Holt v. State

• Decision Date: 28 October 2016
• Docket Number: A16A1360
• Citation: 793 S.E.2d 516,339 Ga.App. 230
• Parties: HOLT v. The STATE.
• Court: Georgia Court of Appeals

339 Ga.App. 230

793 S.E.2d 516

HOLT

v.The STATE.

A16A1360

Court of Appeals of Georgia.

October 28, 2016

Brandi S. Reeves, Atlanta, for Appellant.

Paul L. Howard Jr., Atlanta, Kevin Christopher Armstrong, for Appellee.

Peterson, Judge.

Desmond Delamara Holt appeals the denial of his plea in autrefois convict,¹ asserting that his pending prosecution for armed robbery and other offenses is barred by his previous guilty plea and conviction for theft by receiving stolen property. The State initiated this prosecution following allegations that Holt robbed a woman at gunpoint, taking her cell phone, purse, and other items and driving away in her car. Holt protests that the prosecution is barred because he previously pleaded guilty to theft by receiving the vehicle after police arrested him following a high speed chase in which he was found driving the stolen vehicle days after the alleged robbery. Holt argues that the trial court erred in rejecting his arguments under both constitutional and statutory protections against double jeopardy. We conclude that the trial court did not err in rejecting Holt's argument that the State is collaterally estopped from pursuing the current charges, given the trial court's factual finding that the alleged armed robbery was completed before the vehicle was taken. We also conclude the trial court did not err in rejecting Holt's argument that the State's failure to bring the various charges together bars its pursuit of the current charges, as Holt failed to present evidence that the currently-charged crimes were known to the prosecuting attorney when the earlier prosecution was brought.

"On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court's oral and written rulings as a whole to determine whether the trial court's findings support its conclusion." State v. Hill , 333 Ga.App. 785, 785, 777 S.E.2d 265 (2015) (citation omitted). To the extent that the facts are undisputed, our review of the trial court's application of the law to those facts is de novo. Id . (punctuation omitted). The trial court's factual findings are assessed under the standard of clear error. See Jenkins v. State , 294 Ga. 506, 508 (1), 755 S.E.2d 138 (2014).

The record shows that on October 17, 2014, Holt was indicted for theft by receiving stolen property.² The indictment alleged that on October 8, 2014, Holt had received and retained a stolen 2003 Chevrolet Impala. On October 27, 2014, Holt pleaded guilty to that charge under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

In June 2015, Holt was indicted for several crimes alleged to have been committed on October 6, 2014.³ That indictment accused Holt of armed robbery based on allegations that he used a handgun to take a cell phone and money from the person and immediate presence of the alleged victim.⁴ It also charged Holt with theft by taking the phone and money, and aggravated assault based on an allegation that Holt pointed a handgun at the victim while threatening to shoot her and having an intent to rob her. The indictment also charged Holt with possession of a firearm by a convicted felon and possession of a weapon during the commission of a felony.

Holt filed a plea in autrefois convict as to the June 2015 indictment. Holt argued that because he had been convicted and sentenced in the prior case "for crimes arising out of the same facts or occurrences" as the pending charges, prosecution on those charges was barred by both state and federal constitutional prohibitions against double jeopardy, as well as OCGA § 16–1–7 and OCGA § 16–1–8.

Following a hearing on the defense motion, the trial court denied the plea in bar in oral and written rulings. The trial court found that the offenses of which Holt was convicted did not involve "the same conduct or transaction" as the pending charges and that the prosecuting attorney in the earlier case "had no actual knowledge" of the offenses alleged in the pending charges. Holt filed this direct pre-trial appeal.

1. Holt first argues that the State is collaterally estopped from prosecuting him for armed robbery and the other pending charges because that prosecution is factually inconsistent with his prior guilty plea to theft by receiving. We disagree.

