This case, which involves a question of double jeopardy, is being considered on remand from the United States Supreme Court. The brief history is as follows. In Carter v. State,
Carter filed a petition for writ of certiorari to the United States Supreme Court, which that Court granted. The Supreme Court vacated this court’s original judgment and remanded the case for further consideration in light of Smith v. Massachusetts,
The following is a brief background of the relevant facts presented in Carter I. At the close of evidence at Carter’s criminal trial, the trial judge made factual findings that unquestionably supported the statutory definition of aggravated robbery. See Ark. Code Ann. § 5-12-103 (Repl. 1997). Specifically, the trial judge found that while committing a robbery, Carter, or an accomplice of Carter, struck the victim in the head with the butt end of a gun. The trial judge then misinterpreted this court’s decision in Smith v. State,
As mentioned above, the Carter I court based its decision on State v. Zawodniak, supra. In Zawodniak, the defendant was charged with simultaneous-possession of drugs and firearms. See Ark. Code Ann. § 5-74-106(a) (Repl. 1993). Zawodniak moved for a directed verdict at the close of the State’s case, arguing that the State had failed to prove the necessary elements of the charge against him. Specifically, Zawodniak claimed that the simultaneous- possession statute required a showing that, in addition to proving he was in the simultaneous possession of drugs and a firearm, Zawodniak was also involved in criminal gang or group activity. Zawodniak,
On appeal, the Zawodniak court vacated the conviction and remanded the case for a retrial on the simultaneous-possession charge. In doing so, our court held as follows:
Zawodniak received a favorable trial court decision not because the State had failed to prove its case, but because the trial court, at Zawodniak’s instigation, erred in applying erroneous law. In other words, defendant Zawodniak, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the simultaneous-possession charge of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause.
Zawodniak,
In United States v. Scott, on which the Zawodniak court relied, the defendant, John Scott, moved for dismissal of two counts of narcotics distribution based on a preindictment delay by the prosecution. At the close of all the evidence, the trial court granted Scott’s motion. Scott,
This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.
Scott,
The relevant question in the current case is whether Scott, Zawodniak, and consequently, Carter I, have been affected by the Supreme Court’s recent decision in Smith v. Massachusetts, supra; it appears that they have.
In Smith v. Massachusetts, the defendant Melvin Smith was charged with three counts, one of which was assault and battery by means of a dangerous weapon. At the close of the prosecution’s case, Smith moved to dismiss the dangerous-weapon charge, claiming that the evidence was insufficient as a matter of law. Smith,
On appeal, the Supreme Court held that the trial judge’s original ruling was an acquittal because it “actually represented] a resolution, correct or not, of some or all of the factual elements of the offense charged.” Smith,
Massachusetts’ characterization of the required finding of not guilty as a legal rather than factual determination is, “as a matter of double jeopardy law . . . not binding on us.” What matters is that, as the Massachusetts rules authorize, the judge “evaluated the [Commonwealth’s] evidence and determined that it was legally insufficient to sustain a conviction.”
Smith,
The State contends that Smith is distinguishable from the present case, stating that, unlike in Smith, where the trial judge ruled that proof of a required element of the charged offense was lacking, here, the State was required to prove an additional element that the statute does not require. In short, the State argues that Carter was never “acquitted” for double-jeopardy purposes. We cannot agree.
To begin with, the Supreme Court’s definition of “acquittal” in Smith, only requires a “resolution, correct or not, of some or all of the factual elements of the offense charged.” Smith,
Finally, the Smith Court states that double jeopardy does not provide an exception for any legal errors:
But any contention that the Double Jeopardy Clause must itself . . . leave open a way of correcting legal errors is at odds with the well established rale that the bar will attach to a pre-verdict acquittal that is patently wrong in law.
Id. at 1137 (citations omitted). In a footnote to this statement, the Court elaborated as follows:
The dissent goes to great lengths to establish that there was no prejudice here, since the acquittal was legally wrong, and the defendant was deprived of no available defense. But the Double Jeopardy Clause has never required prejudice beyond the very exposure to a second jeopardy. To put it differently: requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause — even when the acquittal was erroneous because the evidence was sufficient.
Id. at 1137, n7 (citations omitted). Regardless of the legal error made in the present case, the trial judge determined that there was a lack of evidence on the aggravated robbery charge and acquitted Carter of that charge. According to Smith, a defendant cannot be retried on the same charge, regardless of whether the defendant’s acquittal was a result of the trial judge’s legal error. Smith, supra.
The Double Jeopardy Clause guarantees that the State shall not be permitted to make repeated attempts to convict the accused, “thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States,
This court’s decisions in Zawodniak and Carter I are in direct conflict with the Supreme Court’s decision in Smith. 3 Consequently, the State’s cross-appeal, challenging Carter’s acquittal for aggravated robbery, is denied. In addition, Carter’s convictions for robbery, kidnapping, and third-degree battery are affirmed. This case is remanded for a ruling consistent with this opinion.
Notes
“GVR” is an acronym standing for “grant certiorari, vacate the judgment below, and remand the case.” Lawrence on Behalf of Lawrence v. Chater,
Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is, we believe, potentially appropriate.
Chater, supra.
As an initial matter, we note that Brady Carter’s convictions for kidnapping and third-degree battery were properly affirmed in Carter I on independent state law grounds; consequently, these convictions are not at issue in this proceeding.
The Supreme Court’s decision in Scott does not appear to be in conflict with Smith, but rather distinguishable on its facts. The dismissal in the Scott case was based on pretrial delay, or as the Court described it, “matters unrelated to guilt or innocence.” As a result, double jeopardy principles were not offended and a retrial can occur. Despite the legal error in Smith, the Court determined that the dismissal was based on matters of guilt or innocence; consequently, double jeopardy prevents retrial.