Com. v. Hillebrand

Decision Date23 January 1976
Citation536 S.W.2d 451
PartiesCOMMONWEALTH of Kentucky, Appellant, v. Robert B. HILLBERAND and Douglas Lee Powers, Appellees.
CourtUnited States State Supreme Court — District of Kentucky

Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth's Atty., Frank Coryell, Asst. Commonwealth's Atty., Louisville, for appellant.

Frank E. Haddad, Jr., Laurence E. Higgins, Louisville, for appellees.

PER CURIAM.

Robert B. Hillebrand, Acting Director of the Department of Building and Housing Inspection of the City of Louisville, and Douglas Lee Powers, a friend of Hillebrand's, were tried jointly under indictments charging Hillebrand with accepting a bribe from one Ed Sutherland, and charging Powers with being an accessory before the fact to that offense. The jury found the defendants not guilty and a judgment of acquittal was entered. The Commonwealth has appealed, asking for a certification of the law on various questions.

Some time prior to the trial here in question, Hillebrand and Powers had been tried under indictments charging Hillebrand with accepting a bribe from one H. M. Dunn, Jr., and charging Powers with being an accessory before the fact to that offense. On that trial the circuit court directed a verdict of acquittal. The Commonwealth appealed for a certification of the law in that case also, and the certification was made in Commonwealth v. Hillbrand, Ky. (1974), 508 S.W.2d 566. One of the certifications there was that the trial court had erred in refusing to admit evidence as to Hillebrand's and Powers' dealings with Sutherland. This court was of the opinion that the evidence was admissible as tending to show a pattern of conduct that was relevant to the issue of intent.

On the trial in the instant case, the Commonwealth sought to introduce evidence of Hillebrand's and Powers' dealings with Dunn. The circuit court would not permit the evidence to be introduced, ruling that the evidence should be excluded under the principle of collateral estoppel under the double-jeopardy clause. The correctness of that ruling is the primary question on which the Commonwealth seeks a certification.

At one time the law was well settled that evidence, otherwise competent, of other conduct of a criminal nature was not rendered inadmissible by the fact that the accused had been acquitted of a criminal charge based on that conduct. See 1 Wharton's Criminal Evidence, Thirteenth Edition 624, Sec. 262; Annotation, 86 A.L.R.2d 1132. But the decision of the Supreme Court of the United States in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), on the subject of collateral estoppel as related to double jeopardy, appears in some respects to have qualified the rule.

As we understand the holding in Ashe v. Swenson, it is that if an issue of fact has been determined against the prosecution in the trial of an offense, the prosecution cannot again litigate that issue of fact upon a later trial of the same defendant for another offense. To ascertain whether the issue was in fact determined on the previous trial, the court on the subsequent trial is required to 'examine the record of (a) 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.' (our emphasis) The specific holding was that the prosecution, on a trial of a defendant on a charge of participating with others in the robbery of a player in a poker game, was precluded from producing evidence to show that the defendant was one of the robbers, because on a previous trial of the defendant on a charge of robbery of one of the other poker players the defendant had been acquitted. The court said: 'The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not.'

Applying the principle of Ashe v. Swenson to the instant case, we find that the only issue of fact that must have been decided against the Commonwealth on the previous trial was whether Hillebrand ever physically took...

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9 cases
  • Matheney v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 23 Marzo 2006
    ...v. Commonwealth, 17 S.W.3d 824, 852 (Ky.2000))); Hampton v. Commonwealth, 133 S.W.3d 438, 442 (Ky.2004) (overruling Commonwealth v. Hillebrand, 536 S.W.2d 451 (Ky.1976), insofar as it incorrectly interpreted Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Hillebrand cit......
  • Wicker v. Board of Educ. of Knott County, Ky.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 14 Agosto 1987
    ...actually determined therein, and although they may affect the ultimate rights of the parties. Id. at 558. See also Commonwealth v. Hillebrand, 536 S.W.2d 451, 453-54 (Ky.1976); Whittenberg Eng. & Const. Co. v. As reflected in the state court opinions, neither court mentioned political discr......
  • State v. Agee
    • United States
    • North Carolina Court of Appeals
    • 18 Abril 1989
    ...evidence is offered to prove an evidentiary fact issue requiring proof by only a preponderance of evidence. E.g., Commonwealth v. Hillebrand, 536 S.W.2d 451, 453 (Ky.1976); State v. Paradis, 106 Idaho 117, 676 P.2d 31, 37 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (......
  • Benton v. Crittenden
    • United States
    • United States State Supreme Court — District of Kentucky
    • 16 Diciembre 1999
    ...in the robbery of another. Thus, to subject Ashe to a second trial for the same robbery was double jeopardy. In Commonwealth v. Hillebrand, Ky., 536 S.W.2d 451 (1976), we considered the holding in Ashe in the context of whether evidence of prior conduct for which a defendant had been previo......
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