State v. MillerState v. Miller
Lee E. Miller, defendant herein, was accused of grabbing a twelve-year old boy and forcing the boy to accompany him to an abandoned house, where he tried unsuccessfully to rape the boy. His trial for attempted aggravated rape ended with a jury verdict of acquittal on July 22, 1986. The state then brought defendant to trial on a simple kidnapping charge, a violation of
Defendant was sentenced to five years at hard labor for simple kidnapping. However, following a multiple bill hearing, defendant was adjudicated a multiple offender. His original sentence was then vacated and he was resentenced under the provisions of
During the simple kidnapping trial, the state attempted to show that on March 27, 1986, the twelve-year-old boy, Tracy Hawthorne, was walking down the street when he was grabbed by defendant and accused of stealing defendant‘s tools. Hawthorne testified that defendant grabbed him by the waist and neck, told him to be quiet, and took him to an abandoned house three blocks away. Hawthorne further testified defendant, after making Hawthorne take off his shoes and pants, said he was going to have anal intercourse with him. However, when defendant started to remove something from his pocket, Hawthorne got away and ran to a friend‘s house nearby to report the incident. The friend‘s stepfather, Wayne Reed, testified Hawthorne showed up at the house in tears from a blow to the back of the head and stated “a man tried to take his booty.”
Defendant testified Hawthorne had stolen his tools and keys, which were left in front of his house when he went back inside to turn off the stove. An eyewitness corroborated this testimony. Shortly thereafter, defendant saw the boy and either accosted him or called him back. In any case, defendant testified the boy had some of defendant‘s tools in his pocket or hand. Defendant asked the boy to take him to the boy‘s mother, and the boy led him to the homes of various relations who refused to have anything to do with the matter. To recover the tools, the boy led defendant to an abandoned house where
Other testimony indicated the keys, tools, and other evidence in the abandoned house were apparently removed during the day in question and then replaced by Reed and Hawthorne when the police ordered them to do so prior to taking photographs. Sometime that day, Reed and Hawthorne saw defendant get into a truck. There is no indication, however, that defendant was trying to escape. Defendant testified the driver of the truck, for whom he had been waiting when the tools were stolen, was taking him to give an estimate on a small electrical job. Later in the day, defendant voluntarily reported to the police when he heard the police were looking for him.
Defendant was subsequently charged with one count of attempted aggravated rape,
Prior to the second trial, the defense filed a motion to quash the indictment on double jeopardy grounds. The motion was denied. At that hearing, the defense also filed a Motion to Elect, asking the court “to compel the State to elect the subsection of
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent; or
(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of 14 years, without the consent of its parent or the person charged with its custody ...
According to the minutes, the defense indicated it “was satisfied” with the State‘s answer.
The trial commenced and defendant was subsequently convicted by a six-member jury of simple kidnapping. Defendant appealed claiming, inter alia, the trial court had erred in admitting the testimony concerning the attempted aggravated rape because defendant has been acquitted of that charge. Defendant argued the admission of this evidence subjected him to double jeopardy and was both irrelevant and prejudicial, thereby depriving him of a fair and impartial trial. Defendant also claimed the state‘s use of the testimony to fulfill the “unlawful purpose” element of
This Court granted certiorari to review the decision of the Fourth Circuit. We now affirm, but for reasons different than those given by the Court of Appeal. We hold that the State‘s use of evidence of the attempted aggravated rape to prove the “unlawful purpose” element of simple kidnapping under
Both the Louisiana and the United States Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense.
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.
In determining whether the double jeopardy clause bars subsequent prosecution, this Court has recognized two different standards. In State v. Knowles, 392 So.2d 651 (La.1980), the court stated the two rules as follows:
[Under] the test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)], ... [t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied is whether each provision requires proof of an additional fact which the other does not ...
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The “same evidence” test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, if the evidence necessary to support the second indictment would have been sufficient to support the former indictment, double jeopardy prohibits the second prosecution.
Id. at 654 (citations omitted).
Although recognizing these two separate tests, this Court, in recent years, has principally relied on the “same evidence” test when evaluating double jeopardy claims. State v. Vaughn, 431 So.2d 763 (La.1983); State v. Solomon, 379 So.2d 1078 (La. 1980); State v. Didier, 262 La. 364, 263 So.2d 322 (1972).
