Supplemental Opinion on Denial of Rehearing July 5, 1984
James R. Cooper, Judge.Although we today deny the appellant’s petition for rehearing, we are issuing this supplemental opinion because of the significant constitutional issue presented: when a reversal and remand based on trial error is required, must the appellate court also consider the sufficiency of the evidence to support the appellant’s conviction? Our original decision in this case, Harris v. State, 12 Ark. App. 181, 672 S.W.2d 905 (1984), did not reach the sufficiency of the evidence, and now, on rehearing, the appellant argues that Burks v. United States, 457 U.S. 1, 98 S. Ct. 2141, 57 L.Ed. 2d 1 (1978) requires us to do so. We disagree with the appellant’s argument.
We first note that this precise issue has not been decided by the United States Supreme Court, although several other appellate courts would disagree with that statement. The issue was left open in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L. Ed.2d 15 (1978), handed down the same day as Burks. Further, we note that the Arkansas Supreme Court has, apparently, never been faced with this precise issue, although that Court has, without explanation, considered the sufficiency of the evidence and has reversed and dismissed at least one case, Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983), without considering several alleged trial errors which were raised in that appeal. This Court, in Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599, (1982), declined to consider the sufficiency of the evidence since the case was reversed and remanded for various trial errors. The Arkansas Supreme Court reviewed Vowell, and reversed it, Vowell v. State, 276 Ark. 258, 634 S.W.2d 118 (1982). In so doing, the Court noted that because of our disposition of the case, it was necessary to examine the sufficiency question. We, therefore, have no clear answer to the question from the Arkansas Supreme Court. This is a question of first impression in Arkansas, and while the case would certainly be one which could be certified to the Arkansas Supreme Court under Rule 29 of the Rules of the Supreme Court and Court of Appeals, we have not done so because the issue arises on petition for rehearing in this Court.
Burks, supra, involved 28 U.S.C. § 2106, which gave broad remand powers to the Courts of Appeals. The United States Supreme Court, in Bryan v. United States, 338 U.S. 552, 70 S. Ct. 317, 94 L. Ed. 335 (1950), held that § 2106 authorized a remand for a new trial even in a case where the judgment was reversed solely due to a lack of sufficient evidence to sustain the conviction.
Of course, § 2106 is limited by the United States Constitution. In Bryan the Court rejected the argument that remanding for a new trial after finding insufficient evidence to support the conviction violated rights under the double jeopardy clause of the Fifth Amendment. In Burks the Supreme Court decided the issue of “whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.” The Court held that such a retrial, under those circumstances, would violate the double jeopardy clause. However, the Court carefully pointed out that reversal for trial error was a different matter. The Court stated:
. . . 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, 81 U. Chi. L. Rev. 365, 370 (1964). 437 U.S. at 15-16, 98 S.Ct. at 2149, 57 L.Ed. 2 at 12.
In sum, Burks only holds that if an appellate court has decided that there was insufficient evidence to support a conviction, a retrial is barred. Burks and Green, supra, do not decide whether an appellate court must (as alleged by the appellant) look at the sufficiency of the evidence in addition to evidentiary points which require reversal.
It is clear that remanding for a new trial, where the only issue on appeal is the sufficiency of the evidence, would give the State a second opportunity to prove the same points which wére at issue in the first trial. Burks prohibits such retrials. Where, however, a case is reversed for trial errors, wholly different considerations are presented. Some of those considerations were outlined in U.S. v. Mandel, 591 F.2d 1347 (4th Cir., 1979), where the court stated:
. . .In many cases, such as the one at bar, with a vast, volume of evidence, it would be doing a distinct disservice to the defendants to decide on appellate review that if a part of the evidence had been omitted the balance would be sufficient to convict. Among other things, this rather invades the province of the jury and trial court on retrial. The jury is the proper trier of the facts, including the credibility of witnesses and the inferences to be drawn from the testimony. Perhaps the faulty evidence was the key to the jury’s decision; perhaps it was not. Who can say? Certainly not a court of appeals which has neither seen the witnesses nor heard them testify.
Another reason for not requiring an appellate court to adjudge the sufficiency of the balance of the evidence, when a part of the evidence has been improperly admitted, is that it is impossible to say what other evidence the,government might have produced had the faulty evidence not been admitted, and what theory of the case the government might have principally pursued had it been presented in the context of different evidence before the jury.
Thus, we believe it does a service neither to the defendants nor to the government to adjudicate the sufficiency of the balance of the evidence when important evidence has been ruled to be inadmissible. To do so, it would be necessary to some extent to set ourselves up as triers of fact, which should be avoided, if possible. As well, we would be required to speculate as to whether or not the government would have conducted the prosecution in any different manner had the faulty evidence been excluded.
We do not, then, pass upon the sufficiency of the evidence in this case, leaving that question in the first instance to the trial court and jury on retrial. Id. at 1373-74.
In State v. Lamorie, 610 P.2d 342 (Utah, 1980), the Utah Supreme Court dealt with this issue, and held that:
Reversal and remand for a new trial does not place the accused in double jeopardy where the error giving rise to the reversal is merely trial error, as distinguished from insufficiency of the evidence. Id. at 347.