The doctrine of collateral estoppel is part of the Fifth Amendment's guarantee against double jeopardy, a guarantee that is applicable against the states through the Fourteenth Amendment. See Clark v. State , 144 Ga.App. 69, 69, 240 S.E.2d 270 (1977). "Collateral estoppel ... may completely bar a subsequent prosecution where one of the facts necessarily determined in the former proceeding is an essential element of the conviction sought." Malloy v. State , 293 Ga. 350, 354 (2) (a), 744 S.E.2d 778 (2013). "The doctrine of collateral estoppel will not bar a retrial unless the record of the prior proceeding affirmatively demonstrates that an issue involved in the second trial was definitely determined in the former trial; the possibility that it may have been does not prevent the relitigation of that issue." Roesser v. State , 294 Ga. 295, 297, 751 S.E.2d 297 (2013) (citation and punctuation omitted). But "[t]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality; courts should engage in a practical inquiry based on all the circumstances of the proceeding." Id. (citation and punctuation omitted).

Holt argued before the trial court that because he previously was convicted of theft by receiving of the stolen vehicle, he cannot now be prosecuted for the armed robbery of the woman who had been driving that vehicle. He notes that the current indictment, in charging him with armed robbery, accuses him of unlawfully taking money and a cell phone from the victim's person through the use of a handgun.⁵ He then asserts that the record shows those allegedly stolen items were located inside the vehicle at the time of the alleged robbery. Consequently, he argues, he cannot be found to be the "forceful taker" of the cell phone and money because he already has been adjudicated the "passive receiver" of the car. Holt's argument is unavailing, however, because he has not proven that his prior conviction necessarily established that he did not steal the victim's cell phone and money from her person.

Holt is correct that a conviction for theft by receiving a particular item of property is necessarily premised on a determination that someone other than the defendant took that item. See Redding v. State , 192 Ga.App. 325, 326 (2), 384 S.E.2d 910 (1989). Therefore, the State's prior prosecution of Holt for theft by receiving necessarily determined that he did not steal the Impala. But he currently is charged with stealing different items, specifically the victim's money and cell phone, as well as using a firearm to do so. Holt suggests that the prior determination that he did not steal the car means he cannot be said to have stolen the cell phone and money, either, because they were not taken from the victim's person but were taken by virtue of their location in the vehicle when it was stolen. But the trial court made a contrary factual determination, concluding that it "guess[ed]" the armed robbery took place "at the ATM or on the street." This finding is not clearly erroneous. The State represented to the trial court its understanding that the victim was accosted on the street and that the evidence at trial would show that the armed robbery was completed before Holt made contact with the vehicle she had been driving. Those representations were supported by police reports from officers who responded to the victim's call. One officer reported that the victim told him the suspect had approached her after she used an ATM and was walking back to her car. The officer said the victim told him that the suspect had a handgun and threatened to shoot her if she took another step, whereupon the victim gave the suspect her phone and money, and the suspect took the vehicle she had been driving. Another officer who met with the victim after Holt was apprehended said in her report that the victim identified one of the phones found in the vehicle as the one she was talking on when the suspect approached her. To the extent that other evidence suggested the cell phone and money were in the vehicle all along, the trial court did not clearly err in resolving this conflict in favor of the State.

We acknowledge that the police reports that are part of the record in this case indicate that the alleged victim told police that the same man who took her cell phone and money also drove off in her car. And we are mindful that, in seeking to determine whether any factual determination made in the prior proceeding precludes the current prosecution, we are to examine the proceedings "with realism and rationality." Roesser , 294 Ga. at 297, 751 S.E.2d 297. But we have no testimony from the victim from the prior proceeding, which was resolved with a guilty plea. On this record, we cannot conclude that the prior proceedings definitely determined anything with respect to who stole the victim's phone and money. Collateral estoppel thus does not bar the current prosecution. Compare State v. Fuller , 267 Ga.App. 40, 43–44, 599 S.E.2d 3 (2004) (guilty plea to charge of theft by receiving a stolen vehicle does not bar charge that defendant kidnapped the owner of the vehicle, as the State was "not attempting to relitigate any fact determined in" the prior prosecution), and Maxey v. State , 239 Ga.App. 638, 639–40 (2), 521 S.E.2d 673 (1999) (guilty plea to charge of theft by receiving stolen vehicle does not bar prosecution on charge that defendant burglarized home of the car's owner, as defendant committed the burglary before taking the vehicle, which was not on the premises when he entered the victim's home), with Clark , 144 Ga.App. at 69–70, 240...