1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 13-1122 (Cabell County 09-F-023)

Robert Frazier, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Robert Frazier, by counsel, Crysta l L. Walden, appeal s the October 15, 2013, Order of the Circuit Court of Cabell County se ntencing him to serve forty years in the penitentiary following his sec ond degree murder conviction. The State, by counsel, Julie A. Warren, Assistant Attorney Ge neral, filed a response.

This Court has considered the parties’ brie fs, oral arguments, a nd the appendix record on appeal. We find no substantial question of law and a memorandum decision is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. For the reasons expressed below, the

decision of the trial court is affirm ed, in part, and vacated, in part.

Factual and Procedural History

On August 25, 2008, petitioner shot his girlfr iend, fifty-three-year-o ld Kathy Smith, in the head with a 12 gauge shotgun following a domes tic dispute. This shot was instantaneously fatal. Petitioner was charged with first degree murder. Following a jury trial in 2010, petitioner

was convicted of the lesser included offense of second degree murder. The trial court sentenced petitioner to forty years imprisonment. Petiti oner appealed, and this Court reversed the conviction and granted a new tria l on the basis that petitioner’s rights under th e Confrontation

Clause found in the Sixth Amendment to the Unit ed States Constitution a nd article III section 14 of the West Virginia Constitution had been violated. 1

In September of 2013, petitioner was trie d again for the murder of Ms. Smith. 2
Throughout all of the proceedings, petitioner mainta ined that Ms. Smith’s death was an accident. In the second trial, he testified that Ms. Smith pointed the shotgun at hi m during an argument and

1 See State v. Frazier, 229 W.Va. 724, 731, 735 S.E.2d 72 7, 734 (2012) (finding trial court committed reversible error in allowing Ja mes Kaplan, M.D., then Chief Medical Examiner, to testify to autopsy report completed by differe nt medical examiner, Robert Belding, M.D., who did not testify at trial).

2 The State called Dr. Belding to testify in petitioner’s second trial. 

### FILED
October 30, 2014

released at 3:00 p.m. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 was killed accidentally when th e shotgun discharged while the tw o struggled. Petitioner called a forensics expert as a witness, who opined that pe titioner’s explanation of the fatal shot to Ms. Smith was plausible even though the State’s e xpert found no gunshot re sidue on Ms. Smith’s

hands. 3

The State presented the testimony of Joshua Jackson, an acquaintan ce of petitioner, who was in the house at the time of the shooting. Mr . Jackson testified that during the argument petitioner grabbed the s hotgun, said “I will f*cking show you, B*tch,” and followed Ms. Smith into the bedroom. Mr. Jackson then heard a gunsho t. Mr. Jackson testifie d that after the gunshot, petitioner climbed out of a window to es cape with blood on his arms and shirt.

After the shooting, petitioner went to his sist er’s house to call his mother in California. Petitioner told his mother he “needed to get th e f*ck out of town.” The State also introduced petitioner’s statement to law enforcement wherein he initially lied by stating that Mr. Jackson killed Ms. Smith. Petitioner eventually told auth orities that the shooting was accidental. When asked why he did not call police or emergency pe rsonnel, petitioner replied, “I’m a f*cking dope

dealer.”

At the outset of the second tria l, before jury selection, the tr ial court informed the parties that the State could present its case for first degree murder with the understanding that petitioner could not be convicted or sentenced accordingl y. Petitioner objected and contended the second degree murder conviction in the initial trial amount ed to an acquittal of first degree murder, and

retrial for that offense violated his constitu tional rights under the State and federal double jeopardy clause. W.Va. Const. art. 3, § 5, U.S. Const. Amend. V. The trial court rejected petitioner’s argument and relied upon the procedure this Court set forth in syllabus point three of State v. Cobb, 166 W.Va. 65, 272 S.E.2d 467 (1980):

When a new trial is granted upon appeal , a defendant in the new trial who was originally convicted of voluntary manslaughter cannot be convicted of a more serious degree of homicide or sentenced to a harsher penalty than he received at the original trial; however, proper procedure upon retria l is to submit the case to the jury under proper inst ructions for every degree of homicide which the evidence supports, and if th e jury returns a verdict in the second trial for an offense greater than that returned in the fi rst trial, the trial court should then enter judgment for the offense for which th e first conviction was obtained.

See also State v. Young, 173 W.Va. 1, 7, 311 S.E.2d 118, 124 ( 1983) (holding trial court’s imposition of sentence pursuant to jury verdict of first degree murder rendered at retrial, rather than pursuant to verdict of second degree murder re ndered at original trial, constituted plain error and remanding for resentencing).

