Morris v. State

• Decision Date: 17 July 1984
• Docket Number: 3 Div. 700
• Citation: 465 So.2d 1173
• Parties: 24 Ed. Law Rep. 580 Betty MORRIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1173

465 So.2d 1173

24 Ed. Law Rep. 580

Betty MORRIS v. STATE.

3 Div. 700.

Court of Criminal Appeals of Alabama.

July 17, 1984.

Rehearing Denied Aug. 14, 1984.

Paul M. Harden, Monroeville, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Betty Morris was indicted and convicted for embezzling $450 from the Evergreen High School Lunchroom Account in violation of Alabama Code (1975), § 13-3-20. Sentence was two years' imprisonment. Three issues are raised on appeal.

I

Morris contends her trial placed her in double jeopardy and violated her constitutional right of due process because "the evidence presented against her had already been considered by a prior jury in a different indictment in which the Appellant was found not guilty." Morris argues that "the State, by offering this evidence in the original trial in an effort to convict the Appellant, waived [under the doctrine of collateral estoppel] any further right to prosecute with the same evidence."

This appeal stems from the conviction wherein Morris was charged with the offense of embezzlement of Evergreen High School Lunchroom Account check number 196, for $450, dated August 17, 1979, and made payable to Betty Morris.

Morris had been previously tried and acquitted on an indictment charging her with the embezzlement of Colonial Baking Company check number 6160, for $472.08, dated August 10, 1979, and made payable to Evergreen High School. In her pretrial motions raising the defenses of double jeopardy and collateral estoppel, Morris alleged that the State introduced evidence of the $450 check in her trial for the $472.08 check, that her second trial would be based on the same evidence as her first, and that since one jury had already considered the evidence and found her not guilty, further prosecution was barred.

In the trial for the $450 check it was stipulated that three exhibits "were introduced into evidence in a previous trial in which Mrs. Morris' employer was the same as in the instant trial, and in which the defendant was acquitted of embezzlement, as tending to negate inadvertence and as tending to show criminal intent in the previous trial." The three exhibits were the check for $450 (the basis for the conviction and this appeal), the lunchroom ledger sheet, and Evergreen High School Lunchroom Account check 195 for $400 dated August 7, 1979, and payable to Betty Morris. The check for $472.08, which Morris was acquitted of embezzling, was not introduced in her second trial.

The Double Jeopardy Clause of the constitution protects an accused from being twice put in jeopardy for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Since Morris has been prosecuted for separate offenses, the Double Jeopardy Clause of the Fifth Amendment does not bar the second prosecution. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

However, the Double Jeopardy Clause incorporates the doctrine of collateral estoppel, which may bar a retrial even if the crimes are not the same. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Annot., 9 A.L.R.3d 203 (1966). Collateral estoppel "means simply that 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 further lawsuit." Ashe, 397 U.S. at 443, 90 S.Ct. at 1194; Prince v. State, 431 So.2d 565, 568 (Ala.Cr.App.1982), cert. denied, 431 So.2d 568 (Ala.1983). Thus, even when different offenses are charged, and the Double Jeopardy Clause therefore would not normally bar a second prosecution, collateral estoppel may bar the second trial when a fact previously found in the defendant's favor is necessary to the second conviction. Ashe, 397 U.S. at 446, 90 S.Ct. at 1195. Collateral estoppel may also bar the reintroduction of evidence used against a defendant in a prior prosecution when the State is attempting to use the evidence to prove a fact previously found against it. United States v. Johnson, 697 F.2d 735, 740 (6th Cir.1983); United States v. Head, 697 F.2d 1200, 1207-08 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983). "(T)he rule is well settled that the doctrine of collateral estoppel, as applied in criminal prosecutions, precludes the relitigation of issues determined by a former verdict and judgment, that is those issues actually decided and those necessarily involved in the result." 9 A.L.R.3d § 7(a). "Ashe, however, does not prohibit the admission of the same evidence at the second trial, but only prohibits the relitigation of the issues conclusively decided in defendant's favor in the first prosecution." United States v. Woodward, 482 F.Supp. 953, 956 (W.D.Pa.1979). "Evidence introduced in the trial leading to acquittal can be reintroduced in a second trial provided the court finds the fact 'which defendant sought to bar was not previously determined in defendant's favor by the acquittal verdict.' " United States v. Hill, 550 F.Supp. 983, 987 (E.D.Pa.1982). See also Oliphant v. Koehler, 594 F.2d 547 (6th Cir.), cert. denied, 444 U.S. 877, 100 S.Ct. 162, 62 L.Ed.2d 105 (1979).

