Morris v. Mathews, 475 U.S. 237 (1986)

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, 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. 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.{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.{2} Respondent’s second 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."{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. 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 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.{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.{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, 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.{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). Seen. 4, supra. Finally, this is not a "harmless 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 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 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.

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 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 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 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, 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, 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." Ohio Rev.Code Ann. § 2945.59 (1982).{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.

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.

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.

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.

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.

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.

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).

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.