                                                    Filed:   August 30, 1999

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                  No. 99-6004
                               (CA-98-3073-20BD)



Aundray Livingston,

                                                      Petitioner - Appellant,

           versus


Randolph Murdaugh, III, etc., et al,

                                                     Respondents - Appellees.



                                     O R D E R



     The   court    amends   its     opinion     filed   August   16,   1999,   as

follows:

     On page 2, second full paragraph of text, line 2 -- the phrase

“influence    of    alcohol”    is    corrected     to   read     “influence    of

marijuana.”

     On page 4, second full paragraph, line 4 -- the phrase “stra-

tegically issue an instruction” is corrected to read “strategically

seek an instruction.”

                                                 For the Court - By Direction



                                                  /s/ Patricia S. Connor
                                                           Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AUNDRAY LIVINGSTON,
Petitioner-Appellee,

v.

RANDOLPH MURDAUGH, III, Solicitor
14th Judicial Circuit of the State of
                                                                   No. 99-6004
South Carolina; DIANE GOODSTEIN,
Presiding Judge of the Court of
General Sessions Court of the 14th
Judicial Circuit,
Respondents-Appellants.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Henry M. Herlong, Jr., District Judge.
(CA-98-3073-20BD)

Argued: June 10, 1999

Decided: August 16, 1999

Before WILKINSON, Chief Judge, and
ERVIN and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Ervin and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: George Robert DeLoach, III, Assistant Attorney General,
Columbia, South Carolina, for Appellants. Jared Sullivan Newman,
Port Royal, South Carolina, for Appellee. ON BRIEF: Charles M.
Condon, Attorney General, John W. McIntosh, Chief Deputy Attor-
ney General, Donald J. Zelenka, Assistant Deputy Attorney General,
Columbia, South Carolina, for Appellants.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Aundray Livingston claims that he was "twice put in jeopardy" for
the offense of reckless homicide. The district court agreed, and we
now affirm.

I.

Aundray Livingston caused the death of Linda Smoak while driv-
ing under the influence of marijuana. The South Carolina Court of Gen-
eral Sessions tried Livingston on two charges: reckless homicide and
felony driving under the influence (felony DUI). Without objection
from either party, the trial judge erroneously instructed the jury that
if it found Livingston guilty it could convict on only one of the
charges but not both. The jury found Livingston guilty of felony DUI
and the judge sentenced him to twenty-five years in prison. After the
trial, the solicitor marked "judicial dismissal" on the reckless homi-
cide indictment and removed it from the court's records. On appeal,
the Supreme Court of South Carolina reversed Livingston's felony
DUI conviction. State v. Livingston, 488 S.E.2d 313 (S.C. 1997).

The solicitor then reindicted Livingston for both reckless homicide
and felony DUI. Livingston moved to dismiss the reckless homicide
charge and to bar further prosecution, arguing that reprosecution for
reckless homicide would violate his constitutional right not to be
"twice put in jeopardy" for the same criminal offense. After Living-
ston's motion was denied, the state trial proceeded. Livingston then
filed a motion for a writ of habeas corpus under 28 § U.S.C. 2254 in
the United States District Court for the District of South Carolina.

The district court found that Livingston had exhausted his state
remedies. See 28 U.S.C.A. § 2254(b)(1)(A) (1994 & Supp. 1999). It

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reasoned that appeal of a denial of a double jeopardy claim would be
futile because the South Carolina Supreme Court has held that "an
order denying a double jeopardy claim is not immediately appeal-
able." State v. Miller, 346 S.E.2d 705, 706 (S.C. 1986). The district
court then enjoined prosecution of the reckless homicide charge and
later granted the writ of habeas corpus. The felony DUI case resumed.
As in the previous trial, the jury found Livingston guilty and the court
sentenced him to twenty-five years in prison. In order to proceed with
the reckless homicide charge, the State now appeals the district
court's grant of habeas corpus.

II.

The State argues that jeopardy did not attach to the reckless homi-
cide charge because the jury did not return a verdict on that count.
Under the erroneous instructions, the jury could only choose one
charge. From this the State reasons that the verdict shows merely that
the jury chose to convict on felony DUI, not that it acquitted Living-
ston of reckless homicide.

