State v. Wood

• Decision Date: 11 March 1980
• Docket Number: No. 61048,61048
• Citation: 596 S.W.2d 394
• Parties: STATE of Missouri, Respondent, v. Paul Albert WOOD, Jr., Appellant.
• Court: Missouri Supreme Court

Page 394

596 S.W.2d 394

STATE of Missouri, Respondent, v. Paul Albert WOOD, Jr., Appellant.

No. 61048.

Supreme Court of Missouri, En Banc.

March 11, 1980.

As Modified On Court's Own Motion and for Rehearing Denied

April 8, 1980.

Lester W. Duggan, Jr., St. Charles, for appellant.

John Ashcroft, Atty. Gen., Steven Steinhibler, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Paul Albert Wood, Jr., was convicted by a jury in 1975 of murder in the first degree, § 559.010, RSMo 1969, and sentenced to life imprisonment. The court of appeals reversed the conviction for error in admission of a confession, and remanded the cause for a new trial. State v. Wood, 559 S.W.2d 268 (Mo.App.1977). He was again convicted by a jury in 1978 of murder in the first degree and his punishment was fixed at life imprisonment. Judgment was entered accordingly. Upon direct appeal to this Court he advances arguments in five categories: (1) reversal based on an improperly admitted confession as a bar to retrial; (2) use of the original information for the second trial; (3) sufficiency of evidence to support conviction and venue; (4) admissibility of statements made by defendant to witnesses Marts and Becker after the first trial and while in jail, a note containing defendant's address and phone number, and photographs of the victim's body; and (5) State's argument regarding defendant's failure to produce certain witnesses. Affirmed.

Preliminary hearing on a charge of murder, first degree of Barbara Crabtree was accorded in the Magistrate Court of Warren County, October 4, 1974. Clifford Cope Deputy Sheriff of Warren County, testified that on or about August 2, 1974, he was directed to a wooded area in the southern part of Warren County where lay the body of Barbara Crabtree with a cord tied around its neck. Paul Albert Wood, Jr., was at the scene and told deputy Cope that he had discovered the body. Melvin Twiehaus, Sheriff of Warren County, described the procedures surrounding a waiver of rights and subsequent confession by Wood. His signed waiver forms and a transcript of his confession were introduced into evidence. The court found probable cause and held Wood to answer in the Circuit Court of Warren County.

The trial resulted in the 1975 conviction of murder in the first degree and sentence to life imprisonment. The court of appeals reversed the conviction and remanded the cause for new trial holding:

Because defendant's statement or confession and related testimony were improperly admitted in evidence, the cause must be reversed. We are unable to conclude on the record before us that the state may not be able to adduce additional evidence at another trial and accordingly the cause is remanded for new trial.

State v. Wood, supra, 559 S.W.2d at 273.

The case was retried on the original information in 1978, and again resulted in a first degree murder conviction and a sentence to life imprisonment. This appeal followed.

I. PROPRIETY OF RETRIAL

Appellant contends that the reversal of the 1975 conviction for improper admission of defendant's confession barred reprosecution for the same offense under his right not to be placed in double jeopardy. He argues that the court of appeals found that the evidence was insufficient to sustain a conviction when it stated, "We are unable to conclude on the record before us that the State may not be able to adduce additional evidence at another trial and accordingly the cause is remanded for new trial." He also argues that the crux of the State's case in the first trial was the confession, and absent it and its fruits, the evidence was insufficient to sustain the guilty verdict.

Appellant would support his position by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Defendant Burks was tried in federal court for bank robbery. Convicted by a jury, he appealed alleging insufficiency of the Government's case. The court of appeals agreed that the Government had not made a sufficient case to support the verdict, reversed the conviction, and remanded the case to the district court for a new trial. The Supreme Court on further appeal held:

the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . .

437 U.S. at 18, 98 S.Ct. at 2150.

The Supreme Court reasoned that for purposes of determining whether the Double Jeopardy Clause precludes a second trial after reversal of a conviction, a reversal based on insufficiency of evidence is to be distinguished from a reversal for trial error. Where the holding of the appellate court is that the Government has failed to establish criminal culpability, it says that a judgment of acquittal should have been entered after which, of course, defendant could not be retried for the same offense.

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.

437 U.S. at 11, 98 S.Ct. at 2147.

State v. Basham, 568 S.W.2d 518, 521 (Mo. banc 1978), determined:

The court in Burks held that double jeopardy provisions of the U.S. Constitution, Fifth Amendment, preclude the retrial of a defendant where the initial conviction is reversed solely for lack of sufficient evidence to sustain the jury's verdict.

Neither the pronouncements in Burks v. United States, supra, nor this Court's interpretation of them in State v. Basham, supra, requires a finding that defendant's right against double jeopardy has been violated in this case. A second trial is precluded "once the reviewing court has found the evidence legally insufficient." There was no such finding by the court of appeals; and as stated in State v. Basham, supra, the bar to retrial is erected only when the conviction is reversed "solely for lack of sufficient evidence."

A conviction reversed for trial error in the admission of evidence is not one reversed for the purpose of giving the prosecution a second opportunity to present evidence as proscribed in Burks v. United States, supra. Such may be an incidental effect, but the true purpose is to protect defendant's right to a trial as free from error as practicable:

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.

437 U.S. at 15, 98 S.Ct. at 2149.

Appellant insists that this Court must review the record of the first trial exclusive of the confession and its fruits. He argues that considering only the competent evidence on that record, this Court should find insufficient evidence as a matter of law; and under Burks v. United States, supra, reversal on that ground would bar retrial.

A reexamination of the record of the first trial is unnecessary. The issue in Burks v. United States was "whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury." The Court held that a retrial under such circumstances would violate the double jeopardy clause, and that this result did not depend in any way on whether the defendant had asked for a new trial as part of his claim for relief. The Court also held that the decision in no way questioned prior holdings which allow a retrial when a conviction is reversed due to trial error.

Thus, under Burks v. United States, supra, two propositions are clear: (1) if a conviction is reversed solely due to evidentiary insufficiency the double jeopardy clause requires judgment of acquittal; and (2) if a conviction is reversed solely due to trial error, then retrial is constitutionally permissible. The question remaining is whether a new trial may be ordered when questions going to trial error as well as evidentiary insufficiency have been raised on appeal.

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), decided concurrently with Burks v. United States, supra, expressly left the question open. Defendant Greene's conviction was reversed by the Florida Supreme Court and the cause was remanded for a new trial, but it was not clear whether the majority of that court had based its decision on trial error or evidentiary insufficiency. The United States Supreme Court remanded the case for a determination of which alternative reading was correct and expressly reserved the question of double jeopardy consequences if the reversal was because the legally competent evidence was insufficient to prove guilt. 437 U.S. at 26, n. 9, 98 S.Ct. at 2155, n. 9. Appellant's assertion, therefore, that Burks v. United States constitutionally requires judgment of acquittal in such a case is refuted by the express avoidance of that issue in Greene v. Massey, supra.

When the trial court erroneously admits evidence resulting in reversal, as in the instant case, the State should not be precluded from retrial even though when such evidence is discounted there may be evidentiary insufficiency. The prosecution in proving its case is entitled to rely upon the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the...