Robert Earl Pryor v. James H. Rose, Warden

699 F.2d 287

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 21, 1983
• Docket: 81-5401
• Status: Published

Opinions

GILMORE, District Judge.

Petitioner, Robert Earl Pryor, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Two issues are presented to the Court. The first is whether the petitioner was subjected to double jeopardy under the Double Jeopardy clause of the Fifth Amendment.¹ The second issue relates to the effect under 28 U.S.C. § 2254(d) of a determination of the Tennessee Court of Appeals that the petitioner was hot subjected to double jeopardy. The court found that the defendant was subjected to double jeopardy and set aside one of the sentences imposed upon him. It also found that it was not bound by the findings of the Tennessee Court of Criminal Appeals. We affirm.

I

Pryor was the subject of two State indictments. The first count of Indictment B-60818 charged that petitioner:

did unlawfully, wilfully, feloniously, maliciously, deliberately and premeditately make an assault upon the body of John L. Winbush with a metal walking cane, with felonious intent, then and there, to unlawfully, wilfully, feloniously, maliciously, deliberately and premeditatedly kill and murder the said John L. Winbush, and to commit the crime of Murder in the First Degree.

Indictment B-60819 charged that petitioner:

did unlawfully, feloniously, violently and forcibly by Use of A Deadly Weapon to-wit: a metal walking cane, make an assault on the person of John L. Winbush and putting him in great danger and bodily fear for his life, and did then and there unlawfully and feloniously and with force and violence aforesaid, steal, take and carry away from the person of John L. Winbush, the sum of Four and No/100 ($4.00) Dollars ... with intent feloniously to convert the same to his own use and to deprive the true owner thereof.

Both indictments were predicated on an occurrence which was ultimately summarized by the victim at trial as follows:

A. Okay, uh-huh. He called me — came up to me just like that, so I turned and walked away from him. So he hit me right here (indicating). It burst this a loose and knocked me down, got blood all in my eyes and everything. ’Course however this has been sewed up now, you know. Since I went to the hospital and everything. Then after he knocked me down he started beating on me with that pipe, that stick, or whatever you call it, you know. And ah, the money that I had in my front pocket he went in there and got that.

******

[metal cane identified]

A. Yeah, that’s what he had. He had it in his hand when he called me up to him. That’s right, show did and start beating me with this thang. After he knocked me down, kept on beating me and he told me, I’m going to kill you man, I’m going to kill you. Give me some more money.

******

A. Well, he said, I’m going to kill you, ... I’m going to kill you. He kept saying that.

Q. All right sir,—

A. He kept telling me that, at the time he was beating me with this (indicating)

******

Q. Mr. Winbush, how many times were you struck with this pipe?

A. Well, all I know, I was hit lots of times with that pipe. I couldn’t just say exactly how many times. I know I was hit lots of times with it.

At the conclusion of trial, the jury rendered a verdict finding the petitioner guilty on the second indictment of assault with intent to commit robbery with a deadly weapon, a lesser included offense in the charge of robbery with a deadly weapon. The jury fixed punishment on this indictment as imprisonment for not less than 10 years nor more than 21 years. On the first indictment, the jury found the petitioner guilty of assault with intent to commit murder in the first degree, as charged, and fixed his punishment as not less than 6 nor more than 21 years. The trial judge ordered that the sentences in the two cases be served consecutively.

The district court below granted the writ of habeas corpus as it pertained to the conviction for assault with intent to commit murder.

II

We start with the basic proposition that the constitutional protection against double jeopardy encompasses three guarantees: 1) protection against a second prosecution for the same offense after acquittal; 2) protection against a second prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

This case involves the third guarantee. Petitioner argues that his convictions and consecutive sentencing on both robbery and assault with intent to commit murder in the first degree were multiple punishments for the same offense, and thus violated the constitutional protection against double jeopardy.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court adopted the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for determining whether two offenses are the same for the purpose of barring cumulative punishment. In Blockburger, the Court held:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....”

Brown 432 U.S. at 166, 97 S.Ct. at 2225.

Thus, Blockburger focuses on the proof necessary to prove the statutory elements of each offense, rather than the actual evidence to be presented at trial. See also Ianelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975).

