63 N.C. App. 92 | N.C. Ct. App. | 1983
Lead Opinion
The main question for our consideration is whether in trying the defendant for breaking and entering the defendant’s constitutional rights were violated by the State presenting evidence which tended to show that defendant was also guilty of larceny. Ordinarily, in trying one for breaking and entering, evidence showing that the defendant also committed larceny in connection with the break-in is admissible, even though the defendant is not indicted for larceny. Such evidence is usually received in such cases because it tends to establish the defendant’s intent or motive in perpetrating the break-in. State v. Harlow, 16 N.C. App. 312, 191 S.E. 2d 900 (1974).
But, as the defendant rightly maintains, this is not the ordinary breaking and entering case and in permitting the State to prove the defendant’s intent and motive by evidence connecting him with the Field’s Jewelry Store larceny, prejudicial error was committed. The issue of defendant’s participation in the Field’s theft was tried and forever set at rest in the first trial. Having safely run that “gantlet” the defendant had a constitutional right not to again be jeopardized by that evidence. Though the crime that defendant was tried for this time, breaking and entering, is not the same crime that he was acquitted of by the first trial, larceny, defendant’s former jeopardy rights were nonetheless violated to the prejudice of his liberty, since the truth of the larceny evidence was again put in issue against him and no doubt contributed greatly to his conviction.
Though time was when a defendant in a State criminal proceeding could successfully plead former jeopardy only when he was being prosecuted a second time for the selfsame crime that
The collateral estoppel doctrine had long been available to civil litigants in state and federal courts alike and had been available to defendants in federal criminal proceedings at least since United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), when the Supreme Court rejected the government’s claim that the doctrine of res judicata had no application to criminal cases except to the limited extent expressly recited in the Fifth Amendment. In doing so, the Court, through Justice Holmes, unanimously declared with characteristic incisiveness: “It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightfully mentioned with solemn reverence, are less than those that protect from a liability in debt.” 242 U.S. at 87, 37 S.Ct. at 69, 61 L.Ed. at 164. As has so often been the case, the soundness of Holmes’ ruling has proven itself, it now being too plain to miss, since he pointed the way, that there is no good reason and never was for depriving only defendants in criminal proceedings of the full benefit of their adjudications, or for exempting the state from the universal ban against relitigating issues that are contested and lost.
The authoritative impact of Ashe v. Swenson, supra, was recognized by our Supreme Court in State v. McKenzie, 292 N.C. 170, 232 S.E. 2d 424 (1977), though the defendant there was held to have waived his double jeopardy rights by failing to timely
Notwithstanding that the State tried the defendant for the Field’s Jewelry larceny and lost, it put identically the same larceny proof in evidence again just as though the first trial had never occurred. Since a larceny of jewelry worth more than $20,000 had clearly occurred, his alleged co-defendant Moore admittedly committed it and the break-in as well, and both crimes were committed almost simultaneously, the jury’s not guilty verdict can only mean that they found that the defendant did not act in concert with Moore with respect to either crime and did not commit larceny on his own. Under the Court’s “acting together with a common purpose” instruction, had the jury believed that the defendant assisted Moore in any manner, he would have been found guilty of both charges, there being no conceivable basis in the evidence for an assumption that he helped Moore in one part of the crime and disassociated himself from him in the other. By using evidence linking defendant to the larceny and Moore, the State openly relitigated the defendant’s participation in the larceny and his association with Moore; that this was done only for the purpose of convicting him of breaking and entering, rather than larceny, neither alters the relitigation nor lessens its baleful effect. Since the first verdict established that defendant did not commit or participate in the larceny, under basic principles of law and Ashe v. Swenson, supra, the State was estopped from ever again contending against him to the contrary, in any proceeding, for any purpose. Consequently, the defendant’s conviction must be set aside and if he is retried, it must be without using any evidence which tends to connect him with the Field’s larceny or James Edward Moore.
We are aware that in State v. Baker, 34 N.C. App. 434, 238 S.E. 2d 648 (1977), another panel of this Court under similar circumstances reached a contrary result. This may have happened, as the briefs and record in that case reveal, because the appellant there mentioned neither the Double Jeopardy Clause of the Fifth Amendment, collateral estoppel, Ashe v. Swenson, nor State v. McKenzie, decided shortly before then, but relied only upon the
Apart from the constitutional inhibition against relitigating the defendant’s participation in the larceny, permitting one to be imprisoned because of evidence that has been rejected by an earlier jury would conflict with other bedrock principles of our jurisprudence. Under our system the whole purpose of a trial is to establish the truth and a verdict fairly arrived at is accepted by all who serve the law as the very embodiment of truth. Our rules of evidence evolved and developed as they have because of their believed utility in rejecting evidence that is untrustworthy and in receiving evidence that is trustworthy. “The purpose of the rules of Evidence is to assist the jury to arrive at the truth.” State v. Vestal, 278 N.C. 561, 589, 180 S.E. 2d 755, 773 (1971). So inherent is our law’s dependence upon and regard for evidence that is trustworthy and so strong is its aversion to evidence that is not, convictions obtained by using evidence known to be unreliable or by withholding evidence known to be reliable are routinely set aside. These principles and practices cannot be reconciled with offering and accepting as worthy of belief evidence that just a month before had been solemnly determined by an earlier jury to be unreliable.
The defendant’s earnest contention that the evidence was insufficient to justify conviction and that a directed verdict should have been entered is rejected, but only because in making this determination we are required to consider all of the evidence that was before the trial judge, including evidence that should not have been admitted. State v. Walker, 266 N.C. 269, 145 S.E. 2d 833 (1966). What evidence, if any, the State would have introduced had the larceny evidence not been admitted or what evidence will be presented during the next trial, if any, we do not know. But we do know, of course, and do not hesitate to say, that evidence which shows only that one was standing outside a store that had been broken into, ran upon the approach of a police car, and had particles of glass in his clothing, some of which were indistinguishable from the broken glass in the store’s door and some of which were not similar thereto, is not sufficient under our law to
The judgment appealed from is therefore reversed and the case remanded to the trial court for further proceedings in accord with this opinion.
New trial.
Dissenting Opinion
dissenting.
I dissent from the majority. I do not believe double jeopardy or collateral estoppel prevents the State from introducing evidence relevant to the crime with which defendant is charged. This is so even if the defendant has been acquitted of another crime which the evidence tends to prove.
I believe we are bound by State v. Baker, 34 N.C. App. 434, 238 S.E. 2d 648 (1977). That case considered and rejected the double jeopardy argument of defendant under similar circumstances and I believe it governs.
I vote to find no error in the trial.
