Respondent and another man (Daugherty) robbed a bank in Ohio.
After an automobile chase, the police surrounded the two men when
they stopped at a farmhouse. Thereafter, the police heard shots
fired inside the house, and respondent emerged from the house and
surrendered. The police then entered the house and found Daugherty
dead. Based on the Coroner's opinion that Daugherty had committed
suicide, the State did not charge respondent with Daugherty's
death, but with aggravated robbery. Respondent pleaded guilty, but
two days later admitted having shot Daugherty. Respondent was then
indicted for aggravated murder based on the bank robbery. The state
trial court denied his pretrial motion to dismiss the indictment as
violative of the Double Jeopardy Clause of the Fifth Amendment, and
he was found guilty after a jury trial. Ultimately, the Ohio Court
of Appeals, finding that the Double Jeopardy Clause barred
respondent's conviction for aggravated murder, modified that
conviction to that of the lesser included offense of murder. After
the Ohio Supreme Court denied respondent's motion to appeal, he
sought a writ of habeas corpus in Federal District Court, which
denied the petition. The Federal Court of Appeals reversed.
Apparently agreeing with respondent's assertion that evidence was
admitted at his trial for aggravated murder that would have been
inadmissible in a trial for murder, and stating that the jury "may
have been prejudiced" by that evidence, the court held that
respondent had established a "reasonable possibility" that he was
prejudiced by the double jeopardy violation sufficient to warrant a
new trial on the murder charge.
Held: Reducing respondent's concededly jeopardy-barred
conviction for aggravated murder to a conviction for murder that
concededly was not jeopardy-barred was an adequate remedy for the
double jeopardy violation. Pp.
475 U. S.
244-248.
(a) When a jeopardy-barred conviction is reduced to a conviction
for a lesser included offense that is not jeopardy-barred, the
burden shifts to the defendant to demonstrate a reasonable
probability (
i.e., a probability sufficient to undermine
confidence in the outcome) that he would not have been convicted of
the nonjeopardy-barred offense absent the presence of the
jeopardy-barred offense. Where it is clear that the jury
necessarily
Page 475 U. S. 238
found that the defendant's conduct satisfies the elements of the
lesser included offense, it would be incongruous to order another
trial as a means of curing the double jeopardy violation. Pp.
475 U. S.
244-247.
(b) Here, the Federal Court of Appeals' legal and factual basis
for ordering the writ of habeas corpus was seriously flawed. Its
"reasonable possibility" standard was not sufficiently demanding,
it did not expressly say that it agreed with respondent that
certain evidence admitted at his trial would not have been admitted
in a separate trial for murder, nor did it refer to any Ohio
authorities, and its observation that the admission of such
evidence "may have prejudiced the jury" falls far short of a
considered conclusion that, if the evidence at issue was not before
the jury in a separate trial for murder, there was a reasonable
probability that respondent would not have been convicted. Pp.
475 U. S.
247-248.
754 F.2d 158, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN,
J., filed an opinion concurring in the judgment, in which POWELL,
J., joined,
post, p.
475 U. S. 248.
BRENNAN, J.,
post, p.
475 U. S. 257,
and MARSHAL, J.,
post, p.
475 U. S. 258,
filed dissenting opinions.
JUSTICE WHITE delivered the opinion of the Court.
The question presented in this case is whether a state appellate
court provided an adequate remedy for a violation of the Double
Jeopardy Clause of the Fifth Amendment by modifying a
jeopardy-barred conviction to that of a lesser included offense
that is not jeopardy-barred.
I
On February 17, 1978, respondent James Michael Mathews and
Steven Daugherty robbed the Alexandria Bank in Alexandria, Ohio.
After an automobile chase, the police finally surrounded the two
men when they stopped at a farmhouse. Soon thereafter, the police
heard shots fired inside the house,
Page 475 U. S. 239
and respondent then emerged from the home and surrendered to
police. When the officers entered the house, they found Daugherty
dead, shot once in the head and once in the chest. The police also
found the money stolen from the bank hidden in the pantry.
Once in custody, respondent gave a series of statements to law
enforcement officials. In his first statement, given one hour after
his surrender, respondent claimed that Daugherty and another man
had forced him to aid in the bank robbery by threatening to kill
both respondent and his girlfriend. Respondent denied shooting
Daugherty. In the second statement, given the same day, respondent
again denied shooting Daugherty, but admitted that no other man was
involved with the robbery, and that he and Daugherty alone had
planned and performed the crime.
Two days later, respondent gave a third statement to police in
which he again confessed to robbing the bank. Respondent also
related that, after he and Daugherty arrived at the farmhouse, he
had run back out to their van to retrieve the stolen money, and on
his way back inside, he "heard a muffled shot from inside the
house." App. 4. Upon investigation, respondent discovered that
Daugherty had shot himself in the head. Respondent claimed that
Daugherty was still conscious, and called to him by name.
Ibid.
The County Coroner initially ruled Daugherty's death to be a
suicide. The Coroner made this determination, however, before
receiving the results of an autopsy performed by a forensic
pathologist. This report indicated that Daugherty had received two
wounds from the same shotgun. The initial shot had been fired while
Daugherty was standing, and entered the left side of his face. This
shot fractured Daugherty's skull, and the mere force of the blast
would have rendered him immediately unconscious. This wound was not
fatal. The second shot was fired while Daugherty was lying on his
back, and was fired directly into his heart from extremely close
range. This shot was instantaneously fatal.
