White v. STATE, EX REL. HOPPER

LUMPKIN, Vice Presiding Judge,

concurring in result:

I concur in the Court’s determination that the doctrine of estoppel does not bar the pending trial in Case No. CF-90-5201 in the District Court of Tulsa County. However, I must disagree with the legal analysis which is applied to the Court’s decision.

The Court recognizes that the application of the doctrine of collateral estoppel adopted by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970) was based on a factual predicate not presented in this case. That predicate is a determination by a trier of fact that a person charged with an offense did not commit acts required for proof of that offense and that determination of acquittal is also a determination that the person charged did not commit the acts which would go to support a separate and distinct offense.

As the Court in Ashe stated:

The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of the 19th century pleading book, but with realism and rationality. Where previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration”. (emphasis added) 397 U.S. at 443-44 , 90 S.Ct. at 1194 , 25 L.Ed.2d at 475-76 .

The Court then applied this principle to the facts and issues of the case and held:

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of six poker players. It is not whether he *382 could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again, (emphasis added)

After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find the evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers. Id. at 446 , 90 S.Ct. at 1195-96 , 25 L.Ed.2d at 477 .

The fundamental nature of the guarantee against double jeopardy as was discussed in Benton v. Maryland, 395 U.S. 784, 795 , 89 S.Ct. 2056, 2063 , 23 L.Ed.2d 707, 716 (1969), is based on the “plea of autrefoits acquit, or a formal acquittal”. While the double jeopardy prohibition is constitutionally guaranteed in the Fifth Amendment to the U.S. Constitution and article 2, § 20 of the Oklahoma Constitution, it applies only to an individual’s right not to be placed twice in jeopardy for the same offense. The doctrine of collateral estoppel was adopted by the Court in Ashe to expand the “plea of autrefoits acquit, or a formal acquittal” to include application to the adjudication by a trier of fact that the person charged was not the person who committed the acts which constituted separate offenses or had not committed an essential element of a separate and distinct offense. Thus, the foundational question which must be answered prior to the application of collateral estoppel is whether there has been a prior adjudication by a trier of fact which in effect acquits the person charged of the specific offense or an essential element of a separate and distinct offense. In this particular case there has not been a prior adjudication of acquittal of the offense charged or any essential element of the offense. Therefore, the prosecution cannot be prohibited based on collateral estoppel or double jeopardy.

The Court seeks to distinguish the decision in Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), which is cited as authority in Thompson v. State, 624 P.2d 82 (Okl.Cr.1981). However, Chaney merely states that estoppel applies because the offenses could have been joined and Thompson merely cites Chaney as authority. Neither case discusses whether the estoppel is based on state or federal law or provides authority for the application of the doctrine to the facts of the case. Each case seems to rely on Dodson v. State, 562 P.2d 916 (Okl.Cr.1977), however, the opinion on the merits in Dodson does not address any issue relating to joinder or estoppel. Advisory comments on the effect of statutes allowing joinder in criminal prosecutions are contained in a special concurring opinion filed by Judge Brett, to which Judge Bussey joined to comment on the judges views relating to joinder. However, these advisory comments are not part of the holding of the case and would be merely dicta which could not be applied to a case which raised the issues on the merits of the case. These comments fail to recognize that our joinder statutes are permissive and not mandatory. Therefore, failure to join actions in the same prosecution does not create a bar to subsequent prosecution for a separate offense under Oklahoma Statutes.

A review of the case authority enunciating the basis and scope of the concept of collateral estoppel, as it applies to criminal procedure would support the finding that the Court in Chaney erronously applied estoppel to a case where two offenses could have been joined for trial, but were not, when the trier of fact did not acquit *383 the person charged of either the criminal offense or any essential element of the offense. While it may have been more efficient to join both charges for trial it was not required. If the defendant in Chaney had been acquitted of the offense which was interrelated with the second murder or any essential element of the second murder the doctrine of collateral estoppel would have applied as set forth in Ashe . But, that was not the result of the trial. The same is true in this case. The Petitioners have not been acquitted in a prior trial of the offense currently pending trial on the merits or any essential element of that offense. Therefore, collateral es-toppel cannot bar the trial and the application should be denied.