The State presented the case to the jury as if petitioner could be convicted of first degree murder. In her opening statement, the prosecutor stated that “at the clos e of this evidence the

3 There was also no gunshot residue found on petitioner’s hands, but he had changed

clothes and washed the blood from his arms and hands before au thorities apprehended him.3 State will ask you to find the Defendant guilty of First Degree Murder for the premeditated, the deliberate, intentional, willful, and malicious ki lling of Kathy Gail Smith.” Further, in closing statement, the prosecutor again referenced premeditation and asked the jury “to come back with a verdict of guilty of First Degree Murder.” The tr ial court instructed the jury on the elements of first degree murder, second degree murder , voluntary manslaught er, and involuntary manslaughter. On the verdict form, the jury coul d choose from any of these offenses or find petitioner not guilty as charged.

On September 20, 2013, the jury returned its verdict finding petitioner guilty of second degree murder. Thereafter, the State submitted an interrogatory to the trial court by which the jury could find that the crime was committed with the use of a firearm under West Virginia Code § 62-12-13 (2014). Petitioner objected to this inte rrogatory because the State did not seek this determination at the first trial. The trial court overruled this objection and stated the firearm determination did not increase the sentence improperl y but merely affected petitioner’s eligibility for parole. The jury answered this interrogatory in the affirmative. Thereafter, the trial court entered a “Jury Verdict Order” on September 30, 2013.

At the sentencing hearing, the trial court stat ed petitioner showed a complete lack of remorse at both murder trials. On October 15, 20 13, the trial court sentenced petitioner to forty years imprisonment, with credit for time served. 4 This is the maximum pe nalty for second degree

murder. See W.Va. Code § 61-2-3 (2014). It is from th is conviction and sent ence that petitioner now appeals.

Standard of Review

On appeal, petitioner raises tw o assignments of error. Peti tioner alleges the trial court violated his rights under the double jeopardy clause when it allowed the State to: 1) argue that petitioner was guilty of first degree murder; and 2) seek a determination that petitioner

committed the crime with the use of a firearm. Petitioner’s double jeopar dy claims are reviewed de novo. Syl. Pt. 1, State v. Sears , 196 W.Va. 71, 468 S.E.2d 324 (1996).

Discussion

Petitioner’s primary submission is that he wa s forced to defend against a first degree murder charge for which he was acquitted at th e first trial. The double jeopardy clause of the West Virginia Constitution provides, in part: “No person shall . . . be twice put in jeopardy of life or liberty for the same offence.” W.Va. Const. art. 3, § 5. 5 The United States Supreme Court has

4 The sentencing order does not reference the ju ry interrogatory pertaining to the firearm

enhancement.

5 The Fifth Amendment to the United States Constitution is nearly identical: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life and limb[.]” The scope of the Double Jeopardy Clause of the Fifth Am endment is at least coex tensive with that of the double jeopardy clause in th e West Virginia Constitution. State v. Frazier, 162 W.Va. 602, 625 n.16, 252 S.E.2d 39, 52 n.16 (1979).4 held that the double jeopardy “prohibition is not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896). 6 In Green v. United
States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis added). In syllabus point two of State v. Clayton , 173 W.Va. 414, 317 S.E.2d 499 (1984), this

Court held: “Our State and federal double jeopardy clauses pr ohibit retrial of a defendant on any charge for which he has received a judgment of acquittal or a court’s determination that there was insufficient evidence to prove that charge at his first trial.”

Petitioner maintains this case is akin to Price v. Georgia, 398 U.S. 323 (1970), where the defendant was tried for first degree murder and convicted of voluntary manslaughter. That conviction was reversed, and over counsel’s objection, Price was re tried for first degree murder. In the second trial, Price was convicted of vol untary manslaughter again. On appeal, the United States Supreme Court reversed a nd held that although Price was conv icted of the lesser included offense, “the risk of convicti on on the greater charge was the sa me in both cases and the Double Jeopardy Clause of the Fifth Amendment is written in terms of the potential or risk of trial and conviction, not punishment.” Id. at 329. The Supreme Court reasoned there was no way to discount how the instructions on first degree murder impacted the jury’s deliberations. Id. at 331; see also Blueford v. Arkansas , 132 S.Ct. 2044, 2052 (2012) (discussing Green and Price and holding double jeopardy clause does not bar second trial if first ended in mistrial).

Similarly, petitioner supposes the mere existe nce of the first degree murder charge may have kept the jurors from thoroughly consider ing his accidental shooti ng defense. Petitioner ultimately asserts this Court should overturn syllabus point three of Cobb because it cannot be

reconciled with Price and Green . We disagree.

