State v. Jackson

• Decision Date: 17 May 1976
• Docket Number: No. 57307,57307
• Parties: STATE of Louisiana v. Harriet Marie JACKSON.
• Court: Louisiana Supreme Court

Page 755

332 So.2d 755

STATE of Louisiana v. Harriet Marie JACKSON.

No. 57307.

Supreme Court of Louisiana.

May 17, 1976.

Rehearing Denied June 18, 1976.

Ronald J. Rakosky, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falkenheiner, Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

Defendant was indicted, tried and convicted of aggravated burglary, a violation of R.S. 14:60. She was sentenced to twelve years imprisonment at hard labor. From this conviction and sentence she appeals, raising a single assignment of error.

On July 16, 1973 Dana Ashley Magee, a young baby, was forcefully taken from her home by two armed and disguised men. They also took money and weapons belonging to the Magees, and departed in the Magees' automobile. They were chased by law enforcement officials and, as a result of this chase, one of the kidnappers was killed and another captured. Ultimately, two other men who had participated were captured. The child was returned unharmed.

Defendant, a part time domestic worker for the Magees, was indicted as a principal because she allegedly allowed two of the kidnappers into the guest residence of the Magee home the day before the kidnapping where they waited until the planned time.

On August 21, 1973 the grand jury for the Parish of Concordia returned true bills against defendant for aggravated kidnapping, armed robbery and criminal conspiracy. She was tried on January 14, 1974 for aggravated kidnapping. After a four day trial, the jury returned a responsive verdict of guilty of simple kidnapping. She was sentenced to five years imprisonment and a fine of $2000.

From her conviction and sentence, she appealed to this court. Due to the erroneous admission into evidence of a confession obtained in violation of her Sixth Amendment right to counsel as announced in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we reversed and vacated the conviction and sentence. State v. Jackson, 303 So.2d 734 (La.1974).

On remand, the grand jury was again convened, and on April 9, 1975 it returned true bills against defendant for aggravated burglary, armed robbery and aggravated kidnapping. She was tried on September 15, 1975 on the charge of aggravated burglary. A verdict of guilty was returned and defendant was sentenced to twelve years imprisonment at hard labor with credit for time served.

Defendant's conviction of aggravated burglary was not barred by double jeopardy due to her earlier but never final conviction of simple kidnapping.

The Fifth Amendment to the federal Constitution provides the following prohibition: '. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.'

Similarly, Art. 1, § 15 of the Louisiana Constitution of 1974 provides: '. . . No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustaifned.'

In Ball v. United States, 163 U.S. 662, judgment is sustained.' (1896), the United States Supreme Court held that the effects of double jeopardy do not attach to a conviction overturned on appeal:

'. . . it is quite clear that a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted. . . .'

We recognized this principle early. State v. McGarrity, 140 La. 436, 73 So. 259 (1916); State v. Walters, 16 La.Ann. 400 (1862). It is recognized in the language of Louisiana's current Constitution: '. . . except on his application for a new trial . . .;' and the legislature has codified it in C.Cr.P. 591.

Thus, defendant's conviction for simple kidnapping, reversed on appeal, cannot form the basis for her claim of double jeopardy.

Nor does the doctrine of collateral estoppel prohibit defendant's second trial. Collateral estoppel applies 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. Ashe v Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

Although defendant appealed her conviction of simple kidnapping, the fact that the jury returned the lesser included verdict to the charge of aggravated kidnapping constitutes a final acquittal on the more serious charge. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); C.Cr.P. 598. Thus, the effects of collateral estoppel apply to those elements which differentiate aggravated kidnapping from simple kidnapping, aspects which are not essential to the crime of aggravated burglary.

However, because of grounds raised by defendant during the motion to quash and at oral argument before this court, our inquiry does not end here.

Defendant contends the increased penalty imposed after her second trial contravened the due process clause of the Fourteenth Amendment. Her argument derives substantially from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

In the former case, Pearce successfully attacked his first conviction and the sentence imposed thereunder. On retrial for the same offense, Pearce was again convicted, but a harsher sentence was imposed and no reasons were given for the increase. Concerned that the unexplained increase in sentence might evidence vindictiveness by the sentencing court, the Supreme Court found that this procedure unconstitutionally deterred Pearce's right to appeal or attack collaterally the first conviction:

'Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

'In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.' 395 U.S. 711, 725--726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656.

Following North Carolina v. Pearce, supra, there were other similar attacks: Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); and, more recently, Blackledge v. Perry, supra.

Perry was a North Carolina prison inmate who became involved in an altercation with another inmate and was subsequently charged and convicted of assault with a deadly weapon, classified a misdemeanor. He was sentenced to six months imprisonment to be served after completion of the prison term he was then serving. Under North Carolina law, defendant had a right to appeal by a trial de novo in which the prosecution and defense would begin anew, the former conviction being automatically annulled. After Perry filed his notice of appeal, the prosecutor obtained an indictment charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. This indictment covered the same conduct upon which Perry had been convicted in the misdemeanor prosecution. To this increased charge Perry pleaded guilty and a sentence was imposed incarcerating him for seventeen months beyond the expiration of the term he was then serving.

The United States Supreme Court granted writs to decide whether the opportunity for vindictiveness in the Perry situation required a rule analogous to that of North Carolina v. Pearce, supra. Though no evidence was adduced tending to show the prosecutor acted in bad faith, the court noted that the reasoning of Pearce was to avoid the undue 'fear of such vindictiveness.' The court held:

'. . . A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

'Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the...