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, Crystal L. Walden, appeals the October 15, 2013, 

Order of the Circuit Court of Cabell County sentencing him to serve forty years in the 

penitentiary following his second degree murder conviction. The State, by counsel, Julie A. 

Warren, Assistant Attorney General, filed a response. 

 This Court has considered the parties’ briefs, oral arguments, and 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 affirmed, in part, and vacated, in part. 

Factual and Procedural History

 On August 25, 2008, petitioner shot his girlfriend, fifty-three-year-old Kathy Smith, in 

the head with a 12 gauge shotgun following a domestic 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. Petitioner appealed, and this Court reversed the 

conviction and granted a new trial on the basis that petitioner’s rights under the Confrontation 

Clause found in the Sixth Amendment to the United States Constitution and article III section 14 

of the West Virginia Constitution had been violated.1

 

 In September of 2013, petitioner was tried again for the murder of Ms. Smith.2

Throughout all of the proceedings, petitioner maintained that Ms. Smith’s death was an accident. 

In the second trial, he testified that Ms. Smith pointed the shotgun at him during an argument and 

 1 See State v. Frazier, 229 W.Va. 724, 731, 735 S.E.2d 727, 734 (2012) (finding trial 

court committed reversible error in allowing James Kaplan, M.D., then Chief Medical Examiner, 

to testify to autopsy report completed by different 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 VIRGINIA
2 

was killed accidentally when the shotgun discharged while the two struggled. Petitioner called a 

forensics expert as a witness, who opined that petitioner’s explanation of the fatal shot to Ms. 

Smith was plausible even though the State’s expert found no gunshot residue on Ms. Smith’s 

hands.3

 The State presented the testimony of Joshua Jackson, an acquaintance of petitioner, who 

was in the house at the time of the shooting. Mr. Jackson testified that during the argument 

petitioner grabbed the shotgun, said “I will f*cking show you, B*tch,” and followed Ms. Smith 

into the bedroom. Mr. Jackson then heard a gunshot. Mr. Jackson testified that after the gunshot, 

petitioner climbed out of a window to escape with blood on his arms and shirt. 

After the shooting, petitioner went to his sister’s house to call his mother in California. 

Petitioner told his mother he “needed to get the 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 authorities that the shooting was accidental. When 

asked why he did not call police or emergency personnel, petitioner replied, “I’m a f*cking dope 

dealer.” 

 At the outset of the second trial, before jury selection, the trial 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 accordingly. Petitioner objected and contended the second 

degree murder conviction in the initial trial amounted to an acquittal of first degree murder, and 

retrial for that offense violated his constitutional 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 retrial is to submit the case to 

the jury under proper instructions for every degree of homicide which the 

evidence supports, and if the jury returns a verdict in the second trial for an 

offense greater than that returned in the first trial, the trial court should then enter 

judgment for the offense for which the 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 rendered 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 close 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 authorities 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 killing 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 trial court instructed the jury on the elements of 

first degree murder, second degree murder, voluntary manslaughter, and involuntary 

manslaughter. On the verdict form, the jury could 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 interrogatory 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 improperly 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 stated petitioner showed a complete lack of 

remorse at both murder trials. On October 15, 2013, the trial court sentenced petitioner to forty 

years imprisonment, with credit for time served.4

 This is the maximum penalty for second degree 

murder. See W.Va. Code § 61-2-3 (2014). It is from this conviction and sentence that petitioner 

now appeals. 

Standard of Review

On appeal, petitioner raises two assignments of error. Petitioner 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 jeopardy 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 was forced to defend against a first degree 

murder charge for which he was acquitted at the 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 jury 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 Amendment is at least coextensive with that of 

the double jeopardy clause in the 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 prohibit 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 retried for first degree murder. 

In the second trial, Price was convicted of voluntary manslaughter again. On appeal, the United 

States Supreme Court reversed and held that although Price was convicted of the lesser included 

offense, “the risk of conviction on the greater charge was the same 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 existence of the first degree murder charge may 

have kept the jurors from thoroughly considering his accidental shooting 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 crucial 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, both defendants were actually at risk of being convicted of the same charge 

for which they were previously acquitted. Therefore, petitioner’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 conviction. Therefore, we reject 

petitioner’s double jeopardy argument because he was never at risk of being convicted of first 

degree murder at the second trial. Stated succinctly, under the double jeopardy clause the State 

was prohibited from subjecting petitioner to the hazards 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 jury upon the facts and merits on a former trial may plead such 

acquittal in bar of a second prosecution for the same offense, notwithstanding any defect in the 

form or substance of the indictment or accusation on which he was acquitted.” 
5 

degree murder more than once; syllabus point three of Cobb removes that possibility by directing 

the trial court to enter judgment 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 for 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, “particularly since one of the purposes of the Double 

Jeopardy Clause is to promote finality by avoiding 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 regarding 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 firearm determination at the second trial when the State did not 

seek this finding in the first trial. The State concedes error on this point and we agree. In Young, 

this Court held that “upon a defendant’s conviction at retrial following prosecution of a 

successful appeal, imposition by the sentencing court 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 jury’s finding that petitioner used a firearm in the commission of 

this offense under West Virginia Code § 62-12-13 effectively increased petitioner’s sentence; he 

must serve one-third of it before becoming eligible 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 operates 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 determination 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 jeopardy violation in this case. 