Page 475 U. S. 240
As a result of this evidence, the Coroner issued a supplemental
death certificate, listing "multiple gunshot wounds" as the cause
of death. Record 295.
Based on the Coroner's first opinion that Daugherty took his own
life, the State did not charge respondent with Daugherty's death.
Instead, he was indicted under Ohio Rev.Code Ann. § 2911.01
(Supp.1984) on aggravated robbery charges. [
Footnote 1] Respondent pleaded guilty on May 17, and
was sentenced to a term of incarceration of from 7 to 25 years.
Two days after entering his guilty plea, respondent made the
first of two statements in which he admitted having shot Daugherty.
Respondent maintained that Daugherty initially had shot himself in
the head, and that he was still alive when respondent discovered
him after returning to the farmhouse with the stolen money. Acting
on the theory that, if Daugherty were dead, respondent could claim
that he was kidnaped and had not voluntarily robbed the bank,
respondent "put [the gun] an inch or two from [Daugherty's] chest
and pulled the trigger." App. 6. [
Footnote 2] Respondent's second
Page 475 U. S. 241
statement, given one week later, reiterated these same points.
Id. at 8-16.
On June 1, 1978, the State charged respondent with the
aggravated murder of Steven Daugherty. Ohio Rev.Code § 2903.01
(1982) defines aggravated murder, in part, as "purposely caus[ing]
the death of another . . . while fleeing immediately after
committing . . . aggravated robbery." [
Footnote 3] The aggravated robbery referred to in the
indictment was the armed robbery of the Alexandria Bank to which
respondent had previously pleaded guilty. The state trial court
denied respondent's pretrial motion to dismiss the aggravated
murder indictment as violative of the Double Jeopardy Clause of the
Fifth Amendment.
At the conclusion of the evidence, the trial judge instructed
the jury as to the elements of the offense of aggravated
murder.
Page 475 U. S. 242
The judge also instructed the jury on the lesser included
offense of murder as follows:
"If you find that the State proved beyond a reasonable doubt all
of the essential elements of aggravated murder, your verdict must
be guilty of that crime, and in that event you will not consider
any lesser offense."
"But if you find that the State failed to prove the killing was
done while the defendant was committing or fleeing immediately
after committing aggravated robbery, but that the killing was
nonetheless purposely done, you will proceed with your
deliberations and decide whether the State has proved beyond a
reasonable doubt the elements of the lesser crime or murder."
"The crime of murder is distinguished from aggravated murder by
the State's failure to prove that the killing was done while the
defendant was committing or fleeing immediately after committing
the crime of aggravated robbery."
App. 21. The jury found respondent guilty of aggravated murder,
and the court sentenced him to a term of life imprisonment.
Respondent appealed his conviction, claiming that his trial for
aggravated murder following his conviction for aggravated robbery
violated the Double Jeopardy Clause. The Ohio Court of Appeals,
Fifth Judicial District, affirmed his conviction,
State v.
Mathews, CA No. 2578 (Licking County, Aug. 9, 1979), and the
Ohio Supreme Court declined to grant discretionary review.
State v. Mathews, No. 79-1342 (Dec. 7, 1979). This Court
granted respondent's petition for writ of certiorari, vacated the
Court of Appeals' judgment, and remanded the case for further
consideration in light of
Illinois v. Vitale, 447 U.
S. 410 (1980).
Mathews v. Ohio, 448 U.S. 904
(1980).
On remand, the Court of Appeals found that the Double Jeopardy
Clause, as construed by this Court in
Vitale, barred
respondent;'s conviction for aggravated murder.
State v.
Mathews, No. 2578 (Licking County, Nov. 7, 1980). The
Page 475 U. S. 243
court noted, however, that § 2903.01 defines aggravated murder
as purposely causing the death of another while committing certain
felonies, and that § 2903.02 defines murder simply as purposely
causing the death of another. App. to Pet. for Cert. A-26.
[
Footnote 4] In respondent's
trial, therefore,
"if all the facts relating to the aggravated robbery of which he
was convicted are excluded from consideration of the court and
jury, the defendant was still charged with and convicted of murder
in that he did purposely cause the death of Steven Daugherty on the
date charged."
Ibid. Accordingly, the Court of Appeals modified the
conviction of aggravated murder to murder and reduced respondent's
sentence to an indefinite term of from 15 years to life.
Id. at A-27. [
Footnote
5] Once again, the Ohio Supreme Court denied respondent's
motion to appeal, and this Court denied his subsequent petition for
certiorari review.
Mathews v. Ohio, 451 U.S. 975
(1981).
Respondent then sought a writ of habeas corpus in federal court.
Applying the reasoning of the Ohio Court of Appeals,
Page 475 U. S. 244
the District Court denied respondent's petition.
Mathews v.
Marshall, No. C-1-81-834 (WD Ohio, Apr.19, 1983).
A divided panel of the Court of Appeals for the Sixth Circuit
reversed.
Mathews v. Marshall, 754 F.2d 158 (1985).
Although refusing to hold that, in a case like this, a new trial on
the nonbarred charge is always necessary, the court held that
"a conviction obtained in violation of the double jeopardy
clause cannot be modified if the defendant can show that there was
a 'reasonable possibility that he was prejudiced' by the double
jeopardy violation,"
and that "
an exceedingly small showing . . . would
suffice.'" Id. at 162, quoting Graham v. Smith,
602 F.2d 1078, 1083 (CA2 1979). Apparently agreeing with
respondent's assertion that "evidence was admitted in his trial for
aggravated murder that would not have been admissible in a trial
for murder," and stating that the jury "may have [been] prejudiced"
by that evidence, the court concluded that respondent had
established a sufficient possibility of prejudice to warrant a new
trial on the murder charge. Mathews v. Marshall, supra, at
162. [Footnote 6]
We granted certiorari, 471 U.S. 1134 (1985), and now
reverse.
