Benton v. Crittenden, 97-SC-1075-MR.

• Decision Date: 16 December 1999
• Docket Number: No. 97-SC-1075-MR.,No. 98-SC-263-DG.,97-SC-1075-MR.,98-SC-263-DG.
• Citation: 14 S.W.3d 1
• Parties: Gary BENTON, Appellant, v. Roger CRITTENDEN, Judge, Franklin Circuit Court, Appellee, and Commonwealth of Kentucky (Real Party in Interest), Appellee. Commonwealth of Kentucky, Appellant, v. Gary Benton, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 1

14 S.W.3d 1

Gary BENTON, Appellant, v. Roger CRITTENDEN, Judge, Franklin Circuit Court, Appellee, and Commonwealth of Kentucky (Real Party in Interest), Appellee.

Commonwealth of Kentucky, Appellant, v. Gary Benton, Appellee.

No. 97-SC-1075-MR.

No. 98-SC-263-DG.

Supreme Court of Kentucky.

December 16, 1999.

Rehearing Denied April 20, 2000.

Kevin M. McNally, McNally & Robinson, Frankfort, Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Warren N. Scoville, Scoville, Cessna, & Associates, London, for Gary Benton.

A.B. Chandler, III, Attorney General, Frankfort, Larry Wayne Cleveland, Cleveland & Ayer, Frankfort, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Commonwealth of Kentucky.

Opinion of the court by Justice COOPER.

Gary Benton was indicted by a federal grand jury for the offenses of "carjacking," 18 U.S.C. § 2119, and use of a firearm during a crime of violence, 18 U.S.C. § 924(c). A trial by jury resulted in a general verdict of not guilty. Benton was subsequently indicted by a Franklin County, Kentucky, grand jury on charges of murder, kidnapping and robbery in the first degree, all arising out of the same incident which gave rise to the federal indictment. The Franklin Circuit Court dismissed the indictment for murder as barred by collateral estoppel, KRS 505.050(2), but denied a motion to dismiss the indictments for kidnapping and robbery. The Commonwealth appealed the dismissal of the murder indictment and Benton petitioned for a writ to prohibit a trial of the kidnapping and robbery indictments. Both issues are now before this Court on discretionary review of the Commonwealth's appeal, CR 76.20, and on direct appeal from the denial of Benton's petition for a writ of prohibition, Ky. Const. § 115.

I. FACTS.

On the evening of December 16, 1995, Doyle and Rhenda Mills and Rhenda's father, William Bonner, had been shopping at the Wal-Mart store in Frankfort. Upon their return to the Millses' 1990 Buick LeSabre sedan automobile, which was parked in the Wal-Mart parking lot, an African-American male brandishing a pistol forced his way into the back seat next to where Bonner was seated. The gunman forced Doyle Mills to drive around Franklin and Shelby Counties for approximately an hour. During the trip, Mr. Mills overheard the gunman tell Bonner, "I told you not to look at me, I told you not to look at me." Eventually, the gunman ordered Mills to stop at a secluded location on Woodlake Road where he took the car keys from Mills and ordered Mr. and Mrs. Mills and Bonner to get out of the vehicle and start walking down an adjacent hill. The three became separated in the darkness. Mr. and Mrs. Mills both testified that they overheard the gunman complaining that he could not find the car keys and that Mrs. Mills responded that there was an extra set of keys in her purse. Shortly thereafter, both Millses heard a sound like the jingling of keys, then a single gunshot, following which the gunman departed the scene in their vehicle. The Millses subsequently found Bonner dead of a single gunshot wound to the head. Neither Doyle nor Rhenda Mills ever saw the face of the person who kidnapped and robbed them, though they were able to describe his physique. Neither could specifically identify Gary Benton as the gunman.

However, there was substantial circumstantial evidence that Benton was indeed the person who kidnapped and killed Bon ner and kidnapped and robbed Doyle and Rhenda Mills. A ballistics expert testified that the fatal bullet was fired from a 9-mm pistol owned by Frank Warfield. Warfield testified that he had loaned the weapon to Benton two days before the murder. There were witnesses who saw Benton driving a Buick LeSabre on the night the Millses' vehicle was stolen, and others who heard Benton say he obtained the vehicle "at Wal-Mart." Warfield, D'Von Jago, and Damon Stroud all testified that Benton admitted to them that he had carjacked the Millses' vehicle and killed Bonner. Stroud testified that Benton said he killed Bonner because Bonner had "looked at him" as he was getting out of the car. Benton's physique is similar to that of the gunman described by Mr. and Mrs. Mills. A latent fingerprint and a palm print found inside the Millses' vehicle matched prints taken from Benton.

