773 S.W.2d 199 | Mo. Ct. App. | 1989
The state appeals from the trial court’s order dismissing a two count indictment charging defendant with perjury. We reverse and remand.
The principal issue in this appeal is whether defendant would be subjected to double jeopardy were he prosecuted for perjury, § 575.040, RSMo 1986, after being acquitted in the trial wherein he uttered the allegedly perjurious testimony. In defendant’s previous trial he was charged with first degree assault and tampering. From the sparse record before us,
Count I of the present indictment charges that defendant perjured himself when he testified he was beaten and was “therefore forced to make a written confession.” Count II charges that defendant perjured himself when he testified he reported the beating to workhouse personnel and sought medical treatment.
Defendant responded to the perjury indictment with a motion to dismiss, arguing “the state’s issuance of the two perjury charges constitutes double jeopardy,” and that the “[sjtate’s issuing peijury charges against defendant is a clear example of prosecutorial vindictiveness.” After hearing oral argument from both sides, the trial court granted the motion, stating that the dismissal was based on double jeopardy.
In determining the double jeopardy issue, we note at the outset that this case is not governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). That case deals only with the ramifications of charging a defendant with separate statutory violations arising out of the same criminal transaction. Id. at 304, 52 S.Ct. at 182. The present charges arise from the allegedly false testimony which was given months after the transaction resulting in the assault and tampering charges. Thus Blockburger is inapposite.
Here we are concerned with the application of collateral estoppel, a doctrine which is embodied in the 5th Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); State v. Booker, 540 S.W.2d 90, 92 (Mo.App.1976). Although defendant did not refer explicitly
Our research has disclosed a number of cases discussing the effect of an acquittal on a subsequent prosecution for perjury.
Reversed and remanded.
. The record on appeal consists only of the perjury indictment, defendant’s motion to dismiss, the court’s summary ruling, and an order overruling the state’s motion to reconsider.
. The issue is not one of first impression in Missouri. In State v. Clinkingbeard, 296 Mo. 25, 247 S.W. 199 (1922) defendant was acquitted of selling intoxicating liquor and subsequently prosecuted for perjury. Our Supreme Court held that the acquittal was no bar to the perjury prosecution "[even] though the testimony of both trials be based on substantially the same facts." Id. at 202. The per se rule of Clinking-beard would appear to have little, if any, validity after the United States Supreme Court’s pronouncement in Ashe.
. We stated in Booker,
To fully review the factual basis for the issue, we ordered a transcript prepared of the burglary and robbery trial, [f.n. 3 The State argued, perhaps with merit, that defendant failed to properly raise the issue of collateral estoppel or establish a reasonable basis for*202 preparation and examination of the robbery-burglary trial transcript, but to fairly decide the issues, the record was procured.] We have examined the pleadings, cross-examination, closing arguments, jury instructions and all matters of record as mandated by the Supreme Court to determine if identification was the primary issue upon which the jury could rationally have acquitted defendant. In the burglary charge the forcible breaking and entering with felonious intent were elements (unrelated to the rape) vigorously contested and called to the jury’s attention by appropriate instructions of the court. From this we conclude a rational jury could have grounded its verdict upon those issues precluding the availability of collateral estoppel stemming , from that count.
Booker, 540 S.W.2d at 90. While in Booker we ordered the transcript, on reflection we believe the better practice is to give the trial court an opportunity to properly resolve the collateral estoppel issue in the first instance.