{ "id": 1900934, "name": "STATE of Arkansas v. Ranger Thomas THORNTON", "name_abbreviation": "State v. Thornton", "decision_date": "1991-09-16", "docket_number": "CR 91-58", "first_page": "402", "last_page": "407", "citations": [ { "type": "official", "cite": "306 Ark. 402" }, { "type": "parallel", "cite": "815 S.W.2d 386" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "457 U.S. 31", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183987 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/457/0031-01" ] }, { "cite": "573 So. 2d 202", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7498027 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/so2d/573/0202-01" ] }, { "cite": "397 Pa. Super. 179", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 884237 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/pa-super/397/0179-01" ] }, { "cite": "82 Mich. L. Rev. 365", "category": "journals:journal", "reporter": "Mich. L. Rev.", "year": 1983, "opinion_index": 0 }, { "cite": "840 F.2d 1184", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549493 ], "year": 1988, "pin_cites": [ { "page": "1192" } ], "opinion_index": 0, "case_paths": [ "/f2d/840/1184-01" ] }, { "cite": "110 S. Ct. 2084", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 634223 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "2090" }, { "page": "2087" }, { "page": "2094" }, { "page": "2094, n.14" } ], "opinion_index": 0, "case_paths": [ "/us/495/0508-01" ] }, { "cite": "26 Ark. App. 241", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140701 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/26/0241-01" ] }, { "cite": "209 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1475777 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/ark/209/0155-01" ] }, { "cite": "263 Ark. 856", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672722 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0856-01" ] }, { "cite": "296 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892790 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0247-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9597, "ocr_confidence": 0.867, "pagerank": { "raw": 2.6742043417298735e-07, "percentile": 0.826075960413136 }, "sha256": "56dea6719a831cb34b5d3d649c0da7e774bb01cf2ab14d820edb6328f4c24a28", "simhash": "1:6faae310212cc8fc", "word_count": 1610 }, "last_updated": "2023-07-14T15:19:57.276738+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE of Arkansas v. Ranger Thomas THORNTON" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nOn May 2,1990, the appellee, Ranger Thomas Thornton, was involved in a car wreck which killed one person. That same day, he was charged by police citation in municipal court with the misdemeanors of speeding, reckless driving, drinking on the highway, running a red light, destruction of public and private property, and the class C felony of manslaughter. On May 16, 1990, he pleaded guilty to speeding, reckless driving, and drinking on the highway and pleaded not guilty to running a red light and destruction of public and private property. He was found guilty of those two additional misdemeanors. The State dismissed the felony manslaughter count filed in municipal court.\nOn November 20, 1990, about six (6) months after the municipal court proceedings, the State, by information filed in circuit court, charged the accused with the felony manslaughter. The information is cryptic; the charging part alleges only that the accused \u201con May 2, 1990, in Chicot County did unlawfully, recklessly cause the death of another person, to wit: Cheryl Kniss.\u201d A bill of particulars was not provided. On December 10, 1990, twenty (20) days after the.manslaughter charge was filed, the appellee, Thornton, moved to dismiss the charge under the Double Jeopardy Clause of the Fifth Amendment. Two days later, on December 12, 1990, the trial court, without having a response from the State and without holding an evidentiary hearing, dismissed the charge. The State appeals pursuant to A.R.Cr.P. Rule 36.10. We reverse and remand.\nI.\nThe accused seeks to bar the State from appealing on two (2) procedural grounds. First, he argues that the State did not object to the entry of the dismissal order, and, accordingly, we should not consider the dismissal. The requirement for a contemporaneous objection has long been our general rule, and remains so, but we also have long recognized that an exception to the rule exists when a litigant did not have the opportunity to object. Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988) ; Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Here, the State did not have the opportunity to object and, as a result, the contemporaneous objection rule does not bar appeal of the dismissal.\nSecondly, the accused contends that the State is asking for the reversal of a factual determination and cites us to our case law which provides that we will not accept an appeal from the State after a final dismissal for the purpose of determination of a question of fact. See State v. Dixon, 209 Ark. 155, 189 S.W.2d 787, (1945); State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989) . We have not changed our position; we still will not accept a State appeal of a final order solely to determine a question of fact. However, that rule is not applicable to this appeal. As can be seen from the remainder of this opinion, this appeal involves the uniform and correct administration of the criminal law, and we have traditionally accepted such appeals. See A.R.Cr.P. Rule 36.10 and citations thereunder.\nII.