      •'
           I'

I .                  \·
                          C'




                                                           Cause No. 1357233

                 In Re.                  V~ncent E. Beasley                    In the District Court of
                                             Relator, Pro-Se

                vs .:                                                          Harr J!~i~pymt ~~~~~s some
                                                                                    pages that ar'e of poor quality
                                                                                    at the time of imaging.

                Honorable, Jean Hughes                                         the 228th Judicial         Di~trict
                Devon Anderson, Dist. Attorney, ~
                           Respondent.          ~
                                                                                              RECEIVED IN
                                                                                       COURT OF CRIMINAL APPEALS
                                                   APPLICATION FOR WRIT OF MANDAMUS           ·OCT 19 2015
                TO THE HONORABLE JUDGE OF SAID COURT:
                                                                                             A~~\~os~a, C~e~rk
                                        COMES NOW, Vincent E. Beasley, TDCJ-ID #1867323, Relator, pro

                se in the above Stylea and Numbered Cause of action and files this

                Original Application for Writ of Mandamus, pursuant to the Texas

                Constitution Art. 1. §10 and Tex. Const. Art. 1 §14, written in the

                U.S:C.A Const. A~end IV. V Mandated and Recognized In the First Court

                of Appeals (Hou .• 1st Dist) further set In the United States Court

                of Appeals for the Fifth Circuit would show this Honorable Court of

                 the following:-

                                                                  I.

                                        Vincent E. Beasley, TDCJ-ID #1867323, is an offender incarcera-

                 ted in the Texas Department of Criminal Justice and is appearing pro

                se who can be located at the James A. Lynaugh Unit, 1098, South.Hwy

                 2037, Pecos County, Fort Stockton, Tx 79735. Relator has exhausted

                his remedies and has no other remedy at law. The act sought to be

                compelled is ministerial. Not discretionary in nature and requires

                · Respondent to imme~iately Grant relief to Relator in his immediat~

                release from William Stephens custody. He being the director of the
                 '             .-   .

                ~~~iication for Writ of Mandamus                                                       Page I
Texas Department of Criminal Justice. Whereas Constitutional viola-

tion raises jurisdiction question, Relator shows by clear and con-

vincing law set   ~n   both the Texas and United States'Supreme Court

precedence at law.


                                PREAMBLE

    Evans v. Michigan, 133 S.ct. 1069, 185 L.Ed 2d 124 (2013) citing:
"Where retrial following a court. Decreed Acquittal was barred under

Double Jeopardy Clause of the U.S. Constitution, even in cases where

a Court misconstruced the statue under which a defendant was charged.

And the Courts order acquitting Petitioner. Although based on an

error of law, prevented the State from re-trial of the case. In con-

trast to procedural rulings which resulted in orders dismissing a

case Granting a mistrial on a basis that was unrelated to factual

guilt or innocence acquittals were     substantiv~   rulings that was con-

eluded criminal proceedings and raised significant Double Jeopard'

concerns".   Basi~ally,   since the Petitioner in the instant case has

already been acquitted of the joindered offense of Burglary with the

Intent to commit another felony Sexual Assault. The Substantive deci-

sion has already been made of acquittal by this court of Appeals See

Beasley v. State, 426 S.W. 3d 140 (2012). Further "over the last half

century since the United States Supreme Court first recognized that

the Double Jeopardy Clause bars re-trial following a Court decreed

acquittal. Even if the acquittal is based upon an egregiously erro-

neous foundation. A mistaken acquittal cannot be reviewed on error or

otherwise without putting a defendant twice in Jeopardy, and thereby

violating the U.S. Constitution".

     Therefore, this Court should recognize its rulings Mandated by
Supreme·Court and Constitutional Precedence.
Application for Writ of Mandamus                                Page II
                           Cause No. 1357233



In Re. Vfucent E. Beasley          s~          Relator

                                   s~
v.                                 s~
                                   s~
Honorable Jean Hughes, Judge       s~          Respondent
Devon Anderson, District Atty.
                                   s~

                CERTIFICATE OF INTERESTED PERSONS


     The undersigned Counsel of Record certifies that the following

listed persons have an Interest in the outcome of this case these

representations are made in order that the Judges of this Court may

evaluate possible disqualification or recusal.



1. Honorable Jean Hughes                       Harris County, District Judge

2. Vincent E. Beasley                          Relator

3. Devon Anderson                              Counsel for Respondent
   District Attorney
   1201 Franklin, Suite 600
   Houston, Texas 77002-1923




                                 Page 1
                                                 TABLE OF CONTENTS

Contents·                                                                                                     Page



Certificate of Interested Persons ..•.•..............•.......                                                  1

Table of Contents .....                ..
                                        '
                                                                                                               2

Index of Authorities                                                                                           3
Statement of Case .... ·. . . . . . . . . . . . . . . . . . . .· . . . . . . . . . . . . . . . . . . .         4

Statement of Jurisdiction . . . . . . . . . . . . • . . • . . . . . . . . . . . . . . . . . . .                5

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            6

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             7

Arguments .............. ................................... .
                                            ·•                                                                 8' 9, 10
Prayer ...... . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . •......... .        10

Verification .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    11
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . .                 . ....... .       12




                                                      Page 2
"\




                                             INDEX OF AUTHORITIES

     Cases                                                                                                        Page
     Anderson v. State, 24.Cr. R 705. 7 S.W 40 (1886) .............. 7
     Ashe v. Swenson, 397 U.S. 436, 453-54, 25 L.Ed 90 S.ct ........ 11
                                               1189 (1970)
     Beasley v. State, 426 S.W. 3d 140 ~2012) ...................... II, 7
     Blackledge v. Perry, 417 U.S. 2194 S.ct. 2098, 40 L.Ed 2d ..... 7
                                              628 (1974)
     French v. Estelle, 692 F.2d· 1021 (5th Cir. 1982) .............. 10
     Johnson v. Estelle, 506 F.2d 347 (5th Cir. 1975) .............. 7,8,9,10
     Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983) ............... 8
     Martin Linen U.S. v. Martin Linen Co., 430 U.S. 564, 97 ....... 8
                                              S.ct. 1349
     McDonald v. Wainwright, 493 F.2d 204 (5th Cir. 1974) .......... 9
     Menna v. New York, 425 U.S. 61, 63 at 96 S.ct. 241 L.Ed (1975) 8, 10
     United States v. Saltzman, 537 F.3d 353, 359 {5th Cir. 2008) .. 7
     United States v. Scott, 437 U.S. 82, 98 S.ct. 2187 L.Ed (1970) 8
     Evans     Vi   Michigan, 133 S.ct. 1069, 185 L.Ed. 2d 124 (2013) .... II


     Constitutions Statutes and                      Ru~es:


     U.S. Canst. Amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... ·. I

     U.S. Const. Amend 14 . . . . . . . . . . . . ............................... I

     Tex. Const. Art. 1 §10 . . . . . . . . . . . . . . . ·. . . . . . . . . . . . . . . . . . . . . . . . . . 4

     Te x . Cons t . Art . _1 § 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 5 , 6 , 7 , 8 , .11

     Tex. Const. Art. 1 §13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,8

     Tex. Code. Crim. Proc. Ann. Art. 11.42 ........................ 6
     Tex. Code. Crim. Proc. Ann. Art. 11.45 ......•................. 6
     Tex. Code. Crim. Proc. Ann. Art.                            1.15 ........................ 10




                                                         Page 3
                      STATEMENT OF THE CASE

     Relator challenged the Director's custody of him currently

pursuant Judgment and sentence in the 15th District Court for the

228th District Court of Harris County, Texas, Case No. 135723301010

(The Instant Case) for the offense of Sexual Assault which has been

reindicted from the primary case of Burglary with the Intent to com-

mit another felony Sexual Assault Cause No. 1204247,. following a

trial where the jury given the wrongful instruction as to lesser

included offense found the Relator guilty of the not lessor-included

offense of Sexual Assault, violation of Tex. Const. Art. 1 §10, Which

on Direct Appeal. The First Court of Appeals (Hou Dist) Reversed and

Remanded to the proper lessor included offense of Criminal Trespass.

The Court of Appeals .Honorable Judge Jane Bland held that: The Jury

effectively acquitted defendant of Burglary with the intent to commit

Sexual Assault. By the finding of any lessor charge. The State moved

 to dismiss the Criminal Trespass and reindicted the Relator in the

instant case. To which he plead guilty on June 17, 2013, on the same

·Relator filed Motion to Withdraw plea and was denied twice. Being

sentenced to Eight (8) years confinement in violation of clearly

establish Constitutional Law.




                                Page 4
                    STATEMENT OF JURISDICTION

     Jurisdiction of this Court of Appeals is invoked under the

Rules of Appellate Procedure 57.2.3. Texas Code of Criminal Proce-

dure, as a Writ of Mandamus from the denial of Writ of Habeas Cor-

pus pursuant Art. 11.07, and Vincent E. Beasley seeks Writ of Man-

damus, that Respondents follow Mandate set in the Texas Constitution

Art. 1 §13, 14, Which provides this Cburt with subject matter Juris-

diction.




                             Page 5
                     STATEMENT OF THE ISSUES


(1) Relator asserts the State has no Jurisdiction under the Double

Jeopardy Clause in the Texas Constitution Art. 1§ 13, 14.

(2) State has failed to follow the Mandate of the Court of Appeals

(1st Dist. Hou)

(3) Supreme Court has decided that a guilty plea doesn't forclose

a claim of Jurisdiction question in Double Jeopardy.

(4) No Evidence of (DNA) is actual innocence where (DNA) evidence

where not presented in the first trial.

(5) The State having no Jurisdiction the sentence is void. Judgment

is void pursuant to Tex. Code. Crim. Proc. Ann. Art. 11.42 and 11.45.