II
As an initial matter, we note several issues that are not in
dispute. First, the State concedes that, under our cases, the
prosecution of respondent for aggravated murder violated the Double
Jeopardy Clause. Similarly, respondent concedes that the Clause
would not prevent the State from trying him for murder. Next, all
of the courts that have reviewed this case have agreed that, in
finding respondent guilty of aggravated murder, the jury
necessarily found that he "purposely cause[d] the death of
another," which is the definition of murder under Ohio Rev.Code
Ann. § 2903.02 (1982).
See n 4,
supra. Finally, this is not a "harmless
Page 475 U. S. 245
error" case: allowing respondent to be tried for aggravated
murder was error, and it was not in any sense harmless. With these
considerations aside, the only issue before us is whether reducing
respondent's conviction for aggravated murder to a conviction for
murder is an adequate remedy for the double jeopardy violation.
Respondent argues that, because the trial for aggravated murder
should never have occurred, the Double Jeopardy Clause bars the
State from taking advantage of the jeopardy-barred conviction by
converting it into a conviction for the lesser crime of murder. He
submits that a new trial must be granted whether or not there is a
showing of prejudice.
Respondent relies heavily on
Price v. Georgia,
398 U. S. 323
(1970), but his reliance is misplaced. Price was tried for murder
and convicted of the lesser included offense of manslaughter. After
that conviction was reversed on appeal, there was another trial for
murder and another conviction of the lesser crime of manslaughter.
We held that the second conviction could not stand because Price
had been impliedly acquitted of murder at the first trial, and
could not be tried again on that charge.
Id. at
398 U. S. 329.
Nor could we
"determine whether or not the murder charge against petitioner
induced the jury to find him guilty of the less serious offense of
voluntary manslaughter, rather than to continue to debate his
innocence."
Id. at
398 U. S.
331.
This holding in
Price did not impose an automatic
retrial rule whenever a defendant is tried for a jeopardy-barred
crime and is convicted of a lesser included offense. Rather, the
Court relied on the likelihood that the conviction for manslaughter
had been influenced by the trial on the murder charge -- that the
charge of the greater offense for which the jury was unwilling to
convict also made the jury less willing to consider the defendant's
innocence on the lesser charge. That basis for finding or presuming
prejudice is not present here. The jury did not acquit Mathews of
the greater offense of aggravated murder, but found him guilty of
that charge and,
a fortiori, of the lesser offense of
murder as well.
Page 475 U. S. 246
Benton v. Maryland, 395 U. S. 784
(1969), also strongly indicates that, to prevail here, Mathews must
show that trying him on the jeopardy-barred charge tainted his
conviction for the lesser included offense. Benton was tried for
both larceny and burglary. The jury acquitted him on the larceny
count, but found him guilty of burglary. His conviction was later
set aside because the jury had been improperly sworn. Benton again
was tried for both burglary and larceny, and the second jury found
him guilty of both offenses. The Maryland Court of Appeals held
there had been no double jeopardy violation, but we disagreed,
ruling that the Double Jeopardy Clause required setting aside the
larceny conviction and sentence.
Id. at
395 U. S.
796-797.
Benton urged that his burglary conviction must also fall because
certain evidence admitted at his second trial would not have been
admitted had he been tried for burglary alone. This evidence, he
claimed, prejudiced the jury and influenced their decision to
convict him of burglary. We rejected that argument, saying both
that "[i]t [was] not obvious on the face of the record that the
burglary conviction was affected by the double jeopardy violation"
and that we should not make this kind of evidentiary determination
"unaided by prior consideration by the state courts."
Id.
at
395 U. S. 798
(footnote omitted). We thus vacated the judgment of the Maryland
court, and remanded for further proceedings.
Neither
Benton nor
Price suggests that a
conviction for an unbarred offense is inherently tainted if tried
with a jeopardy-barred charge. Instead, both cases suggest that a
new trial is required only when the defendant shows a reliable
inference of prejudice. We perceive no basis for departing from
this approach here, for except that murder was a lesser offense
included in the aggravated murder charge, rather than a separate
charge, there is no difference between this case and
Benton for double jeopardy purposes.
Accordingly, we hold that, when a jeopardy-barred conviction is
reduced to a conviction for a lesser included offense
Page 475 U. S. 247
which is not jeopardy-barred, the burden shifts to the defendant
to demonstrate a reasonable probability that he would not have been
convicted of the nonjeopardy-barred offense absent the presence of
the jeopardy-barred offense. In this situation, we believe that a
"reasonable probability" is a probability sufficient to undermine
confidence in the outcome.
Cf. Strickland v. Washington,
466 U. S. 668,
466 U. S. 695
(1984). After all, one of the purposes of the Double Jeopardy
Clause is to prevent multiple prosecutions and to protect an
individual from suffering the embarrassment, anxiety, and expense
of another trial for the same offense,
Green v. United
States, 355 U. S. 184,
355 U. S.
187-188 (1957). In cases like this, therefore, where it
is clear that the jury necessarily found that the defendant's
conduct satisfies the elements of the lesser included offense, it
would be incongruous always to order yet another trial as a means
of curing a violation of the Double Jeopardy Clause.
