State v. Swartz

• Decision Date: 22 September 1995
• Docket Number: No. 94-761,94-761
• Citation: 541 N.W.2d 533
• Parties: STATE of Iowa, Appellee, v. Ronald SWARTZ, Appellant.
• Court: Iowa Court of Appeals

Page 533

541 N.W.2d 533

STATE of Iowa, Appellee, v. Ronald SWARTZ, Appellant.

No. 94-761.

Court of Appeals of Iowa.

Sept. 22, 1995.

Alfredo Parrish and Robert P. Montgomery of Parrish, Kruidenier, Moss, Dunn, Montgomery & Thomas, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas G. Fisher, Jr., Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Shawn Wehde, Assistant County Attorney, for appellee.

Heard by HAYDEN, P.J., and SACKETT and CADY, JJ., but considered en banc.

CADY, Judge.

This is an interlocutory appeal by a defendant claiming the State should be barred from reprosecution following the reversal of his conviction on appeal. We conclude retrial is not barred, and affirm the district court's rejection of the defendant's motion to dismiss. We remand for further proceedings.

Ronald Swartz was convicted of first-degree robbery on July 5, 1985. He was sentenced to serve a prison term not to exceed twenty-five years. The conviction and sentence was later affirmed on appeal.

Swartz served his sentence and was discharged from parole on August 6, 1992. Prior to his discharge, he filed a post-conviction relief petition with the district court claiming, in part, that his conviction was tainted by prosecutorial misconduct. The district court denied Swartz relief, and he appealed.

On August 6, 1993, we reversed the district court's decision to deny Swartz post-conviction relief and remanded the case for retrial. We reversed the conviction due to the prosecutor's deliberate use of perjured testimony which likely influenced the outcome of the trial. The procedendo followed on October 15, 1993. An order entered by the district court on December 13, 1993, set the new trial for January 4, 1994. Swartz moved for a continuance of the trial, and for a dismissal of the charge. The district court granted the continuance but denied the motion to dismiss. Swartz sought and was granted interlocutory review from the denial of his motion to dismiss.

Swartz raised several claims before the district court in his motion to dismiss, which are now raised on appeal. He contends: 1) the Double Jeopardy Clause bars retrial, 2) the prior discharge from his sentence bars retrial, 3) the Due Process Clause and the furtherance of justice bar retrial, 4) the delay by the State in setting the date of the new trial violated the Equal Protection Clause and his right to a speedy trial, and 5) the district court lacked jurisdiction to entertain reprosecution.

I. Scope of Review.

Where a defendant alleges deprivation of a constitutional right, such as here, we must make our own evaluation of the totality of the circumstances under which the rulings on constitutional rights were made. State v. Rademacher, 433 N.W.2d 754, 759 (Iowa 1988) (double jeopardy issue) (citations omitted). Simply put, the evidence relevant to a constitutional issue is reviewed de novo. State v. Brown, 253 N.W.2d 601, 602 (Iowa 1977) (Fourth Amendment issue) (citation omitted).

II. Double Jeopardy Issue.

The Fifth Amendment of the United States Constitution in pertinent part provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This seemingly simple phrase has launched a complex area of jurisprudence. Double jeopardy issues have badly fractured the United States Supreme Court in recent years. See, e.g., Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (6-3 decision); Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (three concurring opinions); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (5-4 decision); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion). Commentators have described the state of current double jeopardy law as "entangled," "inadequate," and "confusing." William S. McAninch, Unfolding The Law of Double Jeopardy, 44 S.C.L.Rev. 411, 412 (1993); James F. Ponsoldt, When Guilt Should Be Irrelevant: Government Overreaching As A Bar to Reprosecution Under The Double Jeopardy Clause After Oregon v. Kennedy, 69 Cornell L.Rev. 76, 100 (1983); Eli J. Richardson, Eliminating Double-Talk From The Law of Double Jeopardy, 22 Fla.St.U.L.Rev. 119, 124 (1994). The Supreme Court itself has stated, "[T]he decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275, 284 (1981). We recite these concerns only to show the difficulty in the task before us.

