Eatherton v. State

810 P.2d 93, 1991 Wyo. LEXIS 49, 1991 WL 49667

• Court: Wyoming Supreme Court
• Decided: April 9, 1991
• Docket: 89-39
• Status: Published

Opinions

THOMAS, Justice.

The primary issue for us to resolve in this case is whether, in a criminal trial, the prosecution must be foreclosed from introducing evidence to establish one or more of the elements of the crime if that evidence also depicts conduct that would tend to establish a crime of which the defendant was acquitted in a prior trial. In the first trial, Patrick Eatherton (Eatherton) was convicted of burglary, but acquitted of larceny, with both charges arising out of a continuum of circumstances. The trial court ruled that the State was not foreclosed from introducing evidence that the victim’s money was stolen when Eatherton was retried for burglary after his earlier conviction was reversed. A corollary issue is whether the defendant was entitled to prove the acquittal if the evidence of the theft was properly received. In this regard, the trial court ruled that the State could not introduce evidence of Eatherton’s previous conviction of the burglary and that Eatherton could not introduce evidence that he had been acquitted of the charge of larceny. We agree with the rulings of the trial court with respect to the evidence, and we affirm Eatherton’s conviction and judgment and sentence.

Eatherton submits the following issues: “I. Did the trial court err in admitting evidence of the larceny, where the defendant had previously been acquitted, and an analysis of the jury’s verdict reveals that the basis for that verdict was a finding that no larceny occurred.

“II. Did the trial court err in not allowing appellant to present to the jury evidence that he had been acquitted of larceny in the previous proceeding.”

The State frames these issues as:

“I. Was it proper for the district court to admit all relevant evidence in the retrial of defendant on the burglary conviction?

“II. Was it proper for the district court to disallow evidence of the acquittal of larceny in the first trial during the second burglary trial?”

On February 9, 1987, Eatherton was charged with the crimes of burglary and larceny. The trial for these offenses was held in June of 1987. The jury found him guilty of the crime of burglary, but not guilty of the crime of larceny. Eatherton then appealed the burglary conviction, and we reversed the conviction and remanded the case for a new trial because of error in the failure of the trial court to give an instruction on the lesser included offense of criminal entry. Eatherton v. State, 761 P.2d 91 (Wyo.1988).

Prior to the new trial, Eatherton submitted a motion in limine in which he sought an order that the State be prohibited from presenting or eliciting any evidence relating to the fact that any money was taken during the burglary. In the motion, Eatherton contended that the evidence should not be permitted because of his earlier acquittal of the charge of larceny. Subsequently, Eatherton presented another motion seeking an order that the State be prohibited from presenting or eliciting any testimony or other evidence relating to his earlier conviction on the charge of burglary that had been reversed by this court. The trial court granted this latter motion, but it denied the motion relating to evidence of the theft of money, reasoning that the facts presented at the first trial were common to both of the crimes that were charged. The court also ruled that the fact of money being taken was relevant to the issue of intent on the crime of burglary. In making this ruling, the court made the comparison required by Rule 403, W.R.E., and determined that the probative value of the evidence of money being taken did outweigh its prejudicial effect. In addition to these rulings, the court ruled that it would not admit any evidence concerning the acquittal on the charge of larceny. That ruling was premised on the provisions of Rule 403.

The evidence submitted at the second trial paralleled quite closely the evidence at the first trial. About 3:00 A.M., on February 8, 1987, Eatherton went to the home of Judy Shaffer in Newcastle, Wyoming and asked to see Jerry Ellis. Eatherton brought along a bottle of peppermint schnapps, which he shared with Ellis. Between 4:00 A.M. and 4:30 A.M., the three of them went in Shaffer’s automobile purportedly to drive to Camp in the Trees. They did not proceed directly to their destination, however, because Eatherton asked Shaffer if she would first stop at the house of a woman whom he wanted to see. At Eath-erton’s direction, Shaffer drove to the corner of Seventh and Sunset Streets and, after requesting Shaffer and Ellis to wait for him, Eatherton left the automobile. Upon his return, he told Shaffer to drive to the Short Stop store to purchase some gasoline. A short time after that was accomplished, they returned to the Short Stop store to borrow a flashlight because Eath-erton said he had lost his wallet somewhere. The three then retraced their route searching for the wallet, went back to return the flashlight, and then drove back to Seventh and Sunset Streets where Eather-ton, again, left the car. After waiting a few minutes, Shaffer and Ellis drove away without him.