                             Page 6 ·
                        STATEMENT OF FACTS
     Relator was charged with Burglary with the Intent to commit
another felony Sexual Assault on or about Feb 9, 2009, then going
to trial Feb 11, 2011, was wrongfully convicted of a not lessor-
·included offense of Sexual Assault, which in a successful Appeal

The Court of Appeals Reversed the verdict of the lower Court more
importantly prosecutors continued to vindictively prosecute to a
greater charge than the Mandate. Blackledge v. Perry, 417 U.S. 21
                                                                          ..
28-29 (1974) also U.S. v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008)
In which violates Collateral Estoppels Double Jeopardy. In the prece-
dence set in Ashe v. Swenson, 397 U.S. 436 (1970) where there is a
established acquittal the State is Estopped from second action.
Const. Amend. Tex. Art. 1 §14 Cited: V.T.C.A. Tex. Const. Art 1§14
   "The guarun ty in this section of the Texas Cons ti tu tion is
   Broader in scope, for not only can a person not be put on
   trial a second time for an offense of which he has once been
   placed in Jeopardy, hence discharge for valid causes without
   a verdict while former conviction and acquittal ar,e based upon
   verdicts rendered. Anderson v. State, 24 CR. R 705,7 S.W.40        '
   (1886)"
     The Court of Appeals (1st Dist. Hou) Cause No. 01-11-00143 on
July 26, 2012, Beasliy v. State·, 426 S.W. 3d 140 (2012) recognized
the acquittal Tex. Code. Crim. Proc. Art 1.11 Acquittal of higher
offense as Jeopardy"
     Under Johnson v. Estelle, 506 F.2d 347 (5th ar. 1975). The
issues that would be presented in second proceeding would substan-
tially duplicate those presented in the first proceedings.




                              Page 7
                                    ARGUMENT
     Relator's guilty plea meets the Menna exception. See Menna v.
New York, 425 U.S. 61, 63 at 96 S.cL 241, 242 L.Ed (1975). The
Double Jeopardy Clause however prohibits the government from con-
victi~g   the   ~fendant      regaidless of the factual guilt, because the
State lacks Jurisdiction from haling a defendant         i~to   ~urt   to face
charges as also recognizes in the Texas Constitution Art 1§14.
Whereas the acquittal of the Relators Burglary with the Intent to
commit Sexual Assault prohibited the State's         ~cond   action. The V.T.C.A.
Tex. Const. Art 1§ 13, 14 made the acknowledgement of the Federal
precedence of Johnson v. Estelle, 506 F.2d 347 Q5th Cir. 1975) "Where
a determination of innocence on one of two issues was the cause of
an acquittal and a determination of guilt on both issues is necessary
for a subsequent conviction. The State is stopped from bringing the
action". The Court of Appeals has affirmed that acquittal. Further,
Lowery v. Estelle, 696 F. 2d 333 (5th Cir. 1983). "The Supreme Court
has defined acquittal as the ruling Judge whatever is lable, which
actually representls     g_   resolution in the defendant's favor, correct
or not, of some or all of the factual elements.of the offense charged
Martin Linen United States v. Martin Linen Supply Co.,430 U.S. 564, 97
S.ct. 1389, 51 L.Ed 2d 642, 430 U.S. at 571, 97 S.ct. at 1355",
United States v. Scott, 437 U.S. 82, 98 S.ct; 2187, 2197, 57 L.Ed 2d
65 (1978). Green and Price v. Georgia, 398 U.S. 323, 9a S.ct. 1757,
26 L.Ed 300 (1970) recognized the partial acquittal implicit in a
jurys return of a guilt verdict on a lessor included offense following
the trial on    th~   greater charge. In which the Relator has not been
tried on the les~or included offense charge as Mandate because

Sexual Assault is not a lessor included offense of Burglary with the
intent to commit another felony Sexual Assault. The acquittal of the

                                     Page 8
joinder offenses is still an acquit tal. As held in MclDOnald v. Wain-

wright, 493 F.2d 204 (5th Cir. 1974), "On this record the State l)Ot

only violated basic principles of Double Jeopardy but collateral

Estoppel. Having failed to prove illegal certain acts once. 1t can-

not be permitted to prove again simply by    chan~ing   the name of the

crime. Relator asserts that the State made the same mistake in its

i.nquiry   40 years ago in Johnson by its application on the block-

burger test which doesn't apply to rules of       ~llateral   Esteppel.

     Relator showing that because of closeness of recognized case

Johnson v. Estelle, 506 F.2d 347 (5th Ur. 1975) clearly defines

the outcome of this Petition will end in reversal. we look to the

paralles of the two cases:


JOHNSON V. ESTELLE, 506 F.2d 347         BEASLEY V. STATE, 426 S.W. 3d 140

1) Mr. Johnson was charged with      1) Mr. Beasley was charged with Burg-
Burglary with the intent to          lary with the intent to commit the
commit Aggravated Rape.              Sexual Assault.

2) Mr. Johnson was acquitted by      2) Mr. Beasley·was acquitted of
a Jury of Burglary with the          Burglary with the intent to commit
intent to commit Rape.               Sexual Assault.

3) Mr. Johnson was reindicted        3) Mr. Beasley was reindicted and
and convicted of Assault with        convicted of Sexual Assault.
intent to commit Rape.

4) Mr. Johnson filed a applica-      4) Mr. Beasley also filed Applica-
tion' for Writ of Habeas Corpus      tion for Writs of Habeas Corpus
both 11.07 and 28 u.s.c. §2254       11.07 and denied without written
after which both were denied.        order.

5) Mr. Johnson's case. was de-       5) Mr. Beasley now holds this Court
termine by the Court of Appeals      to the precedence set by Federal
for the Fifth Circuit to be          Court and Grant relief.
Double Jeopardy and relief was
Granted (Reversed).

     The Court reversed the lower Courts decision holding where a

determination of innocence one of two    i~sues   was the cause of an

acquittal and a ~etermination of guilt on both i~sues is necessary


                                Page 9
£or a subsequent conviction. The State :Ls Estopped from bringing

the action. The Respondent fails to show i.n there analysis of ..J:o'hn-

son where charged offenses are different When in comparison of the

elements of offenses in both cases. Since both Relator and Johnson

where both charged    ~ith    Burglary with intent in Assaultive crime an

both acquit ted where the element's of proof ar~ the same also. Both

still stem from the    s~me   criminal transaction. And both have a join-

der of two issues in the first indictment of which the acquittal is

the same.

(2) Actual Innocence - No Evidence (DNA). Applicant           co~tent~   that

he was denied due process because the State fails to introduce any

evidence of the Relators; guilt beyond a reasonable doubt. It shall

be necessary for the State to introduce evidence into the records,

and said evidence shall be accepted by the Court as basis for its

Judgment, and in no event shall a person charged         ee   convicted upon

his plea without evidence to support the same. Tex. Code. Crim. Proc.

Ann. Art 1.15 See Johnson, 722 S.W. 2d at 422. Supporting evidence

has not been submitted. French v. Estelle, 692 F.2d 1021 (5th Cir.

1982~~   The (DNA) was not introduced in the first trial nor was it

submitted to the Judge in the second proceedings.


                                   PRAYER

     WHEREFORE, PREMISES, CONSIDERED. Relator, respectfully requests

to be placed in the.recommended out patient and meeting an exceptions

held in Me·nna v. New York, 425 U.S. 61, 46 L.Ed 195 96 S.ct 241 (1975).

Mr. Justice Brennan agrees that where the       St~te   is precluded by the

United States Constitution from Haling a defendant into Court on a

charge be set aside even if the conviction was enter pursuant to a
counsel plea of guilty, Ante at 62, 44-46 L.Ed 2d 197. But on his


                                   Page 10
view that the Double Jeopardy Clause bar the prosecution from offen-
ses growing the   sam~   criminal   tr~nsaction.   The State is barred from
mounting ·a successive prosecution. He believes that the proper dis-
position of the case is not remand rut outright reversal See Asfu!e v.
Swenson~   397 U.S. 436, 453-54, 25 L.Ed 90 S.ct. 1189 (1970) Tex.
Const. Art 1 §14. Relator brought this litigation in good faith and
·has substantially prevailed through due course of law.

     SO PRAYED on this the )~         day of October, 2015.·


                                              Respectfully Submitted,




                              VERIFICATION

     I, Vincent E. Beasley, TDCJ-ID #1867323,         declar~   under the
penalty of perjury that the foregoing set of facts presented with-
in this Application for Writ pf Mandamus, Memorandum of Law and
Brief in support are true and this .Honorable Court will GRANT him
Relief.



                                              ·Respectfully Submitted,


                                               x4r~
                                               VLncent E. Beasl¢y
                                                TDCJ-ID #1867325
                                                James A. Lynaugh Unit
                                                1098, South Hwy~2037
                                                Fort Stockton, Tx 79735

                                    Page 11
                     CERTIFICATE OF SERVICE


     I, Vincent E. Beasley, TDCJ-ID #1867323, certify that this the

/¥   .day of October, 2015, the foregoing Writ of Mandamus pursuant

Rule of Appellate Procedure 52.1, was served upon all parties of

interest and Harris County District Attorney, Devon Anderson at the

District Attorneys office, 1201 Franklin Suite 600, Houston, Texas

77002-1923. A paper copy of this document will be :served by First

Glass United States Mail Postage pre-paid by Mr. Vincent E. Beasley

TDCJ-ID #1867323.


                                           Respectfully Submitted,




                                              Vincent E. Beasley
                                              TDCJ-ID #1867323
                                              James A. Lynaugh Unit
                                              1098, South Hwy 2037
                                              Fort Stockton, Tx 79735




                             Page 12
                                                     .-




                                                   MANDATE

                                               Qeourt rtf ~peal~
                                          jftrst m.istrict of ~.e~as
                                               NO. 01-11•00143-CR

                                      VINCENT ERIC .BEASLEY, Appellant

                                                     v.
                                         THE STATE OF TEXAS, Appellee
                                                           ~




             Appeal      fr~m   the 228th District Court of Harris Gounty. (Tr. Ct. No. 1204247).


         TO THE 228TH DISTRICT COURT OF 'IIA.lUUS COUNTY, GREETINGS:·

                   Before this Court, on the 26th day of July 2012, the cause upon appeal to revise or to
         revetse your judgment was determined. This Court made its· order in these words:
                                   This case is an appeal from the .final judgment signed by
                          tbe trial coUrt on February 24, ·2011. After submitting the
            ~:·:
             "'           ca,s~ on the appe11ate record and the ~guments properly raised·
1.0
N
                          by the parties, the Court holds that there was reversible error in
"'0""                     the· trial court's judgment. Accordingly, the Court reverses the
  <1.)
 CD
 «<                       trial. court's judgment and remands the case to the trial court
Q..