The Court of Appeals thus was correct in rejecting respondent's
per se submission, but it was nevertheless too ready to
find that he had made the necessary showing of prejudice. First,
the court's "reasonable possibility" standard, which could be
satisfied by "an exceedingly small showing," was not sufficiently
demanding. To prevail in a case like this, the defendant must show
that, but for the improper inclusion of the jeopardy-barred charge,
the result of the proceeding probably would have been
different.
Second, the Court of Appeals appeared to agree with respondent
that certain evidence admitted at his trial would not have been
admitted in a separate trial for murder, but it did not expressly
say so, nor did it refer to any Ohio authorities.
Mathews v.
Marshall, 754 F.2d at 162. The State submits that, under Ohio
law, conduct of a defendant tending to show either "his motive or
intent," or his "scheme, plan or system," is admissible,
"notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant."
Page 475 U. S. 248
Ohio Rev.Code Ann. § 2945.59 (1982). [
Footnote 7]
See generally State v. Moorehead,
24 Ohio St.2d 166, 169, 265 N.E.2d 551, 553 (1970). We normally
accept a court of appeals' view of state law, but if this case
turns on the admissibility of the challenged evidence in a separate
trial for murder, the issue deserves a more thorough consideration
by the lower court.
Finally, the court's observation that the admission of
questionable evidence "may have prejudiced the jury" falls far
short of a considered conclusion that, if the evidence at issue was
not before the jury in a separate trial for murder, there is a
reasonable probability that respondent would not have been
convicted.
Because the Court of Appeals' legal and factual basis for
ordering the writ of habeas corpus to issue was seriously flawed,
its judgment is reversed, and the case is remanded to the Court of
Appeals for further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
Ohio Rev.Code Ann. § 2911.01 (Supp.1984) states:
"(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing
immediately after such attempt or offense, shall do either of the
following:"
"(1) Have a deadly weapon or dangerous ordnance, as defined in
section 2923.11 of the Revised Code, on or about his person or
under his control;"
"(2) Inflict, or attempt to inflict serious physical harm on
another."
"(B) Whoever violates this section is guilty of aggravated
robbery, an aggravated felony of the first degree."
Respondent was also indicted for theft of the van used in the
robbery, and for burglary.
[
Footnote 2]
Respondent's handwritten statement, in pertinent part, reads as
follows:
"At that time I ask steve were the money was and he said it was
still out in the van. I tould him to cover me I was going out in
the van to get the money. He said to me right before I went out to
be careful and then I went out to the van, and when I was out there
getting ready to come back in I heard a muffled shot and I ran in
and yelled for steve. I then heard something like a moning up
stairs. I then ran up stairs and seen steve laying there on the
floor. He had shot himself somewere in the head and was bleeding
pretty bad. He then seen me and said mike, mike, in a moning, and I
said oh fuck, he still had the gun in his hand and was trying to
load it up but failed and droped it And he then said to me mike
mike in a moning voice please shot me. . . . I knew he was in a lot
of pain and I couldn't really shot him even though he was in pretty
bad shape. But I really didn't want to, but then I said to myself
real quick that, if he was dead I could say that I was kidnapped.
And they couldn't prove that I robbed the bank. So I took 1 shell
that was laying in steve hand and put it in the gun and I then I
put it about an inch or two from his chest and pulled the trigger.
I really don't know much after that but the gun was dropped on the
floor not to far from steve body. I then run down stairs and looked
for a place to hid the money."
App. 5-6.
[
Footnote 3]
Ohio Rev.Code Ann. § 2903.01 (1982) provides, in pertinent part,
as follows:
"(B) No person shall purposely cause the death of another while
committing or attempting to commit, or while fleeing immediately
after committing or attempting to commit kidnapping, rape,
aggravated arson or arson, aggravated robbery or robbery,
aggravated burglary or burglary, or escape."
"(C) Whoever violates this section is guilty of aggravated
murder, and shall be punished as provided in section 2929.02 of the
Revised Code."
[
Footnote 4]
Ohio Rev.Code. Ann. § 2903.02 (1982) provides as follows:
"(A) No person shall purposely cause the death of another."
"(B) Whoever violates this section is guilty of murder, and
shall be punished as provided in section 2929.02 of the Revised
Code."
[
Footnote 5]
The Ohio Court of Appeals relied, in part, on Ohio Rule of
Criminal Procedure 31, which states:
"
(C) Conviction of lesser offense. The defendant may be
found not guilty of the offense charged but guilty of an attempt to
commit it if such an attempt is an offense at law. When the
indictment, information, or complaint charges an offense, including
degrees, or if lesser offenses are included within the offense
charged, the defendant may be found not guilty of the offense
charged but guilty of an inferior degree thereof, or of a lesser
included offense."
The court also cited Ohio Rule of Criminal Procedure
33(A)(4):
"(4) That the verdict is not sustained by sufficient evidence or
is contrary to law. If the evidence shows the defendant is not
guilty of the degree of crime for which he was convicted, but
guilty of a lesser degree thereof, or of a lesser crime included
therein, the court may modify the verdict or finding accordingly,
without granting or ordering a new trial, and shall pass sentence
on such verdict or finding as modified."
[
Footnote 6]
The dissenting judge was of the view that, even in a separate
trial on the murder charges, the rules of evidence would allow the
State "to prove the surrounding circumstances, including the facts
surrounding the just-completed bank robbery." 754 F.2d at 162
(Brown, J., dissenting).
