In the Matter of the Petition of Dale Percy for a Writ of Habeas Corpus. Dale Percy v. State of South Dakota , 443 F.2d 1232 ( 1971 )

MATTHES, Chief Judge.

This is an appeal from an order of the United States Court for the District of South Dakota denying appellant’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. Appellant was convicted of indecent molestation of a five year old child in violation of S.D.C. 1960 Supp. § 13.1727 in the Circuit Court of Pennington County, South Dakota on January 31, 1961. Thereafter, on the basis of this conviction and his prior criminal record, he was sentenced to forty years in the state penitentiary under the state habitual criminal statute. On appeal to the South Dakota Supreme Court, the conviction was reversed on the ground that certain expert testimony which went to prove appellant’s intent to commit the crime was erroneously admitted. State v. Percy, 80 S.D. 1, 117 N.W.2d 99 (1962).

On February 8, 1963, appellant was charged with kidnapping in violation of S.D.C. 1960 Supp. '§ 13.2701. This charge was based on the same event or transaction as the reversed indecent molestation conviction. Appellant was found guilty by a jury of kidnapping and was sentenced by the court to life imprisonment. His conviction was affirmed on appeal to the South Dakota Supreme Court. 81 S.D. 519, 137 N.W.2d 888 (1965). His subsequent petitions for state habeas corpus relief were denied in the state courts. 83 S.D. 257, 158 N.W.2d 241 (1968).

Two issues are presented on this appeal: 1) whether appellant’s Fifth Amendment right not to be twice placed in jeopardy was violated by his retrial for kidnapping, and 2) whether appellant was denied Due Process as guaranteed by the Fourteenth Amendment because a harsher punishment was imposed on the kidnapping conviction than had been received on the reversed indecent molestation conviction. We consider each of these questions seriatim.

Prior to an examination of the merits of appellant’s double jeopardy claim, we take cognizance that in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) the Supreme Court held that the Fifth Amendment prohibition of double jeopardy applies to the states through the Fourteenth Amendment and that “the same constitutional standards apply against both the State and Federal Governments.” Id. at 79&, 89 S.Ct. at 2063. Since appellant’s conviction was final prior to the decision in Benton, supra, his invocation of the protection of that decision is dependent upon the retrospectivity of the Supreme Court’s ruling. However, because we find that appellant was not twice placed in jeopardy, it is unnecessary for us specifically to determine the retroactivity of Benton. Nevertheless, we note parenthetically that in a footnote to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court stated:

“There can be no doubt of the ‘retroactivity’ of the Court’s decision in Benton v. Maryland. In North Carolina v. Pearce, 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656], decided the same day as Benton, the Court unanimously accorded fully ‘retroactive’ effect to the Benton doctrine.”

Id. at 437, n. 1, 90 S.Ct. at 1191. Other Circuits considering the question have also given Benton retrospective application. Tipton v. Baker, 432 F.2d 245 (10th Cir. 1970); United States ex rel. Brown v. Hendrick, 431 F.2d 436 (3rd Cir. 1970); Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970).

The double jeopardy clause of the Fifth Amendment provides that no person shall “ * * * be subject for the same offense to be twice put in jeopardy of life or limb * * However, it is well-established that no violation of the protection of the Double Jeopardy Clause occurs where a defendant is retried aftet his conviction is set aside on his request due to an error in the proceedings. United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Tateo, 377 U.S. 463, 465, 473-474, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). See also, Price v. Georgia, 398 U.S. 323, 326-327, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Houp v. Nebraska, 427 F.2d 254 (8th Cir. 1970).

Appellant does not claim that he was twice tried for the same offense, but presents a multi-pronged argument urging that his trial for kidnapping was based upon the same facts adduced at his previous trial for molestation and thus in violation of the double jeopardy provision, that kidnapping includes the offense of indecent molestation, and that under the rationale of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) he did not, by successful appeal of the molestation conviction, waive the right not to be tried for kidnapping.

Indecent molestation is defined by S. D.C. 1960 Supp. § 13.1727:

“Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fifteen years, with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child, shall be guilty of the crime of indecent molestation.”

The offense of kidnapping is defined in S.D.C. 1960 Supp. § 13.2701 as follows:

“Whoever shall seize, confine, inveigle, decoy, kidnap, abduct or carry away any person and hold or detain such person for ransom, reward, or otherwise, except in the case of an unmarried minor by a parent thereof, shall be guilty of kidnapping * *

In Blockburger v. United States, 284 U. S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court held:

“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.”

Id. at 304, 52 S.Ct. at 182.

