State v. Swearingin, 10597

• Decision Date: 22 March 1978
• Docket Number: No. 10597,10597
• Citation: 564 S.W.2d 351
• Parties: STATE of Missouri, Respondent, v. Jackie E. SWEARINGIN, Appellant.
• Court: Missouri Court of Appeals

Page 351

564 S.W.2d 351

STATE of Missouri, Respondent, v. Jackie E. SWEARINGIN, Appellant.

No. 10597.

Missouri Court of Appeals, Springfield District.

March 22, 1978.

Motion for Rehearing or Transfer Denied April 10, 1978.

Application to Transfer Denied May 9, 1978.

Robert H. Handley, Springfield, for appellant.

John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Defendant Jackie E. Swearingin, charged as a second offender (§ 556.280), ¹ was found guilty by a jury of murder in the second degree (§ 559.020), and was sentenced by the court to 40 years' imprisonment. Defendant appeals.

On June 19, 1976, in a bar known as the Jockey Club in Springfield, Missouri, Larry Brown was stabbed with a knife during a brawl. He died six days later as a direct result.

On July 29, 1976, a felony information was filed, naming appellant and his brother Ricky Swearingin as defendants. Each filed a motion for separate trial and separate trials were ordered. In November 1976 Ricky Swearingin was found guilty of manslaughter in connection with the death of Larry Brown and received a sentence of two years.

The amended information against defendant, upon which the instant case was tried, in addition to alleging a prior conviction, charged the defendant with the murder of Larry Brown. That information is the only one shown in the instant record. The original information filed against the two defendants is not shown and this record does not contain any portion of the proceedings in the case against Ricky. Defendant's trial took place in January 1977.

Defendant's brief contained six "points relied on." In the argument portion of his brief under four of those points, defendant makes repeated references to Ricky's case and alleged happenings therein. Only Ricky's conviction of manslaughter and his sentence of two years therefor are supported by this record. Defendant alludes, however, to other features of Ricky's case, none of which is shown in this record. Those features include pleadings, evidence, instructions and arguments of counsel.

Defendant's brief says that "the central issue in this appeal is the state's improper conduct in attempting to convict defendant of the crime committed by Ricky." Seeking to invoke the doctrine of res judicata, defendant argues that the degree of the offense of which Ricky was convicted, the length of Ricky's sentence, and the unsubstantiated happenings in Ricky's case all have controlling effect upon the state's case against defendant. Defendant suggests that this court "call up the file" in Ricky's case in order to verify defendant's assertions of what took place in those proceedings.

Rule 84.03 provides, in part, that this court "may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits." In State v. Collett, 526 S.W.2d 920, 927-929 (Mo.App.1975) the defendant filed a motion asking the court of appeals to order the clerk of the circuit court to send up the record in a case against a fellow criminal. The court denied the motion and held that Rule 84.03 did not authorize its sustention. The court said, at p. 929, "(Rule 84.03) authorizes us to require the clerk to send up a complete transcript or a portion thereof or any original documents or exhibits in the case tried before the circuit court and does not authorize us to order up any and all matters that may have some relation to the cause on appeal." (emphasis added) On the same page the court said, "We may consider only those matters presented on the record made in the lower court."

In addition to the foregoing procedural obstacle confronting defendant, there are deeper and more compelling reasons for rejecting his contention that various aspects of the case against Ricky have controlling effect upon this case.

The evidence in the case at bar showed that defendant and Ricky jointly participated in the barroom brawl during the course of which Larry Brown was fatally stabbed. Although there was evidence offered by the defendant showing that Ricky, rather than defendant, was the man who fought Brown, the state's evidence was overwhelmingly to the effect that defendant alone was Brown's assailant and that it was defendant, and not Ricky, who inflicted the mortal wound. One witness testified that he knew defendant fought Brown and that he thought Ricky did so.