[
Footnote 7]
Ohio Rev.Code Ann. § 2945.59 (1982) provides as follows:
"In any criminal case in which the defendant's motive or intent,
the absence of mistake or accident on his part, or the defendant's
scheme, plan, or system in doing an act is material, any acts of
the defendant which tend to show his motive or intent, the absence
of mistake or accident on his part, or the defendant's scheme,
plan, or system in doing the act in question may be proved, whether
they are contemporaneous with or prior or subsequent thereto,
notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant."
Similarly, Ohio Rule of Evidence 404(b) states:
"(B)
Other crimes, wrongs or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."
JUSTICE BLACKMUN, with whom JUSTICE POWELL joins, concurring in
the judgment.
To remedy the jeopardy-barred prosecution and conviction of
respondent James Michael Mathews for aggravated murder,
Page 475 U. S. 249
the Ohio appellate court modified the conviction to one for the
lesser included offense of murder, which was not jeopardy-barred.
The United States Court of Appeals for the Sixth Circuit held this
remedy constitutionally insufficient because there was a
"reasonable possibility" that the presence of the aggravated murder
charge prejudiced respondent's defense against the charge of
murder. I think the Court of Appeals applied the right standard,
but reached the wrong result. Accordingly, I concur in today's
judgment, but do not join the Court's opinion.
I
Respondent concedes that, after he pleaded guilty to armed
robbery, Ohio could have tried him for murder without violating the
Double Jeopardy Clause. Disagreeing with the Court of Appeals,
however, he contends that the presence of the jeopardy-barred
charge of aggravated murder in his subsequent trial
automatically rendered unconstitutional any conviction
resulting from that trial. The Court correctly points out that this
position cannot be reconciled with the terms of the judgment in
Benton v. Maryland, 395 U. S. 784
(1969).
See ante at
475 U. S. 246.
Moreover, respondent's primary argument for his position is
unconvincing. He asserts that modifying his conviction from
aggravated murder down to simple murder cannot possibly cure the
violation, because the trial itself constituted the violation. The
Double Jeopardy Clause, however, did not prohibit Ohio from holding
a trial, only from seeking a conviction for aggravated murder. (It
also barred the State from
obtaining a conviction for
aggravated murder, but the violation of that prohibition was
remedied by the Ohio appellate court's modification of the
judgment.) The error, then, was not that the trial was held, but
that it was improperly broad. The prosecution did something it was
not allowed to do: it tried respondent for aggravated murder in
addition to simple murder. It is true that the prosecutorial
conduct at issue is prohibited not simply for
Page 475 U. S. 250
its potential effect on the trial's outcome, but also for the
ordeal through which it put the defendant. As a consequence, it is
also true that reducing respondent's sentence does not make him
"whole" for the violation: it does not compensate him, for example,
for any mental anguish inflicted upon him by the prosecution for
the aggravated offense.
See Price v. Georgia, 398 U.
S. 323,
398 U. S. 331,
and n. 10 (1970). But it hardly follows from these considerations
that the appropriate remedy must always be to set aside the entire
conviction and have yet another trial, particularly since one of
the purposes of the Double Jeopardy Clause is to promote finality
by avoiding multiple trials for the same offense.
Accordingly, the Court of Appeals held that respondent was
entitled to a new trial on the murder charge only if he
demonstrated a "
reasonable possibility that he was prejudiced'"
by the violation. Mathews v. Marshall, 754 F.2d 158, 162
(CA6 1985), quoting Graham v. Smith, 602 F.2d 1078, 1083
(CA2), cert. denied, 444 U.S. 995 (1979). The majority
here now rejects that standard, and holds that a defendant must
demonstrate "a reliable inference of prejudice." Ante at
475 U. S. 246.
This means, the majority explains, that respondent must show that,
without the error, "there is a reasonable probability"
that he would not have been convicted of murder. Ibid.
(emphasis added). In yet a third formulation of its standard, the
Court announces:
"To prevail in a case like this, the defendant must show that,
but for the improper inclusion of the jeopardy-barred charge, the
result of the proceeding probably would have been different."
Ante at
475 U. S. 247.
To the extent that these standards differ from the "reasonable
possibility" test applied by the Court of Appeals, they are, in my
view, unprecedented and inappropriate.
II
The Court starts out on the wrong foot by asserting that "this
is not a
harmless error' case." Ante at 475 U. S.
244-245. Fundamentally, this is a "harmless
error" case. Ohio concedes that it violated the Double Jeopardy
Clause. To say
Page 475 U. S. 251
that the remedy imposed by the state courts was constitutionally
adequate is simply to say that the State's acknowledged
transgression may be deemed harmless with respect to respondent's
conviction for the lesser included offense. In
Chapman v.
California, 386 U. S. 18
(1967), this Court rejected the argument that no constitutional
violation can ever be harmless. Some constitutional rights, of
course, are "so basic to a fair trial" that their denial
automatically requires reversal,
id. at
386 U. S. 23,
but I agree with the Court that this category does not include
double jeopardy violations of the sort involved here when the
ultimate conviction is not for a jeopardy-barred offense. Under
Chapman, therefore, respondent's conviction for simple
murder may be sustained if the State shows "beyond a reasonable
doubt" that its error did not contribute to the conviction.
Id. at
386 U. S. 24;
see also, e.g., United States v. Hasting, 461 U.
S. 499,
461 U. S. 511
(1983). As was noted in
Chapman, the "harmless . . .
beyond a reasonable doubt" standard is essentially the same as a
requirement of reversal whenever there is a "reasonable
possibility" that the error contributed to the conviction. 386 U.S.
at
386 U. S.
23-24.
