On appeal of the first-degree murder convictions of petitioner
and another, the Florida Supreme Court reversed by a per curiam
opinion and ordered a new trial. That opinion, which a majority of
four justices joined, stated that "the evidence was definitely
lacking in establishing beyond a reasonable doubt that the
defendants committed murder in the first degree," and that the
"interests of justice require a new trial." Three justices
dissented without opinion. Three of the justices who had joined the
per curiam also filed a "special concurrence," which, though
concerned only with trial error, concluded that, "[f]or the reasons
stated, the judgments should be reversed and remanded for a new
trial, so we have agreed to the Per curiam order doing so." Before
the second trial, defendants unsuccessfully contended in the state
courts that the per curiam opinion was tantamount to a finding that
the trial court should have directed a verdict of not guilty, and
that a second trial for first-degree murder would constitute double
jeopardy; and the defendants were retried and convicted of
first-degree murder. Petitioner and his codefendant, by appeal in
the state courts and petitioner by application for habeas corpus in
the District Court and Court of Appeals, unavailingly pressed their
double jeopardy claims.
Held: Burks v. United States, ante
437 U. S. 1,
precludes a second trial once a reviewing court has determined that
the evidence introduced at trial is insufficient to sustain the
verdict. Standing by itself, the per curiam would therefore clearly
compel the conclusion that petitioner's second trial violated the
Double Jeopardy Clause. But the special concurrence leaves open the
possibility that three of the justices who joined the per curiam
were concerned simply with trial error, and joined in the remand
solely to give the defendants an error-free trial -- even though
they were satisfied that the evidence was sufficient to support the
verdict. So that the ambiguity can be resolved, the case is
remanded to the Court of Appeals for reconsideration in light of
the Court's opinion and
Burks, supra. Pp.
437 U. S.
24-27.
546 F.2d 51, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ.,
joined. POWELL,
Page 437 U. S. 20
J., filed a concurring opinion,
post, p. 27. REHNQUIST,
J., filed an opinion concurring in the judgment,
post, p.
437 U. S. 27.
BLACKMUN, J., took no part in the consideration or decision of the
case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether a State may retry a
defendant after his conviction has been reversed by an appellate
court on the ground that the evidence introduced at the prior trial
was insufficient, as a matter of law, to sustain the jury's
verdict.
I
On September 7, 1965, petitioner Greene and Jose Manuel Sosa
were indicted by a Florida grand jury for the murder of Nicanor
Martinez. The indictment charged that Sosa "did hire, procure, aid,
abet and counsel" Greene to murder Martinez, and that petitioner
had carried out the premeditated plan, shooting the victim to death
with a pistol. A state court jury subsequently found the defendants
guilty of first-degree murder, without a recommendation of mercy.
Pursuant to Florida law at the time, the trial court sentenced both
defendants to death.
On appeal to the Florida Supreme Court, the convictions of
Greene and Sosa were reversed and new trials ordered. The reviewing
court was sharply divided, however, with a majority composed of
four justices joining a brief per curiam opinion which disposed of
the case in the following terms:
"After a careful review of the voluminous evidence here,
we are of the view
that the evidence was definitely
lacking
Page 437 U. S. 21
in establishing beyond a reasonable doubt that the
defendants committed murder in the first degree, and that the
interests of justice require a new trial. The judgments are
accordingly reversed and remanded for a new trial."
Sosa v. State, 215 So. 2d
736, 737 (1968). (Emphasis added.) Three justices dissented
without opinion; we can do no more than speculate that the
dissenting justices concluded there was sufficient evidence to
support the jury verdict. In addition, a separate "special
concurrence" was filed on behalf of three of the four justices who
had also joined the per curiam opinion remanding for a new trial.
These three concurring justices undertook a detailed examination of
various asserted trial errors, and found that, on at least one
claim, the trial court had committed reversible error. [
Footnote 1] This point concerned the
improper admission of certain hearsay evidence which, in the
opinion of the concurring justices, had a "potential probative
force" that could have been "highly incriminating or critical to
the establishment of an ultimate fact in dispute."