Two subsequent opinions of the United States Supreme Court have modified the analysis and meaning given to Blockburger. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). As pointed out in Pandelli v. United States, 635 F.2d 533 (6th Cir.1980), the most recent Sixth Circuit case on the subject, and the case which we find controlling both in terms of result and analysis, Whalen and Vitale redefine the task faced by courts in reviewing double jeopardy claims. Pandelli instructs that, before applying the Blockburger test, the court must narrow the statute to be analyzed until it includes only the relevant alternatives to the case at hand. The Court said, referring to the reviewing court:

It must, in other words, treat a multi-purpose statute written in the alternative as it would treat separate statutes. The theory behind the analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would.

Id. at 537 (footnotes omitted).

In discussing the matter further in light of Vitale, the Court said:

In Vitale it recognized that that process of reformulation could be applied to distinguish multiple possible meanings contained within a single word. The two cases redefine the task faced by courts reviewing double jeopardy claims: before applying the Bloekburger test they must narrow the statute to be analyzed until it includes only the alternatives relevant to the case at hand.

Id. at 538 (Emphasis added).

Pandelli reiterates the point that the Bloekburger test in its modified form still focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial, or the facts alleged in a particular indictment:

Courts have always looked to the law the indictment claims the defendant violated.... What the reviewing court must now do in applying Bloekburger is to go further and look to the legal theory of the case or the elements of the specific criminal cause of action for which the defendant was convicted without examining the facts in detail.

Pandelli at 538.

We must first deal with Tennessee’s First Degree Murder Statute. This is the relevant statute in applying the Bloekburger test because under Tennessee law petitioner could not be convicted of assault with intent to kill unless he would have been guilty of first degree murder if the victim had died. The statute is what Pandelli calls a “multi-purpose criminal statute” because it seeks to punish as first degree murder different types of criminal acts, including intentional, deliberate, premeditated killings, and felony murders.

The Tennessee Statute provides as follows:

39.2402. Murder in the first degree. — An individual commits murder in the first degree if:

(1) he commits a willful, deliberate, malicious and premeditated killing or murder;

(2) he commits a willful, deliberate, and malicious killing or murder, and:

(a) the victim is an employee of the department of correction having custody of the actor.

(b) the victim is a prison inmate in custody with the actor,

(c) the victim is known to the actor to be a peace officer or fireman acting in the course of his employment,

(d) the victim is a judge acting in the course of his judicial duties,

(e) the victim is a popularly elected public official,

(f) the offense is committed for hire; or,

(g) the offense is committed while attempting to evade law enforcement officials;

(3) he hires another to commit a willful, deliberate, malicious and premeditated killing or murder, and such hiring causes the death of the victim; or

(4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rapé, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb. Tenn. Code Ann. § 39.2402 (1974).

Since the first degree murder statute is a “multi-purpose statute” under Pandelli, each provision must be considered as a separate offense. The “separate offense” of felony murder, If 4, is “relevant” within the meaning of Pandelli because it is part of the first degree murder statute and the state trial judge instructed the jury that it was relevant. The state trial judge, in defining murder in the first degree, stated:

An individual commits murder in the first degree if: (1) he commits a willful, deliberate, malicious and premeditated killing or murder; or (4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb.

The State also introduced evidence supporting a felony murder theory. Comparing the felony murder offense with the robbery offense under the Bloekburger test, we find it possible that petitioner received cumulative sentences for the same offense — the underlying felony, in this case, a robbery: “Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of a contrary legislative intent.” Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980)²

In his charge, the state trial judge gave a lengthy and accurate charge on premeditation, but he left with the jury the ability to find the defendant guilty of assault with intent to kill by using the underlying robbery to supply premeditation. This is where we have real difficulty with the case, and where it appears that double jeopardy has attached.