The "reasonable possibility" standard originated in
Fahy v.
Connecticut, 375 U. S. 85
(1963), where it was applied to the improper introduction of
illegally seized evidence. Less than two years prior to this
Court's decision in
Chapman, the Court of Appeals for the
Second Circuit persuasively demonstrated that the
Fahy
standard was equally applicable to situations of the kind involved
here,
i.e., jeopardy-barred prosecutions that ultimately
result in convictions on lesser included charges that are not
barred.
See United States ex rel. Hetenyi v. Wilkins, 348
F.2d 844 (1965),
cert. denied sub nom. Mancusi v. Hetenyi,
383 U.S. 913 (1966). Hetenyi was charged by the State with
first-degree murder, but convicted only of second-degree murder, a
lesser included offense. After his conviction was overturned on
appeal, he again was prosecuted for first-degree murder, and
ultimately
Page 475 U. S. 252
convicted once more only of second-degree murder. [
Footnote 2/1] Writing for the Court of
Appeals, then-Judge Marshall noted that the Constitution forbade
the reprosecution of Hetenyi for an offense of which he had been
impliedly acquitted in the first trial, but that the State
constitutionally could have prosecuted Hetenyi again for
second-degree murder. Nonetheless, the Court of Appeals invalidated
Hetenyi's reconviction for the lesser offense, because there was a
"
reasonable possibility that he was prejudiced" by the
fact that he was charged with first-degree murder. 348 F.2d at 864
(emphasis in original). "For example," Judge Marshall
explained,
"it is entirely possible that without the inclusion of the
first-degree murder charge, the jury, reflecting a not unfamiliar
desire to compromise might have returned a guilty verdict on the
first-degree manslaughter charge,"
a lesser included offense of second-degree murder.
Id.
at 866. The court refused to apply a more lenient test for harmless
error, noting:
"The ends of justice would not be served by requiring a factual
determination that the accused was actually prejudiced . . . by
being prosecuted for and charged with first degree murder, nor
would the ends of justice be served by insisting upon a
quantitative measurement of that prejudice. The energies and
resources consumed by such inquiry would be staggering, and the
attainable level of certainty most unsatisfactory."
Id. at 864.
This Court relied on
Hetenyi in
Price v.
Georgia, 398 U. S. 323
(1970), a case with similar facts. Price was tried for murder and
found guilty of manslaughter. His conviction
Page 475 U. S. 253
was overturned on appeal, he was retried for murder, and he
again was found guilty of manslaughter. This Court held that the
reprosecution for murder was barred on double jeopardy grounds, and
rejected the State's argument that the error was rendered harmless
by the fact that the second jury convicted Price only of the
unbarred offense. Citing
Hetenyi, the Court noted that
"we cannot determine whether or not the murder charge against
petitioner induced the jury to find him guilty of the less serious
offense of voluntary manslaughter, rather than to continue to
debate his innocence."
398 U.S. at
398 U. S. 331.
The Court did not explicitly employ the "reasonable possibility"
standard, but it observed:
"The Double Jeopardy Clause . . . is cast in terms of the risk
or hazard of trial and conviction, not of the ultimate legal
consequence of the verdict. To be charged and to be subjected to a
second trial for first-degree murder is an ordeal not to be viewed
lightly."
Ibid. The Court certainly gave no indication that it
would consider the error harmless unless Price could show that,
"but for the improper inclusion of the jeopardy-barred charge, the
result of the proceeding probably would have been different."
See ante at
475 U. S. 247.
[
Footnote 2/2]
Page 475 U. S. 254
The Court today offers virtually no explanation for departing
from
Chapman and
Fahy in favor of a more lenient
approach. It cites no support at all for the "reliable inference"
and "probably would have been different" formulations of the new
test it announces. In support of the "reasonable probability"
formulation, the Court refers to
Strickland v. Washington,
466 U. S. 668
(1984), which used the same words but did not concern the adequacy
of a proffered remedy for an acknowledged constitutional violation.
The question in
Strickland was whether there had been a
constitutional violation in the first place.
Id. at
466 U. S.
691-692. We held that a professionally unreasonable
mistake by defense counsel constitutes ineffective assistance of
counsel under the Sixth Amendment only if, in retrospect, there is
a "reasonable probability" that the mistake altered the verdict --
that is, "a probability sufficient to undermine confidence in the
outcome."
Id. at
466 U. S. 694;
cf. United States v. Bagley, 473 U.
S. 667 (1985) (prosecutor's failure to disclose evidence
favorable to the accused violates due process where there is a
"reasonable probability" that disclosure would have affected the
outcome). [
Footnote 2/3] In this
case, however, it is common ground that
Page 475 U. S. 255
respondent's rights under the Double Jeopardy Clause were
violated when Ohio tried him for aggravated murder. The question is
not whether Ohio has also violated the Sixth Amendment or the Due
Process Clause. The question is whether the State has sufficiently
contained the damage from its
acknowledged violation of
the Double Jeopardy Clause, or whether that transgression taints
even the conviction for simple murder. At issue is the extent to
which the law will tolerate a conviction that may have been
obtained through abridgment of a defendant's constitutional rights.
Once it is established that the State has violated the Constitution
in the course of a prosecution, the proceedings lose whatever
presumption of regularity they formerly enjoyed, and the State
properly bears a heavy burden in arguing that the result should
nonetheless be treated as valid.