The victim and a neighbor, who testified at the trial, both live near the corner of Seventh and Sunset Streets. The neighbor described herself as a light sleeper and stated that she heard a vehicle driving around the neighborhood early in the morning on February 8, 1987. She looked out her window, saw the vehicle stop, and observed someone getting into it. She decided that this was suspicious activity and called the police. Still later, she saw the same vehicle return and the same person get out of the car but, in this instance, that person walked up the steps to the victim’s house. After that, she saw that individual run away from the victim’s house.

The victim testified that he was awakened, about 6:00 A.M. on February 8, 1987, and saw someone standing in the doorway of his bedroom. He identified that person as Eatherton. The victim testified that Eatherton was holding the victim’s pants, either looking at them or attempting to get something out of them. Apparently, Eatherton then realized that the victim had seen him standing there, and Eatherton raised the pants as if to cover his face and ran from the house. The victim got his pistol, ran out of his house and, upon seeing Eatherton running down the street, yelled at him to halt and fired a warning shot. He testified that his wallet, which had contained $600 in cash, was missing.

The night clerk at the Short Stop left the store a short time later. As she was leaving, she saw a man in the alley who was dressed the same as Eatherton, whom she had seen twice when he came into the Short Stop earlier that morning. At about that same time, a Newcastle police officer stopped Shaffer’s automobile while investigating the suspicious vehicle report submitted by the neighbor. Shaffer reported to the police officer that Eatherton had been with her and Ellis, but they had dropped him off in the vicinity of the victim’s house.

The retrial in this case occurred on January 10 and 11, 1989, and the jury at the second trial, again, found Eatherton guilty of burglary.¹ Following his conviction, Eatherton was sentenced to a term of seven to ten years in the state penitentiary with credit to be allowed for time previously served. The court also ordered Eather-ton to pay $600 in restitution to the victim and $50 to the Victims of Crime fund.

In presenting his argument on the first issue, Eatherton emphasizes the fact of the prior acquittal of the charge of larceny and argues that an analysis of the jury verdict demonstrates the jury found no larceny occurred. While Eatherton asserts cases involving the concept of double jeopardy, it is clear that the ground for his contention that it was improper to admit the victim’s testimony about the missing money is the theory of criminal collateral estoppel. According to the doctrine of collateral estoppel, when an issue of ultimate fact once has been determined by a valid and final judgment, that issue cannot be relitigated in any future lawsuit involving the same parties. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The Supreme Court also noted that the doctrine of collateral estoppel, as a derivation from civil law, is applied in the criminal law as ancillary to the double jeopardy protection of the Constitution of the United States. Ashe, 397 U.S. at 445-46, 90 S.Ct. at 1195. That protection, articulated in the Fifth Amendment to the Constitution of the United States of America, is also encompassed by Wyo. Const, art 1, § 11-

In Ashe, the Supreme Court of the United States adopted the following process to determine when collateral estoppel will foreclose the relitigation of an issue in the criminal context:

“ * * * Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into 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 consideration.’ * ⁴ * The inquiry ‘must be set in a practical frame and viewed with an eye to all circumstances of the proceedings.’ Sealfon v. United States, 332 U.S. 575, 579 [68 S.Ct. 237, 92 L.Ed. 180 (1948)].” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194.

In espousing this concept, the court noted that the invocation of collateral estoppel in criminal cases must be approached with realism and rationality.

Our situation is different from the cases upon which Eatherton relies because we are not confronted with a double jeopardy question. Eatherton’s retrial on the burglary charge does not constitute double jeopardy since the successful appeal of a conviction on any claim of error in connection with the trial proceedings other than insufficiency of the evidence does not serve to bar retrial. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Our only concern is with the effect of collateral estoppel upon the introduction of the evidence of the taking of the wallet and the money. The number of appellate decisions addressing the concept of collateral estoppel is indeed extensive. See, e.g., Annotation, Modern Status of Doctrine of Res Judicata in Criminal Cases, 9 A.L. R.3d 203 (1966). Even so, neither Eather-ton nor the State has cited a case involving the same dynamics as this case.