The flaw in petitioner’s argument is the fact that he was never in jeopardy of a first degree murder conviction at the second trial. This cruc ial difference distinguishes Price and

Green . “It is axiomatic that ‘an accused must suffer jeopardy before he can suffer double jeopardy.’” Sears , 196 W.Va. at 330, 468 S.E.2d at 330 (quoting Serfass v. United States, 420 U.S. 377, 393 (1975)). The decisions in both Price and Green turn on the fact that, at their respective retrials, bo th defendants were actually at risk of being convicted of the same charge for which they were previously acquitt ed. Therefore, peti tioner’s reliance on Price and Green is misplaced here because the trial court instructed both parties that, despite the fact the jury would be instructed on first degree murder, if the jury found petitioner guilty of first degree murder, the

trial court would enter an order for a second degree murder c onviction. Therefore, we reject petitioner’s double jeopardy argument because he was never at risk of bei ng convicted of first degree murder at the second tria l. Stated succinctl y, under the double jeopar dy clause the State was prohibited from subjecting petitioner to the h azards of trial and possible conviction for first

6 West Virginia Code § 61-11- 13 (2014) is consistent with Ball . The statute provides that “[a] person acquitted by the ju ry upon the facts and merits on a former trial may plead such acquittal in bar of a second prosecution for the sa me offense, notwithstanding any defect in the

form or substance of the indictment or accusation on which he was acquitted.”5 degree murder more than on ce; syllabus point three of Cobb removes that possibility by directing the trial court to enter ju dgment for the lesser offense. 166 W.Va. 65, 272 S.E.2d 467.

We find support for our holding in Morris v. Mathews , 475 U.S. 237 (1986), where the United States Supreme Court stated that Price “did not impose an automatic retrial rule

whenever a defendant is tried fo r a jeopardy-barred crime and is convicted of a lesser included

offense.” Id. at 245. 7 This Court is unpersuaded by petitioner’s attempt to set aside the entire conviction and have yet another trial, “particu larly since one of the purposes of the Double Jeopardy Clause is to promote finality by a voiding multiple trials for the same offense.” Id. at 250 (Blackmun, J., concurring). Upon careful review of the record, we find petitioner’s conviction was not influenced by the prosecutor’s comments rega rding first degree murder. We also find no prejudicial error because the evidence offered by the State would have remained the same. The intent to kill is a required element of both first and second degree murder, but the distinguishing feature for first degree murder is the existence of premeditation and deliberation. State v. Hatfield , 169 W.Va. 191, 286 S.E.2d 402 (1982).

Petitioner’s remaining assignment of error is that the trial court violated the double jeopardy clause by allowing a fire arm determination at the second trial when the State did not seek this finding in the first trial. The State co ncedes error on this point and we agree. In Young, this Court held that “upon a de fendant’s conviction at retria l following prosecution of a successful appeal, imposition by the sentencing c ourt of an increased sentence violates due process and the original sentence must act as a ceiling above which no additional penalty is permitted.” 173 W.Va. at 6, 311 S.E.2d at 123-4 (citing State v. Eden, 163 W.Va. 370, 384, 256 S.E.2d 868, 876 (1979)). The ju ry’s finding that peti tioner used a firearm in the commission of this offense under West Virginia Code § 62-12-13 effectively increased pe titioner’s sentence; he must serve one-third of it before becoming elig ible for parole, instead of the usual one-fourth.

See W.Va. Code 62-12-13(b)(1)(A). “Because parole is a means of shortening a sentence, the restriction thereof necessarily ope rates as a form of punishment.” Sears , 196 W.Va. at 77 n.13, 468 S.E.2d at 330 n.13. Therefore, we find the firearm determinati on added three years and four months to petitioner’s prison sentence improperly on retrial. To remedy this error on appeal, this

7 Unlike Morris , however, we find no double jeopa rdy violation in this case. Nevertheless, we find the decision re mains relevant to our analysis of Cobb . In Morris , the Supreme Court held: (1) the pr oper remedy for a concededly jeopardy-barred conviction for aggravated murder was to reduce the conviction to murder that was not jeopardy-barred; and (2)

the burden then shifts to defendant to demonstr ate a reasonable probability that he would not

have been convicted of the non-jeopardy-barred offense absent the presence ofthe jeopardybarred offense. 475 U.S. at 247. Assuming, arguendo, the jury found petitioner guilty of first degree murder at the second tria l, the appropriate remedy under Morris would be for the trial court to follow the procedure outl ined in syllabus point three of Cobb and reduce the conviction to second degree murder. The burden would then sh ift to petitioner to show that, but for the improper inclusion of the jeopardy-barred charge , the result of the proceeding probably would have been different. Based on the appendix record before this Court, we find no evidence of prejudice in this hypothetical scenario because the evidence offered by the State would have

remained the same.6 Court hereby vacates the September 30, 2013, “Jury Ve rdict Order” insofar as it finds petitioner

committed the crime with the use of a firearm.

