White v. STATE, EX REL. HOPPER

1991 OK CR 118, 821 P.2d 378, 62 O.B.A.J. 3439, 1991 Okla. Crim. App. LEXIS 125, 1991 WL 226516

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 1, 1991
• Docket: P-91-133
• Status: Published

Opinions

ORDER DENYING PETITION FOR WRIT OF PROHIBITION AND/OR MANDAMUS

Petitioners James Ellis White and Melvin Earl White were convicted of Obtaining Money by Trick or Deception in Tulsa County District Court Case No. CF-90-4659. (Trial I). At that trial evidence of a second “con game” was presented to the jury. That con game is the subject of Tulsa County District Court, Case No. CF-90-5201 which has been set for trial (Trial II). Petitioners are before this court seeking prohibition or mandamus to prohibit the Tulsa County District Court from trying them in Trial II.

At issue is whether the State is barred from prosecuting the second con game because it used this evidence in Trial I. The Petitioners argue the prosecution is barred by collateral estoppel. The State counters that evidence of the second con game was properly admitted as evidence of separate and distinct “other crimes” which does not trigger the collateral estoppel bar. We find the crimes in the petitioners’ cases are not so related that collateral estoppel bars prosecution of the second con game. The crimes are sufficiently related that evidence of each may be admitted in the trial of the other as “other crimes” under 12 O.S.1981, § 2404(B).

Collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel prohibits subsequent prosecution because 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. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. The issue for us as the reviewing court, therefore, is whether the jury in Trial I could have grounded its verdict on an issue other than guilt of the second scam which the petitioners now seek to foreclose from consideration. See Ashe, 397 U.S. at 445, 90 S.Ct. at 1195.

The petitioners were convicted of conducting a scam on Yolanda Williams in Trial I. At that trial evidence of their scam on victim James Green was introduced. The State filed its Burkes notice, stating the evidence of the Green scam was introduced to establish the defendants’ motive, intent, absence of mistake or accident and the identity of a common scheme or plan. The State also argued in its motion that the commission of these two offenses are so related to each other that the proof of one tends to establish the other. Trial II, which the petitioners are seeking to block, is based on the scam against Green. The State has filed a similar Burkes notice to admit evidence of the crime against Williams in Trial II.

Collateral estoppel is not invoked by the facts of this case. The evidence of the crime against Green admitted in Trial I did not call for the jury to come to a determination of any guilt issue pertaining to Green. In reaching its verdict of guilt in Trial I, on the Williams case, the jury had no reason to determine, and the record before us shows no determination of any ultimate issue in the Green case. No fact previously adjudicated in Trial I will be at issue to be adjudicated in Trial II. Therefore, the crime against Green can be tried and is not barred by collateral estoppel.

Petitioners also argue the evidence of the crime against Williams can not be admitted in Trial II because to admit it would violate the bar against Double Jeopardy. They reason the petitioner has already been punished for the Williams crime, and if evidence of this crime is admitted in Trial II, should the jury find petitioners guilty, they will punish petitioners on the basis of the two crimes. Petitioners do not direct our attention to any case which has so held, and we are not persuaded by this argument. If the State chooses to introduce evidence of the crime against Williams in Trial II, and the trial court determines this evidence is admissible as other crimes evidence, the trial court will no doubt instruct the jury as to the proper limited use of this evidence. Clearly we have no ripe issues regarding the use of this evidence before us at this time.

Our discussion of the application of the doctrine of collateral estoppel to this case would not be complete without distinguishing the present case from Chaney v. State, 612 P.2d 269 (Okl.Cr.1980) and its progeny. Contrary to the petitioners’ argument, Chaney is not controlling here. In Chaney the defendant was charged with two murders in separate indictments. He kidnapped the victims at the same time, he held them together, he killed each in relatively short succession. The defendant moved for joinder which the State opposed and the trial court denied. The prosecutor assured the trial court he would redact all evidence of the second murder during the trial of the first. In fact the prosecutor reneged on this promise and brought in evidence of the second murder at every possible opportunity beginning with opening statement. This court held the two murders should have been joined, and the State was therefore estopped from trying the second murder.

In that case the two murders were so inextricably entwined that the story of one could not be told without exposing the other in detail. While this makes the evidence of the other murder admissible under the res gestae or necessary facts exception to other crimes evidence, it also runs the prosecution headlong into the collateral estop-pel bar. In that case facts were such that where the jury determined the defendant guilty of one of them, it of necessity found the defendant guilty of both. The trial court erred by failing to grant the defendant’s motion to consolidate, and the prosecutor lost its opportunity to prosecute the second murder by using its evidence in the trial of the first.

Whether multiple crimes are joined in a single trial or not is not the true focus for the determination of whether collateral es-toppel bars subsequent prosecution. However, certain language in some of our previous cases might lead to that imprecise conclusion. In Hinton v. District Court of Oklahoma County, 693 P.2d 1277 (Okl.Cr.1984) we state that since the defendant could have been tried for two incidents of child abuse in one trial, but was not, and evidence of the second incident was introduced in the trial of the first, the State was estopped from prosecuting the second. Id. at 1278. A better analysis would have been to determine whether these two incidents of child abuse on the same victim allegedly committed by the same defendant in a relatively short period of time were so inextricably bound together that the evidence of one could not be reasonably presented absent evidence of the other. Any language in these, or other cases which suggests the pivitol analytical point is joinder and not the unique relationship of the facts is expressly overruled.

IT IS THEREFORE THE ORDER OF THIS COURT that Petitioners’ application for writ of prohibition and/or mandamus is DENIED.

IT IS SO ORDERED.

/s/ James F. Lane JAMES F. LANE, Presiding Judge

/s/ Gary Lumpkin GARY LUMPKIN, Vice Presiding Judge concurring in result.

/s/ Tom Brett TOM BRETT, Judge

/s/ Ed Parks ED PARKS, Judge dissent.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge