*1 v. MARYLAND. BENTON Reargued 24, 1969.— March December Argued 201. No. 23, 1969. Decided June *2 on argued petitioner M. Michael Cramer the cause for reargument. With original argument and on the Levitan, Sisk, Thomas Laurence him on the briefs were H. Paul H. Weinstein. and Burch, Attorney Maryland, General of
Francis B. reargument. for on the argued respondent the cause Borgerding, him was Edward F. First With on the briefs Attorney Borgerding argued Mr. Assistant General. original argument. With respondent cause for him Mr. Burch. on the brief was argued
Peter L. Strauss the cause for the United States him curiae. With on the reargument on the amicus Griswold, Attorney Solicitor General Assistant brief were Wilson, Ronald L. Rosenberg, General Beatrice and Gainer. opinion Justice Marshall delivered the
Me. Court. Maryland petitioner
In tried August 1965, was larceny. jury of and charges burglary state court on him petitioner guilty larceny found of but convicted years He to 10 on the count. was sentenced filed prison. Shortly appeal after his notice was Maryland Appeals, Court of that court handed State, Schowgurow down its decision the case of Schowgurow 2d In Md. 213 A. Appeals struck down a Maryland Court section required jurors the state constitution which to swear belief in the existence of God. As a result of this their petitioner’s case was remanded to the trial court. decision, in petitioner’s juries petit and grand both Because constitutional invalid under the been selected had case demanding option given petitioner was provision, convic- have his chose to He retrial. and re-indictment trial new and indictment new aside, and a tion set again petitioner trial, second At followed. ob- Petitioner burglary. larceny both with charged count, arguing retrial jected larceny, not guilty him found jury first had because prohibition the constitutional violate retrial the same for to double persons subjecting motion to denied judge The trial offense. was tried petitioner larceny charge, dismiss found jury time the This burglary. larceny and both *3 sentenced offenses, judge the of both and guilty petitioner for and years count1 5 burglary on the years him to 15 appeal On concurrently. to run sentences larceny, Appeals, Special Maryland Court newly created to the on the rejected claim jeopardy double petitioner’s A. 2d. 541 App. 647, 232 1 Md. merits. review. discretionary Appeals denied certiorari, Term, granted last we day of last
On the to the con- the writ but limited 925 (1968), 392 S.U. of two issues: sideration Fifth clause of the jeopardy Is the double
“(1) through the States to the applicable Amendment Amendment? Fourteenth in put jeop- ‘twice petitioner If was the “(2) so, in ardy’ case?”
1 from burglary count petitioner’s sentence in The increase subject litigation habeas presently on years is federal 10 to 15 ordered A district corpus courts. federal court lower federal Copinger, Supp. petitioner, Benton v. 291 F. resentence the State to appeal brought by the State is (D. 1968), and Md. C. Appeals for the States Court presently pending in United Circuit. Fourth existence oral it became clear argument,
After might count of a concurrent sentence jeopardy from double reaching prevent the Court error affected any if we found that issue, at least Therefore, we scheduled conviction. petitioner’s larceny limited (1968), 393 U. S. reargument, the case not included question additional following to the writ: original enunci doctrine,’
“Does the ‘concurrent sentence 81, S. Hirabayashi v. United U. ated 105, validity continuing cases, have subsequent and York, Ginsberg Newv. light of such decisions as Rowe, Peyton v. S. 633, 2,n. U. 629, S.U. LaVallee, 234, 237-238, Car U. afas York, 50-58?” Sibron v. New 392 U. S. ex- to file a brief General was invited The Solicitor participate of the United pressing the views States argument. in oral we us, before questions
After consideration all the of the double issue. no bar to our decision find Jeopardy hold the Double Clause we merits, On to the applicable Fifth Amendment States reverse Amendment, and we through the Fourteenth for larceny. conviction I. *4 are with a of this case we confronted At the outset specified If the error in the problem. jurisdictional affect only were found to writ certiorari original reversal of that convic- larceny conviction,2 the terms of change the State require tion would not 2 course, if error infected both counts Of V, See Part infra. convicted, there would be no concurrent petitioner was upon which question not, however, do resolve the all. We problem at sentence burglary conviction was “tainted.” of whether 788 of his status Whatever
petitioner’s confinement. petitioner would larceny conviction, his sen he had served out prison until probably stay a circumstances, there, Is in these burglary.3 tence for for resolution “controversy” suitable live “case” or petitioner asking or moot? Is Court, this is issue hypothetical an or opinion on abstract advisory crucial, for questions to these is question? The answer may that federal courts act it is well settled Muskrat v. controversy. case or justiciable context of a Cohen, States, Flast v. (1911); United 219 346 see U. S. (1968). 83, 392 94-97 U. S. opinions in a number of this Court’s language
The used a indicate that the existence of valid might be read to necessary removes the elements concurrent sentence doc- justiciable The “concurrent sentence controversy. a country although its quite early, trine” took root slightly con- occurred different earliest manifestations States, (1813), In 7 339 texts. Locke v. United Cranch plaintiff a in error had been con- cargo belonging 11 counts. Justice containing demned under libel Chief for the found it un- Marshall, speaking Court, John 11 all counts. necessary challenges to consider Locke’s “The Court is of declared, simply enough, however, He good, the 4th count and this renders opinion, Id., on the others.” at 344. unnecessary to decide applied was later in a case where reasoning Similar under sentence rested convictions single general upon of an indictment. some Drawing several counts Mansfield,4 dicta from Lord cases and some English 140, United 142 146 in Claassen v. U. S. 3 presently dispute, length sentence is a matter in see of that supra. n. 4 Doug. Eng. Rep. (1781); Astle, 722, 99 Peake v. Grant Benfield, Rep. (1775); Cowp. 275, Eng. Rex v. Oldham, 1 Eng. Rep. Burr.
