10 Haw. App. 94 | Haw. App. | 1993
The Motion for Reconsideration of our September 1, 1993 opinion in State v. Tucker, 10 Haw. App. 73, 861 P.2d 37 (1993) (Ticker II), filed by Defendant-Appellant Glenn Edward Tucker, Sr. (Glenn) on September 27, 1993, is hereby denied. In his motion, Glenn
Having reviewed the trial record and analyzed applicable double jeopardy case law, we are of the opinion that Glenn’s Fifth Amendment rights will not be violated if this case is remanded for a retrial.
According to the Hawaii Supreme Court, the Double Jeopardy Clause bars retrial of a defendant once a reviewing court has found the evidence at trial to be legally insufficient to support a conviction. However, retrial is not barred when the reviewing court reverses a case due to trial error. State v. Hamala, 73 Haw. 289, 834 P.2d 275 (1992).
There is support for Glenn’s position. While the Hawaii and United States Supreme Courts have yet to grapple with this precise issue, some jurisdictions have held that challenges based upon sufficiency of the evidence must always be decided on appeal, despite the court’s reversal on other grounds. See, e.g., United
We need not resolve the specific issue in this case, however, because our review of the trial record reveals sufficient evidence to support Glenn’s conviction of Murder in the Second Degree.
We note that in Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988), the United States Supreme Court held that the Double Jeopardy Clause does not bar a retrial where all the evidence offered by the state and admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict. The Supreme Court stated that “[pjermitting retrial
Motion denied.
This amendment reads in pertinent part: “[Nlor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.r
The supreme court in Hamala noted:
In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient. . . .” Id. at 18, 98 S. Ct. at 2150. The Court distinguished between reversal for “trial error” and reversal for “evidentiary insufficiency” and explained that:
[Rjeversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that*96 the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains á valid concern for insuring that the guilty are punished.
Id. at 15, 98 S.Ct. at 2149. See also United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964) (“[i]t would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction”). The Supreme Court has consistently held that reprosecution following reversal on appeal is constitutionally permissible.
73 Haw. at 293, 834 P.2d at 277 (citations omitted).