Salcedo v. State

376 S.E.2d 360, 258 Ga. 870, 1989 Ga. LEXIS 73

• Court: Supreme Court of Georgia
• Decided: February 15, 1989
• Docket: 46196
• Status: Published

Opinions

Gregory, Justice.

Appellant Raphael Salcedo was convicted of burglary in DeKalb Superior Court. The Court of Appeals affirmed his conviction in Salcedo v. State, 188 Ga. App. 3 (372 SE2d 238) (1988).

The burglary victim testified that she woke up early one morning and saw Salcedo coming into her bedroom. Salcedo was partially clothed and held the victim on the bed, but she escaped after distracting his attention.

During the trial of the present case a victim of an earlier Florida incident testified that she woke up early in the morning and was raped by Salcedo after he had broken into her room. In the Florida case, Salcedo was tried for sexual battery, burglary, and criminal trespass. He was acquitted of sexual battery and burglary, and convicted of criminal trespass. We granted certiorari to determine whether collateral estoppel barred admission of a witness’ testimony from Salcedo’s Florida acquittal.

Although “some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained. . . .” Moore v. State, 254 Ga. 674, 676 (333 SE2d 605) (1985), this court has not. Instead, “the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Id.

Felker v. State, 252 Ga. 351 (1(b)) (314 SE2d 621) (1984), neither rejects the concept of collateral estoppel, as has been claimed, see Extension of Collateral Estoppel to Evidence from a Prior Acquitted Crime, 35 Mercer L. Rev. 1419 (1984) (cited by the Court of Appeals in the Moore case, 173 Ga. App. 765, at 768) nor “adopts an exception to this rule where a sexual offense is [involved]” as the majority of the Court of Appeals held in this case. 188 Ga. App. at 4.

Felker and Moore can be applied properly only if the issues involved are analyzed properly. It is incorrect to say, as did the Court of Appeals in this case, that the “sine qua non” of Felker. . . is that identity and participation [in] the acts [were] not in dispute. 188 Ga. App. at 5. The “sine qua non” of Felker is rather that it must be determined whether an issue that was in dispute in the previous trial — and resolved in the defendant’s favor — is what the state is now trying to establish in this trial, notwithstanding the previous acquittal. In Felker, identity was an important issue in the crime on trial, but was not a matter of dispute in the prior trial, in which Felker admitted the act but claimed consent. Given the bizarrely similar nature of the previous sexual act to the one involved in the crime on trial, the earlier incident was admissible to prove identity by establishing modus operandi, whether or not it was consensual. The issues relevant to the crime on trial simply were not resolved in the defendant’s favor in the previous trial.

In the instant case, intent (not identity) was the issue in the crime on trial, and the previous crime was relevant, if at all, only if the defendant committed sexual battery (an offense comparable to our crime of rape) in the previous incident, not if he merely engaged in the act of consensual sexual intercourse. That issue, however, was resolved in his favor by the previous acquittal, and the state was precluded under the collateral estoppel doctrine from relitigating the issue. The trial court erred by allowing the state to prove the defendant’s intent to commit rape in this case by proving that he committed rape in the previous incident.

Judgment reversed.

All the Justices concur, except Smith, Weltner and Bell, JJ., who concur specially.