Johnson v. Estelle
Decision Date | 09 January 1975 |
Docket Number | No. 73-3945,73-3945 |
Citation | 506 F.2d 347 |
Parties | Billy Lee JOHNSON, Petitioner-Appellant. v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Harry H. Walsh, Huntsville, Tex., for petitioner-appellant.
Robert C. Flowers, Dunklin Sullivan, Asst. Attys. Gen., Gilbert Pena, Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
This case presents a good illustration of the perils of double jeopardy. On May 23, 1967 Billy Lee Johnson was found not guilty of the crime of 'burglary of a private residence at nighttime with intent to commit rape.' Five months later he was convicted of 'assault with intent to commit rape,' on charges stemming from the same incident for which he was acquitted in his first trial. He was sentenced to 99 years in jail.
His conviction was upheld on direct appeal, Johnson v. State, Tex.Cr.App. 1968, 432 S.W.2d 98, and his subsequent petitions for a writ of habeas corpus were denied in State and federal district courts. He appeals to this Court for his writ. Today we find that the issues presented in the second trial substantially duplicated those presented in the first trial. We cannot conclude that a rational jury would have acquitted or convicted defendant on the basis of the differences between the proof necessary to substantiate each indictment.
Unfortunately, our knowledge of the facts and the legal issues presented to the jury in the first case is limited. This Court was advised, after it had received no transcript from the first proceeding, 'that no further transcripts are available in the above-styled cause'. Letter to the Court, Sept. 25, 1974, from District Court for Northern District of Texas. Our knowledge of the testimony at the first trial is limited to stipulations between defense attorney and prosecutor about the testimony of the prosecuting witness and the police officer who conducted the initial investigation.
Those stipulations are:
.
The stipulated testimony of the police officer was:
.
We also have a transcript of the instruction which the judge gave the jury in this first case. We will refer to it below as it elucidates particular points.
In Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, the Supreme Court held that the Fifth Amendment guarantee against double jeopardy was enforcible against the states through the Fourteenth Amendment. The following term, the Court held that collateral estoppel is part of the Fifth Amendment double jeopardy prohibition. Ashe v. Swenson, 1970, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. 'When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. The Court in Ashe went on to say that where the jury in the first trial had returned a general verdict, a court reviewing for duplication of issues must:
Examine the record of a 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.
397 U.S. at 444, 90 S.Ct. at 1194, 23 L.Ed.2d at 475-476, quoting Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 1960, 74 Harv.L.Rev. 1, 38-39.
Ashe was acquitted in his first trial of robbery of one of the players in a poker game. He was then tried and convicted for robbing another player in the game. Since the only controverted issue in each trial was the identity of the robber, the Court held that the second trial, by requiring relitigation, had put the defendant in double jeopardy.
As noted by the United States Magistrate in the present case, there are two issues upon which the jury in the first trial could have based its acquittal, which were controverted in the second trial. One was the identity of Mrs. Crandall's assailant and the other was the intention of that assailant to commit rape. The State argues that Ashe applies only where one issue is in question in both trials.
We disagree with the State. Application of the rule depends upon whether some issue necessary for the prosecutions' case in the second trial has necessarily been found for the defendant in the first trial. See Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180. Thus the fact that either identity or intent could have been the basis for the first jury's decision does not foreclose the application of Ashe v. Swenson, because both factors would have to be proven in order to convict at the second trial. Where a determination of innocence on one of two issues was the cause of an acquittal and a determination of guilt on both issues is necessary for a subsequent conviction, the State is estopped from bringing the action.
The State contends, however, that a 'rational jury' could have based its decision in the first trial on the State's failure to establish essential elements not in controversy in the second trial. If this is in fact the case, then the double jeopardy criterion would, of course, not apply.
In the present case we find that no rational jury could have acquitted on the basis of the different 'issues' presented in the first trial, absent a defendant's reliance on those factors. 1 The State cannot produce a record here showing such reliance. 2 The State's suggested bases for acquittal in the first trial are nothing more than the sheerest speculation.
There are three components of a 'burglary of a private residence at nighttime with intent to commit rape' charge which are not involved in an 'assault with intent to commit rape' charge and upon which the State believes the jury in the first trial could have based its verdict of acquittal. They are: '((1)) the...
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