State v. Johnson

STATE of Arkansas v. John Edward JOHNSON

CR 97-593                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 4, 1997


1.   Constitutional law -- Double Jeopardy Clause -- protection offered. -- The
     Double Jeopardy Clause of the Fifth Amendment to the United
     States Constitution protects a defendant from (1) a second
     prosecution for the same offense after acquittal, (2) a second
     prosecution for the same offense after conviction, and (3)
     multiple punishments for the same offense.

2.   Constitutional law -- Double Jeopardy Clause -- evidence of related
     criminal conduct to enhance sentence for separate crime within statutory
     limits does not constitute punishment. -- Use of evidence of related
     criminal conduct to enhance a defendant's sentence for a
     separate crime within the authorized statutory limits does not
     constitute punishment for that conduct within the meaning of
     the Double Jeopardy Clause.

3.   Constitutional law -- dual sovereignty -- State is separate sovereign with
     respect to federal district court -- rape prosecution was not barred. --
     When a defendant in a single act violates the peace and
     dignity of two sovereigns by breaking the laws of each, he has
     committed two distinct offenses; consequently, when the same
     act transgresses the laws of two sovereigns, it cannot be
     truly averred that the offender has been twice punished for
     the same offense, but only that by one act he has committed
     two offenses, for each of which he is justly punished; thus,
     even if the enhancement of appellee's federal sentence
     constituted punishment, because the State is clearly a
     separate sovereign with respect to the federal district court,
     the State's prosecution of appellee's rape charge would not
     have been barred.

4.   Appeal & error -- trial court erroneously dismissed rape charge -- case
     reversed and remanded for trial. -- Based on the United States
     Supreme Court's holding in Witte v. United States, 515 U.S. 389 (1995), and the doctrine of dual sovereignty, the supreme
     court concluded that the trial court's dismissal of appellee's
     rape charge was error and reversed and remanded the case for
     trial.


     Appeal from Pulaski Circuit Court, First Division; Marion
Humphrey, Judge; reversed and remanded.
     Winston Bryant, Att'y Gen., by:  Todd L. Newton, Asst. Att'y
Gen., for appellant.
     Jack R. Kearney, for appellee.

