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December 20, 1985


The opinion of the court was delivered by: Grady, District Judge.


The facts involved in determining the merits of this habeas corpus petition are simple; the resolution of the legal issue involved is not.

Petitioner was tried in state court for shooting and killing Harold Peters. He was convicted of murder, voluntary manslaughter and involuntary manslaughter. The trial court entered judgment on the murder verdict and sentenced petitioner. On appeal, the appellate court held that the three verdicts of guilty were legally inconsistent, and, therefore, reversed all the convictions and remanded for a new trial. People v. Hoffer, 122 Ill. App.3d 13, 77 Ill. Dec. 520, 460 N.E.2d 824 (2d Dist. 1984). The Illinois Supreme Court affirmed the appellate court's judgment, also holding that the jury's verdicts were legally and logically inconsistent, requiring reversal and a new trial. People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20, 478 N.E.2d 335 (1985). Petitioner, having been released on bond pending the Illinois Supreme Court's decision, has now been re-arrested, and the state has indicated its intention to retry him for murder.

Throughout the proceedings subsequent to his convictions, petitioner has argued that his conviction for involuntary manslaughter must stand, and that the state cannot retry him for murder and/or voluntary manslaughter without violating the double jeopardy clause of the Fifth Amendment to the United States Constitution. He asserts two arguments in support of his position: (1) by convicting him of involuntary manslaughter, the jury impliedly acquitted him of the greater offenses, and (2) the state is collaterally estopped from relitigating the necessary state of mind element in a murder or voluntary manslaughter charge.

While multiple convictions for murder, voluntary manslaughter and involuntary manslaughter appear to be disturbingly frequent events in Illinois, see Hoffer, 106 Ill.2d at 200, 88 Ill.Dec. at 27, 478 N.E.2d at 342, we have found and the parties have cited no federal cases which discuss whether the double jeopardy clause precludes retrial in this situation. Because we believe that the instant situation involves the principles of continuing jeopardy or procedural error discussed in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984), and Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 307-08, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984), we hold that retrial is not constitutionally barred.


In a recent case, the Supreme Court held that when a defendant is convicted of a "compound" offense, but acquitted on the predicate offense, the conviction on the compound offense is unreviewable on double jeopardy grounds. United States v. Powell, ___ U.S. ___, 105 S.Ct. 471, 83 L.Ed.2d 461 (1985).*fn1 This is because once a defendant is acquitted, he may not be retried on that charge under any circumstances, and "it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course." Id. at ___, 105 S.Ct. at 477. Since the acquittal, whether due to mistake, compromise or lenity, is unreviewable, so also is the conviction. Id. See Will v. Comprehensive Accounting Corp., 776 F.2d 665, 676-77 (7th Cir. 1985) (since the double jeopardy clause "blocks any review of a verdict in favor of the defendant," inconsistent guilty verdicts may stand).

In a footnote in Powell, the Court specifically noted that nothing in the opinion was intended to decide "the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilty on the other." Powell, ___ U.S. at ___, n. 8, 105 S.Ct. at 479, n. 8. The court cited United States v. Daigle, 149 F. Supp. 409 (D.D.C.), aff'd per curiam, 248 F.2d 608 (1957), cert. denied, 355 U.S. 913, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958), as such a situation. In Daigle, the jury found the defendant guilty of both larceny and embezzlement, which the court held was inconsistent. Id. at 414. The court entered a judgment of acquittal on the greater offense, and allowed the conviction on the lesser offense to stand. The defendant's motion for a new trial was denied. Id.

Here, we have the opposite situation. Petitioner has been inconsistently convicted, as in Daigle,*fn2 but, instead of moving for a new trial, he wishes to retain the lesser conviction, as the court ordered in Daigle. While, as indicated, we have found no cases on point, we note that both Powell and Daigle at least imply that double jeopardy would not bar a new trial. In Powell, the Court held that a conviction inconsistent with an acquittal may stand because the defendant should not be allowed to retry his conviction. Powell, ___ U.S. at ___, 105 S.Ct. at 477. This at least implies that a new trial on the inconsistent conviction would not violate the Constitution. Similarly, in Daigle, it apparently did not occur to either the defendant or the court that the defendant could not be retried.

