Beasley, Vincent Eric

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Cause No. 1357233
In Re. V~ncent E. Beasley In the District Court of
Relator, Pro-Se
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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
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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·
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by the parties, the Court holds that there was reversible error in
"'0"" the· trial court's judgment. Accordingly, the Court reverses the
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«< trial. court's judgment and remands the case to the trial court
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for further proceedings ..
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The Court orders that this decision be certified below
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Judgment rendered July ~6, 2012 .
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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
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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 worl432 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
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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
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"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
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restrictions and terms and conditions of lhe Matthew Bender Master Agreement restrictions and terms and conditions of the Mauhew Bender Master Agn:emcnl.
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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
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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.
;•"
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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
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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
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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.
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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
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