State ex rel. Dowdy v. Robinson

257 S.E.2d 167, 163 W. Va. 154, 1979 W. Va. LEXIS 420

• Court: West Virginia Supreme Court
• Decided: June 5, 1979
• Docket: No. 14421
• Status: Published

Opinions

Neely, Justice:

In this original proceeding, the petitioner, Alan Gary Dowdy, seeks to prohibit the respondent judge of the Circuit Court of Cabell County from trying him on the grounds of double jeopardy. On 13 July 1978 the petitioner was tried on Indictment No. 78-C-50 which provided:

... Alan Gary Dowdy on the_day of March 1978, in the said County of Cabell, did unlawfully feloniously break and enter a certain building not then and there being a dwelling or outhouse adjoining thereto or occupied therewith located at 220 22nd Street, Huntington, in Cabell County, West Virginia, and used as a night club, being the property of Bachelor’s Bait, Inc., and with intent the goods and chattels of Bachelor’s Bait, Inc., to take, steal and carry away, against the peace and dignity of the State.

The proof adduced at trial by the prosecution was that the building broken into was located at 200 22nd Street rather than at 220 22nd Street as provided in the indictment. The petitioner argued at the trial that this constituted a fatal variance between the indictment and the proof and moved for a directed verdict of acquittal. The court sustained the motion and, over the objection of the State, directed the jury to find petitioner not guilty by direction of the court. In December 1978 the petitioner was brought before the Circuit Court of Cabell County on Indictment No. 78-C-129 which provided:

... Alan Gary Dowdy on the _ day of March, 1978, in the said County of Cabell, did unlawfully and feloniously break and enter a certain building not then and there a dwelling house or outhouse adjoining thereto or occupied therewith located at 200 22nd Street, Huntington, in Cabell County, West Virginia and used as a night club, being the property of Bachelor’s Bait, Inc. and with intent the goods and chattels of Bachelor’s Bait, Inc., to take, steal and carry away, against the peace and dignity of the State.

The only difference in the charges in the first indictment and the charges in the second indictment is the street address; therefore, petitioner contends that he is being tried a second time for the same offense in contravention of the double jeopardy provisions of U. S. Const. amend. V and W. Va. Const., art 3, §5. We agree.

I

During the last two years the United States Supreme Court has addressed the troublesome area of double jeopardy in numerous cases.¹ While that Court may be divided ideologically on the primary purpose of the double jeopardy clause, one clear rule has emerged: after a judgment acquitting a defendant no retrial on the same offense is permissible no matter how erroneous the acquittal might have been. Sanabria v. United States, 437 U.S. 54 (1978); United States v. Scott, 437 U.S. 82 (1978). As the Court in Sanabria said:

In deciding whether a second trial is permissible ..., we must immediately confront the fact that petitioner was acquitted on the indictment. That “ ‘[a] verdict of acquittal ... [may] not be reviewed ... without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,’ ” has recently been described as “the most fundamental rule in the history of double jeopardy jurisprudence.” [Citations omitted] The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is “based upon an egregiously erroneous foundation.” [citations omitted] 437 U.S. at 64.

Therefore, given that the petitioner was acquitted of the charges in Indictment No. 78-C-50, the central issue in the case before us is whether Indictment No. 78-C-50 and Indictment No. 78-C-129 charge the same offense.

In the case before us, the trial judge probably erred in the first trial by directing a verdict of acquittal. He could have struck the street number in the original indictment as surplusage on the grounds that the remainder of the indictment fully informed the defendant of the charges against him, or he might have granted a mistrial for manifest necessity. Both of these techniques would probably have survived any disapproval by the United States Supreme Court or this Court. See State v. McGraw, 140 W. Va. 547, 85 S.E.2d 849 (1955) (surplusage); Arizona v. Washington, 434 U.S. 497 (1978) (mistrial).

Until 1977, the scope of the double jeopardy protection against multiple prosecutions for the “same offense” was unclear. In 1932, the United States Supreme Court adopted the “same evidence” test for defining the fifth amendment phrase “same offense” when applied to multiple counts in one trial, holding that:

[T]he applicable rule is that where the same act or transaction constitutes a violation of the 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. ... Blockburger v. United States, 284 U.S. 299 at 304 (1932).

Despite uncertainty whether the Court meant the “same evidence” test of Blockburger to apply to multiple prosecutions as well as to multiple counts, the lower courts assumed that it did² and that assumption was validated in Brown v. Ohio, 432 U.S. 161 (1977) when the Court adopted Blockburger’s rather technical test.³ In Brown, the defendant had been convicted of joyriding in a 1965 Chevrolet and was subsequently convicted of stealing the same car. The Court held that the crimes of joyriding and auto theft, as defined by the state, were the “same offense” for double jeopardy purposes because the latter required proof of all the elements of the former. If each crime contains an element which the others do not, even a substantial identity of proof will not prohibit multiple trials under double jeopardy. The United States Supreme Court in Brown noted that while joyriding and auto theft were one offense under Ohio law, they “would have a different case if the Ohio legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner’s consent.” 432 U.S. at 169 n. 8. Justice Brennan, recognizing the potential dangers of a technical “same evidence” test concurred in Brown and urged adoption of a “same ■transaction” test which would categorize offenses as the “same offense” if they “ ‘grow out of [a] single criminal act, occurrence, episode, or transaction.’ ” 432 U.S. at 170 quoting from Ashe v. Swenson, 397 U.S. 436 at 453 (1970) (Brennan, J., concurring).