M
   I
                          for further proceedings ..
t--

-
0'\
N
1.0
M
V)
                                 The Court orders that this decision be certified below
 ;.:
 <1.)
                          for observance ..
..c                                                                                                 STATE'S
 E
 ;:l                                                                                                EXHIBIT
z.....
 s::
 0
 §
                          Judgment rendered July ~6, 2012 .
                                                                                                     l)
 (,)
  0
0                         Panel consists of.Justices Keyes, Bland, and Sharp. Opinion
'U
  0
t;::                      delivered by Justice Bland.
·;::
 0
u
   We'stlaw..
                                                                                                               Page 1
   426 S.W.3d 140
   (Cite as: 426 S.W.3d 140)




   c                                                          210 Indictment and Information
                                                                  21 OXIII Included Offenses
               Court of Appeals of Texas,                               210kl88 k. Sufficiency of charge of lesser
                  Houston (1st Dist.).                        offense. Most Cited Cases
           Vincent Eric BEASLEY, Appellant                         Constitutional right to notice of criminal
                          v.                                  charges does not prevent the state from prosecuting
            The STATE of Texas, Appellee.                     or the trial court from instructing the jury on a less-
                                                              er-included offense of the charged crime, even if
                  No. 01-11-00143-CR.
                                                              the indidment does not expressly allege it.
                      July 26, 2012.
                                                              U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas
   Background: Defendant who was charged with                 Const. Art. I, § I 0.
   burglary of a habitation with the intent to commit
                                                              [2] Criminal Law 110 €=795(1.5)
   sexual assault was convicted in the 228th District
   Court, Harris County, Marc C. Carter, J., of.sexual         11 0 Criminal Law
   assault. Defendant appealed.                                    IIOXX Trial
                                                                        llOXX(G).Instructions: Necessity, Requis-
     Holdings: The Court of Appeals, Jane Bland, J.,
                                                              ites, and Sufficiency
     held that:
                                                                          11 Ok795 Grade or Degree of Offense; In-
     (1) sexual assault was not a lesser-included offense
                                                              cluded Offenses
     of burglary of a habitation with intent to commit
                                                                              110k795(1.5) k. Relation between of-
     sexual assault as the latter offense was alleged in
                                                              fenses; sufficiency of charging instrument. Most
     indictment;
                                                              Cited Cases
     (2) erroneous submission of sexual assault as less-
                                                                    To determine whether an offense is a lesser-
     er-included offense caused egregious harm;
                                                              included offense of another offense, the reviewing
;ll{ (3) for double jeopardy purposes, jury. ef~ectiv:ly      court must ask whether the indictment for the great-
     acquitted defendant of burglary of a hab1tat10n w1th
                                                              er-inclusive offense either: (I) alleges all of the ele-
     intent to commit sexual assault by finding him
                                                              ments of the lesser-included offense, or (2) alleges
     guilty of sexual assault;
                                                              elements plus facts, including descriptive aver-
     (4) acquittal on sexual assault was not appropriate
                                                              ments, such as non-statutory manner and means,
     disposition on appeal given the sufficiency of the
                                                              that are alleged for purposes of providing notice,
     evidence to establish each element of that offense,
                                                              from which all of the elements of the lesser-in-
    and jeopardy did not attach to prevent state from
                                                              cluded offense may be deduced.
    pursuing an indictment for sexual assault; and
     (5) case would be remanded for new trial on proper       (3] Indictment and Information 210 €=191(.5)
     lesser-included offense of criminal trespass, which
    jury was prevented by jury charge error from con-         210 Indictment and Information
    sidering.                                                    21 OXIII Included Offenses
                                                                      21 Ok 191 Different Offense Included in Of-
       Reversed and remanded for new trial.                   fense Charged
                                                                           210kl91(.5) k. In general. Most Cited
                     West Headnotes
                                                             ·cases
  (1] Indictment and Information 210 €:=188                       Whether an offense is a lesser-included offense
                                                              of an offense charged in indictment is a question of




 STATE'S
 EXHIBIT
    (_                        © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
-1    ~_:     __ -------------------------------------------- -----------                                                                                                                                                                                                                        -~-----------   ------1




                                                                                                                                                           Civil Procedure >Judgments > Preclusion & Effect of Judgments > General Overview
                                                                                                                                                           Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview
                                                                                                                                                           Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel

                   Billy Lee JOHNSON, Petitioner-Appellant. v. W. J. ESTELLE, Director, Texas Department of                                                The Fifth Amendment, U.S. Cons!. amend. V. guarantee against double jeopardy was enforceable against
                                                  Corrections, Respondent-Appellee      ·                                                                  the states through the Fourteenth Amendment, U.S. Con st. amend. XIV. Collateral estoppel is part of the
                                      UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT                                                                 Fifth Amendment double jeopardy prohibition. When an issue of ultimate fact has once been determined
                                               506 F.2d 347; 1975 U.S. App. LEXIS 16662                                                                    by a valid and final judgment, that issue cannot again be litigated between the same parties in any future
                                                              No. 73-3945                                                                                  lawsuit.
                                                            January 9, 1975
                                                                                                                                                           Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel
                                                                                                                                                           Criminal Law & Procedure >Appeals > Standards of Review> General Overview
              Editorial Information: Prior History                                                                                                         Civil Procedure> Trials> Jury Trials> Jury Instructions > General Overview
                                                                                                                                                           Civil Procedure > Eminent Domain Proceedings >Jury Trials
               Appeal from the United States District Court for the Northern District of Texas.                                                            A court reviewing for duplication of issues must: Examine the record of a prior proceeding, taking into
              Judges: Goldberg. Godbold and Morgan. Circuit Judges.                                                                                        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
              CASE SUMMARY                                                                                                                                 consideration.

                                                                                                                                                           Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel
              PROCEDURAL POSTURE: Appellant sought review of a decision of the United States District Court for
              the Northern District of Texas. that denied appellant's writ of habeas corpus petition after appellant was                                   Where a determination of innocence on one of two issues was the cause of an acquittal and a
              convicted of assault with intent to commit rape after an acquittal on charges stemming from the same                                         determination of guilt on both issues is necessary for a subsequent conviction, the state is estopped from
              incident. The denial of defendant's writ of habeas corpus petition on double jeopardy grounds was                                            bringing the action.
              improper because the issues presented in a second criminal trial substantially duplicated those presented
              in the first trial.                                                                                                                          Criminal Law & Procedure              > Criminal-Offenses > Crimes Against Persons >Assault & Battery>
                                                                                                                                                           General Overview
                                                                                                                                                           Criminal Law & Procedure              > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass
              OVERVIEW: Appellant was found not guilty by a jury of the crime of burglary of a private residence at
              nighttime with intent to commit rape. Five months later appellant was convicted of assault with intent to                                    > General Overview
              commit rape. on charges stemming from the same incident for which he was acquitted in his first trial.                                       Criminal Law & Procedure              > Criminal Offenses > Sex Crimes > Sexual Assault > General Overview
              Appellant"s conviction was upheld on direct appeal. The state courts and the district court de~ied                                           Criminal Law & Procedure              > Criminal Offenses > Sex Crimes > Sexual Assault > Rape > General
              appellant's petition for a writ of habeas corpus based on double jeopardy. The court granted appellant"s                                     Overview
                                                                                                a
              writ and released him from custody. The court held that where determination of innocence on one of two
                                                                                                                                                           There are three components of a "burglary of a private residence at nighttime with intent to commit rape"
              issues was the cause of an acquittal and a determination of guilt on both issues was necessary for a
                                                                                                                                                           charge which are not involved in an "assault with intent to commit rape" charge. They are: (1) the
              subsequent conviction. the state was estopped from bringing the action. The issues presented in the                                          defendant entered the house without breaking; (2) that he entered by breaking with intent to commit theft
              second trial substantially duplicated those presented in the first triaL
                                                                                                                                                           but that the intent to commit rape was later formed; (3) that there was insufficient evidence that the site of
                                                                                                                                                           the alleged crime was a private residence.
              OUTCOME: The court granted appellant's writ and released him from custody. The court held that the
              issues presented in the second trial substantially duplicated those presented in the first trial. The state was                              Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass
              estopped from bringing an action where a prior determination of innocence existed as to charges.                                             > General Overview

                                                                                                                                                           Texas courts have long held that opening a shut door is an entry by force which constitutes breaking.
              LexisNexis Headnotes
                                                                                                                                                           Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass
              Constitutional Law >Bill of Rights > Fundamental Rights > Procedural Due Process > Double                                                    > General Overview
              Jeopardy                                                                                                                                     Criminal Law & Procedure > Trials > Burdens of Proof> Prosecution
              Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel
              Civil Procedure > Trials > Jury Trials > Verdicts > General Overview                                                                         Texas courts have not put the burden on the prosecutor to show the nature of the intention at the exact
                                                                                                                                                           moment of breaking, but have upheld convictions where intention has been read. post hoc, from
              Civil Procedure > Trials > Jury Trials > Verdicts > General Verdicts

              805_11CS                                                                                                                                     805 IICS
              9 2015 Matthew Bender& Company. Inc .. a member of the LcxisNexis Group. All rights reserved. Use of this product is subject to the          C 2015 Matthev. Bender& Company. Inc .. a mcmbcro(thc LcxisNexis Group. All rights reserved. Use of this product is subjt;et to the
              restrictions and terms and conditions of the Matthew Bender Master Agreement.                                                                restrictions and tcnns and conditions of the Matthew Bender Master Agreement.



       if:1                                            11'!                                                if:1                                     II'!                IPs                                                                                                     ;-:·:

 I.