When a previous judgment of acquittal was based upon a general verdict, the rule of collateral estoppel "requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury would have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' " Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. "When a claim is made that collateral estoppel prevents certain evidence from being admitted at trial, a court must determine what the first judgment decided and then must analyze how that determination bears on the second case. See United States v. Mespoulede, 597 F.2d 329 (2d Cir.1979)." Sabin v. Israel, 554 F.Supp. 390, 391 (E.D.Wis.1983). See also United States v. Webbe, 558 F.Supp. 55, 56 (D.Nev.1983). "The burden, however, is on the defendant in the second case to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict." United States v. Cala, 521 F.2d 605, 608 (2d Cir.1975).

Although defense counsel requested an evidentiary hearing on this issue, the record does not reflect whether he received one. There is no allegation that a hearing was denied. The trial judge's ruling was made at trial: "Mr. Harden [defense counsel], I told you I would give you a continuing exception for collateral estoppel, jeopardy, Fifth Amendment, Fourteenth Amendment, or whatever else you want to raise."

Morris has not demonstrated that the trial judge's adverse ruling constitutes error. "Because the jury in [the first] trial handed down a general verdict of acquittal and no transcript of the proceedings was made, we cannot determine what issues were necessarily determined in that trial. Absent a record so showing, we do not find collateral estoppel applicable here. See Basista v. Weir, 340 F.2d 74 (3d Cir.1965)." State v. Clark, 646 S.W.2d 409, 410 (Mo.App.1983).

The principles of collateral estoppel do not bar the introduction of evidence which has already been introduced in a previous prosecution of the same defendant in which he has been acquitted, where it cannot be determined that the jury in the prior prosecution relied on the evidence in question in acquitting the defendant. United States v. King, 563 F.2d 559 (2d Cir.1977).

"In United States v. Cala, 521 F.2d 605, 608 (2d Cir.1975), we held that the defendant has the burden of establishing that the issue which he seeks to foreclose from consideration was 'necessarily' determined in his favor in a prior prosecution. When the prior proceeding was a jury trial, the burden is a heavy one, since 'it usually cannot be determined with any certainty upon what basis the previous jury reached its general verdict', United States v. Gugliario, 501 F.2d 68, 70 (2d Cir.1974); United States v. Seijo, 537 F.2d 694, 697 (2d Cir.1976), cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977)." King, 563 F.2d at 561.

Here, unlike Johnson, 697 F.2d at 740-41, where the appellate court remanded the cause so that the record could be "augmented" with a transcript of the first trial, no attempt has been made to obtain a record of Morris' first trial and there has been no allegation that the trial judge lacked a sufficient basis to make the collateral estoppel analysis. Morris has done nothing more than prove that some of the same evidence was introduced in both cases. "The party claiming estoppel must make some attempt to define precisely the factual issue necessarily decided in the prior trial." United States v. Kalish, 690 F.2d 1144, 1144, 1155 (5th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983).

In short, Morris has simply failed to carry her burden of proof on this issue. "Since a plea of former jeopardy sets up affirmative matter ..., the burden of proving this issue, from the start, is on the defendant...." 30 Am.Jur.2d Evidence § 1160 (1967). The offense involved in each prosecution was a separate and distinct instance of embezzlement, and "double jeopardy is not violated merely because the same evidence is relevant to show both crimes." State v. Cumber, 32 N.C.App. 329, 232 S.E.2d 291, 297, cert. denied, 292 N.C. 642, 235 S.E.2d 63 (1977). See also Lynch v. Henderson, 469 F.2d 1081 (5th Cir.1972).

Moreover, from the record before this Court, the acquittal of embezzling the Colonial Baking Company check did not necessarily involve a finding of Morris' innocence in embezzling the Evergreen High School Lunchroom Account check, even though the lunchroom account check was introduced in evidence in the first trial to show intent and...