Percy v. State of South Dakota

• Decision Date: 04 June 1971
• Docket Number: No. 19672.,19672.
• Citation: 443 F.2d 1232
• Parties: In the Matter of the Petition of Dale Percy for a Writ of Habeas Corpus. Dale PERCY, Appellant, v. STATE OF SOUTH DAKOTA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.2d 1232 (1971)

In the Matter of the Petition of Dale Percy for a Writ of Habeas Corpus.

Dale PERCY, Appellant, v. STATE OF SOUTH DAKOTA, Appellee.

No. 19672.

United States Court of Appeals, Eighth Circuit.

June 4, 1971.

Timothy J. Nimick, Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., on brief for appellant.

Gordon Mydland, Atty. Gen., and Edward M. Blando, Asst. Atty. Gen., Pierre, S. D., on brief for appellee.

Before MATTHES, Chief Judge, VAN OOSTERHOUT and HEANEY, Circuit Judges.

MATTHES, Chief Judge.

This is an appeal from an order of the United States Court for the District of South Dakota denying appellant's petition for a writ of habeas corpus under 28 U.S.C. § 2254. Appellant was convicted of indecent molestation of a five year old child in violation of S.D.C. 1960 Supp. § 13.1727 in the Circuit Court of Pennington County, South Dakota on January 31, 1961. Thereafter, on the basis of this conviction and his prior criminal record, he was sentenced to forty years in the state penitentiary under the state habitual criminal statute. On appeal to the South Dakota Supreme Court, the conviction was reversed on the ground that certain expert testimony which went to prove appellant's intent to commit the crime was erroneously admitted. State v. Percy, 80 S.D. 1, 117 N.W.2d 99 (1962).

On February 8, 1963, appellant was charged with kidnapping in violation of S.D.C. 1960 Supp. § 13.2701. This charge was based on the same event or transaction as the reversed indecent molestation conviction. Appellant was found guilty by a jury of kidnapping and was sentenced by the court to life imprisonment. His conviction was affirmed on appeal to the South Dakota Supreme Court. 81 S.D. 519, 137 N.W. 2d 888 (1965). His subsequent petitions for state habeas corpus relief were denied in the state courts. 83 S.D. 257, 158 N.W.2d 241 (1968).

Two issues are presented on this appeal: 1) whether appellant's Fifth Amendment right not to be twice placed in jeopardy was violated by his retrial for kidnapping, and 2) whether appellant was denied Due Process as guaranteed by the Fourteenth Amendment because a harsher punishment was imposed on the kidnapping conviction than had been received on the reversed indecent molestation conviction. We consider each of these questions seriatim.

Prior to an examination of the merits of appellant's double jeopardy claim, we take cognizance that in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969) the Supreme Court held that the Fifth Amendment prohibition of double jeopardy applies to the states through the Fourteenth Amendment and that "the same constitutional standards apply against both the State and Federal Governments." Id. at 795, 89 S.Ct. at 2063. Since appellant's conviction was final prior to the decision in Benton, supra, his invocation of the protection of that decision is dependent upon the retrospectivity of the Supreme Court's ruling. However, because we find that appellant was not twice placed in jeopardy, it is unnecessary for us specifically to determine the retroactivity of Benton. Nevertheless, we note parenthetically that in a footnote to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court stated:

"There can be no doubt of the `retroactivity\' of the Court\'s decision in Benton v. Maryland. In North Carolina v. Pearce, 395 U.S. 711 89 S.Ct. 2072, 23 L.Ed.2d 656, decided the same day as Benton, the Court unanimously accorded fully `retroactive\' effect to the Benton doctrine."

Id. at 437, n. 1, 90 S.Ct. at 1191. Other Circuits considering the question have also given Benton retrospective application. Tipton v. Baker, 432 F.2d 245 (10th Cir. 1970); United States ex rel. Brown v. Hendrick, 431 F.2d 436 (3rd Cir. 1970); Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970).

