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Grimes v. State

Supreme Court of Delaware

June 12, 2018

RUSSELL GRIMES, Appellant,
v.
STATE OF DELAWARE, Appellee.

          Submitted: May 16, 2018

          Court Below: Superior Court of the State of Delaware No. 1108023033A (K)

         Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.

          Russell Grimes, pro se, Smyrna, Delaware.

          John Williams, Esquire (argued), Delaware Department of Justice, Dover, Delaware, Counsel for Appellee.

          Craig A. Karsnitz, Esquire (argued), Young Conaway Stargatt & Taylor, LLP, Georgetown, Delaware, Amicus Curiae on behalf of Appellant. [1]

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          TRAYNOR, JUSTICE

         If a defendant is convicted by a jury of one offense, but acquitted-in the same verdict-of a lesser-included offense, and the conviction on the greater offense is vacated on appeal, does the acquittal on the lesser offense prevent the State, under the Double Jeopardy Clause, from retrying the defendant for the greater offense? We conclude that it does not.

         Russell Grimes was accused of participating in a bank robbery. He was indicted for first-degree robbery, aggravated menacing, and other related charges. At trial, the jury convicted him of first-degree robbery, but acquitted him of aggravated menacing. He appealed, and based on an error that occurred during jury selection, we vacated his first-degree robbery conviction and remanded for a new trial.[2] A jury again convicted him of first-degree robbery.

         Grimes contends that retrying him for first-degree robbery after he was acquitted of aggravated menacing violated the Double Jeopardy Clause. In Poteat v. State, we said that "Aggravated Menacing is a lesser-included offense of Robbery in the First Degree, "[3] and on that basis, Grimes argues that his acquittal on a lesser-included offense prevented the State from retrying him for a greater offense.[4]

         The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy."[5] The term "same offence" includes not only the same charge, but also any offense that subsumes all the elements of that charge (a greater offense) and any offense whose elements are entirely subsumed by that charge (a lesser-included offense). So when the Double Jeopardy Clause says that it forbids twice putting a defendant in jeopardy for the "same offence, " it "forbids successive prosecution" not only for the same charge, but also "for a greater [or] lesser included offense."[6]

         Grimes was tried at his first trial for first-degree robbery, convicted of that charge, and, after we vacated that conviction, tried for that same charge again. That in itself poses no double-jeopardy problem, because as the U.S. Supreme Court held in Ball v. United States, the Double Jeopardy Clause does not prevent a defendant from being retried for an offense if he succeeds in having his conviction vacated.[7] The defendant is viewed as being in "continuing jeopardy" while his challenge plays out, and a retrial following vacatur is considered part of the same, ongoing jeopardy, not a successive prosecution for the same offense.[8]

         Grimes contends that because he was acquitted at his first trial of aggravated menacing-a lesser-included offense and, therefore, the "same offence, " for double-jeopardy purposes, as first-degree robbery-the finality of that acquittal trumps the normal operation of the Ball rule. Both he and the amicus believe this result is compelled by a straightforward application of the maxim that "the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense."[9]

         But that passage, which is taken from the U.S. Supreme Court's decision in Ohio v. Johnson, was speaking to how events played out in Brown v. Ohio, a case where a defendant was indicted and convicted on one offense and then, after that prosecution had ended, indicted again in a new prosecution for a greater offense.[10]There is no question that if Grimes had been tried at his first trial solely for aggravated menacing and been acquitted, the State could not then have indicted him anew on first-degree robbery; as the Court said in Brown, an acquittal "forbids successive prosecution . . . for a greater [or] lesser included offense."[11] But Grimes seeks that same double-jeopardy effect within the context of a single-as distinguished from a successive-prosecution. He believes his aggravated menacing acquittal not only forbids the State from initiating a new prosecution for any greater or lesser included offense, but also forbids the State from completing its prosecution of the first-degree robbery charge on the original indictment.

         We cannot agree. Giving acquittals that kind of intra-prosecution double-jeopardy power would be inconsistent both with the teachings of Johnson and with the ...


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