789 had been validly if defendant (1891), held that need not other counts any one count “the convicted application The cited widely be considered.” most sentences, rather where concurrent approach cases imposed been sentence, than a have single general States, In United Hirabayashi v. (1943). 320 U. S. of two guilty the defendant had been found that case three- concurrent different offenses and had received constitutionality He challenged month sentences. affirmed the lower convictions, but this Court both only one considering rejecting after judgment court’s second the conviction on the challenges. of his Since “unnecessary” to valid, the Court found it count was Id., 85, to the count. 105. challenge first consider if widely, sentence doctrine has been concurrent applied this Court’s decisions. haphazardly, somewhat say that the doctrine the Court has seemed to At times bar to the consideration counts jurisdictional raises baldly opinions have sentences. Some under concurrent upheld” conviction “must be judgments declared States, Barenblatt v. United good. if one count was any Gainey, United States v. (1959); see 109, 360 U. S. has In other cases the Court 63, (1965). U. S. only that language, indicating weaker chosen somewhat on either if conviction “may be affirmed judgment States, Roviaro v. United U. S. count is valid.” occasion, And on one the Court (1957). at least 59, n. 6 rule and decided an issue that entirely has ignored were con- count, though one even there affected Putnam v. United 162 U. current sentences. cases, ones, these and related through One can search satisfactory explanation for the finding any without United States sentence doctrine. See concurrent Hines, (C. 1958). 2d 562-563 A. 2d 256 F. Cir. justifications underlying for the doc- But whatever the *6 to be taken cannot that it clear to us it seems trine, States, v. United Yates rule. See jurisdictional state a United Putnam v. (1957); 75-76 66, U. 355 approach have been may whatever Moreover, supra. of moot- question decisions past, in our recent that perfectly it clear in cases make ness criminal not remove does sentences concurrent existence of or con- case justiciable to create necessary elements troversy. held we York, (1968), 40 New 392 U. S.
In v. Sibron expira- upon the moot did not become a criminal case that “the obvious We noted imposed. of tion in fact do criminal convictions most of life that fact Id., 55. at consequences.” collateral legal entail adverse of collateral possibility the mere such that We concluded “impact the case enough give to was consequences justiciable to make it a necessary actuality” which of a number other Sibron and controversy. case or adverse collateral possible canvassed cases have recent repeat and we need not convictions,5 effects criminal there are enough say to that here. It is analysis are a example, For there in this case. possibilities such convictions prior felony all which consider few States habitual sentence under enhancing purpose actually con- if the convictions statutes, even criminal tried single in a indictment separate counts stituted one day some in might Petitioner day.6 on the same con- larceny both his have of these States Although possibility this against him. counted victions York, 579-580, (1969); U. S. n. Street New v. Carafas York, Ginsberg New (1968); v. LaVallee, U. S. 237-238 629, 633-634, 2n. U. S. apparently, handed majority is, that all convictions rule purpose single conviction for the time count as a the same down at statutes, follow the stricter a few States but offender habitual relevant cases are collected at 24 the text. The rule described supplements. accompanying (1952), and 2d 1262-1267 A. L. R. may one, enough give well be a remote justiciable. case adversary cast make it More- Sibron, over, petitioner’s both of convictions might some be day impeach put used to his character if in issue petitioner a future trial. Although explain could that both transaction, convictions arose out the same jury might not be able appreciate this subtlety.
We cannot, therefore, say juris- this Court lacks diction to decide challenge conviction. It may certain circumstances a appellate federal court, as a matter of discretion, might *7 (as decide in Hirabayashi) that it is to “unnecessary” consider all the allegations made aby particular party.7 The concurrent may sentence rule have some continuing validity judicial as a rule of convenience. is not That a subject we must today, canvass however. It is suffi- present cient for purposes to hold juris- that there is no dictional bar to consideration of challenges multiple to convictions, even though concurrent sentences were imposed.
