STATE of New Mexico, Petitioner, v. David Wadajo ROGERS, Respondent.
No. 11322.
Supreme Court of New Mexico.
July 7, 1977.
566 P.2d 1142
Jan A. Hartke, Chief Public Defender, Reginald J. Storment, Appellate Defender, Santa Fe, for respondent.
OPINION
FEDERICI, Justice.
On January 15, 1976, a branch of the First National Bank in Albuquerque was robbed of approximately $68,250.00. Dur-
Defendant has appealed his conviction from the state district court. The Court of Appeals affirmed the conviction of the crime of receiving stolen property, but reversed the conviction for kidnapping, holding that the acquittal on the federal charges barred the subsequent state prosecution for kidnapping on the grounds of judicial policy. State v. Rogers, 90 N.M. 673, 568 P.2d 199 (Ct.App.1977). We granted certiorari.
Defendant has claimed throughout these proceedings that the state prosecution for kidnapping and receiving stolen property amounts to double jeopardy in view of his acquittal on the federal charges of bank robbery. Defendant throughout has also contended that the New Mexico prosecutions were barred by the doctrine of collateral estoppel.
The only issue we consider here is whether defendant‘s acquittal of the federal charges relating to bank robbery bars the prosecution by the State of New Mexico of the kidnapping charge. We agree with the Court of Appeals in its affirmance of the state court conviction of the charge of receiving stolen property. We reverse the Court of Appeals in its ruling that the acquittal on the federal charges relating to bank robbery barred the subsequent state prosecution for kidnapping.
Defendant first argues that because he was acquitted in federal district court, the state prosecution violated the provisions of the United States and New Mexico Constitutions against double jeopardy.
We must now determine whether our
It is our conclusion that the dual sovereignty doctrine is applicable under the double jeopardy provision of the New Mexico Constitution. There is little to distinguish the language of our constitutional
Furthermore, other states which have been presented with the issue of whether a defendant may be charged in state courts following a conviction or acquittal in federal court tend overwhelmingly to uphold the validity of consecutive prosecutions by separate sovereigns. Many states recognizing the dual sovereignty doctrine do so on the basis of an interpretation of double jeopardy provisions in both the state and federal constitutions. Nance v. State, 123 Ga.App. 410, 181 S.E.2d 295 (1971); Hall v. Commonwealth, supra; State v. Castonguay, 240 A.2d 747 (Me. 1968); Bankston v. State, 236 So.2d 757 (Miss.1970); State v. Turley, 518 S.W.2d 207 (Mo.App.1974), cert. denied, 421 U.S. 966, 95 S.Ct. 1956, 44 L.Ed.2d 454 (1975); State v. Pope, 190 Neb. 689, 211 N.W.2d 923 (1973); State v. Cooper, 54 N.J. 330, 255 A.2d 232 (1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Breedlove v. State, 470 S.W.2d 880 (Tex.Cr.App.1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1512, 31 L.Ed.2d 808 (1972). Others rely on the federal constitution or merely cite Bartkus for the principle of dual sovereignty. State v. Duncan, 221 Ark. 681, 255 S.W.2d 430 (1953); State v. Tiche, 33 Conn.Sup. 51, 360 A.2d 135 (1976); Richardson v. State, Ind. App., 323 N.E.2d 291 (1975); Bell v. State, 22 Md.App. 496, 323 A.2d 677 (1974), cert. denied, 421 U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.2d 672 (1975); Crane v. State, 555 P.2d 845 (Nev.1976); State v. Fletcher, 26 Ohio St.2d 221, 271 N.E.2d 567 (1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 699, 30 L.Ed.2d 675 (1972); Beard v. State, Tenn. App., 485 S.W.2d 882 (1972); State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 173 N.W.2d 175 (1970). Insofar as we can determine, only one state has held to the contrary. People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). The law is well established in both federal and state courts that where the same act is prohibited by the laws of the separate jurisdictions, a prior acquittal or conviction by one sovereign does not necessarily operate as a bar to a subsequent prosecution for the same act or transaction by the other sovereign.