Our own research has disclosed only one case similar in tenor and involving these factors:

(1) the defendant was tried upon multiple charges arising out of a single set of circumstances;

(2) he was tried on all the charges at a common trial;

(3) the jury found the defendant guilty on at least one of those charges but acquitted the defendant on some of the charges;

(4) the defendant’s convictions were reversed and remanded for retrial; and

(5) facts common to the charge being retried and the charge on which the defendant was acquitted were presented in evidence at the second trial.

This was the scenario in People v. Goodman, 69 N.Y.2d 32, 511 N.Y.S.2d 565, 503 N.E.2d 996 (1986). In that case, Goodman originally was charged with murder, robbery, grand larceny, burglary, and criminal possession of a weapon but, at trial, the jury convicted him only on the larceny charge. That conviction then was reversed on appeal.

In the second trial, over Goodman’s objections, the prosecution was permitted to present evidence that the victim had been beaten to death, that Goodman had made statements before the crime that he intended to steal the victim’s rings and that he would kill her if necessary to accomplish that end, and that Goodman, at a time close to the murder, had blood on his hands and his clothes. Goodman. Goodman was convicted a second time on a charge of larceny. The New York Court of Appeals upheld his conviction, concluding that the admission of the challenged evidence was not improper and explaining, in its decision, the difficulty in determining the basis of the decision of a jury in a mixed verdict case. That court said:

“In the case of a mixed verdict, the defendant has been acquitted by the jury of some of the charges in a multicount indictment but, at the instance of defendant, the conviction has been set aside because of trial error. In that situation, the People are not foreclosed by either double jeopardy or collateral estoppel concerns from reprosecuting the defendant on the charge which resulted in conviction. Acquittal on the joined charges does not give rise to a determination of an ‘ultimate fact’ which would bar prosecution because manifestly, unless the verdict is repugnant or inconsistent, the jury could not have found favorably to defendant on an element of the crime of which it convicted him. (see, United States v. Jones, 404 F.Supp. 529, 544, aff'd, 538 F.2d 321 (3rd Cir.)).

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“Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment (United States v. Mespoulede, 597 F.2d 329, 333 (2nd Cir. [1979]), supra; United States v. Kramer, 289 F.2d 909, 913 (2nd Cir. [1961]), supra; see, Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, supra). The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous. Nevertheless, the court must assume the jury reached a rational result (Ashe v. Swenson, supra), and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his favor (see, United States v. Mespoulede, supra, at p. 333, and cases cited therein). If he can show no more than that the verdict is ambiguous, he cannot establish that the jury found the evidentiary fact in his favor. The rule is not to be applied with a hypertechnical approach but with realism and rationality by examining all parts of the record of the prior proceeding and concluding from it whether a rational jury could have grounded its decision on an issue other than that which the defendant seeks to foreclose from consideration (Ashe v. Swenson, supra, [397 U.S.] at pp. 443-445, 90 S.Ct. at 1194-1195).” Goodman, 511 N.Y.S.2d at 570-71, 503 N.E.2d at 1001-02.

The doctrine of collateral estoppel finds its roots in civil law, but there are differences between civil and criminal law that give rise to different policy considerations in applying it. In civil law, the application of the rule of collateral estoppel promotes judicial economy and conserves private resources without unfairness to the litigant against whom estoppel is invoked. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). In the civil case, the issues in dispute are private rights between private litigants. In a criminal case, an important public interest is found in the enforcement of the criminal law accurately and justly while safeguarding the rights of the accused in the process. Standefer. The invocation of collateral es-toppel in the civil law assumes a “full and fair opportunity” to litigate the issue as to which the doctrine is applied. It is important to remember in a criminal case, however, that the government often does not have the “full and fair opportunity” to litigate.

“ * * * Several aspects of our criminal law make this so: the prosecution’s discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt * * *; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence * * *; and it cannot secure appellate review where a defendant has been acquitted. * * *.

“The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of ‘ “their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” ’ Dunn v. United States, 284 U.S. 390, 393 [52 S.Ct. 189, 190, 76 L.Ed. 356 (1932) ], quoting Steckler v. United States, 7 F.2d 59, 60 (CA2 1925).” Standefer, 447 U.S. at 22, 100 S.Ct. at 2007.

While Standefer involved the invocation of non-mutual collateral estoppel, the principles articulated certainly are apropos to this case. There can be no question that, under our law, the state is deprived of the “full and fair opportunity” to litigate in exactly the ways that are described.