By ruling, despite
Chapman, that a defendant in a case
such as this must show more than a reasonable possibility of
prejudice to invalidate the conviction, the Court makes double
jeopardy violations more readily excusable than any other kind of
constitutional error. For me, that makes little sense. Violations
of the Double Jeopardy Clause are no less serious than violations
of other constitutional protections. Their excusability should be
judged by the same standard. The Court offers no real explanation
for the special leniency it announces today, and there is none.
III
The proper question in this case is thus whether Ohio has shown
beyond a reasonable doubt that the aggravated murder charge did not
contribute to respondent's conviction for simple murder. Under
Chapman and
Fahy, this means
Page 475 U. S. 256
that the State must convincingly disprove any reasonable
possibility that the greater charge prejudiced respondent's defense
against the lesser. With most errors, the prejudice to be feared is
so obvious that there is no need for the defendant to spell it out.
When illegally obtained evidence is introduced, or when the
prosecutor makes forbidden remarks, it is understood that the
danger is that the illegal evidence or the remarks will influence
the jury. In this case, however, there is no obvious way in which
the defendant could have been prejudiced. The conviction for the
jeopardy-barred offense was reduced to one for an unbarred, lesser
included offense. There is no possibility of a compromise verdict,
as in
Hetenyi or
Price, because here the jury
convicted for the greater offense charged. Nor is there any reason
to believe that evidence regarding the robbery, admitted to prove
the aggravating factor in respondent's trial, would not have been
admitted in a trial for simple murder. Like the Federal Rules of
Evidence, Ohio's evidence code allows the introduction of evidence
of other crimes to show "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." Ohio Rule Evid. 404(B);
see also Fed.Rule Evid.
404(b). The murder in this case was committed while in flight from
the bank robbery. The State's theory is that respondent murdered
his accomplice in order to silence him, so that respondent could
escape prosecution for the robbery and, he hoped, return later to
pick up the stolen money he had hidden. There consequently is no
apparent reason why evidence of the robbery would not have been
admissible to show motive and opportunity for the murder.
Given all this, respondent is obligated to spell out with some
specificity how the trial might have gone better for him had the
State charged only simple murder. He has not done so; instead, he
has simply speculated that all sorts of things might have been
different. That is not enough to prevent this Court from
"declar[ing] a belief that [the error] was
Page 475 U. S. 257
harmless beyond a reasonable doubt."
Chapman, 386 U.S.
at
386 U. S. 24. If
it were, the remand in
Benton v. Maryland, 395 U.
S. 784 (1969), would have been inappropriate: the Court
there simply would have vacated the burglary conviction, because
there was no telling what would have happened had the defendant not
been forced to defend himself against the larceny charge. Perhaps
different trial tactics would have been tried; perhaps defense
counsel would have prepared more fully on the burglary charge.
Indeed, if abstract speculations of this sort sufficed to create a
"reasonable doubt" that an error was harmless, it is difficult to
see how any constitutional error ever would qualify.
I therefore concur in the Court's judgment, although I see no
justification for departing from the traditional and established
standards for deciding questions of this kind.
[
Footnote 2/1]
Hetenyi was actually tried three times, each time for
first-degree murder. In the second trial, he was convicted of that
offense, but the second conviction, like the first, was reversed on
appeal on grounds other than double jeopardy. The third trial
resulted in a conviction for second-degree murder.
[
Footnote 2/2]
Since
Price, three Courts of Appeals have reviewed
whether a double jeopardy violation was adequately remedied by
modifying the jeopardy-barred conviction to one for a lesser
included offense that was not jeopardy-barred; like the Court of
Appeals for the Sixth Circuit in this case, each of the other two
courts has followed
Hetenyi. In
Graham v. Smith,
602 F.2d 1078 (CA2),
cert. denied, 444 U.S. 995 (1979),
the court addressed a situation similar to the one involved here.
Graham's conviction for second-degree murder had been reduced on
appeal to manslaughter. The modified conviction was then set aside
on federal habeas, and the State successfully retried Graham for
second-degree murder. Recognizing the double jeopardy violation, a
state appellate court reduced the new conviction to manslaughter.
This remedy was judged insufficient by the Court of Appeals because
Graham's testimony at the second trial resulted in the introduction
of extremely damaging impeachment evidence, and he claimed that he
might not have testified had the State charged only manslaughter.
The Court of Appeals found this claim doubtful, but sufficiently
plausible to create a "
reasonable possibility that
[Graham] was prejudiced.'" 602 F.2d at 1083, quoting
Hetenyi, 348 F.2d at 864.
The Court of Appeals for the Fifth Circuit took a similar
approach in
Tapp v. Lucas, 658 F.2d 383 (1981),
cert.
denied, 456 U.S. 972 (1982), which also involved facts
resembling those here. Tapp was prosecuted for murder and convicted
of manslaughter. The conviction was set aside, and he was retried
for murder, this time with success. To remedy the double jeopardy
violation, the State Supreme Court reduced the second conviction to
manslaughter. Citing
Graham v. Smith, the Court of Appeals
upheld this remedy as "a common sense solution to the problem of
avoiding yet another trial." 658 F.2d at 386. The court
distinguished
Price on the ground that "the
possibility of prejudicial jury compromise is simply
absent from this case."
Ibid. (emphasis added).
[
Footnote 2/3]
As in
Strickland, the Court today defines a "reasonable
probability" as "a probability sufficient to undermine confidence
in the outcome."
