STATE of Arizona, Appellee, v. Clyde Terry SOWARDS and Roger Gene Ison, Appellants.
No. 6446-PR.
Supreme Court of Arizona, En Banc.
July 29, 1985.
Rehearing Denied Sept. 4, 1985.
709 P.2d 513
HAYS, Justice.
Wallace R. Hoggatt, Cochise County Public Defender, Bisbee, for appellant Sowards.
Robert J. Snyder, Jr., Sierra Vista, for appellant Ison.
HAYS, Justice.
Petitioner Roger Gene Ison was tried by a jury and convicted of two counts of theft, two counts of armed robbery, two counts of aggravated assault, and two counts of kidnapping. The jury1 also found that these crimes were committed while Ison was on parole from a previous Texas conviction—possession of methadone. Pursuant to
The Court of Appeals, 147 Ariz. 185, 709 P.2d 542, affirmed six of these counts. The two theft counts were necessarily reversed. Ison was convicted of robbery and thus could not, in addition, be convicted of the lesser-included offense of theft.
The Court of Appeals also found insufficient evidence to support imposition of
Ison petitioned this court for review. He contends that he may not be resentenced pursuant to
We address only one issue:
Has the double jeopardy clause been violated when the Court of Appeals finds insufficient evidence to support the trial court‘s imposition of
FACTS
During the afternoon of May 20, 1983, The Blossom Flower Shop in Benson, Arizona, was robbed. About 3:00 that afternoon, Roger Gene Ison and two other men, Clyde and Robert Sowards, entered the shop. They asked the proprietor, Charlene Smith, if she had any plants. Smith became suspicious when the men ignored the plants but appeared keenly interested in the layout of her store. Fearing for her safety, Smith tried to call a neighbor. As she dialed, Clyde Sowards grabbed her hand and slammed the phone back into its cradle. Sowards told her “you‘re not calling anybody.” When she tried to wrench
The men went through the shop‘s cash box. During this time the phone rang. When Smith automatically reached to answer, Sowards struck her on the side of her head, grabbed her hair and shook her head. He warned, “Now leave that phone alone, leave it alone. You‘re not talking to anybody.”
Sowards told Smith he wanted her car keys. Ison went through her purse. Sowards grabbed her wrist and told her, “Come on, we‘re going for a little ride.” Smith pleaded, “Please don‘t take me with you. Please leave me here.” Sowards told his brother and Ison, “Take the van around to the back, we‘ll take her through the back and put her in the van.” Smith fought hysterically. She later testified, “I was terrified. I was really sick because at that point I really realized that I might never see my family again.” Apparently, Sowards changed his mind. He told his men to put her in the restroom and bind her hands and legs.
About this time, Smith‘s cousin, Frank Wells, entered the store. He was immediately captured. The men took his wallet, pushed him into the restroom, bound him, and laid him next to Smith. One of these men instructed the victims to keep quiet and do nothing for 30 minutes.
Shortly before this robbery occurred, one of Smith‘s neighbors, Michael Hoskinson, noticed three strangers outside the Blossom Shop. He watched as they walked directly into the store. They were not the type of men who usually purchased flowers. After waiting a few minutes, he tried to call Smith. He heard the phone come off the receiver, some mumbling, and then the line went dead. He called the Benson police.
Officer Eric Kemp was the first to enter the store. He was dressed in plainclothes and wished to unobtrusively discover whether anything was wrong. Upon entering, he noticed one of the three men, Robert Sowards, squatting over a pair of bare feet. Sowards had red floral ribbon in his hands and appeared to be tying up someone. When Officer Kemp drew his off-duty weapon, Sowards fled out of the shop‘s rear door. Kemp called for his partner, who was waiting outside, and then pursued Sowards. All three men were eventually captured. The victims, Smith and Wells, were released.
DOUBLE JEOPARDY
Petitioner claims that if, on remand, the trial court is permitted to resentence him pursuant to
That a person may not be tried twice for the same crime is ancient law. See United States v. Jenkins, 490 F.2d 868, 870-71 (2nd Cir.1973) (quoting Demosthenes—355 B.C.), aff‘d, 420 U.S. 358 (1975). This proscription against double jeopardy extends not only to trial court acquittals but also to appellate reversals based on insufficient evidence. In other words, if a trial court convicts a defendant and that conviction is reversed on appeal for insufficient evidence, then that defendant may not be retried a second time for that same offense. Greene v. Massey, 437 U.S. 19 (1978). This rule has also been extended to capital sentencing hearings that bear the hallmarks of a trial on guilt or innocence. Bullington v. Missouri, 451 U.S. 430 (1981); Arizona v. Rumsey, 467 U.S. 203 (1984). The dispositive inquiry in this case is whether a noncapital sentencing hearing pursuant to
When
Third, the issue to be decided under
Finally, in these sentencing hearings, the standard of proof is not “beyond a reasonable doubt.” That standard is the hallmark of a criminal trial. In these hearings, the trial judge‘s findings need only be supported by reasonable evidence. State v. Turner, id. 141 Ariz. at 475, 687 P.2d at 1230.
We distinguish this type of sentencing hearing from those capital sentencing hearings in which there is a separate and distinct penalty phase, in which there is strictly limited discretion, and in which the “beyond a reasonable doubt” standard applies. See
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity ... (citation omitted).
Bullington v. Missouri, supra, 451 U.S. at 445. This rationale is inapplicable in the present case. Cf. United States v. DiFrancesco, 449 U.S. 117, 136 (1980). Ison was originally sentenced by the trial court pursuant to
Accordingly, we hold that on remand to the trial court, Ison may be resentenced pursuant to
Remanded to the trial court for resentencing in conformance with this opinion.
HOLOHAN, C.J., and CAMERON and FELDMAN, JJ., concur.
GORDON, Vice Chief Justice (specially concurring):
While I agree with the result reached by the majority, I believe it should be emphasized that double jeopardy does not apply to this case not because of who makes the sentencing decision but because of the nature of the sentencing decision to be made under
The sentencing procedure in the instant case more resembles a typical sentencing procedure than a death sentencing procedure because it is,
“determined in large part on the basis of information, such as the sentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature.”
United States v. DiFrancesco, 449 U.S. at 136-137.
Based upon various information, the judge may find or not find that the defendant was on probation, parole, work furlough, or any other release from confinement. Whether the defendant is on such a release is not open to nearly as much debate as his guilt or innocence of a crime or whether he deserves or does not deserve the death penalty. It clearly appears that “much that goes into [
I also agree with the majority that the lower standard of proof in the
Furthermore,
“[t]he state‘s use of this standard indicates that, as has been said generally of the criminal case, ‘the interests of the defendant are of such magnitude that * * * they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment * * *. [O]ur society imposes almost the entire risk of error upon itself.’ Addington v. Texas, 441 U.S. 418, 423-424 (1979).”
Id. at 441.
Though implied in the majority opinion, I also wish to emphasize that today‘s holding should not apply to
Thus, I specially concur in the majority‘s opinion.