Under Pandelli, we simply cannot eliminate the felony murder alternative as a matter of statutory interpretation. It clearly applies in the instant case as a matter of law, because Tennessee law provides that the premeditation can be supplied by the commission of a felony robbery to establish first degree murder. Even going further, as Pandelli commands, looking at the “legal theory of the case” or the “elements of the specific cause of action for which defendant was convicted,” there is no way felony murder can be eliminated as a “relevant” alternative under Pandelli and as a separate offense which must be examined under Blockburger. The judge’s jury instructions, which eliminated all of the other first degree murder alternatives save 11 and K 4, only reinforce the argument that U 4, the felony murder portion, was a “relevant” alternative at trial. The state cannot argue that premeditation was a key part of its case and at the same time explain the presence of the felony murder instruction.

Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), in particular, makes it clear that a court does not simply look abstractly at the statute in question. It must look at its actual bearing on the case and the legal theories used by the state to convict. There is just no way the state can conclusively show that the jury did not rely on the robbery to provide the intent to convict on the count of assault with intent to kill and that felony murder was not a legal theory used by the state to convict. The judge’s instructions clearly would have permitted that.

It is argued that because the felony murder portion, 14 of Tennessee’s statute, has language containing the words “willful and deliberate,” it is somehow different from a typical felony murder statute and that as a matter of law the jury had to find some kind of intent to kill in order to convict. We find there is no support for this proposition in the Tennessee case law. Tennessee case law indicates that f 4 is to be interpreted as a typical felony murder statute in which intent, deliberation, and premeditation are supplied by the commission of the underlying felony. In Tosh v. State, 527 S.W.2d 146 (Tenn.Cr.App.1975), it was held that it was not necessary to prove that a killing was willful, deliberate, and premeditated to convict for first degree murder under Section 39-2402(4) even though these words were used in the statute defining the crime. See also Claiborne v. State, 555 S.W.2d 414 (Tenn.Cr.App.1977), cert. denied Sept. 6, 1977, where first degree murder was found under U 4 even where deliberation and premeditation were absent. To the same effect is Phillips v. State, 455 S.W.2d 637, 2 Tenn.Cr.App. 609 (1970), where it was held that a killing in the commission of a robbery constituted first degree murder regardless of whether premeditation or malice were specifically proven.

It is clear that the legislature of Tennessee intended to punish premeditated murder and robbery separately, and there is no indication that it intended to punish robbery twice,³, which was made possible here by supplying a felony murder instruction along with an intent to kill instruction. The state judge could easily have complied with legislative intent here simply by not allowing a felony murder instruction to be given.

It is contended that the position that the jury could have relied upon felony murder is only “conjecture” or is “arbitrary,” but we believe it is none of these labels. Felony murder is part of the law of Tennessee, given to the jury by the state trial judge charged with instructing the jury as to the law, and upon which the jury was to rely in deciding defendant’s guilt or innocence. Even if petitioner’s argument is “conjecture,” which we do not believe it is, it must be conceded that the state’s argument is just as much conjecture. Theoretically, the evidence could support a conviction with a separate finding of the requisite intent, but Whalen, Vitale, and Pandelli especially say that this is not the inquiry.

A court is not to engage in theoretical speculation as to what facts the jury might or might not have found in order to support an offense. This gives the court too much discretion, a discretion the ban on double jeopardy is designed to eliminate. On the contrary, the court must examine the statute and the law given to the jury as a starting point. We feel that the Tennessee Court of Criminal Appeals engaged in pure speculation as to what the jury might or might not have found. See Opinion at p. 293, infra. The jury could just as well have seen the entire incident as one robbery and used that robbery via felony murder to find assault with intent to kill. This is just as reasonable (or just as speculative) an interpretation as the other. If there is conjecture on both sides, one should err on the side of the constitutional protection against double jeopardy.

As pointed out in Pandelli, the purpose of the double jeopardy clause is to prevent trials and punishments that do not advance the deterrent and retributive purposes of the criminal justice system. Cumulative punishments under several statutes that punish the same basic elements of wrongful conduct have little additional deterrent value but simply impose unnecessary additional pain on defendants and wasteful costs on society. It appears to us that is what happened in this case. Any doubt should be decided against allowing a defendant to be punished for robbery twice. Although the jury could have found both intent to kill and robbery, a court should not engage in this kind of speculation in face of the double jeopardy clause.

