State v. Zawodniak

946 S.W.2d 936, 329 Ark. 179, 1997 Ark. LEXIS 397

• Court: Supreme Court of Arkansas
• Decided: June 23, 1997
• Docket: CR 96-1503
• Status: Published

Opinions

Tom Glaze, Justice.

On May 14, 1995, a Jacksonville police officer was dispatched to check a report that a person was passed out or sleeping in a car parked in front of a restaurant. Upon arriving at the scene, the officer awakened the person identified as Adrian Zawodniak. Zawodniak was subsequently found in possession of methamphetamine, a loaded handgun, and drug paraphernalia. The paraphernalia included a portable scale, a small spoon, and gold tweezers. He was charged with simultaneous possession of drugs and firearms under Ark. Code Ann. § 5-74-106(a) (Repl. 1993), and with possession of drug paraphernalia under Ark. Code Ann. § 5-64-403 (Repl. 1993).

Zawodniak waived a jury trial, and was tried at a bench trial on March 11, 1996. The State called three police officers and a drug chemist who established that when Zawodniak was arrested, he possessed methamphetamine, drug paraphernalia, and a 3.80 Loracin automatic pistol, containing four bullets — one in the chamber. The weapon was found in Zawodniak’s waistband.

Immediately upon the State resting its case, Zawodniak moved for a directed verdict. He claimed the simultaneous-possession statute, § 5-74-106(a), required that, in addition to proving he was in the simultaneous possession of drugs and a firearm, the State must show he was involved in criminal gang or group activity. The trial court agreed with Zawodniak’s interpretation of the statute and granted his motion. The trial court then reduced Zawodniak’s charge and convicted him only of possession of a controlled substance and of drug paraphernalia. The trial court placed Zawodniak on five years’ probation. If convicted of violating § 5-74-106, Zawodniak would have been guilty of a Class Y felony and punishable by a sentence of not less than ten years and not more than forty years, or fife. See Ark. Code Ann. §§ 5-74-106(b), 5-4-104(c)(1), and 5-4-401(a)(l) (Repl. 1993 and Supp. 1995).

The State appeals the trial court’s decision under Rule 3 of the Arkansas Appellate Procedure — Criminal, asserting that the lower court committed error to the State’s prejudice and that the correct and uniform administration of the criminal law requires this court’s review. We agree.

As previously indicated, the State’s appeal focuses on the trial court’s construction of § 5-74-106, which in pertinent part provides as follows:

(a) No person shall unlawfully commit a felony violation of § 5-64-401 (Uniform Controlled Substances Act) or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:

(1) A firearm;

* *• *

The State submits that its evidence at trial clearly showed Zawodniak simultaneously possessed drugs and a loaded firearm at the time of his arrest, and that was all that was required under the wording in § 5-74-106(a). However, Zawodniak argues § 5-74-106(a) is a part of the Arkansas Criminal Gang, Organization, or Enterprise Act codified in §§ 5-74-101 -108, and § 5-74-102 of that Act reflects that, to violate § 5-74-106(a), a person must also be shown to have been associated with “gang activity” at the time of the violation.

Zawodniak’s and the trial court’s reading of these statutes is contorted and fails to give the language of § 5-74-106 (a) its plain meaning, as our cases direct. See State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court has also stated that it is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id. at 786. No error or omission is evident here. In fact, § 5-74-106(a), as we read it, not only serves to deter organized gang and criminal activities, but also seeks the broader purpose to curtail any person’s use of a firearm when that person is involved in the illegal trafficking in or possession of controlled substances. Such interpretation is in keeping with the plain language employed in § 5-74-106(a), and in no way diminishes the General Assembly’s declared intent to combat criminal gang activity. Because the trial court erroneously engrafted an element of proof •— gang activity — not required under § 5-74-106(a), we reverse its ruling that required the State to prove that element.

The State further requests we remand this case for retrial, but Zawodniak rejoins, stating that, when the trial court reduced his charge to possession of a controlled substance, the reduction .resulted in an acquittal of the simultaneous-possession charge. Citing Green v. United States, 355 U.S. 184 (1957), and United States v. Scott, 437 U.S. 82 (1978), he argues any retrial is barred by the Double Jeopardy Clause.

