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Whittlesey v. State5/13/1992
t that time.
There was ample evidence which the State concedes constituted at least probable cause to believe Jamie was dead and that he died during the course of the robbery. That evidence was sufficient to convict Whittlesey of robbery and theft and it made out a prima facie case for felony murder as well. The State clearly could have proceeded on the felony murder charge and should now be barred from maintaining a successive prosecution.
United States v. Ragins, 840 F.2d 1184 (4th Cir.1988) graphically demonstrates this point. There, the defendant was charged with conspiracy and possession of an identification document with intent to defraud the United States government. Prior to trial on those charges, a co-conspirator, having pled guilty, informed the government that the defendant was involved in other conspiracies. Despite this knowledge, the government proceeded to trial and the defendant was acquitted. The government subsequently obtained a second indictment charging the defendant with a continuing conspiracy, setting out overt acts which were previously alleged in the prior indictment. Reversing the denial of the defendant's motion to dismiss on double jeopardy grounds, the Fourth Circuit rejected the government's "undiscovered crime [the Diaz ] exception" to the Double Jeopardy Clause:
There is no merit to this argument. The government undoubtedly knew of the crime itself -- the conspiracy to defraud the INS -- at the time it began the first prosecution. It also knew that Ragins had been involved to some degree in that crime. The only fact that was arguably "undiscovered" at the time of the first prosecution was the extent of Ragins' involvement. This is a far cry from the typical undiscovered crime case -- e.g., the assault becomes homicide when the victim dies. See Diaz v. United States, 223 U.S. 442, 448-449, 32 S.Ct. 250, 251, 56 L.Ed. 500, (1912). The undiscovered crime exception was not intended to permit the government to reprosecute a defendant simply because it has discovered more evidence strengthening its case; indeed, if the exception
were so construed, it would swallow the successive prosecution rule itself."
This is precisely the situation sub judice. Like the government in Ragins, the State in 1982 knew that the crime of murder had been committed and knew who committed it. From all the evidence, albeit circumstantial, the inference was inescapable that Jamie was dead and that Whittlesey had killed him. The only facts that were not known, or discoverable, in 1982 and 1984, were the whereabouts of the body and the exact manner of his death. But neither was necessary in order for the State to bring felony murder charges. Furthermore, the State's reluctance to proceed without additional evidence, the body and its revelations, is not grounds for allowing successive prosecutions. The State's recourse was not to proceed with the robbery prosecution, while refraining from proceeding with the murder prosecution, but either to proceed with all prosecutions arising out of Jamie's disappearance or to refrain from proceeding with any of them.
The Diaz exception is applicable only in a very narrow set of circumstances: those in which the discovered facts are necessary to the State's establishment of a prima facie case that the defendant has committed a crime, which, when the defendant was prosecuted for the lesser included, or greater, offense had not been completed or could not have been discovered despite the exercise of due diligence. Where, as here, there existed ample circumstantial evidence of the defendant's commission of the crime, which was known when the prior prosecution proceeded, the discovery of the victim's b
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