Ante at
475 U. S. 247;
Strickland, 466 U.S. at
466 U. S. 694.
In
Strickland, however, we specifically refused to require
a showing "that counsel's deficient conduct
more likely than
not altered the outcome in the case."
Id. at
466 U. S. 693
(emphasis added). The Court's reliance on some of the language of
Strickland therefore renders particularly puzzling its
wholly unprecedented demand one paragraph later that the respondent
here demonstrate that, without the jeopardy-barred charge, "the
result of the proceeding probably would have been different."
Ante at
475 U. S.
247.
JUSTICE BRENNAN, dissenting.
Both the charge for aggravated robbery, to which respondent
pleaded guilty, and the subsequent charge for aggravated murder
arose from the same criminal transaction or episode. In those
circumstances, Ohio's prosecution for aggravated murder, and the
Ohio Court of Appeals' subsequent reduction of that conviction to
simple murder, in my view, violated the prohibition of the Fifth
Amendment, made applicable to the States through the Fourteenth
Amendment,
Benton v. Maryland, 395 U.
S. 784 (1969), that no person shall be subject for the
same offense to be twice put in jeopardy. I adhere to my view that
the Double Jeopardy Clause requires that, except in extremely
limited circumstances not present here, "all the charges against a
defendant that grow out of a single criminal act, occurrence,
episode, or transaction" be prosecuted in one proceeding.
Ashe
v. Swenson, 397 U. S. 436,
397 U. S.
453-454 (1970) (BRENNAN, J., concurring).
See, e.g.,
Brooks v. Oklahoma, 456 U. S. 999
(1982) (BRENNAN, J., dissenting);
Snell v. United States,
450 U.S. 957 (1981) (BRENNAN, J., dissenting);
Werneth v.
Idaho, 449 U.S. 1129 (1981) (BRENNAN, J., dissenting);
Thompson v. Oklahoma,
Page 475 U. S. 258
429 U.S. 1053 (1977) (BRENNAN, J., dissenting). Accordingly, I
would affirm the judgment below reversing the District Court, with
directions to the Court of Appeals to remand the case to the
District Court with instructions to issue the writ.
However, even on the view that a second prosecution is
permissible under the circumstances of this case, I would agree
with JUSTICE BLACKMUN for the reasons stated in his opinion
concurring in the judgment,
ante p.
475 U. S. 248,
that respondent is entitled to a new trial if he could demonstrate
a "reasonable possibility" that he was prejudiced.
Ante at
475 U. S.
255-256. I also agree with JUSTICE MARSHALL,
post at
475 U. S. 259,
that the Court of Appeals' finding that this standard has been met
should be sustained.
JUSTICE MARSHALL, dissenting.
For substantially the reasons stated in Parts
475 U.
S. S. 250|>II of JUSTICE BLACKMUN's thoughtful
concurrence, I believe that the Court of Appeals was correct to
conclude that respondent was entitled to a new trial if he could
demonstrate a "
reasonable possibility that he was prejudiced'"
by the double jeopardy violation, Mathews v. Marshall, 754
F.2d 158, 162 (CA6 1985) (quoting Graham v. Smith, 602
F.2d 1078, 1083 (CA2 1979)). This standard is consistent with the
approach this Court has uniformly taken when constitutional
violations do not require automatic reversal, see ante at
475 U. S.
250-253, and is justified by the difficulties that a
defendant wishing to show even the probability of actual prejudice
must face.
"There [can] never be any certainty as to whether the jury was
actually influenced by the unconstitutionally broad scope of the
reprosecution, or whether the accused's defense strategy was
impaired by this scope of the charge, even if there were a most
sensitive examination of the entire trial record and a more suspect
and controversial inquest of the jurors still alive and
available."
United States ex rel. Hetenyi v. Wilkins, 348 F.2d
Page 475 U. S. 259
844, 864 (CA2 1965),
cert. denied sub nom. Mancusi v.
Hetenyi, 383 U.S. 913 (1966). The mere absence of any danger
in a particular case that the bringing of a jeopardy-barred charge
resulted in a compromise verdict,
see, e.g., Price v.
Georgia, 398 U. S. 323
(1970);
Hetenyi, supra, is no reason for adopting a
different standard for determining whether a defendant is entitled
to a new trial. By impermissibly expanding the scope of the
prosecution, the double jeopardy violation may have exposed
defendant to serious dangers of another sort.
One of the dangers faced by respondent here was that evidence
that would not have been admitted (indeed, might not have even been
offered) had he been tried for simple murder came in because the
prosecution had brought the jeopardy-barred charge of aggravated
murder. The Court of Appeals reversed respondent's conviction
because it found that such otherwise inadmissible evidence had been
admitted, and "may have prejudiced the jury with regard to its
findings as to intent and to the act itself." 754 F.2d at 162.
Unlike JUSTICE BLACKMUN, I see no reason why the Court of Appeals
should be required to reconsider its conclusion that respondent was
so prejudiced. On such a question of state evidentiary law,
"the federal judges who deal regularly with questions of state
law in their respective districts and circuits are in a better
position than we to determine how local courts would dispose of
comparable issues,"
Butner v. United States, 440 U. S.
48,
440 U. S. 58
(1979). And, in the absence of any indication that the Court of
Appeals gave anything less than its full attention to the question
whether certain evidence that in fact came in would have been
inadmissible in a simple murder trial, I believe that the
majority's decision to remand the case for a "more thorough
consideration by the lower court" of this issue,
ante at
475 U. S. 248,
is disingenuous, at best.