U.S. ex rel. Young v. Lane, 84-2783

• Decision Date: 18 July 1985
• Docket Number: No. 84-2783,84-2783
• Citation: 768 F.2d 834
• Parties: UNITED STATES of America ex rel. Terry YOUNG, Petitioner-Appellant, v. Michael LANE, Director, Department of Corrections, and Neil F. Hartigan, Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 834

768 F.2d 834

UNITED STATES of America ex rel. Terry YOUNG, Petitioner-Appellant, v. Michael LANE, Director, Department of Corrections, and Neil

F. Hartigan, Attorney General of Illinois,

Respondents-Appellees.

No. 84-2783.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1985.

Decided July 18, 1985.

Alison Edwards, Chicago, Ill., for petitioner-appellant.

Marcia L. Friedl, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and WEIGEL, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Terry Young participated in a gun duel in which two of his friends killed each other. Young and Edward Clerk were together when Clerk's mother announced that Michael Jackson, gun in hand, had come "looking" for Clerk. Young and Clerk then went "looking" for Jackson and found him. Clerk hit Jackson with a gun, and as Jackson reeled back Clerk fired. Jackson fired in return; Clerk fell, dead on the spot with a bullet in his head; Jackson stomped on Clerk's chest and fled. Young fired at the running Jackson with a sawed-off shotgun but missed. The miss made no difference. Jackson collapsed within a block and died. Clerk's bullet had pierced Jackson's heart.

I.

Illinois prosecuted Young for murder, armed violence, and the unlawful use of weapons. At the conclusion of a bench trial the judge stated:

I am afraid, gentlemen, under the evidence and facts as elicited here, while [Young] did not fire any fatal shot [he] has been proven to be legally accountable for the actions of Edward Clerk. Were Clerk here and alive Clerk would definitely be guilty of murder.

I am quite certain that there is considerable mitigation here.

I can't find [Young] guilty of voluntary manslaughter. There is no evidence that he was even acting in self-defense or sufficient to raise a self-defense claim, but with the mitigation that has been built into the facts as elicited I would be authorized and I think the fairest and the most reasonable finding is to the included offense in Count Six, armed violence....

[Young] will be found guilty of the included offense of armed violence and unlawful use of weapons, of course--unlawful use of weapons is actually part of the same act.

Perhaps we will take it up at sentence. Judgment on the finding. Presentence ordered. The matter will be continued for sentencing ...

The mitigation to which the judge referred apparently was that Jackson had been "looking" for Clerk rather than Young, and that Young did not fire until Clerk and Jackson had already killed each other. (Young, who did not have a record, also cooperated with the police.)

At the sentencing on May 20, 1981, a little more than a month later, the judge changed his perspective:

Since the finding, and since the completion of the trial, an Advanced Sheet Opinion has come down which causes me to think that, perhaps, improvidently I did not complete the record.... So, just to complete the record and, in fact, to correct any inadvertent omissions, the court does enter a finding of guilty of murder without going on a judgment of conviction.... The cause of death testified to as to Jackson was the bullet fired by Clerk, so actually there is one death here that [Young] is accountable for and that is the death of Jackson.

The judge referred to a case that had held impossible the imposition of a sentence for armed violence without a finding that the defendant was accountable for the underlying act of violence, People v. Ellis, 93 Ill.App.3d 981, 49 Ill.Dec. 444, 418 N.E.2d 88 (1st Dist.1981). Although the judge made a "finding" that Young was guilty of Jackson's murder, he did not impose sentence for murder. The judge imposed a sentence of ten years' imprisonment for the crime of armed violence.

