Eatherton v. State
| Decision Date | 09 April 1991 |
| Docket Number | No. 89-39,89-39 |
| Citation | 810 P.2d 93 |
| Parties | Patrick Eugene EATHERTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Theodore B. D'Arcy, Student Intern., for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Robert A. Nicholas, Sr. Asst. Atty. Gen., for appellee.
Before CARDINE, * C.J., and THOMAS, URBIGKIT, GOLDEN and MACY, JJ.
The primary issue for us to resolve in this case is whether, in a criminal trial, the prosecution must be foreclosed from introducing evidence to establish one or more of the elements of the crime if that evidence also depicts conduct that would tend to establish a crime of which the defendant was acquitted in a prior trial. In the first trial, Patrick Eatherton (Eatherton) was convicted of burglary, but acquitted of larceny, with both charges arising out of a continuum of circumstances. The trial court ruled that the State was not foreclosed from introducing evidence that the victim's money was stolen when Eatherton was retried for burglary after his earlier conviction was reversed. A corollary issue is whether the defendant was entitled to prove the acquittal if the evidence of the theft was properly received. In this regard, the trial court ruled that the State could not introduce evidence of Eatherton's previous conviction of the burglary and that Eatherton could not introduce evidence that he had been acquitted of the charge of larceny. We agree with the rulings of the trial court with respect to the evidence, and we affirm Eatherton's conviction and judgment and sentence.
Eatherton submits the following issues:
The State frames these issues as:
On February 9, 1987, Eatherton was charged with the crimes of burglary and larceny. The trial for these offenses was held in June of 1987. The jury found him guilty of the crime of burglary, but not Prior to the new trial, Eatherton submitted a motion in limine in which he sought an order that the State be prohibited from presenting or eliciting any evidence relating to the fact that any money was taken during the burglary. In the motion, Eatherton contended that the evidence should not be permitted because of his earlier acquittal of the charge of larceny. Subsequently, Eatherton presented another motion seeking an order that the State be prohibited from presenting or eliciting any testimony or other evidence relating to his earlier conviction on the charge of burglary that had been reversed by this court. The trial court granted this latter motion, but it denied the motion relating to evidence of the theft of money, reasoning that the facts presented at the first trial were common to both of the crimes that were charged. The court also ruled that the fact of money being taken was relevant to the issue of intent on the crime of burglary. In making this ruling, the court made the comparison required by Rule 403, W.R.E., and determined that the probative value of the evidence of money being taken did outweigh its prejudicial effect. In addition to these rulings, the court ruled that it would not admit any evidence concerning the acquittal on the charge of larceny. That ruling was premised on the provisions of Rule 403.
guilty of the crime of larceny. Eatherton then appealed the burglary conviction, and we reversed the conviction and remanded the case for a new trial because of error in the failure of the trial court to give an instruction on the lesser included offense of criminal entry. Eatherton v. State, 761 P.2d 91 (Wyo.1988).
The evidence submitted at the second trial paralleled quite closely the evidence at the first trial. About 3:00 A.M., on February 8, 1987, Eatherton went to the home of Judy Shaffer in Newcastle, Wyoming and asked to see Jerry Ellis. Eatherton brought along a bottle of peppermint schnapps, which he shared with Ellis. Between 4:00 A.M. and 4:30 A.M., the three of them went in Shaffer's automobile purportedly to drive to Camp in the Trees. They did not proceed directly to their destination, however, because Eatherton asked Shaffer if she would first stop at the house of a woman whom he wanted to see. At Eatherton's direction, Shaffer drove to the corner of Seventh and Sunset Streets and, after requesting Shaffer and Ellis to wait for him, Eatherton left the automobile. Upon his return, he told Shaffer to drive to the Short Stop store to purchase some gasoline. A short time after that was accomplished, they returned to the Short Stop store to borrow a flashlight because Eatherton said he had lost his wallet somewhere. The three then retraced their route searching for the wallet, went back to return the flashlight, and then drove back to Seventh and Sunset Streets where Eatherton, again, left the car. After waiting a few minutes, Shaffer and Ellis drove away without him.
The victim and a neighbor, who testified at the trial, both live near the corner of Seventh and Sunset Streets. The neighbor described herself as a light sleeper and stated that she heard a vehicle driving around the neighborhood early in the morning on February 8, 1987. She looked out her window, saw the vehicle stop, and observed someone getting into it. She decided that this was suspicious activity and called the police. Still later, she saw the same vehicle return and the same person get out of the car but, in this instance, that person walked up the steps to the victim's house. After that, she saw that individual run away from the victim's house.
The victim testified that he was awakened, about 6:00 A.M. on February 8, 1987, and saw someone standing in the doorway of his bedroom. He identified that person as Eatherton. The victim testified that Eatherton was holding the victim's pants, either looking at them or attempting to get something out of them. Apparently, Eatherton then realized that the victim had seen him standing there, and Eatherton raised the pants as if to cover his face and ran from the house. The victim got his pistol, ran out of his house and, upon seeing Eatherton running down the street, yelled at him to halt and fired a warning shot. He testified that his wallet The night clerk at the Short Stop left the store a short time later. As she was leaving, she saw a man in the alley who was dressed the same as Eatherton, whom she had seen twice when he came into the Short Stop earlier that morning. At about that same time, a Newcastle police officer stopped Shaffer's automobile while investigating the suspicious vehicle report submitted by the neighbor. Shaffer reported to the police officer that Eatherton had been with her and Ellis, but they had dropped him off in the vicinity of the victim's house.
which had contained $600 in cash, was missing.
The retrial in this case occurred on January 10 and 11, 1989, and the jury at the second trial, again, found Eatherton guilty of burglary. 1 Following his conviction, Eatherton was sentenced to a term of seven to ten years in the state penitentiary with credit to be allowed for time previously served. The court also ordered Eatherton to pay $600 in restitution to the victim and $50 to the Victims of Crime fund.
In presenting his argument on the first issue, Eatherton emphasizes the fact of the prior acquittal of the charge of larceny and argues that an analysis of the jury verdict demonstrates the jury found no larceny occurred. While Eatherton asserts cases involving the concept of double jeopardy, it is clear that the ground for his contention that it was improper to admit the victim's testimony about the missing money is the theory of criminal collateral estoppel. According to the doctrine of collateral estoppel, when an issue of ultimate fact once has been determined by a valid and final judgment, that issue cannot be relitigated in any future lawsuit involving the same parties. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The Supreme Court also noted that the doctrine of collateral estoppel, as a derivation from civil law, is applied in the criminal law as ancillary to the double jeopardy protection of the Constitution of the United States. Ashe, 397 U.S. at 445-46, 90 S.Ct. at 1195. That protection, articulated in the Fifth Amendment to the Constitution of the United States of America, is also encompassed by Wyo. Const. art 1, § 11.
In Ashe, the Supreme Court of the United States adopted the following process to determine when collateral estoppel will foreclose the relitigation of an issue in the criminal context:
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