State v. Flittie

• Citation: 318 N.W.2d 346
• Decision Date: 21 April 1982
• Docket Number: No. 13163,13163
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Roger George FLITTIE, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 346

318 N.W.2d 346

STATE of South Dakota, Plaintiff and Appellee, v. Roger George FLITTIE, Defendant and Appellant.

No. 13163.

Supreme Court of South Dakota.

Argued March 24, 1981.

Decided April 21, 1982.

James E. McMahon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen. and Leann Larson Finke, Asst. Atty. Gen., Pierre, on brief.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for defendant and appellant.

WOLLMAN, Chief Justice (on reassignment).

Defendant appeals from his judgment of conviction and sentence on charges of burglary in the first degree and accessory after the fact to murder. We hold that the doctrine of collateral estoppel bars defendant's prosecution and conviction on the charge of aiding and abetting the crime of first-degree burglary, and we reverse the judgment of conviction entered on that charge. We affirm defendant's judgment of conviction on the charge of accessory after the fact to murder.

The charges stem from the death of defendant's mother, Ruth Flittie, on October 10, 1975, in Brookings, South Dakota. Defendant and Tommy Downs were charged by information filed on February 16, 1978, with conspiracy to commit murder and murder. Downs pleaded guilty to the murder charge and was sentenced to life in prison. Defendant pleaded not guilty to both counts. He was convicted by a jury of the conspiracy charge and acquitted of murder. A sentence of five years was imposed on the conspiracy conviction in May 1978. On December 21, 1978, defendant was charged with the crimes here involved.

Defendant argues that the principle of collateral estoppel embodied in the double jeopardy clause of the fifth amendment to the United States Constitution bars this second prosecution. In determining whether offenses are the same for double jeopardy purposes, we have adopted and adhered to the "same evidence test" and have repudiated the "same transaction test." State v. Coe, 286 N.W.2d 340 (S.D.1979); State v. Pickering, 88 S.D. 548, 225 N.W.2d 98 (1975). We have thus aligned ourselves with the United States Supreme Court, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and a majority of states.

The principle of criminal collateral estoppel is embodied in the double jeopardy clause of the fifth amendment to the United States Constitution and as such is enforceable against the states. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Ashe court recognized that while collateral estoppel may be an awkward phrase, it is an important principle in our system of criminal justice. "It means simply that when a 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. When collateral estoppel is raised as a defense to a subsequent prosecution, the reviewing court must:

"[E]xamine 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." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240 . Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings[.]

Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (footnote omitted).

With these dictates in mind, we first consider whether the burglary charge was barred by defendant's acquittal on the murder charge. Defendant argues that the only issue upon which a rational jury could have based his acquittal on the murder charge was whether he had aided and abetted Tommy Downs. He argues that this was also the only issue in contention at his second prosecution on the burglary charge.

An examination of the record of the first trial reveals that defendant did not dispute that his mother had been murdered or that Downs had committed the murder. His only defense was that he had not aided and abetted Downs. The jury that acquitted defendant on the murder charge therefore could not have rationally grounded its verdict on an issue other than whether he had aided and abetted Downs. The evidence establishing the facts and circumstances surrounding the murder charge and the burglary charge was the same at both trials. This in itself is not fatal, as the procedure outlined in Ashe to determine the validity of a collateral estoppel defense does not turn on the evidence introduced but on the issues foreclosed. See Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972). At his trial on the burglary charge, however, defendant did not dispute that Downs had burglarized his mother's house with intent to murder her. Again, his only defense was that he had not aided and abetted Downs in the commission of the crime. We therefore conclude that the issue whether defendant had aided and abetted Downs in the burglary was foreclosed by his previous acquittal on the murder charge, and thus the principle of collateral estoppel barred subsequent prosecution on the burglary charge.

We next consider whether the accessory charge was barred by defendant's conviction on the conspiracy charge. Ashe v. Swenson, supra, and Turner v. Arkansas, supra, turn on the proposition that the doctrine of collateral estoppel operates to bar prosecution on a subsequent charge only if the issue necessary to support a conviction on the subsequent charge was necessarily decided in a defendant's favor at a prior trial. A reading of the record in the first trial convinces us that this was not the situation here:

(1) The information charging defendant with conspiracy stated: "[d]uring the weeks immediately preceding the 10th day of October, 1975, and thereafter until on or about the 10th day of May, 1976" defendant and Tommy Downs conspired to kill Ruth Flittie in violation of SDCL 22-16-4.

(2) Overt Act # 4 under the above conspiracy count stated: "[t]hat thereafter [after October 10, 1975], and from time to time, the said ROGER GEORGE FLITTIE did pay certain sums of money to ... TOMMY EDWARD DOWNS."

(3) Considerable evidence in the first trial was introduced to show that after the murder defendant sent Downs out of state and gave him money.

(4) At closing argument, defendant's attorney all but admitted that defendant was involved after the fact.

(5) The trial court instructed the jury, in part, as follows:

The substance of the charge in Count I is that during the weeks immediately preceding the 10th day of October, 1975, and thereafter until on or about the 10th day of May, 1976, within Brookings County, South Dakota, the defendant did willfully, intentionally, conjointly, and feloniously conspire with one Tommy Edward Downs to commit the crime of murder, in that said Tommy Edward Downs and Roger George Flittie did conspire and plan the taking of the life of one Ruth K. Flittie, mother of the defendant, thereby enabling him to inherit from his mother's estate, and that pursuant to said plan, the defendant agreed to pay the said Tommy Edward Downs for the killing of his mother, and one or both of said parties did an act to effect the object of the conspiracy to murder one human being, to wit: Ruth K. Flittie.

It is evident that the jury in the first trial convicted defendant on the conspiracy charge based on his post-murder conduct. We cannot say that any of the issues necessary to a conviction on the accessory after the fact to murder charge were necessarily decided in defendant's favor at the first trial. Consequently, the doctrine of collateral estoppel did not prevent the State from prosecuting defendant on the accessory charge in a separate action.

The other issue we must decide is defendant's claim that the trial court erred when it ordered that the sentence on the accessory after the fact to murder conviction run consecutively to the sentence defendant was already serving on his earlier conviction of conspiracy to commit murder.

SDCL 22-6-6.1 reads: "If a defendant has been convicted of two or more offenses before judgment on either, the judgment may be that the imprisonment on either one may commence at the expiration of the imprisonment upon any other of the offenses." It is apparent that the purpose of the statute is to limit a court's power to impose consecutive sentences to situations described in the statute. Since judgment had already been entered on the conspiracy conviction, the trial court was without power to order that defendant's sentence on the accessory...