\nThe case of Grady v. Corbin,_U.S_, 110 S. Ct. 2084 (1990) governs the case before us. There, Thomas Corbin, was involved in a car wreck which killed one person. After the wreck he was given uniform traffic tickets for driving while intoxicated and for failure to keep right of the median. Both tickets directed him to appear at a Town Justice Court. He appeared as directed and pleaded guilty. The presiding judge was informed neither of the fatality nor of a pending homicide investigation. The judge subsequently assessed the penalty. About two (2) months later, the grand jury indicted Corbin, charging him in county court with, among other things, negligent homicide, criminally negligent homicide, and reckless assault. The prosecution filed a bill of particulars stating that in order to prove the homicide and assault charges it would prove that the defendant (1) was operating his vehicle in an intoxicated condition, (2) failed to keep to the right of the median, and (3) was driving 45 to 50 miles per hour, which was too fast for the prevailing conditions. Corbin moved to dismiss because of double jeopardy. Ultimately, the case reached the Supreme Court of the United States which held the homicide and assault charges were barred by the Double Jeopardy Clause.\nThe Court formulated a two (2) part inquiry to determine whether double jeopardy bars a prosecution. First, the Blockburger test should be applied. If it reveals that the offenses have identical statutory elements or that one offense is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Id. at 2090. If the subsequent prosecution is not barred under the first inquiry, it should be subjected to the second inquiry, the \u201cproof of the same conduct\u201d analysis. The holding of the case concisely sets out this second inquiry as follows: \u201cWe hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.\u201d Id. at 2087.\nIII.\nThe key to the second inquiry is determining on what conduct the State will rely to prove the subsequent prosecution. In Grady the State had filed a bill of particulars which set out its anticipated proof. Because of that bill of particulars, the Court wrote:\nBy its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted\u2014driving while intoxicated and failing to keep right of the median\u2014to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution, and the New York Court of Appeals properly granted respondent\u2019s petition for a writ of prohibition. This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin\u2019s driving too fast in heavy rain to establish recklessness or negligence).\nId. at 2094. In the case before us there is no bill of particulars; instead, there is only the cryptic information which does not fully disclose the conduct on which the State will rely. The issue becomes: which party has the burden of proving the prior conduct the State will use?\nIn Grady, the majority answered the burden of proof issue for federal courts in footnote fourteen (14) of the opinion. There the Court provided a procedural mechanism for implementation of the test by relying on the procedure followed in previous double jeopardy cases and quoting a passage summarizing that procedure as follows: \u201c \u2018[W]hen a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.\u2019 \u201d Id. at 2094, n.14 (quoting United States v. Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988)). The court in Ragins stated that this was the approach taken by all of the federal circuits. See also Note, The Burden of Proof in Double Jeopardy Claims, 82 Mich. L. Rev. 365 (1983).\nThe State argues in its brief that the burden should be on the defendant to demonstrate that the State will rely on conduct for which the defendant has already been convicted in proving the pending charge. The State cites one case so holding. See Commonwealth v. LaBelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990). Other states have followed the Supreme Court\u2019s direction and placed the burden on the state. See Scalf v. State, 573 So. 2d 202 (Fla. Dist. Ct. App. 1991).\nIt seems to us that the better procedure is to place the burden on the State since the State is in a better position, than is the defendant, to know what it is trying to prove and how it plans to do so. Accordingly, we adopt the standard recommended by the Supreme Court on the burden of proof.\nThe Supreme Court did not state that there must be a hearing on a pretrial double jeopardy issue. However, the very existence of the burden shifting procedure mandates that some response is necessary to a defendant\u2019s motion to dismiss based on double jeopardy. No opportunity was given for such a response in this case. The trial court apparently assumed that the State would not be able to prove the elements of the crime of manslaughter without relying on the accused\u2019s conduct for which he had previously been convicted\u2014speeding, reckless driving, drinking on the highway, and running a red light. As a practical matter the trial court\u2019s action ultimately may well prove to be the correct result, but the State should have been given an opportunity to demonstrate otherwise before the case was dismissed.\nIV.\nThe error in prematurely dismissing the charge occurred before jeopardy attached. There never has been a determination that the State failed to prove the elements of the crime. Thus, the case may be remanded rather than dismissed. See Tibbs v. Florida, 457 U.S. 31 (1982).\nReversed and remanded for proceedings consistent with this opinion.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellant.", "Gibson & Deen, by: Thomas D. Deen, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Ranger Thomas THORNTON\nCR 91-58\n815 S.W.2d 386\nSupreme Court of Arkansas\nOpinion delivered September 16, 1991\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellant.\nGibson & Deen, by: Thomas D. Deen, for appellee." }, "file_name": "0402-01", "first_page_order": 454, "last_page_order": 459 }