People v. Smith, No. 96SC25

• Docket Nº: No. 96SC25
• Citation: 938 P.2d 111
• Case Date: April 28, 1997
• Court: Supreme Court of Colorado

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938 P.2d 111 21 Colorado Journal 603 The PEOPLE of the State of Colorado, Petitioner,
v.
Edgar L. SMITH Respondent. No. 96SC25 Supreme Court of Colorado, En Banc. April 28, 1997.
As Modified on Denial of Rehearing May 19, 1997.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant

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Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner.

John Turner, Colorado Springs, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

Edgar Smith was tried on charges of second degree burglary and theft. The jury acquitted Smith of burglary and was unable to reach a verdict on the theft charge. We granted certiorari in People v. Smith, 919 P.2d 843 (Colo.App.1995), to consider whether the doctrine of collateral estoppel barred reprosecution of Smith for the crime of theft. Because we determine that the burglary acquittal did not definitely and necessarily decide an element necessary to prove the theft charge, we reverse the court of appeals decision and remand with directions to reinstate Smith's theft conviction.

I.

On November 17, 1992, a house in a Colorado Springs neighborhood was burglarized. A resident of that neighborhood called the El Paso County Sheriff's Department to report suspicious activities by someone driving a brown van in the area. A sheriff's deputy located and began following the van. The deputy attempted to stop the van by turning on his emergency lights but the driver of the van accelerated and a chase ensued. The van ultimately crashed into a field. When the deputy reached the van he found it unoccupied with both doors open. Inside the van the deputy located property later determined to have come from the scene of the burglary.

Other law enforcement officers with trained dogs arrived to assist in the search and about twenty minutes after the crash the officers found Edgar Smith hiding in some nearby bushes. The officers found more of the burglarized property on the ground near his hiding place and in the pockets of the jacket he was wearing.

The officers arrested Smith and charged him with second degree burglary, conspiracy to commit second degree burglary, theft, and theft by receiving. At a preliminary hearing, the trial court dismissed the charges of conspiracy and theft by receiving. A jury trial was later held on the second degree burglary and theft charges.

At trial, Smith testified that he did not participate in the alleged burglary. He admitted that he had been in the van, but claimed that his friend Bobby Adams, who was driving the van, was the one who actually committed the burglary and theft. Smith testified that he originally did not know Adams was planning to burglarize the house and that when he learned of the plan he tried to discourage Adams. He stated that he was effectively trapped in the van once the chase began and that when it crashed he fled in fear. As for the jacket with stolen property in the pockets, Smith claimed that it belonged to Adams and he grabbed it to protect himself from the impact just before the van crashed. At the trial, Adams was also called as a witness and he testified that Smith participated in the breaking and entering of the victim's house and the theft of the property.

At the close of the evidence, the trial court instructed the jury on the elements of burglary and theft and also instructed them that Smith could be convicted of either offense as a principal or complicitor. ¹ Finally, the trial court instructed the jury that it could infer from the unexplained possession of recently stolen property that Smith was guilty of burglary and theft, if the jury determined that such an inference was warranted in light of the evidence as a whole. The jury acquitted Smith on the second degree burglary charge but could not reach a verdict on the charge of theft. The trial court declared a mistrial on the theft charge. It then denied Smith's post-trial motion for dismissal of the theft

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charge and this court denied his petition for writ of prohibition.

In November 1993, Smith was re-tried on the charge of theft. At the second trial, the court prohibited the prosecution from presenting any evidence of the burglary except evidence relevant to proving the theft. The court permitted the prosecution to submit the case to the jury on a theory of complicity so long as no evidence was offered to show that Adams or Smith had broken into the victim's home. Neither Smith nor Adams testified at the second trial, and the testimony of the other witnesses differed from that presented at the first trial in that they made no mention of the burglary. The jury found Smith guilty of theft and, because Smith was also determined to be an habitual criminal, the trial court sentenced Smith to life imprisonment.

Smith appealed and the court of appeals reversed his conviction for theft, finding that the doctrine of collateral estoppel barred the State from relitigating the charge of theft against Smith.

II.

In a criminal context, collateral estoppel is an integral part of the concept of double jeopardy. See People v. Allee, 740 P.2d 1, 4 (Colo.1987). The constitutional guarantee against double jeopardy operates to protect an accused from being placed in jeopardy twice for the same offense. See U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18; see also Deutschendorf v. People, 920 P.2d 53, 56-57 (Colo.1996); People v. Allen, 868 P.2d 379, 381-82 (Colo.1994).

However, collateral estoppel and double jeopardy differ and collateral estoppel may be a defense to a prosecution even when, as in this case, double jeopardy does not apply. ² The fundamental principle of collateral estoppel is that the defendant should be protected from having to relitigate an issue of ultimate fact once that issue has been determined by a valid and final judgment. See Wright v. People, 690 P.2d 1257, 1260 (Colo.1984).

Collateral estoppel originated in the context of civil litigation but is applicable to criminal cases as well. See id. We have identified the elements of collateral estoppel in a criminal context as follows:

(1) the issue that the state desires to litigate must be identical to an issue that was actually and necessarily decided in the prior litigation; (2) there must have been a final judgment on the merits of the prior litigation; (3) the state must have been a party to or in privity with a party to the prior litigation; and (4) the defendant seeking to assert collateral estoppel must have been a party to the prior litigation.

Allee, 740 P.2d at 5.

Additionally, the General Assembly has codified collateral estoppel in the criminal code:

(1) Although a prosecution is for a violation of a different provision of law than a former prosecution or is based on different facts, it is barred by the former prosecution under the following circumstances ...

(b) The former prosecution was terminated by an acquittal ... that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense ....

§ 18-1-302(1)(b), 8B C.R.S. (1986).

The United States Supreme Court has cautioned that collateral estoppel is to be applied by the courts with realism and rationality. See Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). When a previous judgment of acquittal was based on a general not guilty verdict, a reviewing court is required to examine the entire record of the prior proceeding in order to determine whether a rational jury could have based its verdict upon a conclusion of ultimate fact other than that which the defendant seeks to preclude. See id. With those various principles in mind, we now turn to an analysis of collateral estoppel as applied to this case.

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III.

In the first trial, Smith was...