustain the jury's verdict.

Petitioner, Tracy Lee Hudson, was convicted by a jury of first degree murder, LSA-R.S. 14:30, and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Pursuant to his duty to pass upon the sufficiency of the evidence, State v. Daspit, 167 La. 53, 118 So. 690 (1928); LSA-C.Cr.P. art. 851, Official Revision Comment (d); the trial judge granted petitioner's motion for a new trial upon finding insufficient evidence to support the verdict returned by the jury. ¹ The granting or the refusal to grant a new trial is unreviewable by this Court, except for error of law. LSA-C.Cr.P. art. 858. Accordingly, the State's application for review erroneously asserting that the district court may pass only upon whether there is "some evidence" was denied. 344 So.2d 1 (La.1977) Upon retrial the State introduced additional evidence, in particular an eye witness to the murder who had not been produced at the original trial. The petitioner was convicted by a jury of first degree murder for the second time and resentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal, the conviction and sentence were affirmed. 361 So.2d 858 (La.1978).

On October 2, 1978, petitioner applied for habeas corpus relief in the district court, alleging for the first time that the second trial in this case placed him in jeopardy a second time for the same offense in violation of the double jeopardy clause of the Fifth Amendment. The trial court denied relief, and petitioner applied to this Court. We granted petitioner's application to consider his plea of double jeopardy.

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the United States Supreme Court announced that the double jeopardy clause of the Fifth Amendment precluded a second trial when a defendant's conviction is reversed by a reviewing court solely for lack of sufficient evidence to sustain the jury's verdict. In Burks, the defendant was convicted of bank robbery in federal district court and the trial judge denied his motion for new trial. On appeal, the defendant claimed that he had successfully established a prima facie defense of insanity through the testimony of three expert witnesses and the Government had failed to meet its burden of coming forward and proving sanity beyond a reasonable doubt. The Supreme Court observed:

". . . (T)he reviewing court went on to hold that the United States had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not 'effectively rebut' petitioner's proof with respect to insanity and criminal responsibility. In particular The witnesses presented by the prosecution failed to 'express definite opinions on the precise questions which this court (of appeals) has identified as critical in cases involving the issue of (in)sanity.' " (98 S.Ct. at 2143 Emphasis added)

The court of appeal remanded the case to the district court, directing that court to enter a verdict of acquittal unless the State was able to present sufficient additional evidence to carry its burden. The defendant sought relief on double jeopardy grounds.

The Supreme Court in Burks held that a second trial would normally be permitted after a conviction had been reversed due to trial error, but that the double jeopardy clause prohibited a second trial after a conviction had been reversed due to failure of proof. The Court explained the rationale for this distinction as follows:

". . . In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U.Chi.L.Rev. 365, 370 (1964).

"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. . . . Moreover, such an appellate reversal means that the Government's case was so lacking that it should not have even been Submitted to the jury. Since we necessarily afford absolute finality to a jury's Verdict of acquittal no matter how erroneous its decision it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty." (98 S.Ct. at 2149-2150)

In precluding a second trial when a defendant's conviction has been overturned due to failure of proof at trial, the high court expressly declined to follow prior jurisprudence which found a "waiver" of the double jeopardy guarantee whenever the defendant sought a new trial as one of his remedies in the trial court:

"In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person 'waives' his right to a judgment of acquittal by moving for a new trial. . . . To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled." (98 S.Ct. at 2150)

The double jeopardy protection of the Fifth Amendment is applicable to state criminal proceedings through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Thompson, 366 So.2d 1291 (La.1978).

While the case at bar involves the granting of a motion for new trial by the trial court for insufficient evidence rather than review at the appellate level, we deem the same principles are applicable to both.

LSA-C.Cr.P. art. 851 provides:

"The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

"The court, on motion of the defendant, shall grant a new trial whenever:

"(1) The verdict is contrary to the law and the evidence . . . ."

This provision permits the trial judge to grant a defendant a new trial if, in his opinion, the evidence is insufficient to convict. State v. Rollins, 351 So.2d 470 (La.1977); State v. Jack, 332 So.2d 464 (La.1976); State v. Jones, 288 So.2d 48 (La.1974). This Court's appellate jurisdiction in criminal matters extends only to questions of law, LSA-Const. Art. 5, § 5(C), and it is only where a defendant has moved for a judgment of acquittal in a trial before a judge alone (LSA-C.Cr.P. art. 778) or for a new trial based upon the contention that there is No evidence at all of the crime charged or an essential element thereof, is a question of law presented which this Court can review. State v. Cobbs, 350 So.2d 168 (La.1977); State v. Blackstone, 347 So.2d 193 (La.1977); State v. Jamerson, 341 So.2d 1118 (La.1977).

This Court has recognized that when it finds on review that in a prior trial there was No evidence of the crime charged or an essential element thereof, Burks precludes retrial, and a verdict of acquittal must be entered. State v. Thompson, 366 So.2d 1291 (La.1978); State v. Allien, 366 So.2d 1308 (La.1978); State v. Liggett, 363 So.2d 1184 (La.1978). In State v. Thompson, supra, we noted that the Supreme Court indicated that the contention that there was No evidence of the crime charged or an essential element thereof may properly be raised solely by a motion for new trial. State v. Thompson, supra, 366 So.2d at 1293-94. Thus, if a trial judge granted a motion for new trial on the grounds that No evidence of the crime charged or an essential element thereof, Burks, supra, and our holding in Thompson, supra, would require the trial judge to enter a verdict of acquittal.

The question in the instant case is whether Burks compels the same result where the trial judge grants a motion for new trial on the grounds of Insufficient evidence as opposed to granting the motion on the grounds of No evidence. We believe it does not.

We believe the holding in Burks was addressed solely to those cases where a reviewing court (whether it be the trial judge or an appellate court) finds that as a Matter of Law there was a failure of proof at the trial level. The Court, in Burks, explained:

"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has...