Numerous jurisdictions are in accord with the views expressed in Mandrel and Lamorie. See, e.g.:
United States v. Tranowski, 702 F.2d 668 (7th Cir. 1983), United States v. Sarmiento-Perez, 667 F.2d 1239 (5th Cir. 1982), United States v. Harmon, 632 F.2d 812 (9th Cir. 1980), People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980), Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979), Mulry v. State, _ Ind. App. -, 399 N.E.2d 413 (1980), Phillips v. Commonwealth, 600 S.W.2d 485 (Ky.Ct. App. 1980), State v. Boone, 284 Md. 1, 393 A.2d 1361 (1978), DiPasquale v. State, 43 Md. App. 574, 406 A.2d 665 (1979), Commonwealth v. Taylor, 383 Mass. 272, 418 N.E.2d 1226 (1981), State v. Wood, 596 S.W.2d 394 (Mo. 1980), State v. Longstreet, 619 S.W.2d 97 (Tenn. 1981, Ex parte Duran, 581 S.W.2d 683 (Tex. Ct. App. 1979), State v. Frazier, 52 S.E.2d 39 (W. Va. 1979).
Other courts disagree, sometimes in the same jurisdictions, and hold that the sufficiency of the evidence must be considered. For example, in Hooker v. State, 621 S.W.2d 597 (Tex. Cr. App. 1980), the appellant’s conviction yyas reversed for the failure to grant a change of venue. The appellant, on rehearing, alleged that, despite the court’s reversal on procedural grounds, he was entitled to have his challenge to the sufficiency of the evidence decided. The court agreed, holding that:
It now appears clear that in view of Burks and Greene a challenge to the sufficiency of the evidence should be considered before disposing of a case even though the reversal may be based on another ground. Id. at 598.
In Mitchell v. State, 44 Md. App. 451, 409 A.2d 260 (1979), the Court of Special Appeals stated:
Thus, at least since Burks, when an appellant in a criminal case raises the sufficiency issue on appeal, he has a definite and Constitutionally based interest in having it determined. Because of Burks, the sufficiency issue can no longer become moot, notwithstanding the existence of other grounds for reversal. Unless the appellant has in some way waived his right to appellate review on that issue, it miist be decided, for it is upon that decision that the question of a retrial will hinge. Id. at 462, 409 A.2d at 267.
Other jurisdictions follow this view. See, e.g.:
United States v. Till, 609 F.2d 228 (5th Cir. 1980), United States v. Watson, 623 F.2d 1198 (7th Cir. 1980), United States v. U. S. Gypsum Co., 600 F.2d 414 (3rd Cir. 1979), United States v. Hemming, 592 F.2d 866 (5th Cir. 1979), United States v. Orrico, 599 F.2d 113 (6th Cir. 1979), United States v. Santora, 600 F.2d 1317 (9th Cir. 1979), United States v. Morris, 612 F.2d 483 (10th Cir. 1979), United States v. McManaman, 606 F.2d 919 (10th Cir. 1979), United States v. Meneses-Davila, 580 F.2d 888 (5th Cir. 1978), United States v. Vargas, 583 F.2d 380 (7th Cir. 1978), Griffin v. United States, 396 A.2d 211 (D.C. 1978), State v. Bannister, 60 Haw. 658, 594 P.2d 133 (1979), People v. Taylor, 76 Ill.2d 289, 391 N.E.2d366 (1979), Ellerba v. State, 41 Md.App. 712, 398 A.2d 1250 (1979), Commonwealth v. Funches, 379 Mass. 283, 397 N.E.2d 1097 (1979), State v. Verdine, 290 Or. 553, 624 P.2d 580 (1981), Sloan v. State, 584 S.W.2d 461 (Tenn.Cr.App. 1978).
Although it would be possible to examine the sufficiency issue first, as the Arkansas Supreme Court did in Nichols, supra, we decline to do so for the reasons stated in Mandel] supra, and those cases cited above. Where the appellant has alleged that his trial was tainted by error, and where the appellate court agrees, the court cannot properly enter into the province of the jury and determine if the remaining evidence is sufficient to sustain the conviction. The result of such an approach would be to force the State to overtry cases. As stated in State v. Boone, 284 Md. 1, 393 A.2d 1361 (1978):
By the same token if the trial court erroneously admits evidence, resulting in reversal, as in the case before us, the State should not be precluded from retrial even though when such evidence is discounted there is evidentiary insufficiency. The prosecution, we believe, in proving its case is entitled to rely upon the correctness of the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused, the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the State, to be secure, would have to consider every ruling by the court on the evidence to be erroneous and marshall and offer every bit of relevant and competent evidence. The practical consequences of this would seriously affect the orderly administration of justice, if for no other reason, because of the time which would be required to prepare for trial and try the case. Futhermore, if retrial were precluded because discounting erroneously admitted evidence results in evidentiary insufficiency, there would be no opportunity to correct an error. . .Id. at 16-17, 393 A.2d 1369
We decline to examine the sufficiency of the evidence in the case at bar. The appellant will not be subjected to double jeopardy by a retrialj since we reversed and remanded for a new trial on issues outside the sufficiency question. His rights to due process have not been infringed either. This Court has afforded him all that the Constitutions of the United States and the State of Arkansas require, and, we note, relief which he sought: á fair trial, free from prejudicial error.
Petition denied.
Mayfield, C.J., dissents.