Summary
In Crutchfield, the supreme court reversed and dismissed a conviction for possession of drug paraphernalia, because there was no proof that a four-inch piece of automobile radio antenna alleged to be drug paraphernalia was intended for drug use, no proof of residue on the paraphernalia, and no drugs found on the defendant.
Summary of this case from Hyde v. StateOpinion
[306 Ark. 104] Omar F. Greene, II, Little Rock, for respondent.
Pamela Rumpz, Asst. Atty. Gen., Little Rock, for petitioner.
[306 Ark. 104-A] GLAZE, Justice.
In its petition for rehearing, the state disagrees with that part of our original opinion 812 S.W.2d 459 that reverses and dismisses this case. Instead, it suggests we should reverse and remand for retrial on the charge of possession of drug paraphernalia. We agree.
In our earlier opinion, we agreed with the state that the trial court erred in excluding the state's proffered expert testimony indicating the chrome metal tubing with wire-type mesh possessed by appellant was drug paraphernalia. We further said that such evidentiary error by the trial court did not mean that a jury conviction can be affirmed on appeal by our consideration of matters which the jury did not hear. Of course, we were correct in this observation. However, we further cited and relied on language in Webster v. Duckworth, 767 F.2d 1206 (7th Cir.1985), wherein that court stated that where a trial court erroneously excludes prosecution evidence, retrial is barred. The Webster court then mistakenly summarized the rule to be that a defendant could not be retried after his conviction was reversed due to the state's failure to produce evidence sufficient to sustain a verdict of guilty beyond a reasonable doubt and that the insufficiency of the evidence, whether or not caused by an erroneous trial court ruling, was the constitutional equivalent of an acquittal.
The Webster court later amended its opinion deleting the language summarized above. In doing so, the court acknowledged that, under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), a defendant may be retried when the government offered sufficient evidence only to have the court erroneously exclude an essential portion. Webster, 767 F.2d at 1215. Stated in other terms, the Burks rule is that the double jeopardy clause prohibits retrial when a conviction is reversed for insufficient evidence as opposed to trial error. Burks, 437 U.S. at 14, 98 S.Ct. at 2149.
In the present case, insufficiency of the evidence does not exist. Instead, the state offered expert evidence, erroneously excluded by the trial court, which bore on the issue of whether the chrome tube found on Crutchfield was drug paraphernalia and therefore intended for use to inhale controlled substances. Even though the trial court excluded such evidence, it still permitted the possession of drug paraphernalia charge to go to the jury which returned a conviction on the charge. In other words, the [306 Ark. 104-B] trial court never entered an acquittal because of its erroneous ruling nor did the jury acquit Crutchfield because the evidence was excluded. Thus, this case is unlike the case of Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1977), upon which the dissenting opinion relies. See also United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).
In sum, with the above expert testimony, the trial evidence was sufficient to support Crutchfield's conviction for possession of drug paraphernalia. See Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Palmer v. Grammer, 863 F.2d 588 (8th Cir.1988); cf. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987); see also Westens&sDrubel, Toward a General Theory of Double Jeopardy, 1978 Sup.Ct.Rev. 81, 147 (1979). Under the Burks rationale, the state is entitled to present its proof. Thus, we reverse and remand this case for retrial on the charge of possession of drug paraphernalia. In all other respects, our earlier opinion is reconfirmed.
DUDLEY, J., dissents.
DUDLEY, Justice, dissenting.
In our original opinion we held that the trial court had erroneously excluded a part of the State's evidence. As a result, the State was not able to prove one of the elements of the crime but, even so, the jury returned a verdict of guilty. On appeal, we reversed because of the insufficient evidence concerning the missing element.
We dismissed the charge since the reversal was based upon insufficiency of the evidence. On rehearing, the State asks that we remand rather than dismiss. The majority today grants rehearing to change the disposition of the case to remand. I dissent.
On June 14, 1978, the Supreme Court of the United States decided three (3) cases which made clear its interpretation of the Double Jeopardy Clause of the Fifth Amendment. That trilogy of cases provides that when a criminal case is reversed solely because of trial error, retrial is not prohibited, but when a case is reversed because of insufficiency of evidence, retrial is prohibited.
The first of the three (3) cases is Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The unanimous opinion of the Court reasoned that an appellate court's determination of insufficient evidence is tantamount to holding that the trial court should have directed a [306 Ark. 104-C] verdict of acquittal. Had the trial court done so, there could be no retrial. The mere fact that the appellate court is the one to declare the insufficiency of the evidence is irrelevant. A determination of some court has been made that the evidence was insufficient. After that determination, no retrial is permissible. Id. at 16, 98 S.Ct. at 2150. The key fact is the acquittal, and it matters not whether it is granted at the trial level or the appellate level.
The second case, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), applied the Burks decision, a federal decision, to state proceedings. The question in this case was whether a state could retry a defendant whose case was reversed by a state appellate court because of the insufficiency of the evidence. The Supreme Court held that since the original reversal had been based on the "view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," double jeopardy barred retrial. Greene v. Massey, 437 U.S. at 25, 98 S.Ct. at 2154.
The third case decided that same day was Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). In it, the Court held that even when an erroneous exclusion of evidence causes the insufficiency of evidence, retrial was barred. The Court wrote: "[T]here is no exception permitting retrial once the defendant has been acquitted, no matter how 'egregiously erroneous' the legal rulings leading to that judgment might be." Id. at 75, 98 S.Ct. at 2184 (Citation omitted. Emphasis added.)
In 1981, the Burks decision was affirmed in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). In 1982, the Court reiterated that the Burks doctrine applied to reversals based on insufficiency of the evidence, but explained that it did not apply to a reversal based upon the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). (The Tibbs case arose in Florida which has a rule directing the State Supreme Court to "review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not." Id. at 46, 102 S.Ct. at 2220. Tibbs' reversal "rested upon a finding that the conviction was against the weight of the evidence, not upon a holding that the evidence was legally insufficient to support the verdict." Id. at 47, 102 S.Ct. at 2221.)
Professors Singer and Hartman have accurately summarized [306 Ark. 104-D] the law on this point as follows:
Effect of Reversal on Appeal. When the defendant's case is reversed on appeal, retrial is barred by the rule against double jeopardy if the reversal is based upon insufficiency of the evidence. If it is based upon procedural error at the trial, retrial is not prohibited. This principle is applicable in both state and federal proceedings. However, if the reversal is based upon the weight of the evidence as opposed to the insufficiency of the evidence, retrial is not barred.
S. Singers&s M.J. Hartman, Constitutional Criminal Procedure Handbook, § 16.23, at 590 (1986). In short, retrial is barred in the case at bar, since the reversal was for insufficient evidence.
In contrast to the bright line drawn by the Supreme Court of the United States, the majority opinion cited dictum from 7th Circuit's case of Webster v. Duckworth, 767 F.2d 1206 (1985). Even that dictum would not mandate reversal and, more important, the holding of the case does not support the majority opinion. Accordingly, I would not grant rehearing and dissent to the majority's so doing.