Conclusion

For the foregoing reasons, we affirm the October 15, 2013, order of the Circuit Court of Cabell County entering judgment against petitioner for second degree murder and imposing the statutory sentence of forty years imprisonment. We further vacate the September 30, 2013, “Jury Verdict Order” insofar as it finds petitioner committed the crime with the use of a firearm.

Affirmed, in part, and vacated, in part.

ISSUED: October 30, 2014

CONCURRED IN BY:

Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis Justice Brent D. Benjamin7 No. 13-1122 - State of West Virginia v. Robert Frazier

Davis, C.J., dissenting; joined by Benjamin, J.:

Let me be clear at the outset. The majority opinion has trammeled the Double Jeopardy Clause and has blatantly rejected the United States Supreme Court

decision in Price v. Georgia , 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). In this proceeding, Mr. Frazier was prosecuted for first degree murder after being acquitted of that charge in an earlier proceeding. In the prior proceeding, this Court reversed Mr. Frazier’s conviction for second degree murd er and remanded the case for a new trial on second degree murder. See State v. Frazier , 229 W. Va. 724, 735 S.E.2d 727 (2012). The State chose to ignore the limitations of the remand and prosecuted Mr. Frazier for first degree murder. Although the jury returned a verdic t convicting Mr. Frazier of second degree murder, and the trial court in dicated it would not impose a first degree

murder conviction if that verdict was re turned by the jury, M r. Frazier was still prejudiced by being tried on a theory of firs t degree murder. The majority opinion has ignored this patent violation of the Double Jeopardy Clause and a ffirmed Mr. Frazier’s conviction. For the reasons set out below, I dissent.

The Majority Opinion Demonstrates a Gross Misunderstanding Of, Or an Appalling Disregard For, th e Double Jeopardy Clause, and Ignores Clear and Binding Precedent Handed down by the United St ates Supreme Court in Price v. Georgia

Following a brief discussion of genera l principles pertaining to the Double Jeopardy Clause, and a review of other lines of decisions by the United States Supreme Court that support granting M r. Frazier a new trial, I will demonstrate how the majority has utterly failed to apply bindi ng precedent by the United St ates Supreme Court that is directly on point with the instant matter by refusing to follow Price v. Georgia

.

1. The Double Jeopardy Clause. Before I address the merits of my dissent, some cursory remarks about th e Double Jeopardy Clause of the federal constitution are in order. To begin, the Double Jeopardy Clause of the Fi fth Amendment commands that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life

or limb.” See Monge v. California , 524 U.S. 721, 727, 11 8 S. Ct. 2246 , 2250, 141 L. Ed. 2d 615 (1998) (“The Double Jeopardy Cl ause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provide s: ‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.’”). As a general matter, “[t]he Double Jeopardy Clause protec ts against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Department of Revenue of Montana v.8 Kurth Ranch , 511 U.S. 767, 769 n.1, 114 S. Ct . 1937, 1941 n.1, 128 L. Ed. 2d 767 (1994). Under the Double Jeop ardy Clause, “once a defendant is placed in jeopardy for an offense, and jeopardy term inates with respect to that offense, the defendant may neither be tried nor punished a se cond time for the same offense.” Sattazahn v. Pennsylvania , 537 U.S. 101, 106, 123 S. Ct. 732, 736-37, 154 L. Ed. 2d 588 (2003). “The goal of the Double Jeopardy Clause [is] to prevent against a second prosecution for the same offense after acquittal.” Price v. Vincent , 538 U.S. 634, 641, 123 S. Ct. 1848, 1853, 155 L. Ed. 2d 877 (2 003). The United States Supr eme Court has “defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans v. Michigan , ___ U.S. ___, 133 S. Ct. 1069, 1074-75, 185 L. Ed. 2d 124 (2013). This includes an “implied acquittal which results from a verdict convicting a defendant on le sser included offenses rendered by a jury charged to consider both greater and lesser included offenses.” Ohio v. Johnson , 467 U.S. 493, 502, 104 S. Ct . 2536, 2542, 81 L. Ed. 2d 425 (1984). The decision in Evans also noted that, even “[a] mistaken acquitta l is an acquittal[.]” Evans , ___ U.S. ___, 133 S. Ct. at 1074. Because an implied acquittal carries the same constitutional weight as an actual acquittal, “the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a ju ry’s [implied or actual] acquittal in a prior

trial.” Yeager v. United States , 557 U.S. 110, 119, 129 S. Ct. 2360, 2366, 174 L. Ed. 2d 78 (2009).