The prosecutor was unhappy with this disposition and sought a writ of mandamus from the Supreme Court of Illinois. That court held that the "finding" of guilt on murder should have been a "judgment" of guilt. It directed the trial judge "to enter a judgment of conviction pursuant to his finding of guilty of the offense of murder and to enter sentence thereon [and] to reconsider the sentence ... in light of People v. King (1977), 66 Ill.2d 551, [6 Ill.Dec. 891, 363 N.E.2d 838]." People ex rel. Daley v. Samuels, No. 55464 (Sept. 24, 1981). The trial judge complied with this order on October 14. He entered a judgment of conviction for murder and imposed a sentence of 20 years' imprisonment. He vacated the sentence for armed violence. On direct appeal the Appellate Court affirmed, rejecting the argument that this procedure violated the Double Jeopardy Clause. People v. Young, 116 Ill.App.3d 984, 72 Ill.Dec. 465, 452 N.E.2d 718 (1st Dist.1983). Young then sought release on habeas corpus, which the district court denied on the ground that the findings immediately after the trial established all of the elements of murder, so that the formal entry of judgment on the findings did not place Young in jeopardy a second time.

II.

Young relies on the principle that acquittals in criminal cases are final. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). He maintains that the trial judge's statement at the end of the trial was an implied acquittal, as a result of which he cannot later be convicted of murder. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), held that an implied acquittal on a charge of murder prevented a later trial on that offense. See also Arizona v. Rumsey, --- U.S. ----, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), which holds that an acquittal on the capital aspects of a murder charge prevents a later sentence of death.

Although acquittals have a special status under the Double Jeopardy Clause, they are not always beyond recall. The Clause establishes three fundamental rights: the right to receive the decision of the finder of fact once a trial is under way, see Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); the right to keep the decision of the finder of fact if that decision resolves in the accused's favor a factual element of the offense, see United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978); and the right not to be punished twice for the same offense, see Garrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). The defendant's right to get a verdict if he wants one and keep it if he gets it protects his legitimate interest in a final disposition by a finder of fact. If the prosecutor could try repeatedly with multiple triers of fact, that would make the prosecutor's task easier (for the state could get a conviction even if a significant percentage of the total number of jurors who heard the evidence favored the defendant), and it would obliterate the defendant's right to keep a verdict based on "nullification" rather than a dispassionate assessment of the evidence. See Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 122-37.

The Clause does not protect all dispositions in favor of the accused, however, even if the defendant anticipates that a favorable decision is "final." If an appellate court reverses a judgment of guilt, that reversal usually is followed by a new trial even if the defendant thinks that the case is over. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). If the jury returns a verdict of guilt, and the judge later rules in the defendant's favor (perhaps because the judge thinks the evidence insufficient), that decision may be reviewed and the verdict reinstated. United States v. Scott, supra, 437 U.S. at 91 &amp n. 7, 98 S.Ct. at 90 & n. 7; United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Allison, 555 F.2d 1385 , 1386-87 (7th Cir.1977). If the judge imposes an insufficient sentence, perhaps because he either misunderstands the legal rules or does not appreciate the seriousness of the offense, another court may increase the sentence. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (increase based on statute allowing appeal); Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947) (increase based on need to comply with statutory minimum sentence); United States v. Jefferson, 760 F.2d 821, 823-24 (7th Cir.1985) (increase on some counts in order to make entire sentencing package conform to original intent after other convictions have been vacated). DiFrancesco rejected (449 U.S. at 132-34, 101 S.Ct. at 434-36) the argument that the imposition of one sentence is an "implied acquittal" of a greater sentence.

The theme uniting these and other cases is that the Double Jeopardy Clause does not bar further proceedings that can be accomplished without subjecting the defendant to a new trial before another finder of fact. Unless there is a new trial, there cannot be a "second" jeopardy. "[A] defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact." United States v. Wilson, supra, 420 U.S. at 345, 95 S.Ct. at 1022 (footnote omitted).

Young was in jeopardy but once. He had a single trial. The trier of fact entered a single set of findings. These have become the basis of a variety of judgments, but these judgments all flow from findings that have been accepted without alteration or question. Green and Rumsey, which involved second trials, are irrelevant.

The trier of fact said from the start that Young was accountable for Jackson's death and that his claim of self-defense was unsupported. If the judge had immediately said: "Guilty as charged, but I will not enter a sentence because I think ten years for armed violence is punishment enough," then there could be no serious doubt about the propriety of what followed. Under Wilson the prosecution could have appealed,...