Eatherton argues in his appeal that the only possible, logical reason that the jury at his first trial could have acquitted him on the charge of larceny is that its members did not believe he took the victim’s wallet and the money. Any determination of the rationale for the jury result in the first trial, however, is at least as difficult as it was for the New York Court of Appeals in reviewing Goodman. Our review of this case and the entire record of the prior proceeding, with the appropriate realism, rationality, and practicality, does not demonstrate the reason for the acquittal as being so confined and certain as Eatherton asserts.

Verdicts in a criminal case need not be consistent. Mainville v. State, 607 P.2d 339 (Wyo.1980). We are not permitted to speculate with respect to the exact rationale, thoughts, or reasoning invoked by a jury in arriving at its decision. Howell v. Garcia, 747 P.2d 1140 (Wyo.1987). In an instance such as this, in which the facts are intertwined and manifest a continuum covering the several charges, we cannot identify the jury’s rationale with any precision. Too many possibilities exist, and any delineation of the possible reasons for the jury verdict would reveal “the impracticality, if not infeasibility, of adjudging what ‘facts’ were resolved by the jury in favor of the defendants.” United States v. Mulherin, 529 F.Supp. 916, 939 (S.D.Ga.1981), aff'd 710 F.2d 731 (11th Cir.1983), cert. denied sub nom Moore v. United States, 464 U.S. 964, 104 S.Ct. 402, 78 L.Ed.2d 343 (1983), cert. denied sub nom Hornsby v. United States, 465 U.S. 1034, 104 S.Ct. 1305, 79 (1984). We hold that the trial court properly declined to apply the doctrine of collateral estoppel to the evidence of the victim’s wallet being taken simply because of Eatherton’s larceny acquittal.

In so doing, we decline, as did the New York Court of Appeals in Goodman, to adopt the evidentiary facts application of the doctrine of collateral estoppel. We recognize that a number of the United States Courts of Appeal have extended the rule of collateral estoppel to foreclose the admission into evidence of any testimony or exhibits that would tend to establish any of the elements of the charge on which the defendant was acquitted. That approach is certainly safe, but it manifests a lack of discernment. We are satisfied that the Supreme Court of the United States did not demand that approach by promulgating Ashe. The more precise analysis is to determine whether the challenged evidence could justify in the latter trial a contrary resolution of an issue identical to one found in favor of the defendant in the prior trial, after applying the Ashe process. If it could not, then the challenged evidence is nothing more than an evidentiary fact in the second trial and its admissibility is determined according to the usual rules of evidence. We prefer the rule of Flittie v. Solem, 751 F.2d 967, 972 (8th Cir.1985), cert. denied 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d 333 (1986), that “collateral es-toppel does not bar relitigation of facts that are evidentiary in the second prosecution.” Here it was not necessary in the second trial to establish that Eatherton stole the wallet or the money. The offense of burglary is completed when the unlawful entry is accomplished coupled with an intent to commit larceny or a felony in the premises. Sears v. State, 632 P.2d 946 (Wyo.1981); Mainville. At the second trial, the testimony of the victim as to the taking was simply evidentiary of the element of intent, a different issue from any involved in the crime of larceny, and it was not foreclosed by the Ashe principle of collateral estoppel.

After this case was tried and the majority opinion first was circulated, the Supreme Court of the United States handed down its opinions in Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), and Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Since the dissent focuses upon Grady and, in effect, concludes that Dowling has been subsumed by Grady, it is necessary to endeavor to harmonize these two cases in order to effect a rational application to this case. As Justice O’Connor noted in her dissent in Grady, 110 S.Ct. at 2095, keen discernment is essential to that task. Any reasonably strict view of the doctrine of stare decisis demands that the holding of a case be limited by its facts and, when so examined, these two cases are distinguished by their respective ratio deciden-di. As we perceive the rationale of these cases, Dowling is an evidence case invoking the doctrine of collateral estoppel as a component of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. On the other hand, Grady is a true double jeopardy case addressing successive prosecutions for the same conduct. Eatherton’s trial did not involve a successive prosecution for the conduct originally charged as the crime of larceny. The question presented at Eather-ton’s second trial was one of admissibility of evidence only. It follows that the controlling authority from the Supreme Court of the United States is Dowling, not Grady.