2. United States Su preme Court Cases That Generally Support Awarding Mr. Frazier a New Trial. As outlined below, two lines of Double Jeopardy Clause cases by the United Stat es Supreme Court require that Mr. Frazier be awarded a

new trial.

To begin, in Ashe v. Swenson , 397 U.S. 436, 90 S. Ct . 1189, 25 L. Ed. 2d 469 (1970), the United States Supreme Court applied the Double Je opardy Clause to the relitigation of an issue . In doing so, the Court adopte d collateral estoppel or issue preclusion, 1 as part of the Double Je opardy Clause protections. Ashe involved six victims who were simultaneously robbed while playing poker. Separate trials were scheduled for each robbery victim. In the fi rst case tried, the defendant was acquitted of being present during the robbery. Consequently, the defenda nt argued that he coul d not be prosecuted for robbing any of the remaining five victim s in subsequent trials. This matter was presented to the Supreme Court on the que stion of whether the defendant could be prosecuted again on the issue of his being pr esent at the robbery. To resolve this question, the Court had to decide whether the doctrine of issue preclusion was part of the Double Jeopardy Clause. The Court held in Ashe that issue preclusion “means simply

that when an issue of ultimate fact has once been de termined by a valid and final judgment, that issue cannot again be litigated between th e same parties in any future

1 I will use the term “issue preclusi on” to refer to this concept.9 lawsuit.” Ashe , 397 U.S. at 443, 90 S. Ct. at 1194. Thus, the Supreme Court decided that issue preclusion was part of the Double Jeopardy Clause. The Ashe opinion noted that incorporation of issue preclusion as part of the Double Jeopardy Clause means that “its applicability in a particular case is no lo nger a matter to be left for state court

determination within the broad bounds of ‘fundamental fairness,’ but a matter of constitutional fact[.]” Ashe , 397 U.S. at 442-43, 90 S. Ct. at 1193-94. See also Bobby v.

Bies , 556 U.S. 825, 832, 129 S. Ct. 2145, 2151, 173 L. Ed. 2d 1173 (2009) (“the doctrine of issue preclusion is embodied in the Fifth Amendment guarantee against double jeopardy.” (internal quotations and citation om itted)). In its applic ation of constitutional issue preclusion, the Ashe opinion held:

After the first jury had acquitted the petitioner of robbing [victim] Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at leas t a reasonable doubt that the petitioner was one of th e robbers, the State could not present the

same or different identification evid ence in a second prosecution for the robbery of [victim] Knight in th e hope that a different jury might

find that evidence more convincing. The situa tion is constitutionally no different here, even though th e second trial related to another victim of the same robbery. Fo r the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.

Ashe , 397 U.S. at 446, 90 S. Ct. at 1195-96.

The application of constitutiona l issue preclusion recognized in Ashe is a grounds for granting the defendant a new tria l in the instant case. In the instant proceeding, the jury determin ed by its verdict that Mr. Frazier did not commit “willful, deliberate and premeditated” homicide. 2 Under Ashe , constitutional issue preclusion prevents relitigation of the is sue of “willful, deliberate and premeditated” homicide. In other words, the State could not retry th e issue of whether Mr. Frazier committed a

homicide with the mens rea of “willful, deliberate and premed itated.” That issue, like the

issue in Ashe , was resolved against the State in the first trial.

In addition to Ashe , a second line of Supreme Court decisions involving imposition of the death pe nalty illustrate the constitutional fo rce of a jury’s acquittal. In

2 See Syl. pt. 3, State v. Hatfield , 169 W. Va. 191, 286 S.E. 2d 402 (1982) (“Where there has been an unlawful homicide by shooting and the State produces evidence that the homicide was a result of malice or a specif ic intent to kill and was deliberate and premeditated, this is suffici ent to support a conviction for first degree murder.”).10 Bullington v. Missouri , 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 27 0 (1981), the defendant was found guilty of capital murder durin g the guilt phase of the prosecution. During the sentencing phase, the jury found that the State did not prove that the defendant should receive the death penalty. Consequen tly, the defendant was sentenced to life in prison. The defendant appealed his conviction and was grante d a new trial. Prior to the start of the second trial, the court determin ed that the State could not seek the death penalty if the defendant was again convicted of murder. The State sought and obtained from the Missouri Supreme Court a pretrial ru ling that the State could seek the death penalty in the second trial. The defendant appealed that ruling to the United States Supreme Court. The Supreme Court reversed and found that “the jury has already acquitted the defendant of wh atever was necessary to im pose the death sentence[.]” Bullington , 451 U.S. at 445, 101 S. Ct. at 1861 (internal quota tions and citation omitted). Consequently, “the protection afforded by the Double Jeopardy Clause . . . is available to [a defendant], with respect to the death penalty, at his retrial.” Bullington , 451 U.S. at 446, 101 S. Ct. at 1862. 3