  -··--·· - - - - - · · - - - - c - - - - - - - - - - - - - - ------------------------------------~-------··------------"'"-
r--


      subsequent actions.                                                                                                                             to stipulations between defense attorney and prosecutor about the testimony of the prosecuting
                                                                                                                                                      witness and the police officer who conducted the initial investigation.
      Criminal Law & Procedure > Criminal Olfenses > Property Crimes > Burglary & Criminal Trespass
      >General Overview                                                                                                                               Those stipulations are:
                                                                                                                                                           "That if the witness, Mrs. Corah Bell Crandell, were present in Court, she would testify that on May
      Tex. Penal Code Ann. § 1391, defines private residen~ce as any building or room occupied and actually
                                                                                                                                                           22, 1967 in the Criminal Court Room Number Five of Dallas County, Texas that she appeared as
      used at the time of the offense by any person as a place of residence.
                                                                                                                                                           a witness in Cause Number 67-1034-JL, styled State of Texas Vs. Billy Lee Johnson, which said
      Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel                                                                                      case was a case charging Billy Lee Johnson with burglary of a private residence at nighttime with
      Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel> General Overview                                                           intent to commit rape, and after being sworn as a witness in that case, she testified on direct
      Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel                                                      examination that she was eighty-two (82) years of age, that she lived then at the time she testified
                                                                                                                                                           at 1403 South Fitzhugh, and had lived there for forty (40) years; that on February 4, 1967, she
      The rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic                                           was living there and she had lived and resided in a residence there in a house which had four (4)
      approach of a 19th century pleading book, but with realism and rationality.                                                                          walls, a ceiling, floor, doors and windows; that about 9:45 that evening she was at home at that
                                                                                                                                                           location at 1403 South Fitzhugh, and she was watching television when she heard someone at the
      Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel                                                                                      back side of the house; that she went to the door and saw a man there who said that he wanted to
      Constitutional Law > Bill of Rights >Fundamental Rights > Procedural Due Process >Double                                                             see about buying a car that she had for sale. She testified that she told him that she did not have
      Jeopardy                                                                                                                                             any car for sale. She identified the man as being a colored man, a member of the Negro race.
                                                                                                                                                           She testified that colored people lived around her. She testified that she went back in to where the
      Double jeopardy is not a semanticist's paradise, but is to be determined by applying conventional idioms to                                          T.V. was, and the next thing she knew the grabbed her by the shoulders. She ran for the phone
      the jurors' deliberations. There must be some legal necessity basic to one acquittal, not involved in the                                            and tlied to call the police or dial the operator, and he grabbed her by the shoulders, dragged her
      next trial, to justify a superseding conviction. The court cannot permit initialllial deficiencies to be·cured by                                    all over the house, turned off the T.V., tore off her dress, threw her down on the front of the couch
      subsequent trials.                                                                                                                                   and was trying to assault her; that she was thrown to the· floor, her clothes were tom; that he said
                                                                                                                                                           that, "I am going to assault you and kill you and take all your money". He also said that he was
                                                                      Opinion                                                                              going to rape her. About that time she testified there was a {506 F.2d 349} bright light thrown on
                                                                                                                                                           the house and that she screamed, "0 God, he is going to kill me", and she resisted him as best
                                                                                                                                                           she could; that he was trying to have intercourse with her without her consent; that she was a
      Opinion by:                     GOLDBERG
                                                                                                                                                           female person, a woman; that his assault on her and his attempts to have carnal knowledge and
                                                                      Opinion                                                                              intercourse with her was without her consent and against her will; that she could not identify the
                                                                                                                                                           man who was in the house, who was committing the assault upon her. On cross examination she
                                                                                                                                                           testified that she had the clothing that she had worn at the time of the assault; that the police
                                                                                                                                                           came out and investigated the case".The stipulated testimony of the police officer was:
            {506 F.2d 348} GOLDBERG, Circuit Judge:                                                                                                         "If Officer W. T. Mikel were present in court and sworn as a witness, he would testify that he is a
            This case presents a good illustration of the perils of double jeopardy. On May 23, 1967 Billy Lee                                              member of the Dallas Police Department assigned to the Radio Patrol Division with particular
            Johnson was found not guilty of the crime of "burglary of a private residence at nighlime with intent to                                        specialty of the Canine Corps, and he worl<ed in that capacity on February 4 and 5, 1967 when,
            commit rape." Five months later he was convicted of "assault with intent to commit rape," on charges                                            with a police dog named Rex, at about 9:45 p.m., he was near 1403 South Fitzhugh and he.ard a
            stemming from the same incident for which he was acquitted in his first trial. He was sentenced to 99                                           woman scream. He could not determine where the screams were coming from, but he did stop
            years in jail.                                                                                                                                  his police car and got out and determined that the screams were coming from the house at 1403
                                                                                                                                                            South Fitzhugh. He could hear a woman screaming, "Help, you are killing me," or words to that
             His conviction was upheld on direct appeal; Johnson v. State, Tex.Cr.App.1968, 432 S.W.2d 98, and                                              effect. He testified that he went to the front door of the house and that he was let in by a woman
             his subsequent petitions for a writ of habeas corpus were denied in State and federal district courts.                                         whom he identified as Mrs. Corah Bell Crandell; that her clothes were torn; that she said
           · He appeals to this Court for his writ. Today we find that the issues presented in the second trial                                             something to the effect, "He is going out the back door", and he ran around to the back door and
             substantially duplicated those presented in the first Ilia!. We cannot conclude that a rational jury would                                     saw a man whom he identified in court as the Defendant coming out the back door or on the back
             have acquitted or convicted defendant on the basis of the differences between the proof necessary to                                           porch of Mrs. Crandell's house; that he hollered for him to stop; that thereafter he shot him two or
             substantiate each indictment.                                                                                                                  ttiree times and the Defendant was badly wounded and he remained there at the scene until he
            Unfortunately, our knowledge of the facts and the legal issues presented to the jury in the first case is                                       was removed by the ambulance".
            limited. This Court was advised, after it had received no transcript from the first proceeding, "that no                                   We also have a transcript of the instruction which the judge gave the jury in this first case. We will
            further transcripts are available in the above-styled cause". Letter to the Court, Sept. 25, 1974. from                                    refer to it below as it elucidates particular points.
            District Court for Northern District of Texas. Our knowledge of the testimony at the first trial is limited


      BOS_IICS                                                                                                                                    BOS_IICS
      e 2015 Matthew Bender & Company. Inc •• n..membcrofthc LcxisNexis Group. All rights reserved. Usc of this product is subject to the         ~ 2015 Matthew Bender& Company. Inc.• a mcmberoftheLc:cisNe.xis Group. All rights reserved. Use of this product ls subject to the
      restrictions and tcnns and conditions of the Matthew Bender Master Agreement                                                                restrictions and tcnns and conditions of the Matthew Bender Master Aga:cment.                                       ·



      fB                                                 f..'!;                                              ff.1                           r;)                          m
r--
lf          ......,.,-·-
                  ·;




                                                                                                                                                                       theft but that the intent to commit rape was later formed; (3} that there was insufficient evidence that
                                                                                                                                                                       the site of the alleged crime was a private residence." Appellee's Brief at 6.
                           In Benton v. Maryland, 1969, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707, the Supreme Court held
                                                                                                                                                                       We address ourselves to each issue, in order. 1} Petitioner entered without breaking.
                           that the Fifth Amendment guarantee against double jeopardy was enforcible against the states
                           through the Fourteenth Amendment. The following term, the Court held that collateral estoppel is part                                       That this is an improbable jury rationale is evident from the trial court's jury instruction in the first trial:
                           of the Fifth Amendment double jeopardy prohibition. Ashe v. Swenson, 1970, 397 U.S. 436, 90S. Ct.
                                                                                                                                                                               By the term "entry'' into a house is meant every kind of entry but one made by free consent of the
                           1189, 25 L. Ed. 2d 469. "When an issue of ultimate fact has once been determined by a valid and final
                                                                                                                                                                               occupant. or of one authorized to give such consent. By the term breaking is meant that the entry
                           judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397
                                                                                                                                                                               must be made with actual force. The slightest force, however, is sufficient to constitute breaking,
                           U.S. at 443, 90S. Ct." at 1194, 25 L. Ed. 2d at 475. The Court in Ashe went on to say that wihere the
                                                                                                                                                                               such as lifting a latch of a door that is shut or pulling or pushing open a door. 3
                           jury in the first trial had returned a general verdict, a court reviewing for duplication of issues must:
                                                                                                                                                                       {506 F .2d 351} There is no available testimony offering a scintilla of evidence that defendant might
                                 Examine the record of a prior proceeding, taking into account the pleadings, evidence, charge,
                                                                                                                                                                       have come into the Crandall home without breaking, and the judge's charge to the jury gave an
                                 and other relevant matter, and conclude wihether a rational jury could have grounded its verdict
                                                                                                                                                                       expansive definition of breaking. No rational jury could have acquitted, on the grounds that defendant
                                 upon an issue other than that which the defendant seeks to foreclose from consideration.
                                                                                                                                                                       did not break into the home, on the basis of what we have before us.
                           397 U.S. at 444, 90S. Ct. at 1194, 23 L. Ed. 2d at 475-476, quoting Mayers & Yarborough; Bis Vexari:
                                                                                                                                                                       The State's second alternative, that the jury may have doubted that the requisite intent existed at the
                           New Trials and Successive Prosecutions, 1960, 74 Harv.L.Rev. 1, 38-39.
                                                                                                                                                                       moment of entry, is equally implausible. With not a speck of factual foundation the State speculates
                           Ashe was acquitted in his first trial of robbery of one of the players in a poker game. He wa~_then tried                                   that the jury may have believed that Johnson entered the Crandall house with another purpose, such
                           and convicted for robbing another player in the game. Since the only controverted issue in each trial                                       as burglary, but that, upon casting his eyes on this eighty-two year old woman he was suddenly
                           was the identity of the robber, the Court held that the second trial, by requiring relitigation, had put the                                overcome with a passion which caused him to change his intention.
                           defendant in double jeopardy.                                                      '
                                                                                                                                                                       The judge's instruction to the jury would not alert it to a special concern over the moment wihen
                           As noted by the United States Magistrate in the present case. there are two {506 F.2d 350) issues                                           defendant formed his intention. The judge's instructions on this score were:
                           upon which the jury in the first trial could have based its acquittal, wihich were controverted in the
                                                                                                                                                                       You are instructed that the offense of burglary of a private residence in the nighttime with intent to
                           second trial. One was the identity of Mrs. Crandall's assailant and the other was the intention of that
                                                                                                                                                                       commit rape, is constituted by entering a house. that is, a private residence, by force, threats or fraud,
                           assailant to commit rape. The State argues that Ashe applies only wihere one issue is in question in
                                                                                                                                                                       at night, or in any manner by entering a private residence at any time, by either day or night, and
                           both trials.
                                                                                                                                                                       remaining concealed therein until night, with the intent of committing the offense of rape. The charge
                           We disagree with the State. Application of the rule depends upon wihether some issue necessary for                                          in this case is the entry into a private residence, at night, by force, with the intent to commit rape. The
                           the prosecution's case in the second trial has necessarily been found for the defendant in the first trial.                                 punishment is by confinement in the Texas Department of Corrections for any term of years not less
                           See Sealfon v. United States, 1948,332 U.S. 575,68 S. Ct. 237,92 L. Ed. 180. Thus the fact that                                             than five .... before you would be warranted in finding a verdict of guilty, you must find from the
                           either identity or intent could have been the basis for the first jury's decision does not foreclose the                                    evidence, beyond a reasonable doubt, that the entry was made in the nighttime, and with the intent to
                           application of Ashe v. Swenson, because both factors would have to be proven in order to convict at                                         commit the crime of rape.
                           the second trial. Where a determination of innocence on one of two issues was the cause of an
                                                                                                                                                                       While the judge gave individual definitions of many of the terms in the charge he did not specifically
                           acquittal and a determination of guilt on both issues is necessary for a subsequent conviction, the
                                                                                                                                                                       draw attention to the proposition that the intention must be in the mind of the burglar at the time of
                           State is estopped from bringing the action.
                                                                                                                                                                       entry. 4
                           II.
                                                                                                                                                                        We do not believe that any rational jury, sua sponte, could have been moved to acquit defendant on
                           The State contends, however, that a "rational jury" could have based its decision in the first trial on the                                 the grounds that his intention turned from robbery to rape in midflight from the threshold to Mrs.
                           State's failure to establish essential elements not in controversy in the second trial. If this is in fact the                              Crandall.
                           case, then the double jeopardy criterion would, of course, not apply.
                                                                                                                                                                       Finally, the State argues that the jury could rationally have doubted that the alleged incident transpired
                           In the present case we find that no rational jury could have acquitted on the basis of the different                                        in a "private residence." This is the most transparent of the State's speculations. In his instruction, the
                           "issues" presented in the first trial, absent a defendant's reliance on those factors. 1 The State cannot                                   judge told the jury:
                           produce a record here showing· such reliance. 2 The State's suggested bases for acquittal in the first
                                                                                                                                                                       "Private residence," as used in the statute, means any building or room occupied and aCtually used at
                           trial are nothing more than the sheerest speculation.
                                                                                                                                                                       the time of the offense by any person or persons as a place of residence. 5
                           There are three components of a "burglary of a private residence at nighttime with intent to commit
                                                                                                                                                                       Mrs. Crandall testified in her first trial "that she lived then at the time she testified at 1403 South
                           rape" charge which are not involved in an "assault with intent to commit rape" charge and upon which
                                                                                                                                                                       Fitzhugh, and has lived there for forty (40} years; that on February 4, 1967, she was living there and
                           the State believes the jury in the first trial could have based its verdict of acquittal. They are: "[(1}] the
                                                                                                                                                                       she had lived and resided in a residence there in a house which had four (4} walls, a ceiling, floor,
                           Petitioner entered the house without breaking; (2} that he entered by breaking with intent to commit
                                                                                                                                                                       doors and windows ... ;" {506 F.2d 352) and since Officer Mikel is stipulated to have testified that he