In support of his assertion that Ricky's conviction of manslaughter is a bar to defendant's conviction for a higher degree of homicide, defendant relies upon res judicata. Such reliance is unwarranted for the reason that defendant was not a party to the separate trial against Ricky and was in no way affected by the judgment and sentence therein. State v. Couch, 341 Mo. 1239, 111 S.W.2d 147, 150(9-11) (1937); State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 558(2-4) (Mo.1950). See also State v. Aubuchon, 381 S.W.2d 807, 815(14-17) (Mo.1964). ² A judgment in a criminal case operates as res judicata in a second criminal case only where the parties to both proceedings are identical. United States v. Musgrave, 483 F.2d 327, 332(2, 3) (5th Cir. 1973); Smith v. United States, 243 F.2d 877 (6th Cir. 1957); Anno. 9 A.L.R.3d 203, 218 (Res Judicata Criminal Cases). It is also true that defendant was not placed in jeopardy by the conviction of his co-perpetrator Ricky. United States v. Coppola, 526 F.2d 764, 776(19) (10th Cir. 1975).

In State v. Couch, supra, one DeMore pleaded guilty to a murder charge and was sentenced to the penitentiary. Later defendant was charged with the same offense. The state's evidence showed that only one person committed the offense. Defendant relied upon DeMore's conviction to bar his own. In rejecting that contention the court said, at 111 S.W.2d p. 150, "The conviction of DeMore for the offense charged could not be pleaded in bar by appellant, because appellant was not a party to that prosecution and was in no way affected by that judgment. Whether DeMore was rightfully or wrongfully convicted was no concern of appellant's." The court also said, "The issue before the court and jury was the guilt or innocence of appellant and not of DeMore."

In State v. Bradley, supra, defendant was convicted of murder in the first degree. Co-perpetrators of the same murder, prosecuted in separate cases, were convicted of murder in the second degree. The court rejected defendant's contention that the degree of the crime for which his co-perpetrators were convicted was res judicata in his case. The court said, at 234 S.W.2d p. 558, "Defendant-appellant was not a party defendant in the (co-perpetrators') cases . . . The disposition of (the co-perpetrators' cases) to which he was not a party, was of no concern to defendant herein." (emphasis in original) The court also held that the judgments in the co-perpetrators' cases "could not have been pleaded in bar by defendant, nor was evidence of the disposition of those cases admissible in the instant case."

Although defendant does not specifically refer to the doctrine of "collateral estoppel," it is clear from his brief's general tenor that he is advancing that theory in support of his claim that certain aspects of the proceedings against Ricky affect the case at bar.

" 'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It 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." (emphasis added) Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970).

The doctrine of collateral estoppel, as it pertains to criminal cases, was discussed at length by the Supreme Court of Pennsylvania in Com. v. Brown, 375 A.2d 331 (Pa.1977). Citing numerous authorities ³ from many jurisdictions, the court said, at p. 334:

"Collateral estoppel principles may be applicable in some criminal cases as well as civil cases, but the scope of the doctrine as applied in criminal cases is not coextensive with that applied in civil cases, particularly where, as here, collateral estoppel is invoked on behalf of a defendant who was not a party to the prior adjudication. See generally Annot., 9 A.L.R.3d 203 (1966). Traditionally, collateral estoppel has been limited by, inter alia, the rule of mutuality; that is, collateral estoppel does not operate unless the party seeking to take advantage of it would have been likewise bound by an adverse judgment in the prior adjudication. In the context of civil litigation, this mutuality requirement has been eroded in recent years and the modern trend has been for courts to abandon it. . . . In the context of criminal litigation, however, the concept of mutuality has retained its vitality. Collateral estoppel has generally been applied only in those criminal cases involving defendants who were parties to the prior adjudication. . . . The majority rule remains that a judgment of acquittal of one criminal defendant does not prevent the relitigation of an issue or controversy in the prosecution of another criminal defendant, even though the same transaction is involved." (emphasis added)

This court concludes that the separate proceedings against Ricky have no effect upon the instant case and that defendant's reliance upon the doctrines of res judicata, double jeopardy, and collateral estoppel is not justified. Accordingly, the following discussion of defendant's points lays aside those arguments of defendant which are based on what he claims to have transpired in Ricky's case.

Defendant's first point is that the trial court erred in overruling defendant's motion for acquittal, offered at the close of the state's evidence and renewed at the close of all the...