Other indications that retrial is permissible here can be found in Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 400-401 n. 11, 92 S.Ct. 2247, 2256 n. 11, 33 L.Ed.2d 11 (1972); Mathews v. Marshall, 754 F.2d 158, 160 n. 3 (6th Cir. 1985), cert. granted, ___ U.S. ___, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985); and Crawford v. Fenton, 646 F.2d 810, 817 n. 8 (3d Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 344, 70 L.Ed.2d 178 (1981).

In Pipefitters, the Court discussed the impact of the jury's special findings, which were probably inconsistent with its general verdict. The Court stated that if the two were inconsistent, "petitioners would still be entitled at best to a new trial, not acquittal." Id. Therefore, again, the Court was at least implying that no double jeopardy difficulties would arise in retrying the defendants. In Crawford, the jury's answers to special interrogatories were inconsistent with its guilty verdict, and the trial judge ordered the jury to resume deliberations. When the jury indicated further confusion and asked to be released, the judge declared a mistrial. Crawford, 646 F.2d at 812. The Third Circuit held that the defendant could be retried because the mistrial was by manifest necessity — a confused jury is similar to a deadlocked jury, permitting retrial. Id. at 817. In a footnote, the court, citing Pipefitters, noted that even if the judge had accepted the verdict and had not declared a mistrial, the defendant "would have been entitled, at most, to a new trial." Crawford, 646 F.2d at 817.

Finally, in Mathews, the petitioner was convicted of armed robbery on a plea of guilty. He was then indicted and found guilty of aggravated murder. The petitioner argued, and the appellate court eventually agreed, that the aggravated murder conviction violated the double jeopardy clause, since the same elements were involved in armed robbery and aggravated murder. Murder, as opposed to aggravated murder, does not involve the same elements as armed robbery, and the issue in Mathews was whether the aggravated murder conviction could simply be reduced to murder (as the state contended), or whether the state had to retry the petitioner for murder (as the petitioner contended). Both the state and the petitioner agreed that the petitioner could still be tried for murder without violating the double jeopardy clause. The court stated that the reason retrial would be permitted was that the reversal of the aggravated murder conviction rested on procedural grounds, and the Supreme Court "has consistently recognized that the reversal of a conviction on procedural grounds does not preclude the government from retrying a defendant." Mathews, 754 F.2d at 160 n. 3, citing United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588-89, 12 L.Ed.2d 448 (1964).

All these cases permitted or indicated approval of retrial despite inconsistent guilty verdicts. Only Mathews explains the basis for this permission — the procedural nature of the reversal. It is a longstanding principle of American jurisprudence that when a first trial is terminated in a mistrial because the jury could not reach a verdict, the defendant may be retried, because "the ends of public justice would otherwise be defeated." Richardson, 468 U.S. at ___, 104 S.Ct. at 3086, citing United States v. Perez, 9 Wheat. 579 (1824). It is also clear that the double jeopardy clause does not bar re-prosecution of a defendant whose conviction is overturned on appeal (except if it is overturned based on insufficiency of the evidence). See Lydon, 466 U.S. at 307-08, 104 S.Ct. at 1813, citing United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In the first situation, mistrial, courts view the jeopardy of the first trial as never having terminated, and, therefore, the second trial does not subject the defendant to double jeopardy. See Richardson, 468 U.S. at ___, 104 S.Ct. at 3086. In the second situation, reversal of conviction, while jeopardy may technically have terminated, sound administration of justice still permits retrial. See Lydon, 466 U.S. at 316-18, 104 S.Ct. at 1818 (Brennan, J., concurring); Tateo, 377 U.S. at 466, 87 S.Ct. at 1589. Thus, it is only when the government is attempting to attack an acquittal that the double jeopardy clause acts to bar such governmental overreaching. See Ohio v. Johnson, 467 U.S. 493, ___, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984). Otherwise, the "ends of public justice" or "sound administration of justice" precludes application of the clause to bar retrial.

We agree with the court in Crawford that a jury evincing inconsistency most closely parallels a deadlocked jury. A logically inconsistent multiple conviction is the equivalent of no verdict at all. Therefore, pursuant to Richardson and Perez, retrial should be allowed. Alternatively, if the multiple convictions are treated as a verdict, it is a verdict of conviction, which, under the principles of Tateo and Ball may, after it has ...

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