The double jeopardy clause of the Fifth Amendment provides that no person shall "* * * be subject for the same offense to be twice put in jeopardy of life or limb * * *." However, it is well-established that no violation of the protection of the Double Jeopardy Clause occurs where a defendant is retried after his conviction is set aside on his request due to an error in the proceedings. United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 15 L. Ed.2d 627 (1966); United States v. Tateo, 377 U.S. 463, 465, 473-474, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). See also, Price v. Georgia, 398 U.S. 323, 326-327, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Houp v. Nebraska, 427 F.2d 254 (8th Cir. 1970).

Appellant does not claim that he was twice tried for the same offense, but presents a multi-pronged argument urging that his trial for kidnapping was based upon the same facts adduced at his previous trial for molestation and thus in violation of the double jeopardy provision, that kidnapping includes the offense of indecent molestation, and that under the rationale of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199 (1957) he did not, by successful appeal of the molestation conviction, waive the right not to be tried for kidnapping.

Indecent molestation is defined by S. D.C. 1960 Supp. § 13.1727:

"Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fifteen years, with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child, shall be guilty of the crime of indecent molestation."

The offense of kidnapping is defined in S.D.C. 1960 Supp. § 13.2701 as follows:

"Whoever shall seize, confine, inveigle, decoy, kidnap, abduct or carry away any person and hold or detain such person for ransom, reward, or otherwise, except in the case of an unmarried minor by a parent thereof, shall be guilty of kidnapping * * *."

In Blockburger v. United States, 284 U. S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court held:

"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not."

Id. at 304, 52 S.Ct. at 182.

Clearly, South Dakota's kidnapping and indecent molestation statutes each require proof of facts which the other does not. And, contrary to appellant's contention, the evidence introduced at the two trials was not identical. At the first trial for indecent molestation, the state offered testimony of a supposed expert witness to prove that the act of molestation was committed with the intent specified in the statute. In reversing this conviction on appeal, the South Dakota Supreme Court found that this witness was not a qualified expert and that her testimony should have been stricken. The court held that in cases arising under the molestation statute "the critical issues * * * are the nature of the act and the intent with which it was done," and that without the evidence which the court found to be inadmissible, there was not sufficient proof bearing on appellant's intent to sustain the conviction. State v. Percy, 80 S.D. 1, 117 N.W.2d 99, 101 (1962). At appellant's subsequent trial for kidnapping, this evidence was not introduced, and was, of course, not necessary to prove the offense of kidnapping.

Since the submission of this appeal, the Supreme Court has held that the double jeopardy clause of the Fifth Amendment, now applicable to the states, incorporates the rule of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The doctrine "* * * 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 future law suit." Id. at 443, 90 S.Ct. at 1194. At his first trial, Ashe had been found not guilty of the armed robbery of one of a group of persons who had been victimized at the same time. The State then prosecuted him for armed robbery of another of the persons who had been robbed. Applying the rule of collateral estoppel, the Supreme Court held that the second prosecution was barred, because at both trials "the single rationally conceivable issue in dispute before the jury was whether petitioner had been one of the robbers." Id. at 445, 90 S.Ct. at 1195. And, this issue had been finally resolved in petitioner's favor by the jury's verdict of acquittal at the first trial.

For several reasons there is no basis for applying the doctrine of collateral estoppel to this case. Even though the evidence at both of appellant's trials was similar, the essence of the offense of indecent molestation, and the issue before the jury at the first trial, was whether appellant had willfully committed a lewd act upon the child with the intent of appealing to the lust of himself or his victim. The gravamen of the offense of kidnapping submitted to the jury at the second trial, was whether appellant had unlawfully seized and detained the child. Compare, United States ex rel. Brown v. Hendrick, supra, at 439. Furthermore, even if we were to assume that the essential elements of kidnapping were incidentally determined at the first trial, Ashe would not control because here, as distinguished from Ashe, the jury found appellant guilty. See United States v. DeMarrias, 441 F. 2d 1304 (8th Cir. 1971).

Secondly, appellant posits the theory that under the unique circumstances of this case, indecent molestation is included within the greater offense of kidnapping, and that his conviction on the lesser offense barred the state from prosecuting him for kidnapping. This theory is premised upon the contention that because the South Dakota statute defines kidnapping as the abduction and holding of a person for "ransom, reward or otherwise," it is necessary to prove...