Grady does not have the effect of ruling that events such as those recounted by the victim in Eatherton’s second trial must be treated as though they never happened. The Supreme Court did not really develop any new law in Grady with respect to successive prosecutions. Instead, it utilized a rather complex factual situation to explain prior rulings with respect to the protection of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States. With respect to evi-dentiary matters, however, the Court reaffirmed Dowling, with the distinction in the two cases perhaps best captured in the following language:

“ * * * This is not an ‘actual evidence’ or ‘same evidence’ test.12 The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).” Grady, 110 S.Ct. at 2093.

On the same page, n. 12 states, in pertinent part:

“ * * * A true ‘same evidence’ or ‘actual evidence’ test would prevent the government from introducing in a subsequent prosecution any evidence that was introduced in a preceding prosecution. It is in this sense that we discuss, and do not adopt, a ‘same evidence’ or ‘actual evidence’ test.” (Emphasis added.)

When Eatherton's second trial is examined in the light of Dowling, it is clear that there was no violation of his constitutional protection from double jeopardy. Eather-ton’s prior acquittal of larceny did not determine an ultimate issue in this case. His acquittal of the crime of larceny established only that there was a reasonable doubt as to whether he took and carried away the wallet of the victim or $600 that was in the wallet. In order to introduce the evidence of the victim that his wallet containing $600 was missing after Eather-ton fled from the premises, the state did not have to satisfy a reasonable doubt burden. Its burden was to demonstrate relevance to the crime of burglary, a ruling within the discretion of the trial court. To paraphrase Dowling, 110 S.Ct. at 672, “Because a jury might reasonably conclude that * * * [Eatherton took the wallet containing $600], even if it did not believe beyond a reasonable doubt that * * * [Eatherton] committed the * * * [larceny] charged at the first trial, the collateral estoppel component of the Double Jeopardy Clause is inapposite.”

We have no equivocation about the relevancy of the proffered testimony pursuant to Rule 404(b), W.R.E. Rule 404(b) justifies the admissibility of other bad acts for the purposes there set forth which include establishing “intent.” Furthermore, the evidence was admissible simply because it was needed to permit the relation of a complete account of the events. The case of Crozier v. State, 723 P.2d 42 (Wyo.1986), justifies the admission of other bad acts for that purpose. Such evidence is admissible so long as its probative value outweighs its prejudicial effect, and the acquittal, by itself, does not cause the evidence to be inadmissible, but is only a factor to be evaluated in determining the weight of its probative value against its prejudicial effect. United States v. Van-Cleave, 599 F.2d 954 (10th Cir.1979); United States v. Burkhart, 458 F.2d 201 (10th Cir.1972). The record in this case demonstrates quite plainly that the trial court took the acquittal into its consideration in performing the appropriate balancing.

Since we have decided that the evidence of the theft of the wallet and money was not foreclosed under the doctrine of collateral estoppel, we must address Eath-erton’s second contention that the district court should have permitted him to introduce evidence of his acquittal on the larceny charge. The trial court directed both Eatherton and the State not to mention the earlier litigation. In making that ruling, the Court relied upon Rule 403, W.R.E., which authorizes the court to exclude certain relevant evidence if, among other reasons, the court concludes that the evidence will tend to mislead the jury or confuse the issue. In this instance, the evidence of the acquittal could have both misled the jury and confused the issues since, as we have explained previously, the considerations that induced the jury to reach its verdict cannot be identified with any degree of certainty. Nordgren v. United States, 12 Alaska 671, 181 F.2d 718 (9th Cir.1950). Our rule is that a trial court is vested with discretion to determine whether evidence should be admitted and, in the absence of an abuse of discretion, we will not reverse a conviction because of a refusal to receive evidence. Jackson v. State, 624 P.2d 751 (Wyo.1981), cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981).

Eatherton’s argument focuses on the policy considerations with respect to admitting such evidence. He does not argue, nor in any way demonstrate, that the trial court abused its discretion by the ruling that it made. For this reason, we decline to disturb the ruling of the trial court which prohibited the introduction of the evidence of acquittal. From the record, we cannot discern what evidence Eatherton might have offered which would not also have encompassed the conviction of burglary. We do note an additional concern that must at least be inferred from the ruling of the trial court. If Eatherton had been permitted to present evidence of the acquittal of larceny, this well could have opened the door to permitting the State to establish the prior burglary conviction that had been overturned on appeal. See Bennett v. State, 794 P.2d 879 (Wyo.1990); Pena v. State, 792 P.2d 1352 (Wyo.1990); Sanville v. State, 593 P.2d 1340 (Wyo.1979). It was in ruling on Eatherton’s motion to prohibit any evidence of the conviction the trial court ruled, on its own motion, that evidence of the acquittal would also be prohibited. Without regard to the prejudicial effect of the burglary conviction, if the court had permitted the evidence that Eatherton argues was erroneously excluded, the effect of that ruling would have been a denial of Eatherton’s own motion.