                    B05_11CS                                                                                                                                      B05_11CS                                                              6

                    i) 2015 Matthew Bender& Company. lnc .. a member of the LexisNcxis Group. All rights reser\'ed. Usc of this product is subject to the         h' 2015 Matthew Bender& Company.lnc .. a member of the Le.xisNexis Group. All rights rcsen·ed. Usc of this product is subject to the
                    restrictions and tcnns and conditions of the Matthew Bender Master Agreement.                                                                 restrictions and tcnns and conditions of the Matthen Bender Master Agreement.



      ill                                              Ill                                                  fj                                              I!!          fP!                                                  ·'t;                                                :,;                    ~:··
           "determined that screams (emphasis added), there is simply nothing to suggest that Mrs. Crandall                                                             presumption.
           was not in a residence and.that the jury could have entertained real and rational doubts on this issue.                                                      3
           Ill.                                                                                                                                                        Nor was there room for interpretation of the meaning of "breaking" by defense counsel. The Texas
                                                                                                                                                                       courts have long held that opening a shut door is an entry by force which constitutes breaking. See,
           This Court usually finds that its supply of ingenious semantic puzzles and fantastic hypotheticals
                                                                                                                                                                       e.g., Mixon v. State, Tex.Cr.App.1966, 401 S.W.2d 806.
           emanate from the supplications of defendants. In keeping with deeply rooted American notions of
           justice and Constitutional edicts, we examine these applications to see if in fact the defendant was                                                        It is worthy of note that appellant contends in his brief, and the State does not deny, that among the
           denied due process in his trial or whether the facts presented lever the probability that he engaged in                                                     items of evidence submitted in the first trial, and resubmitted in the second, was a picture of a screen
           criminal activity below the "reasonable doubt" marker. But fantastic hypotheticals introduced by the                                                        door cut open.
           State to avoid the defense of double jeopardy are subject to a different standard. We must see if a                                                         4
           "rational jury" could have based its decision on such factors, guided by the principle enunciated in
                                                                                                                                                                       Texas courts have not put the burden on the prosecutor to show the nature of the intention at the
           Ashe, 397 U.S. at 444, 90S. Ct. at 1194, 25 L. Ed. 2d at 475, that "the rule of collateral estoppel in
                                                                                                                                                                       exact moment of breaking, but have upheld convictions where intention has been read, post hoc, from
            criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century
                                                                                                                                                                       the subsequent actions. See e.g., Friga v. State, Tex.Cr.App. 1973, 488 S.W.2d 430; Eagan v. State,
           pleading book, but with realism and rationality." By its injunction to apply collateral estoppel with
                                                                                                                                                                       Tex.Cr.App., 1970,451 S.W.2d 514; Dickson v. State, Tex.Cr.App.1901, 64 S.W. 1043. So, there can
            "realism and rationality" we believe that the Supreme Court means that we should not allow a second
                                                                                                                                                                       be no presumption of prosecutorial failure on this issue ..
            trial, merely because technical requisites of the first charge are not involved in the second, where
                                                                                                                                                                        5
            there is no evidence suggesting that those factors were even presented to the first jury for its active
            consideration. In the present case the alternative grounds hypothecated by the.State are not of the                                                         The statute to which the judge referred is Vernon's Ann.Tex.Penal Code Art. 1391, which defines
            sort which could move a rational jury, on its own, to acquit.                                                                                               private residence as "any building or room occupied and actually used at the time of the offense by
                                                                                                                                                                        any person as a place of residence."
           We are convinced that both juries stood their decisions on identity of assailant and intent to rape and
           did not engage in mental gymnastics so as to land on differing components. Double jeopardy is not a
           semanticist's paradise, but is to be determined by applying conventional idioms to the jurors'
           deliberations. There must be some legal necessity basic to one acquittal, not involved in the next trial,
           to justify a superseding conviction. We cannot permit initial trial deficiencies to be cured by
           subsequent trials. There are only four quarters to a football game. The exorcised double jeopardy is
           the constitutional eliminator of the might have beens. Puristic parallelism is not an absolute in the law
           of double jeopardy. Multitudinous criminal charges may spring from the same incident. The State's
           argument in the present case would nullify the doctrine of double jeopardy because any slight
           deviation in the indictment would give the State another Monday morning quarter.
           It is therefore ordered that the petition· of Billy Lee Johnson for a writ of habeas corpus is granted and
           that he be released from custody.

                                                                     Footnotes




            We keep in mind the warning given in the same article that the Supreme Court quoted from in Ashe:
                  It is probable that in the large majority of criminal prosecutions the defendant will litigate only one
                  issue. For example, he will present an alibi, plead a lack of requisite criminal intent. or deny that
                  the act was perpetrated at all. If a latter court is permitted to state that the jury may have
                  disbelieved substantial and uncontradicted evidence of the prosecution on a point the defendant
                  did noi contest, the possible multiplicity of prosecutions is staggering.
            Mayers & Yarbrough, 74 Harv.L.Rev. at 37-38.
            2
            There is no suggestion that the lack of a record owes in any way to the fault of petitioner Johnson or
            his counsel, so we need not consider whether showing of such fault would raise any hostile


       B05_11CS                                                                                                                                                     B05_11CS                                                             8

       ·C 2015 Matthew Bender& Company. Inc .. a member of the Le.x.isNe.xis Group. AU rights   ~ser\'td.   Usc of this product is subject to the                  .C2015 Matthew Bender& Compaity. Inc .• a member of the LcxisNexis Group. All rights reserved. Use of this product is subject to the
       restrictions and terms and conditions of lhe Matthew Bender Master Agreement                                                                                restrictions and terms and conditions of the Mauhew Bender Master Agn:emcnl.



it.~                                                  ~'J                                                      l[;                                   .';~j                             f;";



                                                                                                                                                                                                                                                                                                           i
                                                                                                                                                                                                                                                                                                          ~!




                                                                                                                                                    _ ___jL...__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                                                                                                                            by changing the name of the crime.