The “same transaction” test can be explained better by illustration than by definition: if a defendant were arrested for both kidnapping and robbing a victim at the same time then, under the “same transaction” test, the two offenses would be the “same offense” for double jeopardy purposes; if the State elected to try the defendant for kidnapping alone, a later trial on the robbery charge would be barred. Of course, under Jeffers v. United States, 432 U.S. 137 (1977), the defendant who on his request is granted separate trials on offenses arising from the same transaction is estopped from asserting double jeopardy.

What the “same transaction” test will do is mandate one prosecution for crimes growing out of different occurrences even though closely associated in time. For example, if a person were to murder one man in Fair-mont at 6:00 p.m. and, unrelated to the first murder, murder another man in Mannington at 6:30 p.m., separate prosecutions would be permissible because two distinct occurrences were involved. If a person were to murder two people at the same time a closer case would be presented, and whether it were double jeopardy to have separate prosecutions would depend upon the nature of the evidence presented. For example, if the defense were self-defense on the grounds that the two victims had attacked the defendant, then it would seem unfair to try the defendant twice for essentially the same transaction, but we leave that question to a future day.

The policy behind the prohibition against double jeopardy is probably best stated in Green v. United States, 355 U.S. 184 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that 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, as well as enhancing the possibility that even though innocent he may be found guilty. 335 U.S. at 187.

In view of this strong policy we hereby adopt both the “same evidence” test and the “same transaction” test for determining whether the “same offense” is involved for double jeopardy purposes with an accompanying rule that whichever test affords the defendant the greater protection against potential unconstitutional double jeopardy must be applied. We do not disparage the Supreme Court’s wisdom in adopting the “same evidence” test alone; however, we are clearly free to adopt broader protections under our state constitution than those provided by its federal counterpart. See State ex rel. Whitman v. Fox, _W. Va. _, 236 S.E.2d 565 (1977).

In the case before us, it is clear that the charges in Indictment No. 78-C-50 and the charges in Indictment No. 78-C-129 grow out of a “single criminal act, occurrence, episode, or transaction.” The only cited transgression of the petitioner was the unlawful breaking and entering of a building on 22nd Street in Huntington owned by Bachelor’s Bait, Inc. and used as a night club. Clearly, under the “same transaction” test, the same offense is charged in both indictments and a trial on Indictment No. 78-C-129 is clearly an abuse of legitimate powers.

II

The petitioner challenges the constitutionality of W. Va. Code, 61-11-14 [1923] which provides:

A person acquitted of an offense, on the ground of a variance between the allegations and the proof of the indictment or other accusation, or upon an exception to the form or substance thereof, may be arraigned again upon a new indictment or other proper accusation, and tried and convicted for the same offense, notwithstanding such former acquittal,

This statute allows multiple prosecutions of the same defendant for the same offense and expressly provides for a second prosecution after an acquittal in violation of U. S. Const. amend. V and W. Va. Const., art. 3, § 5 and, therefore, is unconstitutional. As we said earlier, different action by the trial judge, e.g. striking the street number from the indictment or granting a mistrial for manifest necessity, might have avoided a successful plea of double jeopardy in the second trial. Law, however, is a technical creature and the Supreme Court has accorded magic to a directed verdict of acquittal which we cannot escape.

For the reasons stated above this writ of prohibition prayed for is awarded.

Writ awarded.

1 See e.g. Brown v. Ohio, 432 U.S. 161 (1977); Jeffers v. United States, 432 U.S. 137 (1977); Lee v. United States, 432 U.S. 23 (1977); Abney v. United States, 431 U.S. 651 (1977); Arizona v. Washington, 434 U.S. 497 (1978); Burks v. United States, 437 U.S. 1 (1978); Crist v. Bretz, 437 U.S. 28 (1978); Sanabria v. United States, 437 U.S. 54 (1978); United States v. Scott, 437 U.S. 82 (1978).

2 See, e.g. Percy v. South Dakota, 443 F.2d 1232 (8th Cir. 1971); United States v. Wilder, 463 F.2d 1263 (D.C. Cir. 1972); United States v. Hairrell, 621 F.2d 1264 (6th Cir. 1975); State v. Miller, 5 Or. App. 501, 484 P.2d 1132 (1971); Grubb v. State, 497 P.2d 1305 (Okla. Crim. App. 1972).

3 In Jeffers v. United States, 432 U.S. 137 (1977), the Supreme Court elaborated on the Brown rule that a greater and lesser included offense are the same offense for double jeopardy purposes by noting that three exceptions would apply. A defendant loses his double jeopardy protection against separate prosecutions for greater and lesser offenses when: (1) the events necessary to the greater crime have not occurred at the time of the prosecution for the lesser is begun; (2) the facts necessary to the greater crime were not discovered, despite the exercise of due diligence, before the first trial; and (3) the defendant requests separate trials or in opposing trial fails to raise the lesser included issue.