Clearly, South Dakota’s kidnapping and indecent molestation statutes each require proof of facts which the other does not. And, contrary to appellant’s contention, the evidence introduced at the two trials was not identical. At the first trial for indecent molestation, the state offered testimony of a supposed expert witness to prove that the act of molestation was committed with the intent specified in the statute. In reversing this conviction on appeal, the South Dakota Supreme Court found that this witness was not a qualified expert and that her testimony should have been stricken. The court held that in cases arising under the molestation statute “[t] he critical issues * * * are the nature of the act and the intent with which it was done,” and that without the evidence which the court found to be inadmissible, there was not sufficient proof bearing on appellant’s intent to sustain the conviction. State v. Percy, 80 S.D. 1, 117 N.W.2d 99, 101 (1962). At appellant’s subsequent trial for kidnapping, this evidence was not introduced, and was, of course, not necessary to prove the offense of kidnapping.

Since the submission of this appeal, the Supreme Court has held that the double jeopardy clause of the Fifth Amendment, now applicable to the states, incorporates the rule of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The doctrine “* * * means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit.” Id. at 443, 90 S.Ct. at 1194. At his first trial, Ashe had been found not guilty of the armed robbery of one of a group of persons who had been victimized at the same time. The State then prosecuted him for armed robbery of another of the persons who had been robbed. Applying the rule of collateral estoppel, the Supreme Court held that the second prosecution was barred, because at both trials “[t]he single rationally conceivable issue in dispute before the jury was whether petitioner had been one of the robbers.” Id. at 445, 90 S.Ct. at 1195. And, this issue had been finally resolved in petitioner’s favor by the jury’s verdict of acquittal at the first trial.

For several reasons there is no basis for applying the doctrine of collateral estoppel to this case. Even though the evidence at both of appellant’s trials was similar, the essence of the offense of indecent molestation, and the issue before the jury at the first trial, was whether appellant had willfully committed a lewd act upon the child with the intent of appealing to the lust of himself or his victim. The gravamen of the offense of kidnapping submitted to the jury at the second trial, was whether appellant had unlawfully seized and detained the child. Compare, United States ex rel. Brown v. Hendrick, supra, at 439. Furthermore, even if we were to assume that the essential elements of kidnapping were incidentally determined at the first trial, Ashe would not control because here, as distinguished from Ashe, the jury found appellant guilty. See United States v. DeMarrias, 441 F. 2d 1304 (8th Cir. 1971).

Secondly, appellant posits the theory that under the unique circumstances of this case, indecent molestation is included within the greater offense of kidnapping, and that his conviction on the lesser offense barred the state from prosecuting him for kidnapping. This theory is premised upon the contention that because the South Dakota statute defines kidnapping as the abduction and holding of a person for “ransom, reward or otherwise,” it is necessary to prove that the victim was held for some benefit of the abductor. Appellant contends the benefit in his case must have been the indecent molestation, since no ransom or reward was involved. Granting the novelty of the theory, we find it untenable. Even assuming it essential to prove some benefit to the abductor from the kidnapping, it would not be necessary to establish all the elements of the crime of indecent molestation. This is demonstrated in the instant case by the inability of the state to prove the intent necessary to convict appellant of molestation. See State v. Percy, supra at 103. Moreover, the South Dakota kidnapping statute has been construed in State v. Strauser, 75 S.D. 266, 63 N.W.2d 345 (1954) to the effect that:

“[I]t is not necessary to allege that the kidnapping was for reward or ransom or for any other specific purpose * * * the word ‘otherwise’ extends the prohibition of the statute to restraint in any case other than for ransom or reward.”

Id. at 347. Based on the state’s interpretation of its own statute, then, it was unnecessary to prove that appellant had any purpose in perpetrating the abduction in order to support a conviction for kidnapping. Thus, we must reject appellant’s theory that indecent molestation is an included offense of kidnapping.

Finally, appellant urges that under the holding of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), the state was barred from prosecuting him for kidnapping. At his first trial, Green was convicted of arson and second degree murder. The jury had also been authorized to find him guilty of first degree murder, but the verdict was silent on this charge. Green’s second degree murder conviction was reversed on appeal, and he was subsequently retried and convicted of first degree murder. The Supreme Court reversed this second conviction on the ground that Green had been twice placed in jeopardy for the same offense. In so holding, the Court reasoned that the first jury’s verdict on the second degree murder charge constituted an implicit acquittal on the first degree charge, and that Green’s jeopardy on the greater offense was complete when the jury was given the opportunity to return a guilty verdict on that charge. The Supreme Court recently applied the Green rationale on nearly identical facts in Price v. Georgia, supra.

In the instant case, appellant was not charged with kidnapping at his first trial. There were no jury instructions on that offense, and the jury had no opportunity to render an explicit or implicit verdict on kidnapping. Thus, appellant cannot bring himself within the holdings of Green and Price, supra, simply because he was not placed in jeopardy on the kidnapping charge at his first trial.