                                                                                                                                                                                                                              Opinion
          Thomas J. McDONALD, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee
                    . UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT                                                                                  Opinion by:                      ALDRICH, SR.
                                493 F.2d 204; 1974 U.S. App. LEXIS 8963
                                               No. 73-1656                                                                                                                                                                    Opinion
                                             April26, 1974

       Judges: Aldrich, Senior Circuit Judge, • and Bell and Gee. Circuil Judges.                                                                                {493 F.2d 205} ALDRICH, Senior Circuit Judge:
       CASE SUMMARY                                                                                                                                              This is an appeal from the denial of a petition for habeas corpus. Thomas McDonald, hereinafter
                                                                                                                                                                 defendant, was charged in the Florida state court with breaking and entering with intent to commit
                                                                                                                                                                 rape, and, by separate indictment, with assault with intent to commit rape, and rape. The first charge
       PROCEDURAL POSTURE: Petitioner appealed an order of the United Slates District Court, which denied
                                                                                                                                                                 was postponed, and the remaining two tried together. At this trial the court charged the jury that it
       his petition for habeas corpus after he was convicted in a state court of breaking and entering with intent
                                                                                                                                                                 could convict defendant for either of the two specified offenses, or for attempted rape, as a lesser
       to commit rape, having earlier been found not guilty of assault with intent to commit rape and rape.A
                                                                                                                                                                 included offense. The jury found him not guilty.
       denial of petition for writ of habeas corpus was reversed for double jeopardy reasons where petitioner was
       convicted of breaking and entering with intent to commit rape, having earlier been acquitted of assault with                                              The evidence at the trial, which came from the alleged victim, a Mrs. Certain, the police, and a
       intent to commit rape and rape.                                                                                                                           codefendant, Taylor, was to the effect that Taylor and defendant in the nighttime broke a rear door of,
                                                                                                                                                                 and entered, Certain's apartment, where each defendant had intercourse with her. Certain testified
                                                                                                                                                                 that it was against her will: Taylor testified that she consented. Defendant did not take the stand. The
       OVERVIEW:' Petitioner was charged in a state court with breaking and entering with intent to commit rape
                                                                                                                                                                 state agrees with defendant that the jury must have found consent.
       and, separately, with assault with intent io commit rape and rape. The first charge was postponed, while
       the others tried together. At this trial the state court.charged the jury that it could convict petitioner for                                            Thereafter defendant was tried to another jury on the charge of breaking and entering with intent to
       either of the two specified offenses or for attempted rape, as a lesser-included offense. The jury found him                                              commit rape. Except that the evidence as to the breaking was more detailed, it is conceded {493 F.2d
       not guilty. Thereafter, defendant was convicted by another jury on the charge of breaking and entering                                                    206} that, as the district court found, the evidence at this trial was "basically the same" as at the first
       with intent to commit rape on the same evidence as the first. The conviction was affirmed, and petitioner                                                 trial, including Certain's testimony that she did not consent. Defendant was convicted, and on appeal
       sought relief, which the lower court denied. Petitioner contended that he could not be tried for breaking                                                 the judgment was affirmed. McDonald v. State, 249 So. 2d 451 (4 D.C.A. Fla. 1971), cert. dismissed,
       and entry with intent because of his acquittal not only for rape, but also of an attempt to commit rape. The                                              253 So. 2d 708 (Sup. Ct. Fla.). The court took the position, with which the district court subsequently
       court reversed the lower court's decision because it was an impermissible attempt to convict petitioner for                                               agreed, that defendant could well have entered with intent to commit rape even though, because
       one crime by proof of another that had been determined that he did not commit. The court ruled that the                                                   Certain proved to be willing, he had no occasion to carry out his purpose. The state's brief puts it,
       state not only violated basic principles of collateral estoppel, but of double jeopardy. The court remanded                                               "Although the raper had the requisite intent upon breaking and entering to commit rape, he was
       with instructions to grant writ.                                                                                                                          thwarted before attempting the act of rape." Although we have seen the proposition more felicit·)usly
                                                                                                                                                                 expressed, 1 the state's logic is impeccable. There are, however, a number of difficulties.
       OUTCOME: The court reversed the lower court's decision that denied petitione(s application for a writ of                                                   The most obvious difficulty is that the state did not try its case on that theory. Faced with the burden
       habeas corpus, holding that it was impermissible to convict petitioner for one crime by proof of another                                                  of showing defendant's intent at the time of entry, which, unexplained, might equally have been simply
       that had been determined that he did not commit. The court ruled that the state not only violated basic                                                   to attempt to persuade, the state, both by evidence and oral argument, sought to prove an initial intent
       principles of collateral estoppel, but of double jeopardy. The court remanded with instructions to grant writ.                                            to rape by the alleged circumstance that a rape occurred. But whether one call it double jeopardy, or
                                                                                                                                                                 collateral estoppel by judgment, this was a naked and impermissible attempt to convict defendant for
                                                                                                                                                                 one crime by proof qf another which, as between defendant and the state, it had been conclusively
       LexisNexis Headnotes                                                                                                                                      determined defendant did not commit. The evidence of non-consent was constitutionally inadmissible,
                                                                                                                                                                 Ashe v. Swenson, 1970, 397 U.S. 436, 446, 90S. Ct. 1189, 25 L. Ed. 2d 469; Turner v. Arkansas,
       Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel
                                                                                                                                                                 1972, 407 U.S. 366, 92 S. Ct. 2096, 32 L. Ed. 2d 798 (per curiam), and clearly prejudicial. The verdict
       Civil Procedure >Judgments > Preclusion & Effect of Judgments,> Estoppel > General Overview
                                                                                                                                                                 was fatally tainted. Burgett v. Texas, 1967, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319; Bumper v.
       Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel
                                                                                                                                                                 North Carolina, 1968, 391 U.S. 543, 550, 88 S. Ct. 1788, 20 L. Ed. 2d 797. Indeed, with this evidence
       Having failed to prove certain illegal acts once, the state cannot be permitted to prove them again simply                                                excluded, it may be asked on what basis could a jury, simply because defendant made a felonious
                                                                                                                                                                 entry of one character, find· beyond a reasonable doubt that at the time he intended another? 2


       C05 IICS                                                                                                                                             C05_11CS
       C 2015 Matthew Bender& Company. Inc .. a member of the LexisNc.xis Group. All rights reserved. Use of this product is subject to the                 9 2015 Matthew Bender& Company. Inc .. a member of the Lc.xisNc:'\iS Group. All rights reserved. Use of this product is subject to the
       restrictions and tenns and conditions of the Matthew Bender Master Agreement.                                                                        restrictions and tcmts and conditions of the Matthew Bender Master Agreement.



 /fi                                       /fi                                                 /fi                                            II'!                  IE!                                                                                                        ,','i                       ;r__;:




                                                                                                                                                                                                                 .0

L---~------~- . ------~~~--~~---~~~--~~~                                                                                                             [___                                                                                                                                            __J
    Defendant goes further, and asserts not merely trial error, but that he can not even be tried for
    breaking and entering with intent because he has been acquitted, not only of rape, but of an attempt to
    commit rape under circumstances where such an attempt would have had to have been found if he
    had committed !he alleged breaking and entry with the requisite intent. The state initially sought to
    answer this by saying flatly that "neither breaking and entering nor intent while doing so were before
    the first jury," but it later realized that this allegation was more easily made than proved. The evidence
    of breaking and entering was introduced before the first jury, and the court specifically instructed the
    jury as to an attempt, and as to the necessity for both an intent to commit the crime and an overt act.
    See Groneau v. State, 201 So. 2d 599, 603 (4 D.CA Fla. 1967), cert. denied, 207 So. 2d 452 (Sup.
    Ct. Fla.). The state is reduced to arguing that breaking and entering was merely "preparation." and
    not an overt act sufficient to constitute an attempt. Passing the fact that in any event defendant was
    placed in jeopardy for an attempt, we cannot think of any more classic overt act 3 than something
    which, like breaking and entering with intent, is a {493 F.2d 207} felony itself. 4 Charging the jury on
    this evidence as to attempted rape necessarily placed before it the question whether defendant broke
    and entered with intent to rape.                                                ·
     On this record the state not only violated basic principles of coilaterat estoppel, but of double
    jeopardy. Having failed to prove certain illegal acts once, it cannot be permitted to prove them again
    simply by changing the name of the crime. Hartow v. United States, 5 Cir.. 1962. 301 F.2d 361, 375,
    cert. denied, 371 U.S. 814, 83 S. Ct. 25, 9 L. Ed. 2d 56, reh. denied, 371 U.S. 906, 83 S. Ct. 204, 9 L.
    Ed. 2d 167; United States v. Sabella, 2 Cir., 1959. 272 F.2d 206, 210-212.
    Reversed and remanded with instructions to grant the writ.

                                                              Footnotes




    "He in a few minutes ravished this fair creature, or at least would have.ravished her, if she had not, by
    a timely compliance, prevented him." H. Fielding, Jonathan Wild, Book Ill, ch. 7.
    2
    We may add that if the jury were to learn of defendant's conduct once within the apartment, he would
    be entitled to an instruction that it had been conclusively found to have been consented to.
     3
     "Any act toward the commission of such an offense." Fla. Stat. Ann.§ 776.04 (1965).
     4
    "Commencement of the consummation .... Such progress that it would be consummated unless
     interrupted by circumstances independent of the will of the attempter." Groneau v. State, 201 So. 2d
    ·at 603. Cf. ln. 1, ante.




                                                                                                   ;•"




COS_IICS
'0 2015 Matthew Bender& Company.lnc.. a member of the LexisNcxis Group. All rights reserved. Usc of this product is subject to the
restrictions and tcans and conditions of the Matthew Bender Master Agreement.



   :(5                                                 !{J                                                if;                        .'f;




                                                                                                                                            .i
                                                                                                                                              LexisNexis Headnotes

                                                                                                                                              Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Double
       Darrell Gene BLACKBURN, Petitioner-Appellant, v. Armond CROSS, Chairman and                                                            Jeopardy
    Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees                                                     Criminal Law & Procedure > Double Jeopardy> Attachment Jeopardy
                UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT                                                                          Criminal Law & Procedure > Double Jeopardy> Collateral Estoppel
                          510 F.2d 1014; 1975 U.S. App. LEXIS 15361         .                                                                 Civil Procedure > Judgments > Preclusion & Effect of Judgments > General Overview
                                                                                                                                              Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview
                                         No. 74-2333
                                                                                                                                              Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel
                                         April2, 1975
                                                                                                                                              Criminal Law & Procedure > Double Jeopardy> Double Jeopardy Protection >Acquittals

Editorial Information: Subsequent History                                                                                                     The double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits the state from
                                                                                                                                              relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party.
Rehearing and Rehearing En Bane Denied August 6, 1975.                                                                                        Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of
Editorial Information: Prior History                                                                                                          either is prohibited.

