STATE of West Virginia v. Cornelius J. BONHAM
No. 15980
Supreme Court of Appeals of West Virginia
March 21, 1984
Dissenting Opinion June 19, 1984.
317 S.E.2d 501
The United States Supreme Court explained in Burks v. United States, supra 437 U.S., at 16, 98 S.Ct. at 2150, 57 L.Ed.2d at 12-13 (1978):
[A defendant cannot be retried when his] conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government‘s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury‘s verdict of аcquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury cоuld not properly have returned a verdict of guilty. (Footnote omitted.)
We followed this rule from Burks, supra in State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979). Our Syllabus Point 4 emphasizes:
The Double Jeopardy Clause of the Federal and this State‘s Constitutions forbids a second trial for the purpose of affоrding the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.
Clayton‘s conviction must be reversed again because the court and prosecutor violated Clayton‘s double jeopardy rights by presenting the issues of malice and murder to a second jury.
Reversed.
McHugh, Chief Justice, concurring:
I concur in the result reached in the case now before us. For reasons, however, set forth in my concurrence in State v. Young, 173 W.Va. 1, 311 S.E.2d 118, 136 (1983), I take this opportunity to reiterate my disagreement with the holding in State v. Cobb, 166 W.Va. 65, 272 S.E.2d 467 (1980). As discussed in my concurrence, I would modify the principles of State v. Cobb, supra, and related cases “to clarify that under certain circumstances a harsher penalty may be imposed upon a defendant after conviction at a second trial than was received at the original trial.” 173 W.Va. at 18, 311 S.E.2d at 136. I would follow thе rationale of the United States Supreme Court in Chafin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
Thornhill, Kennedy & Vaughan, Beckley, for appellant.
Fredrick S. Wilkerson, Asst. Atty. Gen., Charleston, for appellee.
On January 4, 1981, Cornelius Bonham was arrested for driving while under the influence of alсohol, in violation of Beckley City Code, 13-49 (1977). He was tried in the Beckley Municipal Court and fined one hundred dollars. Pursuant to
The defendant‘s sole contention in this appeal is that the circuit court was precluded by our holding in State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), from imposing a more severe sentence than that imposed by thе municipal court. We agree.
In Eden, the defendant was initially fined fifty dollars by a justice of the peace for reckless driving. Subsequently, he chose to have a trial de novo in the circuit court, following the procedure established in
“A dеfendant who is convicted of an offense in a trial before a justice of the peace and exercises his statutory right to obtain a trial de novo in the circuit court is denied due proсess when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence.
W.Va. Const. art. 3, § 10 .”
Our holding in Eden, which has been consistently affirmed,2 was grounded
“The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).
See also Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980); Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980); Adkins v. Leverette, 161 W.Va. 14, 239 S.E.2d 496 (1977).
Furthermore, the United States Supreme Court has also recognized that a state supremе court may set its own constitutional protections at a higher level than that accorded by the federal constitution. Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 974 n.9, 74 L.Ed.2d 823, 830 n.9 (1983); Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16, 23 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (1975); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-02, 20 L.Ed.2d 917, 933-34 (1968). There are a number of cases where state supreme courts have set a higher level of protection under their own constitutions. E.g., People v. Rucker, 26 Cal.3d 368, 605 P.2d 843, 162 Cal.Rptr. 13 (1980); O‘Conner v. Johnson, 287 N.W.2d 400 (Minn. 1979); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979), cert. den., 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980); State v. Cox, 94 Wash.2d 170, 615 P.2d 465 (1980).
In Eden, we explicitly rejected the United States Supreme Court‘s holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), that a more severe sentence imposed following a trial de novo does not violate a defendаnt‘s due process rights. In rejecting Colten, we said in Eden that the threat of an increased penalty arising from exercising the de novo appeal3 was a substantial deterrent to the right of a de novo appеal. We also recognized in Eden that the de novo appeal was in reality not an appeal because the defendant had no right to have the trial in the magistrate court reviewed on appeal for error.
Thus, a defendant, who wished to challenge the validity of his conviction, had to seek a de novo trial. To compound this burden by allowing the additional handicap that hе could also be subjected to increased punishment was in our view a violation of our State due process standard. The United States Supreme Court in Colten did not answer to our satisfaction the critical issue of how a defendant, who believes that the evidence against him at the trial in the municipal or magistrate court was insufficient to convict or was otherwise constitutionally infirm, can correct this error without utilizing the de novo appeal. Yet, according to Colten, if he does request a de novo appeal, nothing prevents the state from enhancing its case and at the same time imposing a higher level of punishment.4
The Supreme Court of Alaska eloquently explains the rationale behind the due pro
“We believe if a more severe sentence may be imposed after retrial for any reason, there will always be a definite apprehension on the part of the accused that a heavier sentence may be imposed. Such apprehension or fear would place the defendant in an ‘incredible dilemma’ in considering whether to appeal the conviction. A ‘desperate’ choice exists, and may very well deter a dеfendant from exercising the right to assert his innocence and request a retrial. Such deterrence violates the due process clause of the Alaska Constitution. The fundamental standard of procedural fairness, which is the basic due process right claimed in this case, forbids placing a limitation on the defendant‘s right to a fair trial by requiring a defendant to barter with freedom for the opрortunity of exercising it.” (Footnote omitted)
Although Eden involved a trial de novo from a magistrate court, we see no basis for distinguishing it from a de novo appeal from a municipal court. The statutory languаge relating to criminal appeals from magistrate courts, although not identical to
We conclude that Syllabus Point 2 of Eden should be reaffirmed and modified to include municipal courts. Therefore, we hold that a defendant who is convicted of an offense in a trial before a magistratе or in municipal court and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposеs a heavier penalty than the original sentence.
For the foregoing reasons, the sentence of the Circuit Court of Raleigh County is reversed and the case is remanded for the purpose of reinstatement of the sentence imposed by the municipal court.
Reversed and Remanded.
McHUGH, Chief Justice, dissenting:
I respectfully dissent from the majority‘s holding in this case for reasons set forth in my concurrence in State v. Young, 173 W.Va. 1, 311 S.E.2d 118, 135-36 (1983). As discussed therein, I disagree with this Cоurt‘s holding in State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), and its progeny. I would follow the less restrictive rationale of the United States Supreme Court in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).
Notes
“Every person sentenced under this chapter by any mayor or police court judge or municipal court judge to imprisonment or to the payment of a fine of ten dollars or more (and in no case shall a fine of less than ten dollars be given if the defendant, his agent or attоrney object thereto) shall be allowed an appeal de novo to the circuit or other court of the county exercising jurisdiction over appeals in criminal cases from justices of the peace [now magistrate] courts in the county.”
“The burden, in my opinion, is significant. A second trial of the same case is never the same as thе first. Lawyers and witnesses are stale; opportunities for impeachment that may have little or much actual significance are present in the second trial that were not present in the first; a witness may be available at one time but not the other; the tactics on cross-examination, or on the presentation of evidence, in the first trial will be influenced by judgment of what may happеn at the second; the strategy in a nonjury trial may be different than in a proceeding before a jury.”
“Any person convicted of an offense in a magistrate court may appeal such conviction to circuit court by requesting such appeal within twenty days of the sentencing for such conviction. . . . The filing or granting of an appeal shall automatically stay the sentence of the magistrate. Trial in circuit court shall be de novo.”