Wingate v. Wainwright

• Decision Date: 25 July 1972
• Docket Number: No. 71-2898.,71-2898.
• Citation: 464 F.2d 209
• Parties: Donald M. WINGATE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Department of Health and Rehabilitative Services, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 209 (1972)

Donald M. WINGATE, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Department of Health and Rehabilitative Services, State of Florida, Respondent-Appellee.

No. 71-2898.

United States Court of Appeals, Fifth Circuit.

July 25, 1972.

Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Miami, Fla., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

Donald Wingate appeals from the judgment of the district court dismissing his petition for a writ of habeas corpus in connection with his Florida state conviction for robbery. After careful examination of the record we conclude that harmful constitutional error was committed in the course of the state court trial. We therefore reverse the judgment of the district court and remand with instructions.

Wingate was tried before a jury in the Florida Criminal Court for the July 9, 1968 robbery of a small store. Over defense objections the state announced to the jury that it would prove that the petitioner had committed four other robberies for the purpose of showing a "course of conduct." During the trial and over defense objection one Joseph Hellman testified that Wingate had robbed him at a Farm Store on December 11, 1967 and again on January 2, 1968. One James Angel also testified over objection that Wingate had robbed him at a gas station on December 23, 1967. The defense objected and moved to strike this testimony on the ground that Wingate had been tried and acquitted in the Florida Courts on the charges of robbing Hellman on January 2, 1968 and Angel on December 23, 1967. The defense also objected on the ground that the testimony bore no relevance to the instant case and constituted an attack on the character of the defendant. The motions to strike and for a mistrial were denied by the state court.

During the closing arguments to the jury, the state prosecutor commented:

". . . I hope you realize that there is more at stake today than one man\'s freedom. I think there is at stake today the protection and safety of society. Defense counsel is asking you to let this man walk back on the streets again; and I am asking you not to; I am asking you not to allow this man to go back on the street and to redo those things that he has done." (emphasis added)

Wingate was found guilty by the jury and sentenced to 15 years at hard labor in the state penitentiary.

In considering Wingate's petition for habeas corpus the district court concluded that he had exhausted his state remedies. However the court found that the admissibility of the evidence of the two prior robberies for which Wingate had been tried was not affected by the fact that he had been acquitted of those robberies. The court held that the admission of the evidence of those two robberies in this case did not amount to a denial of due process.

The court correctly observed that evidence of other crimes is generally admissible when such evidence tends to directly establish the requisite intent in the commission of a particular crime, or a common scheme or plan related to the crime for which a defendant is being tried. This is the rule in the federal courts, United States v. Mancuso, 444 F.2d 691 (5th Cir. 1971); United States v. Hayes, 444 F.2d 472 (5th Cir. 1971), even where the defendant has not been convicted of the other crimes shown, United States v. Perkins, 444 F.2d 1329 (5th Cir. 1971). A similar rule is applied in the Florida courts, Williams v. State, 247 So.2d 425 (Fla.1971); Hawkins v. State, 206 So.2d 5 (Fla.1968); Williams v. State, 143 So.2d 484 (Fla. 1962); Williams v. State, 117 So.2d 473 (Fla.1960); Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

In view of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and its progeny, it is our opinion that the district court erred in holding that the fact that Wingate was actually tried and acquitted of the two robberies does not affect the admissibility of such evidence, particularly in light of the accumulated error of the prosecutor's assertion and argument.¹ Not only did the prosecutor assure the jury that the state would prove that the petitioner had committed four other burglaries, he kept his promise and then asked the jury not to allow the petitioner the liberty to go back on the street and again do those things which he had done.

At least since Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948) it has been the rule in the federal courts that the doctrine of res judicata applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined, though the offenses be different. 332 U.S. at 578, 68 S.Ct. at 239, 92 L.Ed. at 184. In Yawn v. United States, 244 F.2d 235 (5th Cir. 1957) this court followed Sealfon in reversing a conviction for conspiracy to violate the Internal Revenue Code by unlawfully possessing distilling apparatus and spirits. One of the ten overt acts alleged by the Government in furtherance of the conspiracy—possession of a still—had been the basis of a substantive charge of possession of an illegal still for which Yawn had been previously tried and acquitted. This court said:

". . . The Government had, and has, every right to establish the guilt of the accused of the separate offense of conspiracy to violate the liquor tax laws despite the acquittal of unlawful possession of the still . . . . But to allow the Government to have a second opportunity to establish the precise fact of possession decided by another Court of competent jurisdiction in favor of the accused is to ignore the rule that `* * the same facts can not be twice litigated by the same sovereign against the same defendant.\'" 244 F.2d at 237.

The question of whether this rule of "collateral estoppel" is constitutionally required was avoided by the Supreme Court in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958).² When the Court next faced that question in Ashe it had already overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), by holding the double jeopardy prohibition of the Fifth Amendment applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In Ashe the Court noted that unlike Hoag the question was not whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment guarantee against double jeopardy.

"If collateral estoppel is embodied in that guarantee, then its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of `fundamental fairness,\' but a matter of constitutional fact we must decide through an examination of the entire record." 397 U.S. at 442-443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.

The Court then held that "this established rule of federal law", collateral estoppel, is embodied in the Fifth Amendment guarantee against double jeopardy. 397 U.S. at 445, 90 S.Ct. at 1195, 25 L.Ed.2d at 476.

"`Collateral estoppel\' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.

The determination of whether collateral estoppel applies in a criminal case where a previous judgment of acquittal was based on a general verdict requires a court to examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-476; Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971).

Wingate contends that collateral estoppel does not depend upon the cause of action or ultimate facts in question at a subsequent trial; it depends upon whether a particular fact arising in a subsequent trial was previously litigated and determined. Thus he argues that the two jury verdicts of not guilty and the judgments of acquittal entered thereon precluded the state from re-asserting and submitting to the jury at a subsequent trial that he had committed the robberies.

The state contends that there is a distinction between "collateral estoppel" as embodied in the Double Jeopardy Clause which precludes the reprosecution for those acts arising out of the "same offense" on the one hand; and "collateral estoppel" as an abstract principle, which involves no reprosecution, on the other hand.³ The state notes that the recent Supreme Court cases have all involved multiple prosecutions arising out of the same transaction or same offense. Without this identity of transaction or offense, the state argues, the issue of double jeopardy is not properly raised.

The district court held that Ashe and its concept of collateral estoppel presented no bar because the issues which the state relitigated were not issues of "ultimate" fact in the second prosecution. In essence, the state's theory, as accepted by the district court, is that as long as Wingate is not prosecuted for the earlier offenses of which he was acquitted, or for any other offenses arising from these same "transactions" the state is not precluded from relitigating any issue settled by the earlier acquittal. However neither the language of the courts in...