                                                                                                                                              Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview
Appeal from the United States District Court for the Southern District of Florida.
Judges: Morgan and Clark. Circuit Judges, and Gordon, District Judge.                                                                         The constitution neither prohibits nor requires retroactive application of new decisions.

                                                                                                                                              Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview
CASE SUMMARY
                                                                                                                                              The standards for retroactive application are codified in a three-pronged test: (a) The purpose to be
PROCEDURAL POSTURE: Defendant appealed from a judgment entered by the United States District                                                  served by the new standards, (b) the extent of reliance by law enforcement authorities on the old
Court for the Southern District of Florida, which denied his petition for a writ of habeas corpus. Defendant                                  standards, and (c) the effect on the administration of justice of the new standards. Foremost among these
had been convicted for breaking and entering a dwelling and unlawfully assaulting a person therein and for                                    factors is the purpose to be served by the new constitutional rule. Substantial consideration should be
attempted crime against nature.A trial court committed reversible error at a defendant's trial for assault                                    given the last two factors only when the purpose of the rule in question does not clearly favor either
when it admitted the testimony of a witness who claimed that she was also assaulted by the defendant                                          retroactivity or prospectivity.
where the defendant had previously been acquitted of assaulting her.
                                                                                                                                              Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview

OVERVIEW: Defendant was convicted for breaking and entering a dwelling and unlawfully assaulting a                                            Where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial
person therein and for attempted crime against nature. At trial, the victim and two other women who had                                       that substantially impairs its truthfinding function and so raises serious questions about the accuracy of
also allegedly been assaulted by defendant testified as to his identity. Defendant filed a petition for a writ                                guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith
of habeas corpus, which was denied by the district court. On appeal, the court reversed the district court                                    reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact
judgment and remanded with instructions to issue the writ, subject to the state's right to retry defendant.                                   on the administration of justice has sufficed to require prospective application in these circumstances.
The court found that the testimony of one the prior victims was improperly admitted because defendant
                                                                                                                                              Criminal Law & Procedure > Habeas Corpus > Retroactivity of Decisions > General Overview
had previously been acquitted of assaulting her. For authority, the court relied on a case that was decided
after defendant's trial which held that evidence of such prior acquittals was prejudicial and violative of the                                Retroactivity has been denied where a new rule serves a broad social policy, where the rule does not go to
double jeopardy clause. The court found that the new rule warranted retroactive application because it                                        the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of
went to the basic integrity and accuracy of the guilt-innocence determination. The admission of the                                           infrequent occurrence. But where a new rule is fashioned to correct a serious flaw in the fact-finding
witness' testimony was therefore constitutional error, and the court could.notsay that it was harmless                                        process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination,
beyond a reasonable doubt.                                                                                                                    retroactive effect is required.

                                                                                                                                              Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Double
OUTCOME: The court reversed the judgment of the district court which denied defendant's petition for a
                                                                                                                                              Jeopardy
writ of habeas corpus because defendant's constitutional rights were violated when the trial court admitted
                                                                                                                                              Criminal Law & Procedure > Double Jeopardy > Collateral Estoppel
evidence of an earlier assault for which defendant had previously been acquitted. The court remanded the
                                                                                                                                              Civil Procedure > Judgments > Preclusion & Effect of Judgments > General Overview
case with instructions to issue the writ of habeas corpus, subject to the state's right to retry defendant.
                                                                                                                                              Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > General Overview


B05_11CS                                                                                                                                      B05_11CS
0 1015 Matthew Bender & Company. Inc .• a member of the LcxisNexis Group. All rights reserved. Use of this product is subject to the          I; 201; Matthew Bender& Company. Inc .. a member of the lexisNexis Group. All rights reserved. Use ofth.is product is subject to the
restrictions and tcnns and conditions of the Matthew Bender Master Agreement.                                                                 restrictions and tenns and conditions of the Matthew Bender Master Ag~cmcnt.



                                                                                                                                                                                                                                                        r~.
                             I1!J                                                I1!J                                                  I1!J    I1!J                                                :'?:;                                                .... l
      Civil Procedure >Judgments > Preclusion & Effect of Judgments > Estoppel> Collateral Estoppel
                                                                                                                                                         At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and
      The double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits a state from                                             attempted to sexually assault her. She had seen only the profile and back of her assailant, but she
      relitigating any issue which was determined in a prior prosecution of the same party. The purpose of this                                          furnished police with a description of the assailant and she identified the petitioner in a line-up. In
      rule is bound up in the whole complex of values that the guarantee against double jeopardy represents.                                             addition to Fletcher, the state presented the testimony of two additional women, Catherine Austin and
                                                                                                                                                         Patricia McCune, both of whom lived in the same apartment complex as Fletcher. Austin and McCune
      Constitutional Law >Bill of Rights >Fundamental Rights >Procedural Due Process > Double                                                            identified the petitioner as the assailant who had likewise broken into their apartments and had
      Jeopardy                                                                                                                                           sexually assaulted them.
      Criminal Law & Procedure > Double Jeopardy> General Overview                                                                                       The petitioner had previously been acquitted after a trial by jury of the assault on McCune. At trial for
                                                                                                                                                         the assault on Fletcher, McCune's testimony was admitted over petitioner's objection as evidence of a
      The policy underlying the prohibition against double jeopardy is that the state with all its resources and
      power should not be allowed to make repeated attempts to convicfan individual for an alleged offense,                                              similar offense tending to establish the identity of the petitioner as Fletcher's assailant.
      thereby subjecting him to embarrassment, expense, and ordeal, and compelling him to live in a continuing                                           Petitioner testified in his own behalf and presented an alibi defense. In addition to the three positive
      state of anxiety and insecurity, as well as enhancing the possibility that even though innocent·he may be                                          identifications of the petitioner, the state presented evidence that four fingerprints of one hand and the
      found guilty.                                                                                                                                      thumb print of the other hand lifted from the jalousie window slats of the kitchen door of Fletcher's
                                                                                                                                                         apartment (where the break in occurred) were those of the petitioner.
      Constitutional Law >Bill of Rights > Fundamental Rights >Procedural Due Process > Double
      Jeopardy                                                                                                                                           The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that
      Criminal Law & Procedure > Double Jeopardy> Attachment Jeopardy                                                                                    McCune's testimony was improperly admitted into evidence. Blackburn v. State, 208 So. 2d 625
                                                                                                                                                         (Fia.App.1968). Defendant's petition for a writ of habeas corpus- alleging that the holding in Wingate
      It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign                                      should be retroactively applied to his trial, and, hence that McCune's testimony was inadmissible -
      to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he                                         was subsequently denied by the district court. 1
      did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which
                                                                                                                                                         II.
      surround an accusation that he is guilty of a specific crime.
                                                                                                                                                         The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal
      Criminal Law & Procedure > Habeas Corpus >Retroactivity of Decisions > General Overview                                                            law only recently.
      People are not to be punished by procedures which present a serious risk that the issue of guilt or                                                In Ashe v. Swenson, 397 U.S. 436,90 S. Ct. 1189,25 L. Ed. 2d 469 (1970) a federal (510 F.2d 1017)
      innocence may not have been reliably determined, or which produce a clear danger of convicting the                                                 habeas corpus petitioner attacked his state conviction for the robbery of one of six men engaged in a·
      innocent. Practices, procedures, or statutes which present the probability of risk of such consequences                                            poker game. The petitioner had previously been acquitted of the robbery of another one of the same
      must be eradicated and the surest way is to prescribe retroactivity.                                                                               poker players. The single issue In dispute at both trials was whether the petition~r had been one of the
                                                                                                                                                         robbers. The Supreme Court held that the federal notion of collateral estoppel precluded relitigation of
                                                                                                                                                         the petitioner's participation in the robbery and that this rule is embodied in the double jeopardy clause
                                                                        Opinion
                                                                                                                                                         of the Fifth Amendment.

      Opinion by:                      MORGAN                                                                                                            In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the Ashe
                                                                                                                                                         holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the rob~ery of a
                                                                        Opinion·                                                                         small store. At his trial, the state introduced evidence tending to show that Wingate had committed
                                                                                                                                                         four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing
                                                                                                                                                         remarks there was heavy reliance by the prosecutor on the evidence of additional robberies.
                                                                                                                                                          This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of
            (510 F.2d 1016j MORGAN, Circuit Judge.
                                                                                                                                                          which depends upon a successful relitigation of a fact issue which had previously been settled
           At issue in this case is the retroactivity vel non of the principle announced in Wingate v. Wainwright,                                        adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the
           464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive                                                 doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an
           application of the Wingate principle, and we therefore reverse the district court.                                                             issue which was determined in a prior prosecution of the same party. Hence, there is no difference
                                                                                                                                                          between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.
                                                                                                                                                          Ill.
            On January 19, 1967, the petitioner was charged in an amended information with (1) breaking and
            entering a dwelling and unlawfully assaulting a person therein, a_nd (2) attempted crime against                                              Blackburn's trial occurred before our decision in Wingate. Since the facts before us are virtually
            nature. The petitioner entered a plea of not guilty and the trial by jury commenced.                                                          identical to those of Wingate, we must determine whether Wingate is to be applied retroactively. 2


       B05_IICS                                                                                                                                      B05_IICS                                                             4

       C 2015 Mauhew Bender&. Company. Inc .. a member of the Le.xisNexis Group. All rights reser\'td. Use of this product is subject to the         '(\2015 Manhew Bender& Compan)'.lnc .. a member of the LexisNe.x.isGroup. All rights reserved. Use of this product is subjecttolhe
       restrictions and Lerms and conditions of the Matthew Bender Master Agreement.                                                                 restrictions and terms and conditions of the Manhew Bender Master Agreement.



f!i                                                l~l                                                  lft                                    if;                  •1':