II. While Maryland apparently agrees that there is no jurisdictional bar petitioner’s to consideration of conviction, it argues possibility that the of collateral consequences is so remote in this any case that double jeopardy violation should be species treated as a of “harmless error.” The General, Solicitor while not com- menting length at on the facts of particular case, this inadequacies procedure post In Sibron we noted the of a which pones appellate proposed subject review until it is to the convicted person consequences. S., collateral 392 U. at For 56-57. stated, attempt impose reasons there consequences collateral appeal after an initial refusal to review a conviction on direct be may cause of the concurrent sentence doctrine well raise some con problems. not, however, presented by stitutional That issue is this case, accordingly express opinion we no on it. doctrine sentence concurrent treat we
suggests judges permits which efficiency judicial principle as a appreciable no have which of issues to avoid decision Maryland Both party. any rights on the impact should the defendant argue General Solicitor of the court appellate convincing burden bear the Petitioner, sentences. concurrent all his to review need that federal a command in Sibron hand, sees other affect possibly may which errors treat all appellate courts concurrent argues he rights, and a defendant’s validity, even continuing has therefore sentence rule of convenience. a rule as case, we this special circumstances
Because
if
For even
dispute.
this
to resolve
unnecessary
find it
a rule
doctrine survives
the concurrent
apply
reason not to
find
convenience,
good
we
judicial
conviction,
from
appeal
direct
here. On
fact
did in
rule
Appeals
Special
Maryland
larceny count.
to the
challenge
double
It
2d, at 542-543.
650-651, 232 A.
App.,
at
Md.
all
always consider
courts
Maryland
whether
unclear
notwithstanding
appeal,
on direct
challenges raised
least in
but
sentences,8
of concurrent
existence
concurrent
apply
decided
the State
case
*8
the State
indicate that
may well
This
rule.
larceny conviction
keeping
some interest
has
larceny conviction
here, the
argues
Maryland
alive;9 if, as
why
one wonders
party,
either
no importance
is of
on it. Since
pass
necessary
it
found
state courts
may well turn
of the conviction
importance
future
in-
we are not well
which
law about
of state
issues
Maryland
appeal from the
on direct
formed,
propose,
we
on this
Since
question.
judgment
their
accept
courts, (1951),
489,
III.
Palko
In
decided the landmark case of
Connecticut,
although
indicted
Palko,
794 from appeals subsequent In affirmed. was trial
for a new lesser this apply to continued the Court courts, state Carolina, 344 Brock v. North g., e. See, standard. Palko 424 (1953). S.U. “increasingly looked has Court however,
Recently, to deter Rights] of the guarantees [Bill specific to the with was conducted trial criminal a state whether mine Texas, S. v. U. Washington of law.” process due cases, number increasing In an Amendment Fourteenth notion that rejected “has subjective ‘watered-down, the States applies Bill of of the guarantees individual of the version 1, 10-11 Hogan, 378 U. S. Malloy v. ....’” Rights ,12 right trial we found that Term Only last (1964) to the Ameri “fundamental cases was in criminal by jury Louisiana, 391 U. v. Duncan justice,” can scheme right Sixth Amendment that the held (1968), and through to the States applicable trial jury to a we reasons, For the same Amendment.13 Fourteenth prohibition the double today find that in our a fundamental ideal represents Amendment Fifth apply should heritage, and constitutional Amendment. Insofar Fourteenth through States v. Connecticut Palko holding, with this it is inconsistent is overruled. to basic constitutional approach represented
Palko rejected. have recent decisions Court’s which this rights Brady, IT. S. as Betts v. same cloth It was cut of the criminal held that a defend- which (1942), the case deciding was to be determined right ant’s to counsel right of that was “shock- the denial case whether each Id., at It justice.” 462. sense of ing universal to the Price, 263, 275 rel. Eaton 364 U. S. ex Quoting Ohio from BrennaN, J.). (1960) (opinion of Rights guarantees have held which A list those been Bill Amendment can be found Fourteenth “incorporated” Duncan, supra, at 148. *10 upon Twining
relied
v. New
Jersey,
U. S. 78 (1908),
which
right against
held that the
compulsory self-incrim-
ination
was not
element of Fourteenth Amendment
process.