Finally, we are of the opinion that if there is to be a change in the dual sovereignty doctrine, public policy would dictate that such a change should be initiated by the Legislature. Numerous states have now enacted statutes which bar prosecution of a defendant on a charge for which he has previously been acquitted or convicted under the laws of the federal government or another state. See, e. g.,
We are also of the opinion that defendant‘s contentions regarding double jeopardy have been set to rest in State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975), even though that case involved successive prosecutions in municipal and state district courts, and not consecutive prosecutions initiated by separate sovereigns. In Tanton, this court rejected the “same transaction”
For the above reasons, and based on the record before us, we do not feel compelled on the basis of “judicial policy” to depart from a rule which has been adhered to for many years by both state and federal courts. We find no error in the conviction of defendant in the state courts of New Mexico for receiving stolen property by disposing of it and for kidnapping following his acquittal in the United States District Court on charges of bank robbery.
Defendant‘s claim that the New Mexico prosecution for kidnapping was barred by the doctrine of collateral estoppel was rejected by the Court of Appeals on the basis that there was no identity of parties. We reject defendant‘s argument for the same reason.
In State v. Tijerina, 86 N.M. 31, 33, 519 P.2d 127, 129 (1973), we stated that collateral estoppel [quoting from Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)]:
“* * * means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (Emphasis added.)”
Thus, the application of collateral estoppel requires an identity of parties in the prior and subsequent litigation. In this case, the federal government is neither the same as nor in privity with the State of New Mexico. United States v. Johnson, 516 F.2d 209 (8th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975); In re Hutul, 54 Ill.2d 209, 296 N.E.2d 332 (1973); Commonwealth v. Studebaker, 240 Pa.Super. 37, 362 A.2d 336 (1976). Cf. Maroney v. United States Fidelity and Guaranty Co., 81 N.M. 111, 464 P.2d 401 (1970).
For the reasons stated, we affirm the decision of the Court of Appeals with respect to the conviction of receiving stolen property by disposing of it, and reverse the decision of the Court of Appeals in its reversal of the conviction for kidnapping. This case is remanded with instructions to proceed in a manner consistent herewith.
IT IS SO ORDERED.
McMANUS, C. J., EASLEY, J., and SANTIAGO E. CAMPOS, District Judge, concur.
SOSA, J., dissenting.
SOSA, Justice, dissenting.
I respectfully dissent.
I agree with the analysis of the Court of Appeals and the majority with respect to the receiving conviction. The only issue I consider here is whether the defendant‘s acquittal of the federal charges bars the kidnapping prosecution by the state. The Court of Appeals upheld such a bar for the kidnapping charge on the grounds of judicial policy. I would reach the same result but for different reasons.
Defendant claims that the state prosecution for kidnapping after the acquittal of the federal charge of robbery amounts to double jeopardy. In State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) we adopted the same evidence test in analyzing double jeopardy problems. We continue to uphold that test. In the case before us it is obvious that the evidence to convict someone of robbery is not the same as that required to convict him of kidnapping. Thus, assuming we were to adopt the policy that only one sovereign may prosecute the defendant for the same crime, the same evidence test in this case would not bar the state from prosecuting the defendant for kidnapping; rather, it would only bar the state from prosecuting the defendant for robbery.
However, the factual circumstances surrounding this case necessitate further analysis. The state stipulated that “. . .
Thus, I now reach the central issue: may both the federal and state government prosecute and punish a defendant for the same crime? Should the concept of single prosecutions (or single determinations of material facts) be circumvented by the concept that each sovereignty may prosecute such crimes or determine such facts merely because it is a sovereign? The United States Supreme Court has held that the federal Constitution does not bar such double prosecutions. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). I, however, am unable to approve of such duplicate prosecutions in view of our double jeopardy clause,
very same crime is tantamount to vexatious prosecution. I agree with the spirit of Black‘s dissent in Bartkus v. Illinois, 359 U.S. at 154-55, 79 S.Ct. 676. I would hold that the stipulation and the acquittal by the federal jury under the concept of collateral estoppel2 would bar the kidnapping charge and conviction.
For the foregoing reasons I dissent from the majority‘s continued adherence to the concept of dual sovereignty.