Ashe v. Swenson

• Decision Date: 30 July 1968
• Docket Number: No. 19013.,19013.
• Citation: 399 F.2d 40
• Parties: Bob Fred ASHE, Appellant, v. Harold R. SWENSON, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

399 F.2d 40 (1968)

Bob Fred ASHE, Appellant, v. Harold R. SWENSON, Warden, Appellee.

No. 19013.

United States Court of Appeals Eighth Circuit.

July 30, 1968.

Robert G. Duncan of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant and filed brief.

Courtney Goodman, Jr., Asst. Atty, Gen., for Missouri, Jefferson City, Mo., for appellee; Norman H. Anderson, Atty. Gen., Jr., Jefferson City, Mo., was on the brief.

Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.

BLACKMUN, Circuit Judge.

This habeas corpus appeal by a state prisoner presents to us the question of the continuing validity of Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), a decision in which the Supreme Court divided five-to-three, with Mr. Justice Brennan not participating, and of Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958), a five-to-four decision. Four of the five Justices (Justices Frankfurter, Burton, Clark and Whittaker) who, with Mr. Justice Harlan, comprised the majority in both cases are no longer active members of the Court.

The appellant, Bob Fred Ashe, is serving a 35 year sentence in the Missouri penitentiary. This came about (a) by reason of his conviction by a state jury on June 22, 1960, of the crime of robbery in the first degree in violation of V.A. M.S. § 560.120 (1953);¹ (b) by the punishment prescribed by § 560.135² for a robbery where a dangerous weapon was used; and (c) by the provisions of the Missouri Habitual Criminal Act, § 556.280 (Ashe had been convicted in federal court in August 1950 for a violation of 18 U.S.C. § 659 (theft from interstate shipment), and also had been convicted in Jackson County, Missouri, Circuit Court in December 1952 for second degree burglary (§ 560.125) and for tampering with a motor vehicle (§ 560.175), and two year sentences imposed with respect to each of these three offenses had been served or commuted).

As grounds for his federal habeas petition Ashe asserts double jeopardy and absence of due process, in violation of his Fifth and Fourteenth Amendment rights,³ by reason of a second prosecution after an initial acquittal upon what he claims to be a charge of a single offense. The matter was submitted to the district court on a stipulation and accompanying exhibits. Judge Oliver denied relief but issued the certificate of probable cause required by 28 U.S.C. § 2253.

The issue arises out of what Ashe's brief refers to as "a friendly game of poker" engaged in by six men until the early hours of January 10, 1960, at a private home in Lee's Summit, Missouri. The facts, which really are not in dispute here, are set forth in the opinion of the Supreme Court of Missouri in State v. Ashe, 350 S.W.2d 768, 769 (Mo.1961).⁴ The home was that of John Gladson. Gladson and five others, namely, Donald Knight, Jerry Freeman, Orville Goodman, Richard McClendon, and Ray Roberts were playing poker in the basement. Mrs. Gladson was at home but in bed upstairs. A substantial amount in currency and checks was on the poker table. Three men broke into the basement. They were armed with a shotgun and pistols. The players, other than Gladson (the men seemed to know that he had a heart condition), were ordered to remove their trousers and were tied up. The men took items from the table and also took money, rings, watches, and other things from the persons of the players. A man also entered Mrs. Gladson's bedroom, ripped out the telephone there, tied her with the telephone cord, and removed the wedding ring from her finger.

Ashe and John Edward Johnson, Eric Larson and Thomas Brown were all apprehended later that morning. Seven complaints were lodged against each of the four in magistrate court. These charged, respectively, the robbery of each of the six victims and the theft of an automobile belonging to Roberts. On a preliminary hearing all four were bound over to the circuit court for trial. Later seven separate informations were filed. Six of these named Ashe, Larson and Johnson; a seventh, for the car theft, named all four. Another set of six informations was filed against Brown alone.

On May 2, 1960, Ashe went separately to trial before a jury in Jackson County, Missouri, Circuit Court on the charge that he robbed Donald Knight. Four of the six victims (Gladson, Knight, McClendon and Roberts) testified about the event and described their individual losses. The defense offered no testimony and even waived closing argument. The jury returned a verdict of "not guilty due to insufficient evidence".⁵

On June 20, 1960, Ashe, with different counsel, went to trial before a jury in the same state court and before the same judge on the charge that he robbed Ray Roberts. Three of the victims (Knight, Gladson and Roberts) testified at this trial as did Mrs. Gladson who, apparently because of illness, had not appeared as a witness at the first trial. On the Roberts charge the jury returned a verdict of guilty.