Furthermore, a decision to affirm the district court will produce no intrusive result. Petitioner will still serve a sentence for assault with intent to rob, and the deterrent and punishment purposes of the Tennessee law and the jury decision to punish him will be respected. Such a decision does not require any intrusive second guessing of the trial judge of a state court as to its factual findings. It concerns improper jury instructions and interpretation of the relevant law, which are always subject to appellate and constitutional review.

As the law stands now under the decisions of the Supreme Court in Whalen and Vitale, and under Pandelli in the Sixth Circuit, a judge must simply not give a felony murder instruction when it is possible to also have a conviction for the underlying felony. The State of Tennessee can continue to convict for both a felony and for assault with intent to murder as long as the felony murder instruction is not given and the State succeeds in proving intent, deliberation, and premeditation. This will preserve both the constitutional protection against double jeopardy and the statutory scheme established by the State of Tennessee for punishing criminal offenses.

Thus, it is clear that under Tennessee law, the evidence that could support a conviction for robbery is all that is needed to support a conviction of assault with intent to kill. The same facts needed to convict on one could convict on the other, and the jury could have convicted defendant of assault with intent to murder without making any specific finding of intent. Therefore, petitioner was subjected to double jeopardy.

Ill

Finally, we must deal with the finding of the Tennessee Court of Criminal Appeals that there were two separate and distinct offenses. The question here is whether such determination is entitled to a presumption of validity under 28 U.S.C. § 2254(d).

The Tennessee Court of Criminal Appeals rejected Pryor’s assignment of error predicated upon double jeopardy, stating:

The proof accredited by the jury verdict clearly establishes that there was an assault and taking of the money from the victim’s front pocket. Then, after appellant had knocked the victim down and gotten his money, appellant told the victim ‘I’m going to kill you, man, I’m going to kill you. Give me some more money.’ The appellant had committed the assault with the intent to commit robbery when the money was taken.

Appellant resumed beating the victim and expressed the intent to kill. The jury adduced from the facts the appellant intended to carry out this new exclamation. There were two separate and distinct offenses committed. State v. Hudson, 562 S.W.2d 416 [Tenn.]; State v. Black, 524 S.W.2d 913, 920, 929 [Tenn.].

(Opinion at 3).

Appellant contends that this decision of the Tennessee Court of Criminal Appeals is a factual determination which must be afforded a presumption of validity pursuant to 28 U.S.C. § 2254(d), which provides in pertinent part:

In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit — (thereafter follow eight exceptions which the instant parties concede are inapplicable).

Section 2254(d) is applicable only to findings of fact made by a state trial or appellate court. It does not apply to determinations of law. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Sumner v. Mata II, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1980). The finding of the Tennessee Court of Criminal Appeals that there were two separate offenses is entirely a legal and not a factual finding, and is erroneous as a matter of law. That court’s examination of the facts in the case, in order to find separate offenses, is precisely the type of legal analysis Whalen, Vitale, and Pandelli reject.

The principles of federalism which underlie § 2254(d) extend only to factual determinations and not to conclusions or inferences which would be dispositive of claims predicated upon constitutional guarantees. There is no presumption of correctness on federal constitutional determinations made by state trial and appellate courts, and the determination of the Tennessee court was such.

For the reasons given, the judgment of the district court is affirmed.

1 . “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; ...” Amendment V, United States Constitution.

2 . We believe that the recent Supreme Court decision in Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), does not change the result in the instant case. In Hunter, the Supreme Court found that the ban on double jeopardy is not violated where the state legislature specifically authorizes criminal punishment under two statutes. - U.S. at -, 103 S.Ct. at 679. The state statute in question specifically stated: ‘The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed ... ’ Id. -, 103 S.Ct. at 676. In the instant case, there is no such specific indication of legislative intent. We thus believe that we must still be guided by the clear command of the language in Whalen that in the absence of a clear indication of a contrary legislative intent double jeopardy will still be found. - U.S. at -, 103 S.Ct. at 677. Judge Krupansky also agrees that Missouri v. Hunter does not affect the outcome of this case.

3 . Cf. Missouri v. Hunter, supra.