due
Betts was
by
overruled
Gideon v. Wain-
wright,
The fundamental nature of guarantee double can hardly be doubted. origins Its can be traced to Greek and Roman times, and it became established the common England law of long before this Nation’s independence.14 See Illinois, Bartkus v. 121, U. (1959) 151-155 J., dissenting). (Black, As many with other elements of the common law, was carried into jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in plea Commentaries. acquit, “[T]he or autrefoits a former acquittal,” wrote, grounded he “is uni- this versal maxim of the common law England, that no man is to brought be into jeopardy of his life more than once for the same offence.” Today, every State incor- porates some form of prohibition in its constitution or common As law.16 put it in Green v. United States, 355 U. S. 187-188 (1957), underlying “[t]he 14 Sigler, Jeopardy J. Double 1-37 Blackstone, 4 W. Commentaries *335. 16Sigler, supra, 78-79; n. v. North Carolina, Brock 424, 435, (1953) U. S. (Vinson, n. 6 J., dissenting). C. Anglo- in at least the ingrained deeply one that
idea, State with is that the jurisprudence, system American allowed to make not be should power resources and its all alleged for an an individual to convict attempts repeated embarrassment, ex- him to thereby subjecting offense, in a live con- him to compelling and ordeal and pense as enhanc- as well anxiety insecurity, tinuing state may he though innocent even ing possibility *11 has from the underlying notion This guilty.” found tradition. of our part constitutional very beginning been clearly “fundamental by it is jury, right to trial Like the validity of justice.” of scheme the American by not judged, be conviction must Palko, in enunciated but standard watered-down Fifth Amend- interpretations Court’s under provision. jeopardy double ment
IV. conviction cannot petitioner’s larceny It is clear that applied. are standards jeopardy double once federal stand larceny in his first trial. Be- acquitted was Petitioner he is burglary conviction, his appeal he decided to cause larceny count as well. As to suffer retrial forced States, supra, in Green v. United at 193— held this Court a one offense on “[conditioning appeal plea a valid of former coerced surrender plain a in conflict with exacts forfeiture another offense jeopardy.” double constitutional bar apply that Green not to this Maryland argues does indictment was abso- petitioner’s original because case placed “jeopardy” by be void. One cannot lutely This argues. argument the State indictment, void petitioner since could strange, however, a bit sounds his under this have served out “void” quietly appealed conviction. had he indictment option of a new trial could the in- Only by accepting aside; dictment set at worst the indictment would seem only voidable at the defendant’s option, not absolutely void. In any case, this argument was answered here over years ago Ball, United States v. U. S. 662 In that case Millard Fillmore Ball was indicted, together with two other men, for the murder of one William T. Box the Indian Territory. He acquitted and his codefendants were They convicted. appealed and won on the ground reversal that the indictment erroneously failed to aver the place time or of Box’s All death. three defendants were retried, and this time Ball was convicted. This Court sustained his double jeopardy claim, notwithstanding the technical invalidity upon indictment which he was first tried. The Court refused to allow the Government to allege its own error deprive the defendant of the benefit an acquittal “ Id., a jury. at 667-668. lthough the [A] indictment was fatally if defective, yet, the court jurisdiction had of the cause and of the party, its judgment is not void, *12 but voidable by writ of error ,” . . . and the Government could not have the acquittal set aside over the objections. Id., defendant’s at 669-670. This case is totally indistinguishable. Petitioner was acquitted of larceny. He has, Green, under a valid double jeopardy plea which he cannot be forced to waive. Maryland Yet wants the earlier acquittal set aside, over objections, because of a defect in the indictment. This it cannot do. Petitioner’s larceny conviction cannot stand.
Y. Petitioner argues that his burglary conviction should be set aside as well. He contends that some evidence, inadmissible under state law in a trial for burglary alone, was introduced joint the trial for both burglary and and larceny, jury the was prejudiced by this evi- Maryland by the not decided was question This dence.17 no double it found because Appeals Special of face obvious not It is at all. violation jeopardy affected conviction the the record of whether To determine violation. jeopardy by the double have we evidentiary error, any such in fact is there Mary- the and Maryland law evidence the explore exam- and then burglary, larceny and land definitions is this not think doWe in detail. record ine by make unaided we should of determination the kind Accordingly, courts.18 state consideration prior C. 28 U. S. circumstances,” under “just we think remand and below judgment 2106, to vacate § is vacated judgment question. this consideration proceedings for further remanded is case and the opinion. with inconsistent is so
It ordered. White, concurring. Justice Mr. pro- extension Court’s I with agree
While with double hibition rule sentence the concurrent conclusion that the Court’s on comment additional bar, jurisdictional no constitutes a concurrent applying effects of the wisdom appropriate. rule seems dockets, judicial congested increasingly
In a time upon appeal, trial and delays before long requiring often tempted jury might been danger have here that There retrial charge of an erroneous because lesser compromise on a Wilkins, Hetenyi rel. States ex United charge. See greater nom. Mancusi sub denied, 1965), cert. (C. A. 2d Cir. 844, 866 2dF. *13 Larceny than Hetenyi, is a offense (1966). lesser S. 913 U. burglary. Supreme Court: Justice Criminal Note, Individualized See L. Making, 81 Harv. Rev. Study Dispositional Decision A 1272-1273 a man become scarce. Where
judicial resources have and sentenced con- on several counts has been convicted of one judicial review upon each, where currently review of the the need for validity, count sustains its pressing since, regardless one other counts is jail for the same outcome, prisoner will remain Rather than upheld. under the count length time languish while careful review of other cases to permit conclusion, to futile these redundant counts carried its is by moving might employed be better resources judicial pressing more business. This is not a rule of con- on to rather of fairness other judge, to but to venience litigants. however,