Benton's defense was an alibi. His version was that Warfield carjacked the 1990 Buick LeSabre, then used the vehicle to give Benton a ride home, thus explaining how Benton's finger and palm prints came to be in the Millses' vehicle.

The carjacking statute, 18 U.S.C. § 2119, provides:

Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall —

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title ...) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death.

Pursuant to these provisions, the federal jury was instructed as follows with respect to Count One of the indictment:

Title 18 United States Code, Section 2119, makes it a crime for anyone, with the intent to cause death or serious bodily harm, to take or attempt to take a motor vehicle which has been transported, shipped, or received in interstate commerce from the person or presence of another by force and violence or by intimidation.

For you to find the defendant guilty of this crime, alleged in Count One of the Indictment, you must be convinced that the government has proved each of the following beyond a reasonable doubt.

FIRST: That on December 16, 1995, the defendant, Gary Benton, took or attempted to take a motor vehicle from the person or presence of Mr. Bonner and Mr. and Mrs. Mills;

SECOND: That the defendant did so by force, violence, or intimidation;

THIRD: That the defendant intended to cause death or serious bodily harm;

FOURTH: That prior to the taking of the motor vehicle by the defendant, the vehicle had been transported in interstate commerce;

FIFTH: That the defendant acted knowingly and intentionally.

. . . .

The term "interstate commerce" means commerce or travel between one state, territory or possession of the United States and another state, territory or possession of the United States, including the District of Columbia. Commerce includes travel, trade, transportation, and communication.

Doyle Mills testified that he and his wife had purchased the Buick LeSabre new from Jim Cooke Buick in Louisville, Kentucky. An employee of that company produced a factory invoice which reflected that the vehicle had been shipped to Jim Cooke Buick from General Motors Corporation, Flint, Michigan.

18 U.S.C. § 924(c) is a penalty enhancement statute which provides for increased penalties if a crime of violence or a drug trafficking crime is committed while the person convicted was in possession of, brandished, or discharged a firearm. Id. § 924(c)(1). Carjacking is a "crime of violence" under this statute. Id. § 924(c)(3). The jury was instructed separately under Count Two as to this penalty enhancement statute, including an instruction that "you cannot convict under Count Two unless you have found the defendant guilty under Count One." Since the jury returned a general verdict of "not guilty," they never reached the enhancement instructions of Count Two.

The Franklin Circuit Court indictment charged Benton with the intentional or wanton murder of Bonner, the kidnappings of Bonner and the Millses, and the first-degree robbery of Mrs. Mills (relating to the theft of her purse).

II. DOUBLE JEOPARDY.

The United States of America and the Commonwealth of Kentucky are separate sovereigns. Under the dual sovereignty doctrine, the mere fact that Benton was tried and acquitted in federal court does not preclude his prosecution in the Franklin Circuit Court even if both prosecutions involved the same conduct and the same offenses. Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 2053, 135 L.Ed.2d 392 (1996); Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Nor does section 13 of the Constitution of Kentucky preclude Benton's subsequent prosecution on pure double jeopardy grounds, since the offense for which Benton was tried in federal court and each of the offenses for which he was indicted in the Franklin Circuit Court require proof of an element which the others do not. KRS 505.050(1)(a); Commonwealth v. Burge, Ky., 947 S.W.2d 805, 811 (1996), cert. denied sub nom., Effinger v. Kentucky, 522 U.S. 971, 118 S.Ct. 422, 139 L.Ed.2d 323 (1997). The only remaining issue is whether the Franklin Circuit Court indictments are barred by the doctrine of collateral estoppel as embodied in KRS 505.050(2).

III. COLLATERAL ESTOPPEL.

The seminal case on the application of collateral estoppel to a criminal prosecution is Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In that case, six men who were engaged in a poker game in the basement of a private residence were robbed by several masked men. Ashe was indicted and acquitted of the robbery of one of the poker players. He was subsequently indicted and convicted of the robbery of another of the poker players. The United States Supreme Court held that the second trial was precluded by the principle of collateral estoppel as embodied in the Fifth Amendment proscription against double jeopardy. The test to be applied was stated as follows:

Where a previous judgment of acquittal was based upon a general verdict, as is...