Id. at
745. While the concurrence of the three justices makes no mention
of evidentiary insufficiency as such, the opinion concludes:
"For the reasons stated, the judgments should be reversed and
remanded for a new trial, so we have agreed to the Per Curiam order
doing so."
Id. at 746. The "reasons stated" by the concurring
justices thus concerned trial error, but, paradoxically, the three
explicitly joined the court's per curiam opinion which rested
exclusively on the
Page 437 U. S. 22
ground that the evidence was insufficient to support the
verdict.
The case was then remanded, and, after some intervening
procedural maneuvering, the defendants were ordered retried in the
Circuit Court of Orange County, Fla. Prior to their second trial,
however, the defendants filed a suggestion for a writ of
prohibition, claiming that their retrial would violate the Double
Jeopardy Clause of the Federal Constitution, as it was applied to
the States by
Benton v. Maryland, 395 U.
S. 784 (1969). They contended that the per curiam
opinion of the State Supreme Court was tantamount to a finding that
the trial court should have directed a verdict of not guilty, and
hence a second trial for first-degree murder would constitute
double jeopardy. When the trial court refused to issue the writ,
review was sought in the Second District Court of Appeal of
Florida. That court likewise declined to issue a writ of
prohibition, but expressly stated that it was not rendering
"an opinion as to the propriety of a new trial after a reversal
for lack of sufficient evidence to establish, as a matter of law,
the essential elements of the crime charged."
Sosa v. Maxwell, 234 So. 2d 690, 692 (1970). Rather,
the District Court of Appeal was of the view that the Supreme
Court's reversal
"appear[ed] to be based on a finding that the evidence, though
technically sufficient, [was] so tenuous as to prompt an appellate
court to exercise its discretion and, in the interest of justice,
grant a new trial."
Id. at 691. [
Footnote
2] Considering the case
Page 437 U. S. 23
in this posture, the court indicated that it could find no
precedent in Florida law which would bar a retrial on double
jeopardy grounds. [
Footnote 3]
Certiorari was subsequently sought in the Supreme Court of Florida,
which denied the petition without comment. 240 So. 2d 640
(1970).
Greene and Sosa were then retried. On January 15, 1972, they
were convicted of first-degree murder, and each received a life
sentence, the second jury having recommended mercy. From this
judgment, they appealed to the Fourth District Court of Appeal of
Florida, raising again their contention that the second trial
violated the Double Jeopardy Clause. While conceding "the point to
be academically intriguing,"
Greene v. State, 302 So. 2d
202, 203 (1974), that court refused to reach the merits of the
double jeopardy claim, holding instead that the Court of Appeal's
earlier disposition of the issue was
res judicata. Greene
and Sosa applied for a writ of certiorari in this Court, and
certiorari was denied.
Greene v. Florida, 421 U.S. 932
(1975).
Having exhausted all avenues of direct relief, petitioner Greene
[
Footnote 4] applied for a writ
of habeas corpus in the United States District Court, arguing once
more that his second trial was held in violation of the Double
Jeopardy Clause. Although the District Court was sympathetic to
petitioner's claim, [
Footnote
5] it felt constrained by prior Fifth Circuit precedent to
Page 437 U. S. 24
dismiss the petition. From this ruling, petitioner appealed to
the Court of Appeal, which affirmed the District Court on the basis
of an earlier Fifth Circuit case,
United States v.
Musquiz, 445 F.2d 963 (1971). 546 F.2d 51 (177). The
Musquiz decision had interpreted several of this Court's
cases [
Footnote 6] to mean
that, under 28 U.S.C. § 2106, a court of appeals could order a new
trial after a conviction had been reversed due to evidentiary
insufficiency "if a motion for a new trial was made in the trial
court." 546 F.2d at 56. Noting that Greene had made a motion for a
new trial after his first conviction, and that the Florida Supreme
Court had "review power at least equal to that possessed by this
Court [of Appeals] under § 2106,"
ibid., the court held
that a new trial had been a constitutionally permissible
remedy.
We granted certiorari, 432 U.S. 905 (1977), to review the
judgment of the United States Court of Appeals.