This is not to that the fact conviction say, of impor- under unreviewed counts could never be prisoner. possible they After his tance to release him in a prosecution, be used recidivism might impeach or in a for another testimony used to trial offense, examples. Nevertheless, pick two obvious not of imme- are, by hypothesis, the unreviewed counts experience importance confinement, diate to his and our are of such they frequently us no indication that gives later the concurrent sentence rule should importance applied. not be for the which,
The unreviewed count is often one but right rule, prisoner would have concurrent directly either or on collateral attack. challenge, him deny right man, when another Arguably, or separate count, after a trial each sen- convicted not be consecutively, right tenced could denied that under pro- or federal applicable law, equal state raises clearly long But so as the denied question. tection significance prisoner is of no to the review denial protection is not invidious but theoretical. equal should a situation arise which the But convict can the unreviewed is being demonstrate count used *14 him additional to harm to as to work some him, so against be- count, grievance reviewed his from the stemming be that the unreviewed may point At that comes real. unless it determined him, is not be used may count then cured review can be of earlier the lack he would to which the review the convict supplying for concurrent sen- but been entitled earlier have postponed review, myself, For on another count. tence {ante, 7), reserves at n. question a which is Appellate review difficulties. insuperable no presents proceed- record, and collateral on a cold conducted always facts. record and stale with a stale deal frequently ings permitting inherently unfair nothing There is any irrelevant it is colder while to become record are more litigants’ demands other need, and human de- record, after on such a reversal pressing. Whether or on a hearing retrial a permit would layed review, confession, example, a coerced involving, claim need present there is which yet question a further prove or retrial satisfactory hearing address. Should of an byproduct an unfortunate would be impossible this initially crowded docket. reasons, agree I with the Court that foregoing
For the of jurisdictional while not rule, concurrent sentence proper as a matter preserved be dimensions, should col- appeal on direct both judicial administration it raises although theory least attack, lateral subsequent effects questions concerning number of may It be that where it can the unreviewed counts. count reliably particular in a case that each predicted later prejudicial consequences at a would entail concrete at the time of initial review appellate court date, apply to deal with all counts than prefer rather sentence rule. the concurrent Harlan, whom Justice Mr. Stewart Mr. Justice dissenting. joins, and should governed, has rules that of the bedrock
One of this processes adjudicative govern, continue to *15 questions of constitutional is that the decision be avoided whenever in of cases should disposition its back on that Today the Court turns fairly possible. reasons, for the flimsiest of principle refusing, sound as not to “concurrent sentence doctrine” so apply to far-reaching question whether required to decide Fifth is Jeopardy the Double Clause Amendment into the Due Process Clause of Four- “incorporated” stock, teenth, thereby making applicable lock, the former Indeed, quite barrel to the States. it is manifest and actually that out” pains the Court been to “reach has very important to decide that constitutional issue. I that the concurrent sentence is consider doctrine applicable and that here, dismissal the writ is accord- ingly Despite called I that, for. feel constrained also express my views on the merits I because what importance conceive to be the of the constitutional approach at stake.
I. The Court I decides, agree, petitioner’s lar- ceny conviction is not moot, and that the concurrent jurisdictional sentence doctrine is not a bar to entertain- challenges ment of multiple long so as convictions, sought convictions to be reviewed are not moot. I However, also emphasize, agreement with the position of the curiae, Government as amicus concurrent sentence rule does have continuing vitality of judicial element discretion, and that appellate may courts review decline to a conviction carrying a concurrent sentence when another “concurrent” convic- and the unre- valid and found reviewed has been tion significant foreseeably have will conviction viewed As the Solicitor appellant. for the consequences adverse doctrine the concurrent out, pointed has General energy conserving the time role significant plays already these require To courts.1 appellate detail each review full invariably courts2 overworked sentences carrying concurrent convictions of several senselessly doctrinaire.3 to me seems
A. sentence doctrine the concurrent noted, As has been con- concurrent if exists a valid there applicable is double instance, In this viction. conviction, but he argument is directed no im- doctrine the concurrent sentence claims that *16 because his concur- reaching question that pediment to was tainted burglary conviction rent, and otherwise valid, larceny the having together tried with by been count. necessary whether this claim to consider It is therefore of taint has merit. of the taint issue is finds that resolution of points Maryland difficult law
likely to involve such Maryland to courts the soundest a remand the to make ante, However, my 797-798. examination course. See at 20- See Memorandum the United States as Amicus Curiae argument during oral 23. for the estimated Counsel Government employed disposition in concurrent sentence doctrine is the the appeals. of of all federal criminal about 10% g., e. See, Carrington, Crowded Dockets and the Courts of of and Appeals: The Threat to the Function Review the National (1969). Law, 82 Harv. L. Rev. ante, 791, Court, 7, express I Like the see at n. view on the consequences may constitutionally question im whether collateral which posed on of a conviction was denied review on direct account appeal of the concurrent sentence doctrine. because Mary- pertinent the me convinces question Court, the elementary. And, unlike quite is land law having to “exam- of prospect the I am not deterred of ante, record 42-page at the detail,” ine ... petitioner’s second trial. possibility no real of taint.