Ashe appealed his conviction to the Supreme Court of Missouri. It was affirmed. State v. Ashe, supra, 350 S.W. 2d 768 (Mo.1961). The court cited, among other cases, Hoag v. New Jersey, supra.

Four years later Ashe, pursuant to Rule 27.26 of the Missouri Rules of Criminal Procedure, V.A.M.R., moved to vacate his sentence. This motion was denied by the state circuit court. On appeal, with his present retained counsel, the denial was affirmed. State v. Ashe, 403 S.W.2d 589 (Mo.1966). The court again mentioned Hoag v. New Jersey.

Ashe then filed his habeas petition with the United States District Court for the Western District of Missouri.

Prior to his state trial on the charge of robbing Knight, Ashe unsuccessfully moved to quash on the ground of multiplicity of charges. After his acquittal on the Knight charge he unsuccessfully moved to dismiss the other charges filed against him on the ground of double jeopardy. Double jeopardy was asserted on the appeal from his conviction — and apparently was the only issue seriously asserted on that appeal — but the claim was held to be without merit. Pp. 769-771 of 350 S.W.2d. Double jeopardy was also asserted on Ashe's appeal from the denial of his motion to vacate sentence. Pp. 590-591 of 403 S.W.2d. Clearly, therefore, as the State has conceded, any requirement under 28 U.S.C. § 2254 that state remedies be exhausted before applying for federal habeas relief has been satisfied by Ashe.

In Hoag v. New Jersey, supra, three indictments were returned against Hoag charging that, with two others, he robbed three persons at a tavern. Two other victims of the robbery, one of them named Yager, were not named in the indictments. The three indictments were joined for trial. The state's witnesses were the five victims. Only Yager, however, positively identified Hoag as one of the robbers. Hoag was the sole defense witness. He testified to an alibi. The jury acquitted. Six weeks later a fourth indictment was returned. This named Yager as the robbery victim. At the trial on this indictment only Yager testified for the prosecution. The defense called the other four victims. They testified either that Hoag was not one of the robbers or that positive identification was not possible. Hoag repeated his alibi. This time the jury returned a verdict of guilty. The conviction was affirmed on appeal by the New Jersey courts, State v. Hoag, 35 N.J.Super. 555, 114 A.2d 573; 21 N.J. 496, 122 A.2d 628.

The Supreme Court majority refused, on that record, to hold that Hoag's second prosecution and conviction violated due process.⁶ They noted that the New Jersey courts, in construing the state's robbery statute, made "each of the four robberies, though taking place on the same occasion, a separate offense" and thus rejected Hoag's claim that the double jeopardy clause of the State Constitution was violated. "Certainly nothing in the Due Process Clause prevented the State from making that construction". P. 467, of 356 U.S. p. 832 of 78 S.Ct. The Court went on to say:

"We do not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is whether such a course has led to fundamental unfairness. * * * It has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice. * * * In the last analysis, a determination whether an impermissible use of multiple trials has taken place cannot be based on any overall formula. * * *

"Petitioner further contends that his conviction was constitutionally barred by `collateral estoppel.\' His position is that because the sole disputed issue in the earlier trial related to his identification as a participant in the Gay\'s Tavern robberies, the verdict of acquittal there must necessarily be taken as having resolved that issue in his favor. * * * Although the rule was originally developed in connection with civil litigation, it has been widely employed in criminal cases in both state and federal courts. * * *

"Despite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held. However, we need not decide that question, for in this case New Jersey both recognized the rule of collateral estoppel and considered its applicability to the facts of this case. * * * In numerous criminal cases both state and federal courts have declined to apply collateral estoppel because it was not possible to determine with certainty which issues were decided by the former general verdict of acquittal." Pp. 467-472 of 356 U.S., pp. 832-835 of 78 S.Ct.

The Chief Justice dissented, asserting that the issue is whether what happens was contrary to the requirements of fair procedure guaranteed by the due process clause. He...