State v. McKenzie

• Decision Date: 07 March 1977
• Docket Number: No. 64,64
• Citation: 232 S.E.2d 424,292 N.C. 170
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny Blue McKENZIE.

Page 424

232 S.E.2d 424

292 N.C. 170

STATE of North Carolina v. Johnny Blue McKENZIE.

No. 64.

Supreme Court of North Carolina.

March 7, 1977.

Rufus L. Edmisten, Atty. Gen., by Jesse C. Brake, Associate Atty., Raleigh, for the State.

Dock G. Smith, Jr., and Richard G. Roose, Robbins, Robert A. Melott, Raleigh, for defendant-appellant.

EXUM, Justice.

The most significant issue on this appeal is whether on a prosecution in superior court for involuntary manslaughter arising from an automobile accident the state may rely on defendant's driving while under the influence of intoxicants in violation of General Statute 20--138(a) when defendant had been earlier acquitted of this offense in the district court. The Court of Appeals answered the issue affirmatively. We disagree. We note, however, that defendant did not properly raise at trial his former district court acquittal as a bar to any proceeding in the superior court. He therefore waived the double jeopardy defense he would otherwise have had. While we agree with defendant's substantive position on the issue presented we conclude nevertheless that there was no error in his trial.

Defendant was originally charged in district court with operating a motor vehicle on the public highway while under the influence of intoxicating liquor in violation of General Statute 20--138(a). The charge arose out of an automobile accident on 11 July 1975 in which the automobile defendant was operating struck and killed one John Chriscoe, a bicyclist. In district court he was convicted of operating a motor vehicle with a blood alcohol content of .10 percent, a violation of General Statute 20--138(b) and by statute, a lesser included offense of driving under the influence. G.S. 20--138(b). The conviction of the lesser offense constituted an acquittal in the district court of the greater offense. See State v. Miller, 272 N.C. 243, 158 S.E.2d 47 (1967); State v. Broome, 269 N.C. 661, 153 S.E.2d 384 (1967); G.S. 15--170. Defendant appealed his conviction to superior court for trial De novo. An indictment having also been returned in superior court charging him with involuntary manslaughter, the two cases were consolidated for trial. The jury returned a verdict of guilty in both cases and defendant was sentenced to not less than three nor more than five years imprisonment.

Two of defendant's assignments of error are directed to the denial of his motion for judgment of nonsuit at the close of the state's evidence and at the close of all the evidence, his motion to set aside the verdict as being contrary to the weight of the evidence, and his motion for a new trial for errors committed. Other assignments claim error in certain jury instructions.

Several assignments of error directed to the jury instructions present defendant's main contention that it was error for the court to allow the jury to consider whether defendant violated General Statute 20--138(a) in the manslaughter case. In its charge to the jury on involuntary manslaughter, the court instructed on possible violations of several safety statutes, including General Statute 20--138(a) (driving under the influence of intoxicating liquor) and General Statute 20--140(c) (operating a motor vehicle on a public highway 'after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle'). No objection was made at trial to any instruction given, nor is there any indication in the record that any instruction other than those given was requested. Exceptions were taken and error assigned on appeal to those portions of the charge relating to General Statute 20--138(a) but no exception is addressed to the charge as it relates to General Statute 20--140(c). (The evidence required to convict under one would necessarily be similar, if not identical, to that required to convict under the other.)

In his argument that his acquittal of a violation of General Statute 20--138(a) should foreclose submission of that statute to the jury as a potential gravamen for the involuntary manslaughter charge, defendant relies upon the constitutional protection against double jeopardy as it may embody the doctrine of res judicata and collateral estoppel. In his dissenting opinion, Judge Clark of the Court of Appeals relied on State v. Heitter, 7 Storey 595, 57 Del. 595, 203 A.2d 69, 9 A.L.R.3d 195 (1964), a case much like that at bar, in which a former acquittal by a justice of the peace of two statutory misdemeanors of reckless driving and driving while intoxicated was held to bar prosecution for manslaughter upon counts in the indictment alleging Those acts. The manslaughter prosecution on other counts was held not to be barred. The Supreme Court of Delaware held in Heitter that '(i)t is a well-settled rule of law that the doctrine of res judicata is available to a defendant in a criminal proceeding,' 203 A.2d at 71, Citing Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948) and United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916). The Court went farther still, rejecting an older rule set forth in State v. Simmons, 9 Terry 166, 48 Del. 166, 99 A.2d 401 (1953) that there was 'no actual 'jeopardy' since the magistrate (in the first trial) did not have jurisdiction over the manslaughter charge' as 'an excessively rigid interpretation of the meaning of the word jeopardy.' 203 A.2d at 73. The Court further noted that the test of applicability of double jeopardy depends not only upon whether the second prosecution arose from the same transaction as the first, but 'whether or not the evidence in support of the original charge is absolutely essential to support a conviction of the second charge.' Id. at 72. An annotation at 9 A.L.R.3d 203 points out the variances in the law at the time of Heitter, nothing the increasingly frequent application of Res judicata principles, including the doctrine of collateral estoppel, in criminal proceedings. This Court seems to have recognized the doctrine but concluded it was not applicable to the facts before it in State v. Midgett, 214 N.C. 107, 198 S.E. 613 (1938).

As predicted in the annotation at 9 A.L.R.3d 203, the United States Supreme Court thereafter held the Double Jeopardy Clause of the Fifth Amendment to be enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed. 707 (1969). Thereafter the Supreme Court held that the Double Jeopardy Clause entitled defendants in state criminal proceedings to the benefit of the collateral estoppel doctrine. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, the Supreme Court held defendant's prior acquittal of robbing one victim barred his later prosecution for robbing another victim in the same occurrence where the record of the first trial disclosed defendant's identity as one of the perpetrators to be the sole material issue. The Court said 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 future lawsuit.' 397 U.S. at 443, 90 S.Ct. at 1194. The Court observed further, Id. at 444, 90 S.Ct. at 1194:

'The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach 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 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, 92 L.Ed. 180. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.'

It concluded then that the 'established rule of federal law'--the doctrine of collateral estoppel--'is embodied in the Fifth Amendment guarantee against double jeopardy.' Id. at 445, 90 S.Ct. at 1195.

In light of these decisions, particularly Ashe v. Swenson, it seems to us that the acquittal of a defendant even in district court precludes the state from relitigating in a subsequent prosecution any issue Necessarily decided in favor of the defendant in the former acquittal. Sometimes it is difficult to ascertain whether on a general verdict the issue in question was necessarily decided in favor of defendant. As the Supreme Court in Ashe noted, it may require an examination of the entire record of the earlier proceeding. The burden of demonstrating this crucial proposition is, as we shall show, upon the defendant. The warrant and judgment in the district court proceeding lead inescapably to the conclusion that the issue of whether defendant on the occasion in question was 'under the influence' was necessarily answered in his favor in the district court trial. Defendant, however, never brought this proposition to the attention of the superior court at any stage of the proceedings in that court.

The procedure required in criminal trials to assert a double jeopardy defense is well established, both in North Carolina and in other state and federal courts. See, e.g., 4 Strong, N.C. Index 3d, Criminal Law § 26.1; Annot., 9 A.L.R.3d 203; 22 C.J.S. Criminal Law § 277; 21 Am.Jur.2d, Criminal Law § 473. The general rule is that the defense of double jeopardy is not jurisdictional. See, e.g., People v....