I was conclude that there entering breaking and Maryland consists Burglary steal, with intent to any dwelling nighttime house goods of another. See carry away personal or take, Larceny (a) (1967). Ann., 27, § Code Md. Art. consisting taking Maryland crime, is a common-law away personal property of another carrying property perma- the owner of the deprive with intent to State, g., e. Fletcher 231 Md. 189 A. nently. See, at Evidence introduced 2d trial to show that he not entered locked second with several night house at but also made off household appliances. was, course, pertinent The latter evidence larceny plainly was also However, count.- it rele- burglary count, vant to the it tended show intent since steal. argument primarily Petitioner his taint bases he was entitled to have evidence proposition that concerning missing appliances excluded from his the doctrine of estoppel,” second trial under “collateral larceny having acquitted he been the first trial. if However, even assumed that the conviction on count was bad double or due grounds principle process of collateral *17 application criminal estoppel has some to state trials the Due Process of through Clause the Fourteenth think that Amendment,41 prevent the doctrine would not 4 Hoag Jersey, Court said in dictum New This v. 356 S.U. (1958): “Despite employment, grave its 464, 471 wide we entertain estoppel regarded can be doubts whether collateral as a constitutional 804 burglary. The issue of evidence of the
admission in collat- conclusive, makes estoppel of collateral principle “actually which were only those matters proceedings, eral . . . original action and determined litigated Sac, (1877).5 353 County 94 S.U. Cromwell v. of provides: Maryland Constitution cases, Jury shall be all criminal “In the trial except that well as of Judges Law, fact, as sufficiency of the evi- may upon the pass the Court Const., a Md. Art. to sustain conviction.” dence 15, § 5. at his first trial
Hence, petitioner’s acquittal view may solely upon jury’s unique have rested concerning law be taken offense, cannot any having necessarily particular ques- “determined” tion of fact.
It follows from what has been said this section that estoppel effect in a collateral proceeding, there can be trial for petitioner’s burglary, such as second and that petitioner’s argument taint must fail.6 requirement. Certainly this Court has never so held.” See also id., 470-471; (1948); v. United 332 U. S. Sealfon Oppenheimer, (1916). United States v. U. (1). Restatement, Judgments See also §68 suggests The Court also the concurrent sentence doctrine applied should not be for the additional reason that the eventual length petitioner’s burglary is sentence “still in some doubt.” ante, 10-year following See at 793. Petitioner received sentence burglary 15-year first conviction and a sentence after his second subsequently conviction. The latter sentence was vacated resen- tencing Copinger, ordered Benton federal district court. See Supp. appealed. F. The State has Whatever appeal, probability outcome of that I consider that the being years, reduced below five so as to make inoperative, manifestly negligible. the concurrent sentence doctrine
B. was burglary conviction second petitioner’s Since neces- for it is larceny, trial tainted his simultaneous doc- sary whether the concurrent to consider possible reason: for the other inapplicable trine is con- foreseeably significant will suffer adverse petitioner larceny conviction.7 account of his sequences on reasonably predicted. can be consequences No such only a “few States” itself notes that to used larceny conviction be petitioner’s allow offender, a habitual sentencing him purposes for a may well be remote possibility and concedes that “this Ante, peti- it is recalled that at 790-791. When one.” prior of three felonies even tioner had been convicted reduced conviction,8 possibility this present burglary vanishing point.9 to the larceny possibilities petitioner’s
There remain the if generally by judge might be considered conviction following some future petitioner and when is sentenced might used to and that the conviction be conviction, In the cir- judicial proceedings. him in future impeach are case, potential consequences cumstances of these larceny insignificant. Petitioner’s plainly very same series of upon were based acts convictions readily brought on his fact could part. This sentencing judge or of a attention either of trier fact sought impeached. to be petitioner before whom origin identical knowledge of the Predictably, impact would reduce extra two convictions g., York, Cf., e. Sibron v. New 392 U. S. 55-56 Supplementary Respondent 20, Brief n. 6. See discover, I there is no So far as have been able State larceny conviction could have habitual offender which consequences. negligible proportions. Thus, conviction to *19 imagine a case in which a “con- be difficult to likely conviction would be to entail fewer
current” consequences. adverse
