State v. White

• Decision Date: 08 May 1998
• Docket Number: No. S-96-984,S-96-984
• Citation: 577 N.W.2d 741,254 Neb. 566
• Parties: STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.
• Court: Nebraska Supreme Court

Page 741

577 N.W.2d 741

254 Neb. 566

STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.

No. S-96-984.

Supreme Court of Nebraska.

May 8, 1998.

Syllabus by the Court

1. Pleadings. An issue presented regarding a denial of a plea in bar is a question of law.

2. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.

3. Criminal Law: Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (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.

4. Constitutional Law: Double Jeopardy. The Nebraska Supreme Court has not construed Nebraska's double jeopardy clause to provide any greater protections than those guaranteed by the U.S. Constitution.

5. Convictions: Lesser-Included Offenses. A conviction of a lesser-included offense is an implied acquittal of the greater offense when the jury is instructed as to both.

6. Criminal Law: Lesser-Included Offenses: Proof. The same-elements test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is an acceptable test only in resolving the issue of whether a lesser offense is merged into a greater offense by reason of identity of elements.

7. Double Jeopardy: Legislature: Intent. The assumption underlying the Blockburger rule is that the legislature ordinarily does not intend to punish the same offense under two different statutes.

8. Criminal Law. If two crimes are the same offense for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.

9. Criminal Law: Statutes. The general overriding principle of statutory construction as it relates to a penal statute is that the penal statute is to be strictly construed.

10. Criminal Law: Statutes. A penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence.

11. Criminal Law: Statutes. Penal statutes are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

12. Statutes: Judicial Construction: Legislature: Intent: Presumptions. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.

13. Criminal Law: Homicide. The crime of first degree murder, as defined in Neb.Rev.Stat. § 28-303 (Reissue 1995), constitutes one offense even though there may be alternate theories by which criminal liability for first degree murder may be charged and prosecuted in Nebraska.

14. Criminal Law: Homicide: Double Jeopardy: New Trial. When a defendant is impliedly acquitted at trial of the offense of first degree murder, the Double Jeopardy Clause bars the State from reprosecuting that defendant at a subsequent proceeding, under a different theory of criminal liability, for the offense of first degree murder.

15. Criminal Law: Trial: New Trial: Appeal and Error. Reversal based upon trial error does not bar a retrial of a criminal defendant.

Robin W. Hadfield, of Nebraska Commission on Public Advocacy, and Vicky L. Johnson, Fillmore County Public Defender, for appellant.

Don Stenberg, Attorney General, and Barry Waid, Lincoln, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, and STEPHAN, JJ., and FAHRNBRUCH, J., retired.

GERRARD, Justice.

This case presents the question of whether, upon retrial after reversal of a second degree murder conviction, the State is barred by the Double Jeopardy Clause from reprosecuting Calvin J. White for the crime of first degree felony murder after White had originally been charged with, and tried for, first degree premeditated murder but convicted by a jury of second degree murder. Because we conclude that White was impliedly acquitted of first degree premeditated murder at his first trial and the Double Jeopardy Clause bars the State from prosecuting White for felony murder at a subsequent trial, we reverse, and remand.

BACKGROUND

On January 27, 1992, White was originally charged with first degree premeditated murder, use of a firearm to commit a felony, theft of an automobile, and other crimes unrelated to this appeal, in connection with the December 27, 1991, shooting death of Patricia Cool. White was tried for these crimes in July 1992, and the jury was also instructed with respect to the lesser-included offense of second degree murder. The jury returned a verdict finding White guilty of second degree murder, use of a firearm to commit the murder, and theft of an automobile, and judgment was entered thereon.

Having had his convictions for second degree murder, use of a firearm to commit the murder, and theft of an automobile affirmed on direct appeal in State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993) (White I ), White subsequently filed a motion for postconviction relief which was denied in the district court. On February 16, 1996, this court reversed the district court's denial of postconviction relief on the conviction for second degree murder and use of a firearm to commit the murder because the jury was not instructed that malice is an element of second degree murder, as required by State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), and the cause was remanded for a new trial. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996) (White II ). The conclusion of White II stated that the cause was remanded "for a new trial on the second degree murder and use of a firearm charges in accordance with this opinion." Id. at 390, 543 N.W.2d at 731. The mandate of this court simply stated that the judgment was "reversed and remanded for a new trial."

After the cause was remanded for a new trial, the State, in an amended information, charged White with (1) felony murder, (2) second degree murder, (3) use of a firearm to commit a felony, and (4) being a habitual criminal. White, in an amended plea in bar, claimed that because he was impliedly acquitted of first degree premeditated murder by virtue of being found guilty of second degree murder, he was being placed in jeopardy twice for the same crime when the State filed a felony murder charge against him in a subsequent proceeding. White also asserted in the amended plea in bar that the amended information charging him with felony murder violated this court's mandate in White II in that the mandate directed the district court to retry White for the crime of second degree murder. The district court overruled White's amended plea in bar, and White appeals.

ASSIGNMENTS OF ERROR

Restated, White asserts that the district court erred in overruling the amended plea in bar because the State's amended information charging him with felony murder violates (1) this court's mandate in White II in that the mandate directed the district court to retry White for the crime of second degree murder and (2) the Double Jeopardy Clauses of the Fifth Amendment to the U.S. Constitution and article I, § 12, of the Nebraska Constitution. White also contends that the district court violated his right to due process under the 14th Amendment to the U.S. Constitution and article I, § 3, of the Nebraska Constitution by overruling the amended plea in bar.

STANDARD OF REVIEW

An issue presented regarding a denial of a plea in bar is a question of law. State v. Belmarez, 254 Neb. 467, 577 N.W.2d 264 (1998); State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998). Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Marshall, supra.

ANALYSIS

Although it is the second assignment of error, we will first discuss White's double jeopardy claim because it is the dispositive issue in this appeal. The 5th Amendment to the U.S. Constitution, which is made applicable to the states through the 14th Amendment, provides in part: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Neb. Const. art. I, § 12, provides: "No person shall ... be twice put in jeopardy for the same offense." The Double Jeopardy Clause of the Fifth Amendment protects against three distinct abuses: (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, State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998). This court has not construed Nebraska's double jeopardy clause to provide any greater protections than those guaranteed by the U.S. Constitution. Id.

White asserts that if the State is allowed to go forward with its felony murder charge, he will be subjected to a second prosecution for the same offense after acquittal. Initially, we must determine whether White was actually acquitted of first degree premeditated murder at his first trial.

The U.S. Supreme Court specifically addressed this question in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green v. United States, the defendant was charged with arson and first degree felony murder. At trial, the jury was authorized to find Green guilty of arson and either first degree felony murder or, alternatively, second degree murder, i.e., killing with malice aforethought. The jury found Green guilty of arson and second degree murder; however, the second degree murder conviction was reversed on appeal. Green was then tried again for felony murder and was convicted. On appeal, the Supreme Court was presented with the issue of whether the conviction for felony murder at the second trial constituted a double jeopardy violation. The Court recognized that at the first...