The Supreme Court in Burks v. United States, 437 U.S. 1 (1978), undertook to review its earlier cases involving the Double Jeopardy Clause, and in doing so distinguished between reversals due to trial error and those resulting from evidentiary insufficiency. Id. at 12-18. The Court said that the most reasonable justification for allowing retrial to correct trial error was espoused in United States v. Tateo, 377 U.S. 463 (1964), as follows:

It 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 Burks court then concluded by stating the following:

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that 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 a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365, 370 (1964).

The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. 437 U.S. at 15-16.

The Scott case relied on here by Zawodniak was decided after Burks, and the Scott court pointed out that one problem in understanding or applying the Double Jeopardy Clause in prior cases was that the United States had no right to 'appeal a criminal case during the first century of the Court’s existence. The Court in Scott pointed out that its growing experience with Government appeals required its re-examination of the rationale of its decisions regarding the Double Jeopardy Clause. Upon making its review, the Court announced that, while the State should not be allowed to make repeated attempts to convict an individual for an offense, the principle underlying double jeopardy cannot be expanded to include situations in which the defendant is responsible for the second prosecution.

The Scott Court further concluded that, where a defendant chooses to avoid conviction, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail, the defendant by deliberately choosing to seek termination of the trial, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a trial court ruling favoring the defendant. The Court proclaimed, “[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” 437 U.S. at 99.

In applying the Double Jeopardy Clause rationale set out in Burks and Scott to the circumstances present here, it is clear that Zawodniak was the one who initiated the legal claim, albeit erroneous, that § 5-74-106(a) contained an element — gang activity — that the State must prove in order to convict him of simultaneous possession. As discussed above, the trial court erred by adopting Zawodniak’s legal argument, and as previously mentioned, the State had the right to appeal the trial court’s decision. The State also correctly points out that the proof it offered at trial indisputably showed that Zawodniak possessed both drugs and a loaded firearm at the time of his arrest, and such evidence was sufficient to convict him of the simultaneous- possession charge under § 5-74-106(a). See Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995).

In sum, Zawodniak received a favorable trial court decision not because the State had failed to prove its case, but because the trial court, at Zawodniak’s instigation, erred in applying erroneous law. In other words, defendant Zawodniak, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the simultaneous-possession charge of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause. See Scott, 437 U.S. at 98-99. With considerable clarity, the Scott court, holding in favor of the government, said as follows:

This is scarcely a picture of an all-powerful state relendessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who choses to avoid conviction and imprisonment, not because of his assertion that the Government failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt. (Emphasis added.)

To bar appeal, the trial court’s judgment must be one that indicates that the government’s factual case has faded either as to the statutory elements of the offense charged, or as to the burden shifted to the government when a defendant raises a prima facie defense that, unrebutted, would justify a finding of innocence. 437 U.S. at 87-98. Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is directed, but instead simply affords the defendant an opportunity to obtain a fair adjudication of his guilt free from error. See Lockhart v. Nelson, 488 U.S. 33 (1988); see also Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989).

For the reasons above, we reverse and remand for further proceedings.¹

Newbern, J., concurs; Brown, Imber, and Thornton, JJ., concur in part and dissent in part.

1 While the concurring and a dissenting opinion suggest the result reached here is at odds with Brooks v. State, the situations involved in the two cases are not at all the same. Brooks did not concern trial error; instead, the trial court properly considered the elements of aggravated robbery, and at the end of the state’s case in chief, initially determined the State’s evidence was insufficient to prove the offense. Then, after all the evidence was introduced, the trial court, considering the same elements of aggravated robbery, changed its mind, and held the State proved the defendant’s guilt. In short, no trial error occurred — only a factual finding of guilt transpired which was unquestionably subject to the Double Jeopardy Clause.

Also, we note that, while the dissenting opinion seems to rely on Sanabria v. United States, 437 U.S. 54 (1978), neither the State, Zawodniak, nor the trial court made mention of that holding as relevant to the circumstances here. We additionally emphasize that Sanabria has been severely critized on the grounds that it met the appeal test of Scott (only legal issues would be before the appellate court, and defendant had himself sought to teminate the first prosecution short of jury verdict), and that it would seem to give the trial court some leeway “to control the double jeopardy consequences of its ruling by choosing the form employed” in terminating the case. LaFave and Israel, III, Criminal Procedure, § 24.3, pgs. 81-82 (1984).