C. nonetheless holds that The Court “[b]ecause apply this case” it will not special circumstances unnecessary doctrine, concurrent sentence and that “continuing even to whether the doctrine decide has ante, validity, even as a rule of convenience.” See at 792. “special by One of the circumstances” cited the Court is the existence of the “taint” which the issue, Court finds it desirable to remand to the state courts. As has perceive been I can noted, difficulties which would justify a remand. “special
The second of the circumstances” relied on “in by the Court is that this case the [state courts] decided apply not concurrent sentence rule” and reached the “double jeopardy” issue themselves. See ante, at 792. Court concludes that “[s]ince [the Maryland decided this federal constitutional ques courts] we no reason tion, why see we should not do so as well.” ante, at 792-793. This reasoning See baffles In me. de or termining whether not to reach a constitutional issue the decision of which is absolutely necessary to the disposition of a case, Court has been long guided by the rule that a case . . . can be decided “[w]here with questions out reference to arising under the Federal Constitution, usually pursued that course is and is not departed important from without reasons.” Siler v. Co., Louisville & N. R. U. S. 193 (1909); A, see Ashwander v. TV 297 U. (1936) (Bran- J., In déis, concurring). deciding whether such “impor exist, tant reasons” this Court has never regarded itself as bound to reach constitutional issue merely because so, the court below did and has often pass declined to upon fully constitutional even can- questions though vassed the lower court.10 of these occasions, On some has in justification upon relied the concurrent sentence doctrine.11 I
Since cannot believe that the Court wishes aas general matter to abandon salutary and well- principle established of declining to rule on constitutional questions advance of I necessity, and since find the “taint” entirely issue free of complexities which the Court claims to I perceive, help cannot but conclude that the real reason for reaching “double jeopardy” issue in this case is the eagerness Court's provision see that “incorporated” into the Fourteenth Amendment and thus applicable made the States.
D. As shown, precondi- has been this case satisfies both application tions to of the concurrent sentence doctrine. upon Rebanee that doctrine would enable the Court to avoid decision of a question. substantial constitutional I Accordingly, apply would the concurrent sentence rule petitioner’s and decline to review larceny conviction. the case brought Since here on a writ of certiorari jeopardy” limited the “double question, decision which would affect I only larceny conviction, would dismiss writ improvidently as granted.
II. Having concluded that dismissed, writ should be I ordinarily go not However, further. as indi- cated at I feel outset, impelled to continue with
10See,
g.,
Indiana,
(1966);
e.
Cichos v.
some observations truly great of this Court’s of one overruling complete as a to how my views expression with an decisions, larceny should his retrial respecting claim approach. process due traditional fare under A. Connecticut, Palko v. with in accordance hold, I would Clause Process the Due 319 (1937), 302 U. S. take over does Amendment the Fourteenth Today as such. Fifth, of the Jeopardy Clause Double far casualty so unchecked another Palko becomes if not much, all, “incorporating” march toward Clause. Due Process into the Rights Bill Federal in 1961 when majority, a Court began, with This march and, before Ohio, decided 643, was 367 U. S. Mapp v. point stopping found its last decision, present Louisiana, (1968), decided S. v. U. in Duncan in I each step have at of last Term. the end g., my opinions see, e. my opposition, expressed march Cali- Ker v. Ohio, supra, (dissenting); at 672 v. Mapp result); (concurring (1963) 23, S. fornia, 374 U. (dissenting); 14 (1964) Hogan, 1, S. Malloy 378 U. v. Texas, (1965) (concurring 400, S. Pointer U. v. (1965) California, 380 U. S. result); Griffin Carolina, v. North 386 U. Klopfer (concurring); *21 Louisi- Duncan v. result); in and (1967) (concurring particularly ana, (dissenting); more supra, at the “selective undertook show Duncan case history either in support doctrine finds incorporation” days of pressures closing the Under or in reason.12 accuracy, pointed out that it should be In interest strict the fully join in above and cannot does not Stewart Mr. Justice my Duncan joined dissenting opinion in opinion. He of this Mapp v. supra, separate memorandum in Louisiana, but wrote v. in opinion Clark supra, 672; joined the of Mr. Justice Ohio, at dissenting supra; joined Mr. California, Justice White’s Ker v. I Term, am content to rest on Iwhat have in written prior opinions, my save to again raise protest voice in against a doctrine which yet subtly, so profoundly, is eroding many of system. the basics of our federal
More broadly, that this Court should have apparently impervious become pervasive so to the wisdom of the constitutional philosophy Palko, in embodied and that have felt should itself able to attribute to per- ceptive and timeless words of Mr. Justice Cardozo noth- ing more than a “watering down” of constitutional rights, are indeed revealing symbols of the extent to which we are weighing anchors from the fundamentals our con- stitutional system.
