In our original opinion we held that the trial court had erroneously excluded a part of the State’s evidence. As a result, the State was not able to prove one of the elements of the crime but, even so, the jury returned a verdict of guilty. On appeal, we reversed because of the insufficient evidence concerning the missing element.
We dismissed the charge since the reversal was based upon insufficiency of the evidence. On rehearing, the State asks that we remand rather than dismiss. The majority today grants rehearing to change the disposition of the case to remand. I dissent.
On June 14, 1978, the Supreme Court of the United States decided three (3) cases which made clear its interpretation of the Double Jeopardy Clause of the Fifth Amendment. That trilogy of cases provide that when a criminal case is reversed solely because of trial error, retrial is not prohibited, but when a case is reversed because of insufficiency of evidence, retrial is prohibited.
The first of the three (3) cases is Burks v. United States, 437 U.S. 1 (1978). The unanimous opinion of the Court reasoned that an appellate court’s determination of insufficient evidence is tantamount to holding that the trial court should have directed a verdict of acquittal. Had the trial court done so, there could be no retrial. The mere fact that the appellate court is the one to declare the insufficiency of the evidence is irrelevant. A determination of some court has been made that the evidence was insufficient. After that determination, no retrial is permissible. Id. at 16.The key fact is the acquittal, and it matters not whether it is granted at the trial level or the appellate level.
The second case, Greene v. Massey, 437 U.S. 19 (1978), applied the Burks decision, a federal decision, to state proceedings. The question in this case was whether a state could retry a defendant whose case was reversed by a state appellate court because of the insufficiency of the evidence. The Supreme Court held that since the original reversal had been based on the “view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the. first degree,” double jeopardy barred retrial. Greene v. Massey, 437 U.S. at 25.
The third case decided that same day was Sanabria v. United States, 437 U.S. 54 (1978). In it, the Court held that even when an erroneous exclusion of evidence causes the insufficiency of evidence, retrial was barred. The court wrote: “[Tjhere is no exception permitting retrial once the defendant has been acquitted, no matter how ‘egregiously erroneous’ the legal rulings leading to that judgment might be. ’’ Id. at 75 (Citation omitted. Emphasis added.)
In 1981, the Burks decision was affirmed in Hudson v. Louisiana, 450 U.S. 40 (1981). In 1982, the Court reiterated that the Burks doctrine applied to reversals based on insufficiency of the evidence, but explained that it did not apply to a reversal based upon the weight of the evidence. Tibbs v. Florida, 457 U.S. 31 (1982). (The Tibbs case arose in Florida which has a rule directing the State Supreme Court to “review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.” Id. at 46. Tibbs’ reversal “rested upon a finding that the conviction was against the weight of the evidence, not upon a holding that the evidence was legally insufficient to support the verdict.” Id. at 47.)
Professors Singer and Hartman have accurately summarized the law on this point as follows:
Effect of Reversal on Appeal. When the defendant’s case is reversed on appeal, retrial is barred by the rule against double jeopardy if the reversal is based upon insufficiency of the evidence. If it is based upon procedural error at the trial, retrial is not prohibited. This principle is applicable in both state and federal proceedings. However, if the reversal is based upon the weight of the evidence as opposed to the insufficiency of the evidence, retrial is not barred.
S. Singer & M.J. Hartman, Constitutional Criminal Procedure Handbook, § 16.23, at 590 (1986). In short, retrial is barred in the case at bar, since the reversal was for insufficient evidence.
In contrast to the bright line drawn by the Supreme Court of the United States, the majority opinion cited dictum from 7th Circuit’s case of Webster v. Duckworth, 767 F.2d 1206 (1985). Even that dictum would not mandate reversal and, more importantly, the holding of the case does not support the majority opinion. Accordingly, I would not grant rehearing and dissent to the majority’s so doing.