State v. WashingtonState v. Washington
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., B. Woodrow Nesbitt, Asst. Dist. Atty., for plaintiff-respondent.
PER CURIAM.
We have granted defendant‘s application for supervisory writs to review a single question raised below: whether the state may seek the death penalty on retrial of a capital offense in a case where defendant has received a life sentence in the first prosecution and successfully attacked that conviction on appeal. We hold consistent with the accused‘s constitutional right of appeal in Louisiana,
Defendant was charged by grand jury indictment with first-degree murder,
In response to the court‘s advice, defense counsel filed a motion to determine the effect of that appeal. Counsel explained to the court that “because of the uncertainty of the law right now it is not clear whether or not the state, if a new trial is granted after an appeal.... could seek the death penalty on the second trial . . . we are unable [therefore] to intelligently decide whether to exercise [defendant‘s] constitutional right to an appeal.” The trial court thought the motion premature and denied it.
In granting defendant‘s application, we agreed with defense counsel that the question here does more than call for an advisory opinion. Defendant has not yet taken his appeal and his fate in that regard as the possibility of retrial remains unsettled. As set forth in In Re Baer, 310 So.2d 537, 538 (La.1975), “[t]his Court will not ordinarily rule upon abstract questions where no practical results can be effectuated by its ruling.” See also, Edwards v. Parker, 332 So.2d 175 (La.1976); Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971);
Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970).
Nonetheless, we take as reasonable defendant‘s claim that resolution of the question here will influence his constitutional election with respect to appeal of the case. Defendant has received a life sentence in a case that could have brought death. Whether or not he will face a second prospect of death as a measure of success on appeal may well, as a practical matter, enter into his decision to pursue the appeal in the first place. In Re Baer, supra. We therefore reach the merits.
We are satisfied that at the federal level, neither the protection against double jeopardy nor the due process clause absolutely bars the state from seeking the death penalty on retrial after appeal of a capital case in which the defendant has received a life sentence. “At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided,” the United States Supreme Court noted in North Carolina v. Pearce, 395 U.S. 711, 719, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969), “it has been settled that [the] constitutional guarantee [against double jeopardy] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside ... And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power upon the defendant‘s reconviction to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.”1 [emphasis the court].
We are also satisfied that under the analysis in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), prospect of a more severe sentence on retrial after a successful appeal will not, in the ordinary course, “chill” the accused‘s right of appeal. Chaffin points out, Id. 93 S.Ct. at 1986 that for those cases in which a realistic apprehension of vindictiveness plays no part, North Carolina v. Pearce, supra, “the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal. Several contingencies must coalesce ... [and] we cannot agree with petitioner that such speculative prospects interfere with the right to make a free choice whether to appeal.”
Chaffin, however, did not directly address the issue raised by defendant‘s application here and we resist its conclusion in the present context. In more recent times, the Supreme Court has itself emphasized that the death penalty is “unique in its severity and irrevocability.” Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976). We think that uniqueness decisive here. Weighing the chances for some future increase in the number of years on his sentence, a defendant may well pursue his appeal undeterred. On the other hand, confronted with only two possible sentencing alternatives and a chance of winding up much worse off than before (death for life), the accused may forego his appeal of a life sentence in a capital case and accept what he otherwise feels is an unjust verdict and punishment.
REMANDED.
NOTES
Notes
Notes
The holding in this case is consistent with the law of Louisiana as it existed prior to the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Former
We agree with defense counsel that the legislature made the change in
We note that other jurisdictions have dealt with this problem in different ways. In Shagloak v. State, 597 P.2d 142 (Alaska, 1979), for example, the Alaskan Supreme Court expressly declined to follow North Carolina v. Pearce, supra, and held as a matter of state law that an increased sentence after an appeal is never justified. The West Virginia Supreme Court adopted a similar approach in a two-tier trial de novo setting, refusing to apply Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), State v. Eden, 256 S.E.2d 868 (W.Va.1979).
Neither Shagloak v. State nor State v. Eden, supra, are death cases, although their holdings of course encompass the problem here. Other jurisdictions have met the question directly and adopted the result reached here for a variety of reasons: People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963); Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Roberson v. State, 258 So.2d 257 (Fla. 1971), cert. dend., 409 U.S. 885, 93 S.Ct. 112, 34 L.Ed.2d 141 (1972). In view of our holding here, we express no opinion with regard to the prophylactic rules established in Alaska and West Virginia. With regard to the other decisions, we note only that their rationale, if not their result, have been undercut at least in part by the decisions in North Carolina v. Pearce and Chaffin v. Stynchcombe, supra; insofar as they rest on double jeopardy or due process considerations.