We emphasize that this decision does not stand for the proposition that evidence of a prior acquittal is never admissible. If the party offering that evidence can demonstrate its relevance, the trial court may receive evidence of an acquittal if the court determines that its probative value outweighs any other reasons stated in Rule 403, W.R.E., which would require the evidence to be excluded. Rules 401, 402, W.R.E. See, e.g., State v. Feela, 101 Wis.2d 249, 304 N.W.2d 152 (Wis.App.1981), overruled in part on other grounds sub nom State v. Pharr, 115 Wis.2d 334, 340 N.W.2d 498 (1983); State v. Tarman, 27 Wash.App. 645, 621 P.2d 737 (1980). The thrust of our decision is no more than that the admission into evidence of proof of an acquittal of a prior crime is within the exercise of sound discretion by the trial court and, in the absence of an abuse of discretion, its ruling will not be disturbed.

The judgment and sentence are affirmed.

URBIGKIT, C.J., and MACY, J., filed dissenting opinions.

1 . In accord with our reversal of Eatherton's first burglary conviction, the jury was instructed on the lesser included offense of criminal entry and given the choice of finding Eatherton not guilty, guilty of burglary, or not guilty of burglary but guilty of criminal entry.

4 . United States v. Garcia-Rosa, 876 F.2d 209 (1st Cir.1989), cert, denied sub nom. Alvarez v. United States, — U.S. -, 110 S.Ct. 742, 107 L.Ed.2d 760, cert, granted and judgment vacated sub nom. Rivera-Feliciano v. United States, — U.S.-, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990), from which the petition of Angel Rivera-Felici-ano was taken, first surfaced in 1989 and involved charges of four drug related counts to which some pleas were entered and other counts dismissed. He was thereafter re-indicted on events which he claimed involved the prior plea conviction and sentence. Double jeopardy was argued unsuccessfully and was followed by conviction and an extended sentence.

Tidwell, 111 S.Ct. 28, came from a decision of the Sixth Circuit Court of Appeals, United States v. Tidwell, 896 F.2d 554 (6th Cir.1990), entered by memorandum without published opinion from the Western District of Kentucky. Ellis, 111 S.Ct. 504, came from an unpublished opinion by the Court of Criminal Appeals, State of Oklahoma. After the defendant was first sentenced for possession of a shotgun used in a shooting, he was subsequently prosecuted for murder in the first degree and shooting with the intent to kill. The Blockburger concurrent prosecution test was in essence applied to reject the claimed double jeopardy defense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Martin, 111 S.Ct. 28, was a petition for a writ of certiorari from the Supreme Court of Virginia which had denied consideration as had apparently the Court of Appeals, both by unpublished decisions. A course of successive prosecution was involved. The gamut of charges ran from public drunkenness to obstruction of justice, carrying a concealed weapon, attempted capital murder of a law enforcement officer, and use of a firearm in the commission of a felony.

The fifth case, Parker, 111 S.Ct. 218, where the petition for writ of certiorari was denied, arose from a murder conviction in Arkansas state court. Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). On first trial, Parker was convicted of two counts of capital felony-murder, two counts of attempted first-degree murder, two counts of burglary, kidnapping and attempted capital murder with death penalty imposed. The capital murder convictions were reversed and he was retried. He was again convicted of capital murder and again given the death penalty. The Supreme Court of Arkansas held that the reversal was for trial error and not evidentiary insufficiency in denying a double jeopardy preclusion. The point of contention in Justice Marshall’s dissent to the denial of certio-rari related to the question of whether the initial reversal was based on insufficiency of evidence with the further conclusion that if true, “the State would not be free to prosecute petitioner for the same offense by merely charging him under a different statute * * Parker, 111 S.Ct. at 219 n. 3 (citing Grady).