The ruling in Bullington was applied in Arizona v. Rumsey , 467 U.S. 203, 104 S. Ct. 2305, 81 L. Ed. 2d 164 (1984). Duri ng the sentencing phase of the capital murder prosecution in Rumsey , the trial judge, not the jury, found that the State had failed to establish the requirements for imposing the death penalty, and, accordingly, entered judgment sentencing the defe ndant to life in prison. Th e Supreme Court of Arizona

concluded that the trial court had erred in its interpretation of what was required to impose the death penalty, and, therefore, re versed and remanded for a new sentencing proceeding. On remand, the defendant was sent enced to death. In the second appeal, the Supreme Court of Arizona reversed the death sentence after concluding that the decision

in Bullington prohibited retrying the i ssue of imposition of a deat h sentence. The State filed an appeal with the United States Supr eme Court. The Supreme Court affirmed the Arizona high court’s decision. In do ing so, the Supreme Court explained:

The double jeopardy principle releva nt to respondent’s case is the

same as that invoked in Bullington : an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge. Application of the Bullington principle renders respondent’s death sentence a vi olation of the Double Jeopardy Clause because respondent’s initia l sentence of life imprisonment was undoubtedly an acquitta l on the merits of th e central issue in the proceeding–whether death was th e appropriate punishment for

3 The “opinion in Bullington established a ‘narrow excepti on’ to the general rule that double jeopardy principles have no ap plication in the sentencing context.” Monge v. California , 524 U.S. 721, 730, 118 S. Ct. 22 46, 2251, 141 L. Ed . 2d 615 (1998).11 respondent’s offense. The trial court entered findings denying the existence of each of the seven statutory aggravating circumstances, and as required by state law, th e court then entered judgment in respondent’s favor on the issue of death. That judgment, based on findings sufficient to establish lega l entitlement to the life sentence, amounts to an acquittal on the merits a nd, as such, bars any retrial of the appropriateness of the death penalty.

Rumsey , 467 U.S. at 210-11, 104 S. Ct. at 2310.

In Bullington and Rumsey , prosecutors sought to have the fact finders consider imposing the death penalty on the defe ndants on retrial, even though fact finders had previously determined the prosecutors failed to meet their burden of proof with respect to imposing the death penalty in the first sentencing proceedings. The Supreme Court found that the Double Jeopardy Clause precluded such a reconsideration of the death penalty.

This State’s equivalent to a death penalty is a conviction for first degree murder. In the instant proceedi ng, the jury fo und that the State failed to meet its burden of convicting the defendant of first degree murder. In this situation, as in Bullington and Rumsey , the State could not retry the defendant fo r first degree murder because the jury rejected that punishment in the first trial.

3. Price v. Georgia , Binding Precedent Requiring a New Trial. Although I believe Ashe and Bullington/Rumsey provide clear authority for granting Mr. Frazier a new trial, another line of cases by the Supreme Court also dictate this same

result. The facts of the instant case ar e squarely controlled by the decision in Price v. Georgia , 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). In Price, the defendant was charged with murder by the state of Georgia. The case went to trial and a jury returned a verdict of guilty to the lesser included crime of voluntary manslaughter. The

conviction was reversed on appeal because of an errone ous jury instruction and a new trial was awarded. On remand, the prosecut or chose to retry the case as a murder prosecution. The defendant objected and argued that he could be tried only for voluntary manslaughter because the jury in the first case had acquitte d him of murder. The trial judge overruled the objection and the case was submitted to the jury on a murder charge. The jury once again retu rned a verdict of voluntary manslaughter.

The defendant in Price filed an appeal of his se cond conviction and argued that the Double Jeopardy Clause prevented the State from prosecuting him for murder, because the jury had acquitted hi m of that charge in the first trial. In making this argument, the defendant c ited to the United States Supreme Court decision in Green v.

United States , 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (19 57), which had held that the Double Jeopardy Clause pr evented the federal government from retrying a defendant12 on a murder charge once a jury had convicted a defendant of the lesser charge of second degree murder in the first trial. In rejecting the argument and the decision in Green , the appellate court relied on a prior Georgia Supreme Court decision, Brantley v. State , 132 Ga. 573, 64 S.E. 676 (1909), which held:

When a person has been indicted for murder and convicted of voluntary manslaughter, if he vo luntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a pl ea of former acquittal of the crime of murder or former jeopardy in regard thereto.

