Alvin Green v. United States of America, James R. Taylor v. United States ( 1970 )

PER CURIAM:

Appellants were convicted of various offenses relating to the robbery of St. Elizabeths Hospital on November 2, 1965. In a prior trial a mistrial was declared when the jury could not reach a verdict. At that time the trial judge directed a verdict of acquittal on one of the counts, unauthorized use of a vehicle, 22 D.C.Code § 2204 (1967). On the second trial appellants were convicted of robbery and assault. It is the second trial which is the subject of this appeal.

Appellants raise several serious questions as to the validity of their convictions. Since we reverse on one such issue for a new trial, we do not consider the others, on the theory that they may not recur on retrial.¹

Over appellants’ objection that they had been acquitted on Count I of the indictment,² the witness McFarland was permitted to testify that on the evening before the robbery he and the appellants stole the car which was the subject of Count I and used it in the robbery. In summation the prosecutor repeated this testimony and relied on it in his argument. Under familiar principles relating to collateral estoppel, the admission of this evidence was error, and in the circumstances of this case the error was not harmless. Lee v. United States, 125 U.S.App.D.C. 126, 368 F.2d 834 (1966); Laughlin v. United States, 120 U.S.App.D.C. 93, 344 F.2d 187 (1965). Compare Mahoney v. United States, 137 U.S.App.D.C. 3, 420 F.2d 253 (1969). See Restatement of Judgments § 68(1) (1942). See also Note, Developments in the Law —Res Judicata, 65 Harv.L.Rev. 818 (1952).

Throughout the first trial the Government’s theory was that the appellants stole the car described in Count I and used it in the robbery. Appellants were acquitted on that count. The dissent suggests that in the second trial (on the same indictment) the Government should be permitted to show that appellants stole some other car and used it in the robbery. Pretermitting the question as to whether such flexibility in the Government’s proof is permissible in a criminal case, the record of the second trial is bare of any suggestion that a car different from that described in Count I was involved in the robbery. Indeed, McFarland’s testimony at both trials is identical in describing the stolen car as a 1965 green Ford taken from a parking lot at 6th and E Streets in the early afternoon of November 1, 1965. The car described in Count I met McFarland’s description in all particulars, and the Government made no effort to show that a second 1965 green Ford had disappeared from that parking lot on the day and time in question.

Reversed.

1 . The trial court in this case did not have the benefit of our opinion in Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc). On remand, appropriate hearings should be conducted and findings made by the court on the identifieation issues pursuant to the teaching of that case.

2 . Compare United States v. Friedland, 2 Cir., 391 F.2d 378, 381 (1968).