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12. His claim is
At trial, the forensic evidence was inconclusive. The jury acquitted the defendant of attempted rape but convicted him of assault. While he was serving his sentence for assault, the victim, who had never recovered from the coma, died. The defendant was then indicted and tried on a charge of felony murder. In this common-law jurisdiction, there is no statute that prevents a prosecutor from proceeding in this manner, but the defendant argued that a second trial for attempted rape and assault would violate the double jeopardy clause.
A defendant was arrested in the victim's apartment after her neighbors had reported sounds of a struggle, and the police arrived to find the defendant bent over the victim's prostrate body. The victim was rushed to the hospital where she lapsed into a coma. Despite the explanation that he was trying to revive the victim after she suddenly collapsed, the defendant was charged with attempted rape and assault after a neighbor informed the police that she had heard the victim sobbing, «No, please no, let me alone.»
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Assault, at common law, is not a felony and cannot be used as the basis for a felony murder charge.
A is correct. In this case, the defendant was placed in jeopardy during the original trial for attempted rape and then acquitted. To use that charge again as the underlying crime in a felony murder charge would put him in jeopardy again. Assault, at common law, is not a felony and cannot be used as the basis for a felony murder charge. The fact pattern does not specify that the defendant was charged with felony-level assault, so the common law standard applies.
B is incorrect. The issue here is not the assault conviction, but rather, whether the felony murder charge can use the attempted rape charge as its basis. The defendant was acquitted of the attempted rape charge. The prosecution may not, therefore, use it as the basis for a new charge under double jeopardy, which protects defendants from being retried for the same offense.
C is incorrect. The victim's death doesn't preclude the constitutional violation because it isn't relevant to whether the defendant can properly be prosecuted for the attempted rape again as the basis for felony murder. The defendant was charged with felony murder based on attempted rape, but he had already been placed in jeopardy for the attempted rape. Had the prosecutor proceeded on a different theory of murder, the victim's death may have allowed for the defendant to be properly charged under that alternative theory. However, the prosecution charged the defendant with felony murder, using an acquitted charge as its basis, in violation of double jeopardy.
D is incorrect. Being convicted of assault does not mean that the defendant was not subject to jeopardy on the acquitted attempted rape charge. Because the defendant was already placed in jeopardy for the attempted rape charge, it cannot be used as the basis of a new charge of felony murder. The defendant's assault conviction has no bearing on whether the subsequent felony murder charge violated the Double Jeopardy Clause.