Syl., Brantley , 132 Ga. 573, 64 S.E. 67 6. The decision of th e Georgia Supreme Court was appealed the United States Supreme Court. Relying upon its decision in Green , the United States Supreme Court concluded that the Double Jeopardy Clause prevented the defendant from being retried on a murder ch arge. Therefore, the defendant was entitled

to a new trial. The United States Supreme Court, in Price , reasoned as follows:

Because the petitioner was convic ted of the same crime at

both the first and second trials , and because he suffered no greater punishment on the s ubsequent conviction, Georgia submits that the second jeopardy was harmless error. . . .

We must reject this contention. The Double Jeopardy Clause, as we have noted, is cast in term s of the risk or hazard of trial and conviction, not of the ultim ate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an or deal not to be viewed lightly. Further, and perhaps of more importance, we cannot 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

.

Price , 398 U.S. at 331-32, 90 S. Ct . at 1762 (emphasis added). See also Blueford v.

Arkansas , ___ U.S. ___, 132 S. Ct. 2044, 2051- 52, 182 L. Ed. 2d 937 (2012) (“In those
cases, [ Price and Green ], we held that the Double Jeopa rdy Clause is violated when a defendant, tried for a greater offense and convi cted of a lesser incl uded offense, is later retried for the greater offense.”).

Every relevant procedural aspect of Price is present in the instant case. In both cases the defendants were prosecuted fo r murder, but convicted of lesser included

offenses. Both defendants we re granted new trials after successful appeals. Both13 defendants were prosecuted on remand for the murder charge for which they had been previously acquitted. In the second trial, both defendants received the same conviction

that had been obtained in th eir first trial. Both defe ndants appealed their second conviction on the ground that the Double Jeopardy Clause and precedent by the United States Supreme Court prevente d the State from retrying them for murder. On appeal, both state appellate courts relie d on state precedent to reject the decisions of the United States Supreme Court. 4 The defendant in Price was ultimately able to have the United States Supreme Court properly apply the law a nd grant him a new trial. I am hopeful that

the defendant in the instant case also will ha ve the United States Supreme Court properly apply the law, reverse the convicti on, and grant him a new trial.

In the final analysis, ex cept for the majority opini on in this case, courts around the country have unani mously recognized that “unde r the Federal constitutional prohibition against double jeopardy, the convic tion of a lesser offens e is treated as an implied acquittal of the greater offense, and the defendant cannot be retried on the greater

offense where the conviction on the lesse r offense is vacated on appeal.” Commonwealth v. Figueroa , 9 N.E.3d 812, 830-31 (Mass. 2014). Accord Connolly v. State , 539 So. 2d

4 In the instant case, the ma jority opinion relied upon State v. Cobb , 166 W. Va. 65, 272 S.E.2d 467 (1980), in order to reject th e United States Supreme Court decision in Price

. In syllabus point 3 of Cobb it was held:

When a new trial is granted upon appeal, a defendant in the new trial who was origin ally convicted of voluntary manslaughter cannot be convicted of a more serious degree of

homicide or sentenced to a harshe r penalty than he received at the original trial; however, proper procedure upon retrial is to

submit the case to the jury under proper instructions for every degree of homicide which the ev idence supports, and if the jury returns a verdict in the second trial fo r an offense greater

than that returned in the first tr ial, the trial c ourt should then enter judgment for the offense for which the first conviction

was obtained.

This syllabus point not onl y is inconsistent with Price , but it is inconsistent with the

decisions of this Court as re flected in Syllabus point 2 of State v. Clayton , 173 W. Va. 414, 317 S.E.2d 499 (1984):

Our State and federal double je opardy clauses prohibit retrial of a defendant on any charge for which he has received a judgment of acquittal or a cour t’s determination that there

was insufficient evidence to prove that charge at his first trial.14 436, 443 (Ala. Crim. App. 1988); State v. Butrick , 558 P.2d 908, 912 (Ariz. 1976); People v. Superior Court , 2 Cal. Rptr. 2d 389, 399 (1991); Ortiz v. District Court In and For Las Animas County , 626 P.2d 642, 645 (Colo. 1981); State v. Almeda , 455 A.2d 1326, 1330 (Conn. 1983); State v. Munson , 243 A.2d 691, 692 (D el. Super. Ct. 1968);

Williams v. State , 700 S.E.2d 564, 566 (Ga. 2010); State v. Feliciano , 618 P.2d 306, 311 (Haw. 1980), superseded by statute on ot her grounds as recognized in State v. Kalaola, 237 P. 3d 1109 (Haw. 2010); C ausey v. State , 266 N.E.2d 795, 797 (Ind. 1971); Gunter v.

