State v. Tate

• Citation: 220 S.E.2d 741,136 Ga.App. 181
• Decision Date: 20 October 1975
• Docket Number: No. 50825,No. 2,50825,2
• Parties: The STATE v. J. P. TATE
• Court: United States Court of Appeals (Georgia)

Page 741

220 S.E.2d 741

136 Ga.App. 181

The STATE v. J. P. TATE.

No. 50825.

Court of Appeals of Georgia, Division No. 2.

Oct. 20, 1975.

Richard E. Allen, Dist. Atty., Sam B. Sibley, Jr., Asst. Dist. Atty., Augusta, for appellant.

Harrison, Jolles & Miller, Howard S. Bush, Augusta, for appellee.

CLARK, Judge.

Questions involving double jeopardy and collateral estoppel are presented to this court by the State's appeal from the dismissal of its indictment charging defendant with rape and kidnapping.

Defendant had been previously tried on a two-count indictment dated September 17, 1974 arising from the same set of occurrences. Count one of this first indictment charged defendant with armed robbery, alleging that he, 'unlawfully with force of arms, with the intent to commit theft, took from the person of (the named victim) the following property, to wit: brown purse of the property of (the named victim), of the value of $1.00, by use of a pistol, the same being an offensive weapon.' Count two of this indictment charged rape in that the accused, 'did have carnal knowledge of (the named victim) a female, forcibly and against her will.'

On October 4, 1974, defendant went to trial on these charges, asserting mistaken identity and raising a defense of alibi. The jury acquitted defendant of armed robbery and announced that it was unable to reach a unanimous verdict on the rape charge. The trial judge then declared a mistrial as to the count of rape.

Thereafter, on January 21, 1975, a new indictment was returned charging defendant with the offenses of rape and kidnapping as to the same victim on the same date as in the first indictment. The State's brief acknowledges 'The charges contained in this indictment arose out of the same series of events as did those contained (in the previous indictment).' (Brief, page 3).

Having entered a not guilty plea to this new indictment, defendant also filed a motion to dismiss. In sustaining this motion, the trial judge wrote in part as follows:

'It appearing to the Court that Indictment No. 37, January Term, 1975, charging the accused with the offenses of rape and kidnapping is based upon the same facts and circumstances and arises from the same course of conduct and from the same transaction as the September 1974 indictment upon which the accused has already been tried and found not guilty as to the offense of armed robbery;

'Now, therefore, it is considered, ordered and adjudged that the questions of fact as to the guilt of John Percy Tate were determined by the jury in the earlier trial and his acquittal in that case on the charge of armed robbery precludes the State from utilizing the same testimony to again litigate the controlling issue already adjudicated by the earlier trial under the doctrines of res judicata and the principle of estoppel; said testimony having necessarily raised controlling issues involved in the new charges of rape and kidnapping now pending, and having been determined by the verdict of acquittal in the former trial. Harris v. State, 193 Ga. 109 at 121 (17 S.E.2d 573). The jury by acquitting John Percy Tate in the earlier trial necessarily found that he did not participate in the transaction.

'Therefore, it is hereby ordered and decreed that the charges of rape and kidnapping now pending against John Percy Tate are hereby dismissed and any continued prosecution by the State arising from this alleged course of conduct of the accused is barred under the provisions of Ga. Code Ann. § 26-507(b)(1).'

I.

The alleged offenses occurred in the early morning hours of August 9, 1974. The victim testified at the trial on the first indictment that she and Tommy Baker left a bar together in the latter's car. They were parked on a dimly lit street when defendant suddenly came upon them and jerked open the car door. Both occupants were forced out of the vehicle. Baker was told to lie on the ground and the victim was ordered at gun point to relinquish her pocket book. Brandishing his gun, defendant forced the victim to enter his car, lie down, and remove her clothing. Defendant's companion (Amerson), who had been waiting in defendant's vehicle, attempted to dissuade his cohort; when he was unable to do so, he got out of the car. After again threatening the victim with his gun, defendant made her engage in sexual intercourse with him.

Although Amerson did not see the sexual act or the robbery, his testimony corroborated the victim's story. He stated, however, that he never saw a gun that night.

The doctor who conducted an examination of the victim shortly after the alleged event found sperm which indicated sexual intercourse had occurred but could not document the time of the alleged rape. He also testified 'there was no evidence indicating trauma that I could see.' (T. 30).

Tommy Baker testified for the defense. He could not identify defendant as the person who forced him out of his car, and he was uncertain as to whether the assailant was armed with a pistol.

Defendant testified that he was sleeping at his home at the time of the alleged occurrences. He stated that Amerson has held an animosity toward him and that he did not see him during post midnight hours of the day in question. Defendant swore he was not the assailant and that he had never seen the victim until she picked him out of the police lineup.

II.

If the prosecution of the defendant in the original trial had been limited to the rape charge with the mistrial having been declared because of the jury's inability to reach a unanimous verdict, then defendant could not have availed himself of the Georgia double jeopardy defense. Code Ann. § 26-507(b)(2), (c). Our latest Supreme Court pronouncements to this effect are Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441; Wood v. State, 234 Ga. 758, 218 S.E.2d 47, and Jessen v. State, 234 Ga. 791(1), 218 S.E.2d 52. See also Harwell v. State, 230 Ga. 480, 197 S.E.2d 708, and Bush v. State, 117 Ga.App. 310(1), 160 S.E.2d 456 and citations therein.

III.

In its brief at page 7 the State concedes the trial court's order was correct as to the dismissal of the kidnapping count contained only in the second indictment. 'A prosecution is barred if the accused was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution (1) . . . was for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge) . . .' Code Ann. § 26-507(b).

Code Ann. § 26-506(b) provides: 'If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution . . .' Since the kidnapping charge concerned the assailant's conduct immediately prior to the rape, the prosecutor necessarily knew of this alleged offense at the time the prosecution was commenced.

The State failed to charge this offense at defendant's initial trial and is precluded from doing so now. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467.

IV.

Central to our review of the court's order dismissing the rape count is the doctrine of collateral estoppel. "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.' Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469. The Supreme Court held in Ashe that the Fifth Amendment guarantee against double jeopardy embodies collateral estoppel as a constitutional requirement. And the protections afforded by the Double Jeopardy Clause are binding upon the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

Our Georgia courts applied the doctrine of collateral estoppel so as to bar a criminal prosecution long before the principle was deemed binding upon the states as a constitutional requirement. See Harris v. State, 193 Ga. 109, 17 S.E.2d 573. Additionally, the 1968 Georgia Criminal Code has embodied this concept within the provisions of Code Ann. § 26-507(b), which reads in part: 'A prosecution is barred if the accused was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution (1) . . . was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution.'

While the collateral estoppel doctrine is firmly embedded in our judicial heritage, its application has frequently befuddled lawyers and jurists alike. Justice Potter Stewart, ¹ writing for the majority in Ashe v Swenson, supra, expounded those guiding considerations now utilized by the various courts of our federal and state governments in these words: '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...