B. Finally, how should validity of petitioner’s larceny judged conviction be Palko, under is, under due process standards?
A recapitulation brief of the facts first seems advisable. Petitioner was indicted and tried simultaneously for larceny. and He was acquitted of larceny but convicted burglary. Petitioner appealed, and the Maryland courts light remanded in Maryland earlier decisions holding a provision invalid Maryland Constitution requiring grand petit and jurors de- clare belief in their God. Petitioner given was option either of accepting the result of his trial or of demanding re-indictment and retrial. He chose to attack indictment, re-indicted and retried for both lar- ceny burglary, and was convicted of both offenses.
The principle that an accused should not be tried twice for the same offense deeply rooted in Anglo-American Malloy opinion Hogan, supra, in v. 33; at wrote an opinion con- curring in the Texas, result Pointer supra, v. 409; at wrote a dissenting opinion in California, supra, 617; sepa- Griffin rately Klopfer concurred result Carolina, v. North supra, at 226. *22 in the embodied presently country, it is In this
law.13 and Constitution Federal Amendment Fifth Palko every State.14 law or common constitution answer decide unnecessary to “[w]hat found it after a permitted were the state be if have to would or again over try the accused error free from trial S., at 328. 302 U. . .” him . . case bring another stating it would no hesitation I have However, retry State to least for a at process of due denial be a errorless trial. following an acquitted previously one convicting wrong- interest State’s The idea that ending in an by one fair trial entirely satisfied doers is repose must interest the accused’s acquittal, and “ indubitably ‘prin- precedence, given thereafter conscience in the traditions so rooted ciple justice ” Id., at as fundamental.’ to be ranked people of our 325. simple. so Had quite case is not in this
The situation the State burglary conviction, appealed petitioner larceny him to on his rest surely have allowed out his sentence. merely serve acquittal and burglary and argues that the the State However, single indictment; in a originally contained were counts the indictment was de- appeal upon petitioner’s to have trial court found totally void and the clared pro- then the State and that could jurisdiction; lacked previous never been a indictment if had ceed as there or trial. trial contention that first
The State’s trial nullity juris- because the court “lacked complete concept part jeopardy” has been an established The “double English common law least was contained since many jurisdictions or common American in the constitutions law (1969); Bartkus Sigler, Jeopardy 1-37 prior J. Double to 1787. See Illinois, (1959) (Black, J., dissenting). 151-155 U. supra, Sigler, at 77-117. See *23 diction” is unconvincing. As has appears been noted, that the State willingly would have petitioner seen serve the imposed out in consequence that trial. procedure, Under state petitioner could avail himself of “jurisdictional” only the by defect appealing his conviction. The crucial therefore, is issue, what legitimate interest had the in compelling State petitioner jeopardize his larceny acquittal aas condition of his appealing burglary conviction?
I
perceive
legitimate
can
state interest. Certainly
it is
purest
say
the
by
fiction to
that
appealing
burg-
lary conviction petitioner
right
“waived” his
not to be
for larceny
retried
or “consented” to retrial on that
charge.
notion of “waiver”
first employed
in
Ball,
United States v.
17 analyses interests, generally detailed of these see For more Mayers Yarbrough, Bis Vexari: New Prose & Trials Successive cutions, (1960); Alstyne, 1 In 74 Harv. L. Rev. Van Gideon's Wake: Appellant, “Successful” Criminal 74 Harsher Penalties (1965); Comment, Jeopardy, in Yale L. J. 606 Twice Yale L. J. (1965); Note, Jeopardy: Reprosecution Problem, Double (1964). 77 Harv. L. Rev. system However, in the federal has been held that acquittal may appeal placing not from an without Government Kepner in “a time for the same offense.” accused second id., United 195 U. S. See also 134- at (Holmes, J., dissenting). and the appeal, In did not present case, the State jury could composition grand defect trial. petitioner’s subsequent acquittal have affected wrongdoers punishing interest Society’s legitimate petitioner fully by retrying been vindicated could have offense of alone, being count had no convicted. The State previously which he was trial compelling petitioner again more interest in to stand acquitted, he than larceny, which had been person other declared innocent after retrying any there- error-free trial. retrial on the count His process, denied due and on that fore, my opinion, would be called for under Palko. reversal ground