     W.H. "Dub" Arnold, Chief Justice.  
     This is the second interlocutory appeal brought by the State
in the same case.  In State v. Johnson, 326 Ark. 660, 934 S.W.2d 499 (1996), we held that the trial court erred in suppressing
appellee John Edward Johnsonþs confession on the basis that he was
denied the right to counsel of his own choosing to be present
during an in-custody interrogation and reversed and remanded his
case.  In the present appeal, the State contends that the trial
court erred in dismissing its charges against Johnson on the
grounds that double-jeopardy principles barred state prosecution of
an offense where the criminal conduct underlying the offense was
utilized to enhance punishment for a separate, but related federal
conviction.  We agree with the State and reverse and remand
Johnsonþs case for trial.
     On August 30, 1995, Johnson was charged in Pulaski County
Circuit Court with one count of rape, two counts of aggravated
robbery, and two counts of theft of property.  The charges stemmed
from the June 25, 1995, armed robbery of the Purple Cow restaurant
on Cantrell Road in Little Rock, during which an employee of the
restaurant was raped.  Johnson, a former employee of the
restaurant, was developed as a suspect and was questioned by
police.  On February 22, 1996, the trial court suppressed Johnsonþs
taped confession.  The State appealed, and this court reversed and
remanded the case on November 25, 1996.
     On March 13, 1996, Johnson was indicted in the United States
District Court for the Eastern District of Arkansas for
interference with commerce by threats of violence, use of a firearm
in relation to a crime of violence, and possession of a firearm not
registered to him.  The three charges all stemmed from the robbery
of the Purple Cow restaurant.  On September 17, 1996, Johnson
pleaded guilty in federal district court to interference with
commerce by threats of violence and use of a firearm in relation to
a crime of violence.  On December 18, 1996, the federal district
judge, in imposing Johnsonþs sentence, found by a preponderance of
the evidence that Johnson committed a rape in the course of the
robbery, thus warranting enhancement of his sentence by 72 months. 
Thereafter, the State moved to dismiss the aggravated robbery and
theft of property charges in Pulaski County Circuit Court, leaving
the rape charge.  Johnson filed a motion to dismiss the rape charge
on the basis that he had already been punished for this offense in
federal district court.  According to Johnson, the Double Jeopardy
Clause of the Fifth Amendment prohibited the State from pursuing
the rape charge.  The trial court agreed, and on April 2, 1997, one
day before a previously scheduled hearing in the case, dismissed
the Stateþs charge.  On April 3, 1997, the trial court permitted
the State to make a record of its objections, which form the basis
for the present interlocutory appeal.
     The State appeals the trial courtþs decision to dismiss the
rape charge against Johnson under Ark. R. App. P.--Crim. 3,
contending that error was committed to the Stateþs prejudice and
that the correct and uniform administration of the criminal law
requires our review.  In this appeal, we are asked to decide, for
the first time, whether double jeopardy prohibits state prosecution
of an offense where the offense was considered, for enhancement
purposes, in the calculation of punishment for a separate, but
related federal conviction.  Resolution of this appeal is also
important because it involves the doctrine of dual sovereignty
discussed in Heath v. Alabama, 474 U.S. 83 (1985), and has far-
reaching implications in the administration of the criminal law as
applied by federal and state authorities simultaneously involved in
pursuing similar charges against one suspect.  Thus, because we
agree with the State that the correct and uniform administration of
the criminal law is at issue here, we accept jurisdiction of this
appeal.
     The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution protects a defendant from: (1) a second
prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense.  Edwards v. State, 328 Ark. 394,
943, S.W.2d 600 (1997), citing Schero v. Farley, 510 U.S. 222
(1994).  The issue in this case relates to the third protection. 
Relying largely on United States v. Koonce, 945 F.2d 1145 (10th
Cir. 1991), cert. denied 112 S. Ct. 1695 (1992), the trial court
concluded that, because the federal district court had considered
the rape in setting Johnsonþs punishment for his convictions for
interference with commerce by threats of violence and use of a
firearm in relation to a crime of violence, Johnson would be
subjected to multiple punishments for the same offense if the State
were allowed to proceed on the rape charge.  In Koonce, the Tenth
Circuit Court of Appeals held that a subsequent conviction for
possession of methamphetamine subjected Koonce to double jeopardy
where the same possession was used to enhance an earlier sentence
for distributing methamphetamine.
     The State claims that the holding in Koonce was abrogated by
the United States Supreme Courtþs decision in Witte v. United
States, 515 U.S. 389 (1995).  We agree.  In that case, Witte
pleaded guilty in the United States District Court for the Southern
District of Texas to attempted possession of marijuana.  In
calculating his sentence, the federal district court considered
Witteþs previous involvement in connected, but uncharged,
activities involving the importation of cocaine and marijuana. 
When Witte was subsequently indicted for the importation of the
drugs, the federal district court dismissed the charges on the
basis that punishment for the importation offenses would violate
the Double Jeopardy Clauseþs prohibition against multiple
punishments.  The Fifth Circuit Court of Appeals reversed the
dismissal of the indictments, holding that Witte had not been
punished for the importation offenses in the first prosecution, and
thus double jeopardy did not bar the later action.  The United
States Supreme Court, noting that the Fifth Circuit had þexpressly
disagreedþ  with the Tenth Circuitþs holding in Koonce, supra,
granted certiorari þto resolve the conflict among the circuits.þ 
Witte, 515 U.S.  at 395.  The Court affirmed the Fifth Circuit,
holding that:
     use of evidence of related criminal conduct to enhance a
     defendantþs sentence for a separate crime within the
     authorized statutory limits does not constitute
     punishment for that conduct within the meaning of the
     Double Jeopardy Clause.

Id. at 399.
     Johnson defends the trial courtþs dismissal on the basis that
the facts in Witte are distinguishable from those in his case. 
Specifically, he points to the fact that the related conduct used
to enhance Witteþs federal sentence was the basis for a subsequent
federal charge, not a state charge.  The problem with his argument
is that it ignores the doctrine of dual sovereignty:
          When a defendant in a single act violates the
          þpeace and dignityþ of two sovereigns by
          breaking the laws of each, he has committed
          two distinct þoffences.þ  Consequently, when
          the same act transgresses the laws of two
          sovereigns, it cannot be truly averred that
          the offender has been twice punished for the
          same offence, but only that by one act he has
          committed two offences, for each of which he
          is justly punished.

Heath v. Alabama, 474 U.S.  at 88 (other citations omitted).  Thus,
even if the enhancement of Johnsonþs federal sentence constituted
punishment, because the State is clearly a separate sovereign with
respect to the federal district court, see id. at 89, the Stateþs
prosecution of the rape charge would not have been barred.
     In his brief, Johnson contends that the trial courtþs
dismissal of the rape charge was proper because Arkansas law
provides greater protection from double jeopardy than does the
United States Constitution.  In support of his argument, he cites,
for the first time, Ark. Code Ann. 5-1-114 (Repl. 1993) and 16-
85-712(b) (1987), and maintains that they prohibit the State from
prosecuting him for rape.  Even if we were to agree with Johnson
that these statutes, which relate to the protection from a second
prosecution after a conviction for the same offense, applied to his
case, he did not present his argument to the trial court, so we
decline to consider it for the first time on appeal.  Based on the
Supreme Courtþs holding in Witte and the doctrine of dual
sovereignty, we conclude that the trial courtþs dismissal of the
rape charge was error and reverse and remand Johnsonþs case for
trial.
     Reversed and remanded.
     Newbern, J., not participating.