In this case, the state prosecuted defendant under two subsections of
However, the fact the state also prosecuted its case under
In State v. Vaughn, supra, the defendant was charged in separate bills of information with theft (
An overview of the record reveals that the conduct which formed the basis of the malfeasance charge was the same conduct proven during the jury trial on the theft charge. Therefore, we conclude that the same evidence was used to convict Vaughn on both charges. The conviction by the trial judge for malfeasance was for conduct forming a part of the basis of the jury conviction on the theft charge and the latter constitutes a jeopardy as to the former.
In State v. Didier, supra, the defendant, a sheriff, was previously convicted of malfeasance in office under
In the present case, the record indicates the state relied heavily upon the testimony concerning the alleged attempted rape to fulfill the “unlawful purpose” element of
Furthermore, in State v. Knowles, 392 So.2d 651 (La.1980), the court recognized that the double jeopardy clause encompasses the principle of collateral estoppel. As described in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970), the principle of collateral estoppel means simply “that when an issue of ultimate fact has once been determined by a valid and final judgment, the issue cannot again be litigated between the same parties in any future lawsuit.” A fact is considered “ultimate” if it is necessary to a determination of the defendant‘s criminal liability.
In finding collateral estoppel not to be applicable in this case, the Court of Appeal essentially relied upon the fact the state argued its case under subsections (1) and (2) of
Having decided this case must be remanded for retrial, we next address defendant‘s request that this Court hold the testimony concerning the alleged attempted rape to be inadmissible at the new trial. Because the new trial may be prosecuted under
In holding the testimony of the alleged attempted rape inadmisible in the new trial, we recognize that previous cases from this Court have held testimony of other crimes which constituted part of the res gestae of the charged offense to be admissible regardless of the prejudicial nature of the evidence. See, State v. Jackson, 450 So.2d 621 (La.1984). However, this case presents a unique situation which has never been addressed by this Court. Defendant herein has been acquitted of the “other crime” concerning which the state
To summarize, we hold the state‘s use of evidence of the alleged attempted rape to prove the “unlawful purpose” element of
AMENDED AND, AS AMENDED, AFFIRMED.
DENNIS, J., concurs with reasons.
CALOGERO, C.J., concurs and assigns reasons.
WATSON, J., dissents believing there was double jeopardy under
DENNIS, Justice, concurring.
I respectfully concur with the majority that the state‘s use of evidence of the alleged attempted rape for which defendant was acquitted to prove the simple kidnapping charge violates defendant‘s constitutional right against double jeopardy.
I agree with the majority‘s finding that Dowling v. United States, 493 U.S. ___, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), is inapplicable to the present case because the existence of the attempted rape was an ultimate issue in the defendant‘s simple kidnapping trial as the state relied solely on the alleged attempted rape to prove the “unlawful purpose” requirement of
In Dowling, the United States Supreme Court held that the collateral estoppel component of the federal Double Jeopardy Clause was not violated by the admission of other crimes evidence because under Federal Rule of Evidence 404(b), as interpreted by Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the other crimes evidence is admissible if the jury can reasonably find that the act occurred and that the defendant was the actor. Dowling v. United States, 110 S.Ct. at 672. The Court then stated that an acquittal of the earlier crime only means that there was reasonable doubt as to the Dowling‘s participation in the earlier crime. Because the jury could reasonably find that Dowling participated in the earlier crime even if the jury in the earlier trial could not find Dowling‘s participation beyond a reasonable doubt, the collateral estoppel component of the Double Jeopardy Clause is inapposite. Id.
However, Louisiana‘s Constitutional guarantee against double jeopardy gives greater protection than its federal counterpart as that federal constitutional provision is interpreted in Dowling.
In State v. Prieur, 277 So.2d 126 (La. 1973) we established safeguards to protect the accused from the prosecutorial use of other crimes evidence. These safeguards are required by the spirit of our constitutional provisions. State v. Prieur, 277 So.2d at 130. One of these safeguards is that the prosecution must establish the defendant‘s participation in the other crime by clear and convincing evidence. Id. at 129. Thus, the gap which existed in Dowling
For the assigned reasons, I believe the court of appeal erred when it relied on Dowling v. United States, supra, to allow the state to introduce evidence of the attempted rape of which the defendant had been previously acquitted.
CALOGERO, Chief Justice, concurring:
I agree with the majority‘s conclusion that the defendant‘s conviction should be reversed, and that the case should be remanded to the district court for retrial under subsection 1 of
I further note that had I concluded that a double jeopardy violation had occurred in this case, I would question whether it is appropriate for this Court to remand for retrial. Normally, a finding of double jeopardy would preclude further proceedings and mandate the discharge of the defendant.