Decision below: Blueford v. State, 2011 Ark. 8
Question Presented (from cert. pet.):
Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
Blueford was tried for capital murder. The jury was given lesser-included options and deadlocked. Deliberation on the lessers was guided by a “transitional” instruction, to the effect that the jury first considers the charged (or greater) offense and if it finds reasonable doubt goes to the next lesser offense in line. When the jury announced it was deadlocked, the foreperson informed the trial court that the jury was unanimously against both capital murder and the next lesser, first-degree murder, but was split on manslaughter and therefore didn’t reach negligent homicide. The court told the jury to deliberate further, but the impasse couldn’t be broken. The court declared mistrial, rejecting Blueford’s request that the jury return verdict forms on those offenses which resulted in unanimous agreement. Does double jeopardy bar retrial on capital or first-degree murder? The lower court held, in brief, that a hung jury isn’t tantamount to an acquittal that would trigger double jeopardy protection. And, although the foreperson suggested that the jury had indeed acquitted on the two offenses, this was merely during a “discussion with the circuit court” and “not a situation where a formal verdict was announced or entered of record.” What about Blueford’s request that the jury return verdicts on the offenses for which agreement had been reached? According to Arkansas supreme court, the majority of lower courts hold that a trial court “may not conduct a partial-verdict inquiry as to” lesser offenses; and, although a minority does assign double jeopardy protection in that setting, Arkansas would follow what it termed the majority view.
Wisconsin also employs a “bridge” instruction that imposes a hierarchical order of deliberation, JI Nos. 112 and 112A (upheld as non-violative of due process or right to jury trial, in Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir.1980)). Wisconsin is thus what might be termed an “acquittal-first” state. True, inability to agree on the greater also allows consideration of the next lesser offense, but even so, return of a guilty verdict on a lesser operates as an “implied acquittal” and thus bars retrial on the greater, should the lesser offense verdict be overturned. Price v. Georgia, 398 U.S. 323 (1970); Brazzel v. Washington, 491 F.3d 976 (9th Cir.2007). That said, “acquittal-first” is a generally adequate but not entirely accurate short-hand descriptor, as Blueford illustrates. Blueford, that is, represents a potentially significant variation on the general theme – what is the effect of failure to return a verdict in the face of lesser-offense options? Absent some indication in the record of unanimity as to not guilty on the greater, neither “implied acquittal” nor “acquittal-first” may operate. Critically, though, there was an explicit statement in the Blueford record as to such unanimity, and his double jeopardy claim may well turn on that crucial detail. What this means for the Wisconsin practitioner remains to be seen, except that for the time being thought must given, where the jury can’t reach agreement in the context of lesser offense options, as to whether to seek a break-down of the votes, as in Blueford.
Yet another variation on the overall theme (but one that might not be affected by the outcome): return of verdicts of guilty on both greater and lesser offenses leaves conviction on greater offense undisturbed, State v. Cox, 2007 WI App 38, 300 Wis. 2d 236, 730 N.W.2d 452; State v. Hughes, 2001 WI App 239, 248 Wis.2d 133, 635 N.W.2d 661.