II
In
Burks v. United States, ante p. 1, decided today, we
have held that the Double Jeopardy Clause precludes a second trial
once a reviewing court has determined that the evidence introduced
at trial was insufficient to sustain the verdict. Since the
constitutional prohibition against double jeopardy is fully
applicable to state criminal proceedings,
Benton v. Maryland,
supra, we are bound to apply the standard announced in
Burks to the case now under review.
If we were confronted only with the per curiam opinion of the
Florida Supreme Court, reversal in this case would follow.
Page 437 U. S. 25
The per curiam disposition, standing by itself, leaves no room
for interpretation by us other than that a majority of the State
Supreme Court was
"of the view that the evidence was definitely lacking in
establishing beyond a reasonable doubt that the defendants
committed murder in the first degree. . . ."
By using the precise terminology "lacking in establishing beyond
a reasonable doubt," the highest court in Florida seems to have
clearly said that there was insufficient evidence to permit the
jury to convict petitioner at his first trial. [
Footnote 7] The dispositive per curiam opinion
makes no reference to the trial errors raised on appeal. Viewed in
this manner, the reasoning enunciated in
Burks would
obviously compel the conclusion that Greene's second trial violated
the Double Jeopardy Clause.
But the situation is confused by the fact that three of the four
justices who joined in the per curiam disposition expressly
qualified their action by "specially concurring" in an opinion
which discussed only trial error. One could interpret this action
to mean that the three concurring justices were concerned
Page 437 U. S. 26
simply with trial error, and joined in the remand solely to
afford Greene and Sosa a fair, error-free trial -- even though they
were satisfied that the evidence was sufficient to support the
verdict. A reversal grounded on such a holding, of course, would
not prevent a retrial. [
Footnote
8]
See Burks, ante at
437 U. S. 15-16;
United States v. Tateo, 377 U. S. 463,
377 U. S. 465
(1964). The problem with this interpretation is that the opinion
concludes by expressly stating that the three concurring justices
had "agreed to the Per Curiam order. . . ." When the concurrence is
considered in light of the language of the per curiam opinion, it
could reasonably be said that the concurring Justices thought that
the
legally competent evidence adduced at the first trial
was insufficient to prove guilt. That is, they were of the opinion
that, once the inadmissible hearsay evidence was discounted, there
was insufficient evidence to permit the jury to convict. [
Footnote 9]
Given the varying interpretations [
Footnote 10] that can be placed on the actions of the
several Florida appellate courts, we conclude that this case should
be remanded to the Court of Appeals for reconsideration in light of
this opinion and
Burks v. United
Page 437 U. S. 27
States, ante, 437 U. S. 1. The
Court of Appeals will be free to direct further proceedings in the
District Court or to certify unresolved questions of state law to
the Florida Supreme Court.
See Fla.Stat. § 25.031 (1977),
Fla.App. Rule 4.61;
Lehman Bros. v. Schein, 416 U.
S. 36 (1974).
Reversed and remanded.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
The concurrence also concluded that the trial court had
improperly ruled on a question concerning a subpoena
duces
tecum, the result of which was that the defense may have been
deprived of evidence to which it was entitled. It is not clear from
the opinion whether the concurring justices would have regarded
this error, in and of itself, as requiring reversal.
[
Footnote 2]
The District Court of Appeal noted that, "on many occasions,"
Florida courts had
"held that, where the weight of evidence appears . . . to be
very weak, although apparently legally sufficient if all
permissible inferences are made and certain witnesses believed or
disbelieved, a new trial may be granted."
234 So. 2d at 691. That court construed the language in the per
curiam opinion of the State Supreme Court
"as indicating that, although some evidence on all elements of
the crime was present, a grave doubt that affirmance would be in
the interests of justice was raised in the minds of those members
of the supreme court joining in the per curiam decision."
Id. at 691 n. 1.
[
Footnote 3]
Although the District Court of Appeal thus failed to decide
whether the State might retry a defendant after his conviction has
been reversed on the ground that the evidence was insufficient to
support the verdict, it did opine in dictum that, in such
circumstances, "the trial judge should have directed a verdict of
acquittal."
Id. at 692.
[
Footnote 4]
Sosa was not a party to the federal habeas corpus action;
accordingly, our holding here has no effect on his conviction.
[
Footnote 5]
In its unreported order dismissing the petition, the District
Court stated that,
"if this were a question of first impression in the Fifth
Circuit, this Court might be inclined to grant the petition.