In summary, we find that appellant’s double jeopardy claim must fail. Indeed, his claim is analagous to that urged by the accused in United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) and rejected by the Supreme Court. In Ewell, the defendant’s first conviction for violating 26 U. S.C. § 4705(a), selling narcotics without the required order form, was vacated and defendants were subsequently reconvicted of violating 26 U.S.C. § 4704(a), selling narcotics not in the original stamped packages, an act arising out of the same transaction as the earlier conviction. In finding that the defendants had not been twice placed in jeopardy, the Court observed:

“Here, the Government is not attempting to prosecute a defendant for an allegedly different offense in the face of an acquittal or an unreversed conviction for another offense arising out of the same transaction. * * * Here, the Government seeks only to sustain one charge under § 4704. If the present indictments charge the same offense for which appellees were previously convicted, they may clearly be retried on either § 4705 or § 4704 after their convictions have been vacated on their own motions. In these circumstances, where the appellees are subject to a second trial under Ball and Tateo, the fact that § 4704, rather than § 4705, is charged does not in any manner expand the number of trials that may be brought against them. If the two offenses are not, however, the same, then the Double Jeopardy Clause by its own terms does not prevent the current prosecution under § 4704.”

Id. at 124-125, 86 S.Ct. at 778.

Accordingly, we find that appellant’s rights under the Double Jeopardy Clause were not violated by his retrial and re-conviction for kidnapping.

Notwithstanding our disposition of the first issue, appellant urges that the South Dakota court violated his constitutional right to due process by imposing a greater sentence on the kidnapping conviction than he had received on the conviction for indecent molestation. Reliance is placed upon the Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), where the Court found that “neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction” of a defendant successful in having his first conviction set aside. Id. at 723, 89 S.Ct. at 2079. The Court did hold, however, that under the Due Process Clause, where a more severe sentence is imposed after a new trial, the reasons therefor must be based upon indentifiable conduct of the defendant occurring after the original sentencing, and that these reasons must affirmatively appear on the record.

Application of the teachings of North Carolina v. Pearce, supra, to the instant case is necessarily premised upon the retrospectivity of that ruling, since appellant’s conviction and sentence became final long before that decision was rendered. However, assuming, without deciding, that Pearce is retroactive,¹ we find that holding not controlling in the instant case. The ruling in Pearce was predicated upon increased punishment imposed after retrial for the same offense. Appellant was given a harsher sentence upon his conviction of a different offense. Although, appellant’s two convictions were based upon the same criminal episode or transaction as shown above, indecent molestation and kidnapping are separate and distinct offenses, with different punishments provided for each under the South Dakota statutes.

We do not interpret the decision in North Carolina v. Pearce, supra, to apply to another offense arising out of the same transaction. And, we are unwilling, as an inferior appellate court, to broaden the sanctions thus far enunciated by a majority of the Supreme Court.

Rather, we believe the holding in Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) controls. In Williams, the defendant first pled guilty to murder and received a life sentence. Thereafter, he pled guilty to, and received the death penalty for the offense of kidnapping, which was based on the same event as the murder. In rejecting the defendant’s attack upon the imposition of the death sentence, the Court held:

“Therefore we cannot say that the sentence to death for the kidnapping, which was within the range of punishments authorized for that crime by the law of the State, denied to petitioner due process of law or any other constitutional right. Nor, in view of the fact that kidnapping and murder are separate and independent offenses in Oklahoma, is there any merit in petitioner’s collateral claim that what he calls ‘the lesser crime’ of kidnapping ‘merged’ in what he calls ‘the greater crime’ of murder and that the sentence to life imprisonment for the murder was a bar to imposition of any sentence for the kidnapping, or at least to any greater sentence than was , imposed for the murder, and that imposition of a death sentence for the kidnapping deprived him of due process in violation of the Fourteenth Amendment.”

Id. at 586-587, 79 S.Ct. at 427.

In summary, we find that appellant’s right under the Fifth Amendment not to be twice placed in jeopardy has not been violated, and that he was not denied due process by imposition of a greater sentence upon his conviction for kidnapping.

Accordingly, the judgment of the district court should be and is affirmed.

HEANEY, Circuit Judge

1 . We have withheld decision of this appeal for some time in the hope that the Supreme Court would rule on the retroactivity of the Pearce ease. Pending the submission of this appeal, the Supreme Court thrice granted certiorari on this question, but in each case the writ was dismissed as improvidently granted. Moon v. Maryland, 250 Md. 468, 243 A.2d 564 (1968), cert. granted 395 U.S. 975, 89 S.Ct. 2135, 23 L.Ed.2d 764 (1969), petition for cert. dismissed 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970); Odom v. United States, 403 F.2d 45 (5th Cir. 1968), cert. granted 399 U.S. 904, 90 S.Ct. 2203, 26 L.Ed.2d 559, petition for cert. dismissed 400 U.S. 23, 91 S.Ct. 112, 27 L.Ed.2d 122 (1970); Romontio v. United States, 400 F.2d 618 (10th Cir. 1968), cert. granted 400 U.S. 901, 91 S.Ct. 144, 27 L.Ed.2d 137 (1970), petition for cert. dismissed, 402 U.S. 903, 91 S.Ct. 1384, 28 L.Ed.2d 644 (1971). However, because we find North Carolina v. Pearce not controlling in our decision of this appeal, we have determined to proceed with the disposition of this matter, despite the unsettled question on the retrospectivity of that holding.