Still, a few clear principles can be gleaned from the case law. As a general rule, the Double Jeopardy Clause "does not prevent the government from retrying a defendant who succeeds in getting his first conviction [reversed] because of some error in the proceedings leading to conviction." Lockhart, 488 U.S. at 38, 109 S.Ct. at 289, 102 L.Ed.2d at 272 (citations omitted). The Court has adopted only one exception to this rule: retrial is barred if a conviction is reversed on the ground of legally insufficient evidence because such a reversal is equivalent, for double jeopardy purposes, to a jury verdict of acquittal. DiFrancesco, 449 U.S. at 131, 101 S.Ct. at 434, 66 L.Ed.2d at 342 (citing Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141, 2149-51, 57 L.Ed.2d 1, 12-14 (1978)) (further citation omitted).

As well, generally, the Double Jeopardy Clause does not bar retrial of a defendant after a mistrial declared at the defendant's request. See Arizona v. Washington, 434 U.S. 497, 515-16, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 734-35 (1978). The Court, however, fashioned a narrow exception to this rule. Reprosecution is barred if the mistrial was caused by prosecutorial misconduct "intended to 'goad' the defendant into moving for a mistrial." Oregon, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 425. The Court reasoned such misconduct prejudices an interest protected by the Double Jeopardy Clause--the defendant's right "to have his trial completed before the first jury impaneled to try him." Id. at 673, 102 S.Ct. at 2088, 72 L.Ed.2d at 423.

These two general rules, and their accompanying exceptions, form the foundation to the resolution of the issue we confront. We must decide if the exceptions are applicable to the facts of this case, or if they should be extended to cover the circumstances of this case.

The insufficiency of evidence exception is clearly inapplicable to this case. In Burks, the Court drew a distinction between trial error and insufficiency of evidence to support the conviction, listing prosecutional misconduct as a trial error which does not implicate the Double Jeopardy Clause. Burks, 437 U.S. at 15, 98 S.Ct. at 2149, 57 L.Ed.2d at 12. It stated reversal based on insufficiency of the evidence indicates the "government has failed to prove its case, [but reversal for trial error] implies nothing with respect to the guilt or innocence of the defendant.... [I]t is simply a determination that [he or she] has been convicted through a judicial process which is defective in some fundamental respect." Id. at 15, 98 S.Ct. at 2149, 57 L.Ed.2d at 12.

Furthermore, in Lockhart the Court held the test for sufficiency of the evidence requires the appellate court to consider any inadmissible evidence erroneously accepted by the trial court, as well as the admissible evidence. Lockhart, 488 U.S. at 41-42, 109 S.Ct. at 291, 102 L.Ed.2d at 274. Under this test, the perjured testimony elicited in this case would have to be considered, and the evidence is clearly sufficient to sustain the conviction.

The prosecutorial misconduct exception also fails to fit squarely within the confines of this case. No motion for a mistrial based on prosecutorial misconduct was made. Thus, we must decide whether the Double Jeopardy Clause bars retrial of a defendant whose conviction is reversed on appeal for prosecutorial misconduct when the defendant did not move for a mistrial on the ground of prosecutorial misconduct.

This is an issue of first impression in Iowa, and one that has been met with mixed results in the federal circuits and other state courts. Until recently, Supreme Court precedent seemed to foreclose any extension of the Double Jeopardy Clause to cases which were reversed on appeal due to prosecutor misconduct but which did not involve a mistrial motion. In Burks, the court indicated that government misconduct was not a ground for reversal which implicated the Double Jeopardy Clause. Burks, 437 U.S. at 15, 98 S.Ct. at 2149, 57 L.Ed.2d at 12. In DiFrancesco, the Court labeled insufficiency of evidence as the "one exception" to the prevailing rule that retrial was permissible after reversal based on trial error. DiFrancesco, 449 U.S. at 131, 101 S.Ct. at 434, 66 L.Ed.2d at 342. The Court has also characterized the Oregon exception as one "that applies to mistrials granted ... on motion of the defendant." Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242, 250 (1984). Finally, the Court has observed that the Double Jeopardy Clause would not bar the reprosecution of those defendants who move unsuccessfully for mistrials on the basis of prosecutorial misconduct, but succeed in having their convictions reversed on that ground. Oregon 456 U.S. at 676-77, 102 S.Ct. at 2090, 72 L.Ed.2d at 425-26.

In Lockhart, however, the Court, sparked debate over the issue of whether further extension of the double jeopardy bar was possible when it introduced the double jeopardy claim presented in the case by observing that the record revealed no prosecutorial misconduct. Lockhart, 488 U.S. at 34, 109 S.Ct. at 287, 102 L.Ed.2d at 269. The implication, of course, is that the Court may have been willing to extend the bar to reprosecution had the record showed misconduct by the prosecutor in the submission of evidence....