498 U.S. 883 (1990)

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U.S. Supreme Court

PARKER v. ARKANSAS , 498 U.S. 883 (1990)

498 U.S. 883

William Frank PARKER, petitioner v. ARKANSAS. No. 89-7631.

Case below, 292 Ark. 421, 731 S.W.2d 756; 300 Ark. 360, 779 S.W.2d 156.

Oct. 1, 1990. The petition for a writ of certiorari is denied.

Justice MARSHALL, dissenting.

It is well established "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient" to support conviction. Burks v. United States, 437 U.S. 1, 18, 2150, 2151 (1978). Nonetheless, the Arkansas Supreme Court concluded in this case that reversal for failure to prove an essential element of one statutory formulation of capital murder poses no bar to reprosecution under another statutory formulation of the same offense, because the State's decision to prosecute a defendant under the "wrong" murder statute is mere "trial error." Because I believe that this conclusion reflects a profound misreading of our double jeopardy precedents, I would grant the petition.

I Petitioner was twice tried, convicted, and sentenced to death for murdering James and Sandra Warren. He was initially convicted for felony murder on the theory that he had murdered the Warrens while burglarizing their home. The Arkansas Supreme Court reversed. [Footnote 1] See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987) (Parker I ). Reviewing the statutory elements of felony murder, the court concluded that the State's felony- murder statute "cannot be read to encompass the facts of this case." Id. at 425, 731 S.W.2d, at 758. The Arkansas capital felony-murder statute requires the State to prove that the defendant caused the death of another " in the course of and in furtherance of the [underlying] felony." Ark.Code Ann. 5-10-101(a)(1) (1987 and Supp.1989). "The state's proof," the court explained, "showed that [petitioner] followed Mr. Warren into the house for only one purpose-to commit the murders of the Warrens." Parker I, 292 Ark., at 425, 731 S.W.2d, at 758. "The killings were obviously a form of criminal homicide of some degree, but they were not 'in

Page 498 U.S. 883 , 884

the course of and in furtherance of' the [charged] burglary as required to be capital felony murder." Ibid. The court noted that, under these facts, the State should have prosecuted Parker for ordinary capital murder rather than felony capital murder. Id., at 425-426, 731 S.W.2d, at 758.

Taking this last observation as an invitation to retry Parker, the State subsequently prosecuted Parker for "caus[ing] the death of two . . . or more persons in the course of the same criminal episode." Ark.Code Ann . 5-10-101(a)(3) (1987). On appeal, the Arkansas Supreme Court rejected petitioner's contention that his reprosecution was barred by the Double Jeopardy Clause and affirmed petitioner's conviction. See Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989) (Parker II ). Reviewing its disposition in Parker I, the court concluded that it had reversed petitioner's original conviction not because the evidence was insufficient, but because the State had committed the "trial error" of "charging and trying [petitioner] under the wrong capital murder provision." Parker II, supra, at 363-364, 779 S.W.2d, at 157. Consequently, the court held, its decision in Parker I posed no double jeopardy bar to reprosecuting petitioner under the applicable provision of the Arkansas capital murder statute. Parker II, supra, at 363-364, 779 S.W.2d, at 157-158.2


Our precedents recognize that the Double Jeopardy Clause bars reprosecution following reversal for insufficiency of the evidence but not following reversal for trial error. Burks, supra, 437 U.S., at 15-17-2150; accord, Lockhart v. Nelson, 488 U.S. 33, 39, 109 S. Ct. 285, 290 (1988). The question posed by this petition is whether the original conviction of [498 U.S. 883 , 885]

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