Nevertheless, we find the decision remains relevant to our analysis of Cobb. In Morris, the 

Supreme Court held: (1) the proper 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 demonstrate a reasonable probability that he would not 

have been convicted of the non-jeopardy-barred offense absent the presence of the jeopardybarred offense. 475 U.S. at 247. Assuming, arguendo, the jury found petitioner guilty of first 

degree murder at the second trial, the appropriate remedy under Morris would be for the trial 

court to follow the procedure outlined in syllabus point three of Cobb and reduce the conviction 

to second degree murder. The burden would then shift 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 Verdict 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. Benjamin 
7 

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 murder 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 verdict convicting Mr. Frazier of 

second degree murder, and the trial court indicated it would not impose a first degree 

murder conviction if that verdict was returned by the jury, Mr. Frazier was still 

prejudiced by being tried on a theory of first degree murder. The majority opinion has 

ignored this patent violation of the Double Jeopardy Clause and affirmed 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, the Double Jeopardy Clause, and Ignores Clear and 

Binding Precedent Handed down by the United States Supreme Court in Price v. 

Georgia

 Following a brief discussion of general principles pertaining to the Double 

Jeopardy Clause, and a review of other lines of decisions by the United States Supreme 

Court that support granting Mr. Frazier a new trial, I will demonstrate how the majority 

has utterly failed to apply binding precedent by the United States 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 the Double Jeopardy Clause of the federal constitution are in 

order. To begin, the Double Jeopardy Clause of the Fifth 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, 118 S. Ct. 2246, 2250, 141 

L. Ed. 2d 615 (1998) (“The Double Jeopardy Clause of the Fifth Amendment, applicable 

to the States through the Fourteenth Amendment, provides: ‘[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 protects 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 Jeopardy Clause, “once a defendant is placed in jeopardy for 

an offense, and jeopardy terminates with respect to that offense, the defendant may 

neither be tried nor punished a second 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 (2003). The United States Supreme 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 lesser 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 acquittal 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 jury’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 Supreme Court Cases That Generally Support 

Awarding Mr. Frazier a New Trial. As outlined below, two lines of Double Jeopardy 

Clause cases by the United States 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 Jeopardy Clause to the 

relitigation of an issue. In doing so, the Court adopted collateral estoppel or issue 

preclusion,1

 as part of the Double Jeopardy Clause protections. Ashe involved six victims 

who were simultaneously robbed while playing poker. Separate trials were scheduled for 

each robbery victim. In the first case tried, the defendant was acquitted of being present 

during the robbery. Consequently, the defendant argued that he could not be prosecuted 

for robbing any of the remaining five victims in subsequent trials. This matter was 

presented to the Supreme Court on the question of whether the defendant could be 

prosecuted again on the issue of his being present 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 determined by a valid and final 

judgment, that issue cannot again be litigated between the same parties in any future 

 

1

I will use the term “issue preclusion” 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 longer 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 omitted)). In its application 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 least a reasonable doubt that the 

petitioner was one of the robbers, the State could not present the 

same or different identification evidence in a second prosecution for 

the robbery of [victim] Knight in the hope that a different jury might 

find that evidence more convincing. The situation is constitutionally 

no different here, even though the second trial related to another 

victim of the same robbery. For 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 constitutional issue preclusion recognized in Ashe is a 

grounds for granting the defendant a new trial in the instant case. In the instant 

proceeding, the jury determined by its verdict that Mr. Frazier did not commit “willful, 

deliberate and premeditated” homicide.2

 Under Ashe, constitutional issue preclusion 

prevents relitigation of the issue of “willful, deliberate and premeditated” homicide. In 

other words, the State could not retry the issue of whether Mr. Frazier committed a 

homicide with the mens rea of “willful, deliberate and premeditated.” 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 penalty illustrate the constitutional force 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 specific intent to kill and was deliberate and 

premeditated, this is sufficient to support a conviction for first degree murder.”). 
10 

Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), the 

defendant was found guilty of capital murder during 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. Consequently, the defendant was sentenced to life in 

prison. The defendant appealed his conviction and was granted a new trial. Prior to the 

start of the second trial, the court determined 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 ruling 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 whatever was necessary to impose the death sentence[.]” 