Commonwealth , 576 S.W.2d 518, 522 (Ky. 1978); State v. Chaplin , 286 A.2d 325, 334 (Me. 1972); Commonwealth v. Hrycenko , 630 N.E.2d 258, 263 (Mass. 1994); People v.

McPeters , 448 N.W.2d 770, 773 (M ich. Ct. App. 1989); State v. Favell , 536 S.W.2d 47, 51 (Mo. Ct. App. 1976); State v. George , 527 N.W.2d 638, 643 (Neb. Ct. App.,1995);

State v. Fielder , 118 P.3d 752, 758 (N.M. Ct. App. 2005); Kitt v. Haft , 473 N.Y.S.2d 3, 4 (1984), disapproved on other grounds by People v. Boettcher , 513 N.Y.S.2d 83, 87 (1987); State v. Arnold , 392 S.E.2d 140, 150 (N.C. Ct. App. 1990); Commonwealth v. Dooley , 310 A.2d 690, 692 (Pa. Super. Ct. 1973); Pope v. State , 509 S.W.2d 593, 595 (Tex. Crim. App. 1974); State v. Low , 192 P.3d 867, 880 (Utah 2008); State v. Linton , 93 P.3d 183, 186-87 (Was h. Ct. App. 2004).

4. Morris v. Matthews Does Not Apply. Finally, the majority opinion has erroneously relied upon Morris v. Mathews , 475 U.S. 237, 106 S. Ct. 1032, 89 L. Ed. 2d 187 (1986), to support its rejection of the Price opinion in this cas e. Simply put, a careful reading of Morris clearly shows that Morris has no application to the facts of the

instant case.

In Morris , the defendant and a co-conspirat or robbed a bank in Ohio. During their getaway, the police chased them to a farmhouse. The co-conspirator was

shot twice while inside the farmhouse. At the time of the defendant’s arrest, it was not known how the co-conspirator had been shot. However, not long after the defendant was arrested, a coroner issued a report indicati ng the co-conspirator committed suicide. Based upon the coroner’s report, the defendant was indicted only on aggravated robbery charges. The defendant eventu ally entered a guilty plea to aggravated robbery. Two days after the defendant pled guilty to aggr avated robbery, he ma de statements that indicated he, in fact, killed the co-conspirato r. According to the de fendant’s statements, the co-conspirator shot himself but did not die. However, the defendant decided to kill the co-conspirator in order to claim that the co-conspirator kidnapped him and forced him to take part in the robbery. Once the prosecutor learned ho w the co-conspirator had been killed, the defendant was ch arged with aggravated murd er. A jury convicted the defendant of aggravated murder and he was sentenced to lif e in prison. The case was litigated on a claim of double jeopardy severa l times before the state appellate courts. Eventually, a federal court of appeals foun d that the Double Jeopardy Clause prevented the defendant from being convicted of “aggr avated” murder, because the conviction was based upon conduct that invo lved the bank robbery–which had already been litigated through a guilty plea. The federal court of appeals determined that the defendant was15 entitled to a new trial on a charge for murder only, not aggravated murder. The United States Supreme Court granted certiorari to determine what remedy was available to the

defendant.

The Supreme Court’s decision in Morris is distinguishable from Price

. Morris stated that Price requires a new trial whenever a defendant has been acquitted of a greater charge, but convicted of a lesser char ge, and the state nevertheless prosecutes the defendant for the greater ch arge on retrial. On the other hand, the facts of Morris were different. The opinion in Morris pointed out that “[t]he jury did not acquit [the defendant] of the greater offense of aggrav ated murder, but found him guilty of that charge and, a fortiori , of the lesser offense of murder as well.” Morris , 475 U.S. at 245,

106 S. Ct. at 1037. Morris held that, in this unique situa tion, the defendant does not have to be given a new trial when the evidence supports a conviction for a lesser included offense. The opinion stated th at “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.” Morris , 475 U.S. at 247, 1 06 S. Ct. at 1038.

Under Morris , an appellate court may impose a conviction for a lesser included offense upon a defendant when a defendant has been convicted of the greater offense in violation of the Double Jeopardy Cl ause. Clearly, in th e instant proceeding, Mr. Frazier was never convicted of the great er offense–he was acquitted of the greater offense; therefore, the holding in Morris has no application.

5. Conclusion. In sum, due to the majority opinion’s reckless rejection of well reasoned and binding S upreme Court precedent, one can only hope that Mr. Frazier’s attorneys will bring this matter to the attention of the United States Supreme Court. Having seen the majority’s total di sregard for the United St ates Supreme Court’s well-settled decisions, I am confident that th e United States Supreme Court will swiftly and deftly reverse the majority’s decision.

In view of the foregoing, I dissent. I am authorized to state that Justice Benjamin joins me in this dissenting opinion.