We are mindful of the deference that is owed to the state court's
adjudication of Livingston's claim. See 28 U.S.C.A. § 2254(d)(1)
(1994 & Supp. 1999). Given the circumstances in this case, however,
we have no choice but to respect the constitutional protection a defen-
dant enjoys against being "twice put in jeopardy" for the same
offense.

Here the jury was instructed that it could convict Livingston of
either reckless homicide or felony DUI. The jury convicted on felony
DUI, but remained silent on the reckless homicide charge. While
there was no explicit acquittal, there was no conviction either. Under
these odd circumstances, the jury's silence must be considered an
implicit acquittal. See Green v. United States , 355 U.S. 184, 190-91
(1957) (holding that where a jury was instructed that it could convict
on either first or second degree murder but returned a guilty verdict
only on second degree murder, defendant could not be retried for first
degree murder, since silence in the first trial on that charge constituted
an implicit acquittal). Under the Green decision, jeopardy attached

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because the jury implicitly acquitted Livingston of reckless homicide.
Id.*

Nor did Livingston invite the error as the solicitor contends. See
United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (a defendant
cannot complain of an error that he invited). As the district court
found, Livingston initially suggested the erroneous instruction, but the
solicitor "led the argument with the trial judge" and neither party chal-
lenged it on appeal. The trial judge even asked whether the solicitor
had any law to support his assertion that the jury could find Living-
ston guilty of only one of the two charges. The solicitor answered,
"Yes sir," despite the fact that no such law exists.

The State has had its fair opportunity to try Livingston for reckless
homicide. A contrary judgment would run afoul of double jeopardy
principles. Allowing a second trial for reckless homicide in this case
would mean a prosecutor could strategically seek an instruction
requiring a jury to choose between one of several charges and then,
once the trial has ended, go after the defendant on undecided charges.
Such a ruling would allow prosecutors to try defendants piecemeal,
each time using a new jury to garner further convictions.

Any doubt that the jury's silence operated as an implicit acquittal
was removed when the solicitor nol prossed the case. Under South
Carolina law, "If a nolle prosequi is entered after the jury is empan-
eled and sworn, it is equivalent to an acquittal, and the defendant can-
not again be put in jeopardy for the same offense." State v. Gaskins,
210 S.E.2d 590, 592 (S.C. 1974). Here the solicitor wrote "judicial
dismissal" across the reckless homicide indictment. According to the
solicitor, he wanted to ensure that the indictment would be admin-
_________________________________________________________________

* This conclusion is not undermined by the fact that felony DUI is not
a lesser included offense of reckless homicide. In Green, it was "immate-
rial" whether second degree murder was a lesser included offense of fel-
ony murder. 355 U.S. at 194 n.14. Rather, "[t]he vital thing is that it is
a distinct and different offense." Id.; see also Terry v. Potter, 111 F.3d
454, 457 (6th Cir. 1996) (following this aspect of Green). But see United
States ex rel. Jackson v. Follette, 462 F.2d 1041, 1045-46 (2d Cir. 1972)
(arguing that under Green an implied acquittal occurs only when one
crime is a lesser included offense of the other).

                    4
istratively gone. The district court found that this amounted to a nolle
prosequi. Because it was entered after the jury was empaneled, it con-
stituted an acquittal and double jeopardy attached.

III.

The circumstances here are not wholly analogous to a mistrial or
a reversal on appeal, each of which raises its own distinct set of dou-
ble jeopardy issues. When a conviction is reversed on appeal, for
example, a defendant ordinarily may be retried for the same offense.
See Lockhart v. Nelson, 488 U.S. 33, 38 (1988); see also Burks v.
United States, 437 U.S. 1, 16-17 (1978) (an exception exists for when
a conviction is reversed for insufficient evidence). Here, Livingston
was neither formally convicted nor acquitted of reckless homicide.
The State did, however, have every opportunity to convict Livingston
of reckless homicide at his initial trial and it failed to do so. See Terry
v. Potter, 111 F.3d 454, 458 (6th Cir. 1997).

Given the circumstances, it would be contrary to the Fifth Amend-
ment to require Livingston to "run the gantlet" again after the first
jury implicitly acquitted him, Green, 355 U.S. at 190, and the prose-
cutor dismissed the charge. For the foregoing reasons, the judgment
of the district court is

AFFIRMED.

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