397 U.S. 436 (1970), 57, Ashe v. Swenson

Docket Nº:No. 57
Citation:397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469
Party Name:Ashe v. Swenson
Case Date:April 06, 1970
Court:United States Supreme Court

Page 436

397 U.S. 436 (1970)

90 S.Ct. 1189, 25 L.Ed.2d 469




No. 57

United States Supreme Court

April 6, 1970

Argued November 13, 1969




Three or four men robbed six poker players. Petitioner was separately charged with having robbed one of the players, Knight, who, along with three others, testified for the prosecution that each had been robbed. The State's evidence that petitioner had been one of the robbers was weak. The defense offered no testimony. The trial judge instructed the jury that, if it found that petitioner participated in the robbery, the theft of any money from Knight would sustain a conviction, and that, if petitioner was one of the robbers, he was guilty even though he had not personally robbed Knight. The jury found petitioner "not guilty due to insufficient evidence." Thereafter petitioner, following denial of his motion for dismissal based on the previous acquittal, was tried for having robbed another poker player, Roberts, and was convicted. Following affirmance by the Missouri Supreme Court and unsuccessful collateral attack in the state courts, petitioner brought this habeas corpus action in the District Court, claiming that the second prosecution had violated the Double Jeopardy Clause of the Fifth Amendment. The District Court denied the writ, relying on Hoag v. New Jersey, 356 U.S. 464, which, on virtually identical facts, held that there was no violation of due process. The Court of Appeals affirmed. Thereafter, this Court, in Benton v. Maryland, 395 U.S. 784, held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment, a decision which had fully "retroactive" effect, North Carolina v. Pearce, 395 U.S. 711.


1. The Fifth Amendment guarantee against double jeopardy, applicable here through the Fourteenth Amendment by virtue of Benton v. Maryland, supra, embodies collateral estoppel as a constitutional requirement. Pp. 437-444.

2. Since, on the record in this case, the jury in the first trial had determined by its verdict that petitioner was not one of the robbers, the State, under the doctrine of collateral estoppel, was constitutionally foreclosed from relitigating that issue in another trial. Pp. 445-447.

399 F.2d 40, reversed and remanded.

Page 437

STEWART, J., lead opinion

[90 S.Ct. 1191] MR. JUSTICE STEWART delivered the opinion of the Court.

In Benton v. Maryland, 395 U.S. 784, the Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the State of Missouri violated that guarantee when it prosecuted the petitioner a second time for armed robbery in the circumstances here presented.1

Sometime in the early hours of the morning of January 10, 1960, six men were engaged in a poker game in the basement of the home of John Gladson at Lee's Summit, Missouri. Suddenly three or four masked men, armed with a shotgun and pistols, broke into the basement and robbed each of the poker players of money and various articles of personal property. The robbers -- and it has never been clear whether there were three or four of them -- then fled in a car belonging to one of the victims of the robbery. Shortly thereafter, the stolen car was discovered in a field, and, later that morning, three men were arrested by a state trooper while they were walking on a highway not far from where the abandoned car had been found. The petitioner was arrested by another officer some distance away.

Page 438

The four were subsequently charged with seven separate offenses -- the armed robbery of each of the six poker players and the theft of the car. In May, 1960, the petitioner went to trial on the charge of robbing Donald Knight, one of the participants in the poker game. At the trial, the State called Knight and three of his fellow poker players as prosecution witnesses. Each of them described the circumstances of the holdup and itemized his own individual losses. The proof that an armed robbery had occurred and that personal property had been taken from Knight as well as from each of the others was unassailable. The testimony of the four victims in this regard was consistent both internally and with that of the others. But the State's evidence that the petitioner had been one of the robbers was weak. Two of the witnesses thought that there had been only three robbers altogether, and could not identify the petitioner as one of them. Another of the victims, who was the petitioner's uncle by marriage, said that, at the "patrol station," he had positively identified each of the other three men accused of the holdup, but could say only that the petitioner's voice "sounded very much like" that of one of the robbers. The fourth participant in the poker game did identify the petitioner, but only by his "size and height, and his actions."

The cross-examination of these witnesses was brief, and it was aimed primarily at exposing the weakness of their identification testimony. Defense counsel made no attempt to question their testimony regarding the holdup itself or their claims as to their losses. Knight testified without contradiction that the robbers had stolen from him his watch, $250 in cash, and about $500 in checks. His billfold, which had been found by the police in the possession of one of the three other men accused of the robbery, was admitted in evidence. The defense offered no testimony, and waived final argument.

Page 439

The trial judge instructed the jury that, if it found that the petitioner was one of the participants in the armed robbery, the theft of "any money" from Knight would sustain a conviction.2 He also instructed the jury that, if [90 S.Ct. 1192] the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed Knight.3 The jury -- though not instructed to elaborate upon its verdict -- found the petitioner "not guilty due to insufficient evidence."

Six weeks later, the petitioner was brought to trial again, this time for the robbery of another participant in the poker game, a man named Roberts. The petitioner filed a motion to dismiss, based on his previous acquittal. The motion was overruled, and the second trial began. The witnesses were for the most part the

Page 440

same, though this time their testimony was substantially stronger on the issue of the petitioner's identity. For example, two witnesses who at the first. trial had been wholly unable to identify the petitioner as one of the robbers now testified that his features, size, and mannerisms matched those of one of their assailants. All other witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice. The State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testimony at the first trial had been conspicuously negative. The case went to the jury on instructions virtually identical to those given at the first trial. This time, the jury found the petitioner guilty, and he was sentenced to a 36-year term in the state penitentiary.

The Supreme Court of Missouri affirmed the conviction, holding that the "plea of former jeopardy must be denied." State v. Ashe, 350 S.W.2d 768-771. A collateral attack upon the conviction in the state courts five years later was also unsuccessful. State v. Ashe, 403 S.W.2d 589. The petitioner then brought the present habeas corpus proceeding in the United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. Considering itself bound by this court's decision in Hoffa v. New Jersey, 356 U.S. 464, the District Court denied the writ, although apparently finding merit in the petitioner's claim.4 The Court

Page 441

of Appeals for the Eighth Circuit affirmed, also upon the authority of Hoag v. New Jersey, supra.5 We granted certiorari to consider the important constitutional question this case presents. 393 U.S. 1115.

As the District Court and the Court of Appeals correctly noted, the operative facts here are virtually identical to those of Hoag v. view Jersey, supra. In that case, the defendant was tried for the armed robbery of three men who, along with others, had been held up in a tavern. The proof of the robbery was clear, but the evidence identifying the defendant as one of the robbers was weak, and the defendant interposed an alibi defense. The jury brought in a verdict of not guilty. The defendant was then brought to trial again, on an indictment charging the robbery of a fourth victim of the tavern holdup. This time, the jury found him guilty. After appeals in the state courts proved unsuccessful, Hoag brought his case here.

Viewing the question presented solely in terms of Fourteenth Amendment due process -- whether the course that New Jersey had pursued had "led to fundamental unfairness," 356 U.S. at 467 -- this Court declined to reverse the judgment of conviction, because,

in the circumstances shown by this record, we cannot say that

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petitioner's later prosecution and conviction violated due process.6

356 U.S. at 466. The Court found it unnecessary to decide whether "collateral estoppel" -- the principle that bars relitigation between the same parties of issues actually determined at a previous trial -- is a due process requirement in a state criminal trial, since it accepted New Jersey's determination that the petitioner's previous acquittal did not, in any event, give rise to such an...

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