State v. Johnson

• Decision Date: 04 December 1997
• Docket Number: No. CR,CR
• Citation: 330 Ark. 636,956 S.W.2d 181
• Parties: STATE of Arkansas, Appellant, v. John Edward JOHNSON, Appellee. 97-593.
• Court: Arkansas Supreme Court

Page 181

956 S.W.2d 181

330 Ark. 636

STATE of Arkansas, Appellant, v. John Edward JOHNSON, Appellee.

No. CR 97-593.

Supreme Court of Arkansas.

Dec. 4, 1997.

Winston Bryant, Attorney General, Todd L. Newton, Assistant Attorney General, Little Rock, for Appellant.

Jack R. Kearney, Little Rock, for Appellee.

ARNOLD, Chief Justice.

This is the second interlocutory appeal brought by the State in the same case. In State v. Johnson, 326 Ark. 660, 934 S.W.2d 499 (1996), we held that the trial court erred in suppressing appellee John Edward Johnson's confession on the basis that he was denied the right to counsel of his own choosing to be present during an in-custody interrogation and reversed and remanded his case. In the present appeal, the State contends that the trial court erred in dismissing its charges against Johnson on the grounds that double-jeopardy principles barred state prosecution of an offense where the criminal conduct underlying the offense was utilized to enhance punishment for a separate, but related federal conviction. We agree with the State and reverse and remand Johnson's case for trial.

On August 30, 1995, Johnson was charged in Pulaski County Circuit Court with one count of rape, two counts of aggravated robbery, and two counts of theft of property. The charges stemmed from the June 25, 1995, armed robbery of the Purple Cow restaurant on Cantrell Road in Little Rock, during which an employee of the restaurant was raped. Johnson, a former employee of the restaurant, was developed as a suspect and was questioned by police. On February 22, 1996, the trial court suppressed Johnson's taped confession. The State appealed, and this court reversed and remanded the case on November 25, 1996.

On March 13, 1996, Johnson was indicted in the United States District Court for the Eastern District of Arkansas for interference with commerce by threats of violence, use of a firearm in relation to a crime of violence, and possession of a firearm not registered to him. The three charges all stemmed from the robbery of the Purple Cow restaurant. On September 17, 1996, Johnson pleaded guilty in federal district court to interference with commerce by threats of violence and use of a firearm in relation to a crime of violence. On December 18, 1996, the federal district judge, in imposing Johnson's sentence, found by a preponderance of the evidence that Johnson committed a rape in the course of the robbery, thus warranting enhancement of his sentence by 72 months. Thereafter, the State moved to dismiss the aggravated robbery and theft of property charges in Pulaski County Circuit Court, leaving the rape charge. Johnson filed a motion to dismiss the rape charge on the basis that he had already been punished for this offense in federal district court. According to Johnson, the Double Jeopardy Clause of the Fifth Amendment prohibited the State from pursuing the rape charge. The trial court agreed, and on April 2, 1997, one day before a previously scheduled hearing in the case, dismissed the State's charge. On April 3, 1997, the trial court permitted the State to make a record of its objections, which form the basis for the present interlocutory appeal.

The State appeals the trial court's decision to dismiss the rape charge against Johnson under Ark. R.App. P.--Crim. 3, contending that error was committed to the State's prejudice and that the correct and uniform administration of the criminal law requires our review. In this appeal, we are asked to decide, for the first time, whether double jeopardy prohibits state prosecution of an offense where the offense was considered, for enhancement purposes, in the calculation of punishment for a separate, but related federal conviction. Resolution of this appeal is also important because it involves the doctrine of dual sovereignty discussed in Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), and has far-reaching implications in the administration of the criminal law as applied by federal and state authorities simultaneously involved in pursuing similar charges against one suspect. Thus, because we agree with the State that the correct and uniform administration of the criminal law is at issue here, we accept jurisdiction of this appeal.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Edwards v. State, 328 Ark. 394, 943, S.W.2d 600 (1997), citing Schiro v. Farley, 510 U.S. 222, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994). The issue in this case relates to the third protection. Relying largely on United States v. Koonce, 945 F.2d 1145 (10th Cir.1991), cert. denied 503 U.S. 994, 112 S.Ct. 1695, 118 L.Ed.2d 406 (1992), the trial court concluded that, because the federal district court had considered the rape in setting Johnson's punishment for his convictions for interference with commerce by threats of violence and use of a firearm in relation to a crime of violence, Johnson would be subjected to multiple punishments for the same offense if the State were allowed to proceed on the rape charge. In Koonc...