Bullington, 451 U.S. at 445, 101 S. Ct. at 1861 (internal quotations 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). During 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 defendant to life in prison. The 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, reversed and remanded for a new sentencing 

proceeding. On remand, the defendant was sentenced 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 issue of imposition of a death sentence. The State 

filed an appeal with the United States Supreme Court. The Supreme Court affirmed the 

Arizona high court’s decision. In doing so, the Supreme Court explained: 

The double jeopardy principle relevant 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 violation of the Double Jeopardy 

Clause because respondent’s initial sentence of life imprisonment 

was undoubtedly an acquittal on the merits of the central issue in the 

proceeding–whether death was the appropriate punishment for 

 

3

The “opinion in Bullington established a ‘narrow exception’ to the general rule that 

double jeopardy principles have no application in the sentencing context.” Monge v. 

California, 524 U.S. 721, 730, 118 S. Ct. 2246, 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, the court then entered judgment in 

respondent’s favor on the issue of death. That judgment, based on 

findings sufficient to establish legal entitlement to the life sentence, 

amounts to an acquittal on the merits and, 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 defendants 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 proceeding, the jury found 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 for 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 are 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 erroneous jury instruction and a new 

trial was awarded. On remand, the prosecutor 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 acquitted 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 returned a verdict of voluntary manslaughter. 

 The defendant in Price filed an appeal of his second conviction and argued 

that the Double Jeopardy Clause prevented the State from prosecuting him for murder, 

because the jury had acquitted him of that charge in the first trial. In making this 

argument, the defendant cited 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 (1957), which had held that 

the Double Jeopardy Clause prevented the federal government from retrying a defendant 
12 

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 voluntarily 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 plea of former acquittal of the 

crime of murder or former jeopardy in regard thereto. 

Syl., Brantley, 132 Ga. 573, 64 S.E. 676. The decision of the 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 charge. Therefore, the defendant was entitled 

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

Because the petitioner was convicted of the same crime at 

both the first and second trials, and because he suffered no 

greater punishment on the subsequent 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 terms of the risk or hazard of trial 

and conviction, not of the ultimate legal consequences of the 

verdict. To be charged and to be subjected to a second trial 

for first-degree murder is an ordeal 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 Jeopardy Clause is violated when a 

defendant, tried for a greater offense and convicted of a lesser included 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 for murder, but convicted of lesser included 

offenses. Both defendants were granted new trials after successful appeals. Both 
13 

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 their first trial. Both defendants appealed their second 

conviction on the ground that the Double Jeopardy Clause and precedent by the United 

States Supreme Court prevented the State from retrying them for murder. On appeal, 

both state appellate courts relied 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 and grant him a new trial. I am hopeful that 

the defendant in the instant case also will have the United States Supreme Court properly 

apply the law, reverse the conviction, and grant him a new trial. 

 In the final analysis, except for the majority opinion in this case, courts 

around the country have unanimously recognized that “under the Federal constitutional 

prohibition against double jeopardy, the conviction of a lesser offense 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 lesser 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 majority opinion relied upon State v. Cobb, 166 W. Va. 65, 272 

S.E.2d 467 (1980), in order to reject the 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 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 retrial is to 

submit the case to the jury under proper instructions for every 

degree of homicide which the evidence supports, and if the 

jury returns a verdict in the second trial for an offense greater 

than that returned in the first trial, the trial court should then 

enter judgment for the offense for which the first conviction 

was obtained. 

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

decisions of this Court as reflected in Syllabus point 2 of State v. Clayton, 173 W. Va. 

414, 317 S.E.2d 499 (1984): 

Our State and federal double jeopardy clauses prohibit 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. 
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 (Del. 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 other grounds as recognized in State v. Kalaola, 

237 P. 3d 1109 (Haw. 2010); Causey 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 (Mich. 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 (Wash. 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 case. 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-conspirator 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 indicating the co-conspirator committed suicide. 

Based upon the coroner’s report, the defendant was indicted only on aggravated robbery 

charges. The defendant eventually entered a guilty plea to aggravated robbery. Two 

days after the defendant pled guilty to aggravated robbery, he made statements that 

indicated he, in fact, killed the co-conspirator. According to the defendant’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 how the co-conspirator had been 

killed, the defendant was charged with aggravated murder. A jury convicted the 

defendant of aggravated murder and he was sentenced to life in prison. The case was 

litigated on a claim of double jeopardy several times before the state appellate courts. 

Eventually, a federal court of appeals found that the Double Jeopardy Clause prevented 

the defendant from being convicted of “aggravated” murder, because the conviction was 

based upon conduct that involved the bank robbery–which had already been litigated 

through a guilty plea. The federal court of appeals determined that the defendant was 
15 

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 charge, and the state nevertheless prosecutes the 

defendant for the greater charge 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 aggravated 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 situation, 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 that “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, 106 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 Clause. Clearly, in the instant proceeding, 

Mr. Frazier was never convicted of the greater 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 Supreme 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 disregard for the United States Supreme Court’s 

well-settled decisions, I am confident that the 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.