Regardless of whether an appellate court or a trial jury makes the
determination that the evidence is insufficient to sustain a
finding of guilt as to a particular charge, and regardless of
whether a petitioner moves for a new trial on other grounds in
addition to asserting the ground of insufficiency of evidence, it
would seem that the double jeopardy clause would preclude giving
the prosecution a second chance."
[
Footnote 6]
These included
Forman v. United States, 361 U.
S. 416 (1960);
Sapir v. United States,
348 U. S. 373
(1955);
Bryan v. United States, 338 U.
S. 552 (1950).
[
Footnote 7]
Arguably, the per curiam opinion might be read as meaning that,
although there was insufficient evidence to convict the defendants
of "murder in the first degree," there was nonetheless evidence to
support a conviction for a lesser included offense,
e.g.,
second-degree murder,
see Fla.Stat. § 782.04 (1977). At
the time of the Florida Supreme Court's holding in this case, the
Double Jeopardy Clause was not applicable to state proceedings, and
hence that court conceivably did not see any need to consider
whether, under the Federal Constitution, a retrial would be allowed
only for some lesser included offense.
Cf. Green v. United
States, 355 U. S. 184
(1957). Indeed, even if
Benton v. Maryland, 395 U.
S. 784 (1969), had been decided prior to the State
Supreme Court's action, the Florida court might have reasonably
concluded from our decisions that a retrial for first-degree murder
was permissible under the Double Jeopardy Clause.
See Burks,
ante at
437 U. S. 10.
Given our decision today to remand this case for reconsideration by
the Court of Appeals, we need not reach the question of whether the
State could, consistent with the Double Jeopardy Clause, try Greene
for a lesser included offense in the event that his first-degree
murder conviction is voided.
[
Footnote 8]
Even if this view of the concurrence is accepted, it would still
mean that only a plurality of the Florida Supreme Court embraced
the conclusion that reversal was justified solely on trial error
grounds. We leave resolution of this ambiguity to the Court of
Appeals on remand, which will undoubtedly be in a better position
to understand how Florida law would construe such a
disposition.
[
Footnote 9]
We express no opinion as to the double jeopardy implications of
a retrial following such a holding.
[
Footnote 10]
We note that the Second District Court of Appeal attached still
another interpretation to the Florida Supreme Court's action,
namely, that a new trial was being granted "in the interests of
justice," even though the evidence was technically sufficient to
support a verdict of guilty.
See supra at
437 U. S. 22 n.
2. We are unaware, however, of the amount of weight that Florida
law would afford to a district court of appeal's interpretation of
its Supreme Court's actions. Nor are we willing to express an
opinion as to the double jeopardy implications of a retrial ordered
on such grounds. We leave both of these considerations to the Court
of Appeals on remand.
MR. JUSTICE POWELL, concurring.
I concur in the opinion of the Court except insofar as it states
that the constitutional prohibition against double jeopardy is
fully applicable to state criminal proceedings.
See Crist v.
Bretz, post, p.
437 U. S. 40
(POWELL, J., dissenting). I believe, however, that, under our
decision today in
Burks v. United States, ante
437 U. S. 1, a
fundamental component of the prohibition against double jeopardy is
the right not to be retried once an appellate court has found the
evidence insufficient as a matter of law to support the jury's
guilty verdict.
MR. JUSTICE REHNQUIST, concurring in the judgment.
For the reasons stated by MR. JUSTICE POWELL in his dissenting
opinion in
Crist v. Bretz, post, p.
437 U. S. 40, I
do not agree with the Court's premise,
ante at
437 U. S. 24,
that "the constitutional prohibition against double jeopardy is
fully applicable to state criminal proceedings." Even if I did
agree with that view, I would want to emphasize more than the Court
does in its opinion the varying practices with respect to motions
for new trial and other challenges to the sufficiency of the
evidence both at the trial level and on appeal in the 50 different
States in the Union. Thus, to the extent that Florida practice in
this regard differs from practice in the federal system, the impact
of the Double Jeopardy Clause may likewise differ with respect to a
particular proceeding. I therefore concur only in the Court's
judgment.