                                                                                                                                                                                                                                                                                          .•
                                                                                                                                                   Swenson, 397 U.S. 436, 446, 90S. Ct. 1189, 1195, 25 L. Ed. 2d 469 (1970). Wingate expanded this
      {510 F.2d 1018} In Linkletterv. Walker. 381 U.S. 618,85 S. Ct.1731, 14 L. Ed. 2d 601 (1965), the
                                                                                                                                                   notion to include evidentiary as well as ultimate facts because
     Supreme Court held that the Constitution neither prohibits nor requires retroactive application of new
     decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior                                          it is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the
     history of the rule in question, its purpose and effect, and whether retrospective effect furthers or                                               sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign
     retards its operation. /d. at 626, 85 S. Ct. 1731.                                                                                                  has concluded he did not commit. Otherwise a person could never remove himself from the blight
                                                                                                                                                         and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate v.
     Shortly thereafter, the standards for retroactive application were codified in a three-pronged test:
                                                                                                                                                         Wainwright, 464 F.2d 209,215 (5th Cir. 1972). The Wingate court indicated that this evidence of
          (a) The purpose to be served by the new standards, (b) the extent of reliance by law enforcement                                               prior acquittals was "prejudicial" and, hence, admission of such evidence could certainly influence
          authorities on the old standards, and (c) the effect on the administration of justice of the new                                               the integrity of the fact-finding system. 3 We therefore find that the Wingate rule warrants
          standards. Stovall v. Denno, 388 U.S. 293,297,87 S. Ct. 1967, 1970, 18 L. Ed. 2d n99 (1967).                                                   retroactive application.
     "Foremost among these factors is the purpose to be served by the new constitutional rule." Desist v.                                          IV.
     United States, 394 U.S. 244, 249, 89 S. Ct. 1030, 1033, 22 L. Ed. 2d 248 (1969). Substantial
                                                                                                                                                   The state argues that any error made in Blackburn's trial was harmless, but petitioner responds that it
     consideration should be given the last two factors "only when the purpose of the rule in question
                                                                                                                                                   would be inappropriate to apply the "harmless error analysis" to a double jeopardy claim. We need not
     [does] not clearly favor either retroactivity or prospectivity." /d. at 251, 89 S. Ct. at 1035; see Michigan
                                                                                                                                                   decide whether a collateral estoppel claim is susceptible to harmless error analysis, for we find that
     v. Payne, 412 U.S. 47, 55, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (1973); United States v. Scott, 425 F.2d
                                                                                                                                                   the error committed in this case could not be adjudged harmless even if the appropriate constitutional
     55, 58 (9th Cir. 1970) (en bane). Moreover,
                                                                                                                                                   standards were applied.
          where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal
                                                                                                                                                   Recent Supreme Court decisions regarding "harmless constitutional error'' inquire as to "whether there
          trial that substantially impairs its truthfinding function and so raises serious questions about the
                                                                                                                                                   is a reasonable possibility that the evidence complained of might have contributed to the conviction."
          accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.
                                                                                                                                                   Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). Only if the court
          Neither good faith reliance by state or federal authorities on prior constitutional law or accepted
                                                                                                                                                   can declare with confidence "beyond a reasonable doubt" that such a possibility is excluded by the
          practice, nor severe impact on the administration of justice has sufficed to require prospective
                                                                                                                                                   record can it declare a constitutional error harmless. /d. at 24, 87 S. Ct. 824; see Schneble v. Florida,
          application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S. Ct. 1148,
                                                                                                                                                   405 U.S. 427,430,92 S. Ct.. 1056,31 L. Ed. 2d 340 (1972); Milton v. Wainwright, 407 U.S. 371,92 S.
          1152, 28 L. Ed. 2d 388 (1971) (plurality opinion).
                                                                                                                                                   Ct. 2174,33 L. Ed. 2d 1 (1972); Harrington v. California, 395 U.S. 250,89 S. Ct. 1726,23 L. Ed. 2d
     Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v.                                               284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626,
     Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness of the trial, or                                       637-38 (5th Cir. 1972).
     where the flaw in the fact-finding process is either of secondary importance or of infrequent
                                                                                                                                                   The evidence against Blackburn was quite convincing." However, in his closing argument the
     occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en bane) and cases cited therein. But
                                                                                                                                                   prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case sub judice)
     where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes
                                                                                                                                                   and relied upon the combined effect of all three identifications to establish reliability. 4 Under these
     to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect is required.
                                                                                                                                                   circumstances {510 F.2d 1020} it is impossible for us to conclude that the erroneous admission of
     United States v. Scott, supra. at 58 and cases cited therein; see Williams v. Estelle, supra, 500 F.2d at
                                                                                                                                                   McCune's testimony was harmless beyond a reasonable doubt.                         •
     208.
                                                                                                                                                    Reversed and remanded with directions to issue the writ, subject to the state's right to re-try the
     We must therefore determine the purpose behind the Wingate rule and whether this purpose relates
                                                                                                                                                   defendant.
     to the integrity of the fact-finding system. The Wingate case. of course, held that the double jeopardy
     clause. which includes the doctrine of collateral estoppel, prohibits a state from relitigating any issue                                                                                               Footnotes
     which was determined in a prior prosecution of the same party. The purpose of this rule is bound up in
     the whole complex of values that the guarantee against double jeopardy represents. Cf. Tehan v.
     Shott, 382 U.S. 406,414, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966).
     The policy underlying the prohibition against double jeopardy
                                                                                                                                                   Petitioner was paroled on May 1, 1973, from the sentence presently under attack.
          is that the State with all its resources and power should not be allowed to {510 F.2d 1019} make                                         2
          repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
                                                                                                                                                   Petitioner contends that the Wingate court's application of the modified Ashe principle to a conviction
          embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety
                                                                                                                                                   that became final prior to the date of the Ashe decision is indicative of this court's view of the
          and insecurity, as well as enhancing the possibility that even though innocent he may be found
                                                                                                                                                   retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule
          guilty. United States v. Jom, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971).
                                                                                                                                                   retroactively in reversing the denial of habeas corpus relief to Wingate.
     In order to protect "a man who has been acquitted from having to 'run the gantlet' a second time,"
                                                                                                                                                   While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively
     Ashe incorporated the rule of collateral estoppel into the guarantee of double jeopardy. Ashe v.


B05_11CS                                                                                                                                      B05_11CS                                                              6

td 2015 Matthew Bender& Company. Inc .. a member of the LexisNcxis Group. All rights reser\'ed. Usc of this product is subject to the         D 2015 Matthew Bender& Company. Inc .. a member of the Lc.xisNexis Group. All rights reserved. Use of this product is subject to the
restrictions and terms and conditions of the Matthew Bender Master Agreement.                                                                 restrictions and tcnns and conditions of the Matthew Bender Master Agreement.



                      If\                                                  ~                                                    ~Pi     liS                                                  .'i'J
          enunciaies a retroactive rule, see Johnson v. New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 16 L.                                                    because he committed a crime against the laws of the State of Florida. So that Rosemarie
          Ed. 2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not d~cide that question                                                Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin. now we've
          because we find that a retroactive application of the Wingate rule is required by the Linkletter v.                                                   got the law of probability working. Take that again. It gets better, much better. Pat McCune. ·Now
          Walker, 381 U.S. 618,85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) analysis.                                                                                we've got an identification that is almost nailed down. We've got three sensible girls standing up
                                                                                                                                                                there and never flinching, never turning an eye. Are you going to kick that away like it was trash
          Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973)
                                                                                                                                                                and rubbish, that kind of identification?
          mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v.
          Florida, 397 U.S. 387, 90S. Ct. 1184, 25 L. Ed. 2d 435 (1970) which barred a state and municipal
          prosecution for the same act or offense, fully retroactive. The court indicated that "the prohibition
          against being placed in double jeopardy is ... not readily susceptible of analysis under the Unkletter
          line of cases." Robinson v. Neil, supra, 409 U.S. at 508, 93 S. Ct. at 878.
          We believe that the Supreme Court's retroactive application of double jeopardy principles, see
          Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be
          retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we
          do not believe that Robinson is entirely dispositive of the question before us, for the rationale of
          Robinson was based upon the fact that double jeopardy principles normally preclude a new trial
          entirely, while procedural guarantees merely relate to the method of conducting trials:
                The guarantee against double jeopardy is significantly different from procedural guarantees held
                in the Unk/etler line of cases to have prospective effect only. While this guarantee, like the others,
                is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking
                place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number
                of the constitutional rules applied prospectively only under the Unkletter cases were found not to
                effect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes
                such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the
                Court's ruling was squarely directed to the prevention of the second trial's laking place at all, even
                though it might have been conducted with a scrupulous regard for all of the constitutional
                procedural rights of the defendant. Robinson v. Neil, supra, 409 U.S. at 509, 93 S. Ct. at878.
          While the Wingate rule is rooted in the principle of double jeopardy, its operation merely precludes the
          introduction of certain disfavored evidence. In light of the Robinson rationale it would be unreasonable
          for us to conclude that the Supreme Court in Robinson was addressing itself to the exclusion of
          evidence of prior crimes and, hence, intended Robinson to apply to procedural guarantees based
          upon the principle of double jeopardy. We therefore prefer to rest our decision upon the Unkletlet line
          of cases.
           3
           See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): "We distill from this whole body of
           cases the Court's value judgment that people ... are not to be punished by procedures which present
           'a serious risk that the issue of guilt or innocence may not have been reliably determined,' or which
           produce a 'clear danger of convicting the innocent.' Practices, procedures or statutes which present
           the probability of risk of such consequences must be eradicated and the surest way is to prescribe
           retroactivity'' (footnotes omitted).
           4
           In his closing argument, the prosecuting attorney said:
                 Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher
                 seeing his profile, the thinning hair in the back of the head, possibly her alone I would hate to
                 convict this man on that kind of identification (sic]. I would be loathed too [sic], even in the case of
                 the kind of testimony when you are trying a man by (sic]lhe heinous crime, but we are trying him



      B05_11CS                                                                                                                                        B05_11CS
      ·'0 2015 Matthew Bender& Company. Inc .• a member of the LexisNex.is Group. All rights reser.,.ed. Use of this product is subject to the        ·0 2015 Mauhew Bender&:. Company. Inc .. a memberoflhe LexisNexis Group. AJI rights rescrYc:d. Use of this product is subject to the
      restrictions and tenns and conditions of the Matthew Bender Master Agn::ement.                                                                  restrictions and tenns and conditions of the Matthew Bender Master Agreement.



::5                                           fil                                                  11\                                           t:             ~{~                                                                                                      ;!;
