Greene v. Massey, 437 U.S. 19 (1978)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

On appeal of the first-degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial. That opinion, which a majority of four justices joined, stated that "the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," and that the "interests of justice require a new trial." Three justices dissented without opinion. Three of the justices who had joined the per curiam also filed a "special concurrence," which, though concerned only with trial error, concluded that, "[f]or the reasons stated, the judgments should be reversed and remanded for a new trial, so we have agreed to the Per curiam order doing so." Before the second trial, defendants unsuccessfully contended in the state courts that the per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty, and that a second trial for first-degree murder would constitute double jeopardy; and the defendants were retried and convicted of first-degree murder. Petitioner and his codefendant, by appeal in the state courts and petitioner by application for habeas corpus in the District Court and Court of Appeals, unavailingly pressed their double jeopardy claims.

Held:Burks v. United States, antep. 1, precludes a second trial once a reviewing court has determined that the evidence introduced at trial is insufficient to sustain the verdict. Standing by itself, the per curiam would therefore clearly compel the conclusion that petitioner’s second trial violated the Double Jeopardy Clause. But the special concurrence leaves open the possibility that three of the justices who joined the per curiam were concerned simply with trial error, and joined in the remand solely to give the defendants an error-free trial -- even though they were satisfied that the evidence was sufficient to support the verdict. So that the ambiguity can be resolved, the case is remanded to the Court of Appeals for reconsideration in light of the Court’s opinion and Burks, supra. Pp. 24-27.

546 F.2d 51, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 27. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 27. BLACKMUN, J., took no part in the consideration or decision of the case.