Holloway v. State

Orth, J., delivered the opinion of the Court. CLARENCE HOLLOWAY, convicted at a bench trial in the Criminal Court of Baltimore of making an assault upon Billy Anderson and sentenced on 7 May 1971 to 60 days accounting from 23 February 1971 would have us reverse the judgment on the ground that his prosecution was barred by collateral estoppel. ⁷⁰⁵ I The doctrine of Benton v. Maryland, 395 U. S. 784 , under which the double jeopardy clause of the fifth amendment became applicable to the states, made more than of academic concern whether the basis of collateral estoppel was a constitutional one. The question was no longer whether it was a requirement of due process, see Hoag v. New Jersey, 356 U. S. 464 , but whether the rule of collateral estoppel, long established in the federal criminal law, was embodied in the fifth amendment guarantee against double jeopardy. In Ashe v. Swenson, 397 U. S. 436, 445 , the Supreme Court of the United States had no hesitation in holding that it was. “Collateral estoppel”, as defined in Ashe , “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.” 1 Although collateral estoppel “stands for an extremely important principle in our adversary system of justice”, ibid., the Court decided Ashe on the narrowest possible ground.

Six poker players had been robbed by three or four armed men. Ashe was charged in separate counts with robbery of each of the players. He was tried on the charge of robbing one of the players and acquitted. He was then tried on a charge of robbing another of the players and convicted.

The Court said, 397 U. S. at 446 , “ [The question] is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, 2 the State could constitutionally hale him before a new jury to litigate that issue again.” It held that collateral estoppel precluded the subsequent prosecution. ⁷⁰⁶ It seems that collateral estoppel will not often be available to a criminal defendant. 3 In most cases the defendant enters a general plea of not guilty and it is not often possible to determine with precision how the judge or jury has decided a particular issue. See Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, by Walter V. Schaefer, 58 California Law Review 391, 394 (1970). Others are in accord. Note, Ashe v. Swenson, a New Look at Double Jeopardy, 7 Tulsa Law Journal 68 (1971) states, at 73: “It may now be concluded as a practical rule that: (1) whenever an accused commits a multiple crime during the same criminal episode for which the prosecutor chooses to try him with a separate trial for each victim; and (2) the jury at the first trial acquits the accused finding the only conceivable issue in dispute in favor of the accused, then that issue once finally determined cannot be re-litigated in a subsequent trial against the accused.” The same thing is said in different words in Comment, Criminal Procedure — Application of the Doctrine of Collateral Estoppel to State Criminal Proceedings, 49 North Carolina Law Review 351 (1971), at 355: “ [C] ollateral estoppel would be of no benefit to a defendant if (a) the first trial resulted in a conviction; (b) the conclusion of the jury could not be readily determined, as would be the case if Ashe had contested the issue of whether a robbery in fact took place as well as whether he was one of the perpetrators of it; or (c) the ⁷⁰⁷ issue decided in the first trial was not conclusive as to the offense in the second trial.” The few courts having occasion to consider collateral estoppel post Ashe are in accord.

For example in Ex Parte Billy Lee Johnson, 472 S.W.2d 156 (Court of Criminal Appeals of Texas, 1971) the ruling was, at 157: “With alternative ultimate facts outstanding, we cannot hold the doctrine of collateral estoppel applies.” See Pulley v. Warden, 431 F. 2d 258 (6th Cir. 1970). 4 Ashe observed that “The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” 397 U. S. at 444 . It pointed out what this approach requires: “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 ⁷⁰⁸ account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue othér than that which the defendant seeks to foreclose from consideration.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ Sealfon v. United States, 332 U. S. 575, 579 , 68 S. Ct. 237, 240 .” 5 Ibid. II The docket entries in the record before us show that a presentment was filed against Holloway in the Criminal Court of Baltimore on 22 February 1971 followed by the filing of indictment 752 on 26 February charging that on 11 November 1970 he did “* * * unlawfully make an assault upon, and did then and there beat the said Billy Anderson * * On 30 April the indictment came on for trial. The transcript of the proceedings discloses that on 30 April the State first called only one indictment, 749 of 1971 docket, and Holloway was arraigned.

The Clerk informed him that under the indictment he was charged “with assault with intent to murder and also assault-common law” and asked his plea. Defense counsel said: “If Your Honor please, as to that indictment, as to both counts of the indictment, the plea is not guilty and also a plea of double jeopardy. And by way of explanation, I might explain that Mr. Holloway did appear before His Honor, Judge Murphy, in Municipal Court of Baltimore City, in Western District, when all the charges that are before Your Honor, although the State ⁷⁰⁹ is only calling one, and at his hearing before Judge Murphy, Judge Murphy dismissed all charges against Mr. Holloway. At the time when this case appeared before Judge Murphy, Mr. Holloway was charged -with assault, I believe.

That charge has since been raised to assault with intent to murder. I do understand, of course, that as far as assault with intent to murder is concerned, that that Court had no jurisdiction, and, therefore, its finding would not be binding on this Court. However, as to the second and lesser included offense, that of assault, it is the contention of the Defendant that if this Court is to find that the only, if in fact any, offense was committed, the only offense was assault, and Judge Murphy’s ruling in dismissing the case would be binding on this Court and would, in fact, constitute placing the Defendant in jeopardy twice for the same offense, and, therefore, we would offer a plea of not guilty and also a plea of double jeopardy.” The Assistant State’s Attorney remarked that it was “somewhat hampered by the fact we have an incomplete record from the Municipal Court.” It added: “And further, that there was another assault case, that against Billy Anderson who is a member of the Baltimore Police Department attached to the Tactical Unit, and to the best of the knowledge of the State at this time, the indictment which the State has called for trial, the indictment 749, which charges that he did assault one Paul Fairbanks, who is the, one of the arresting officers in this case, was not before the Municipal Court to the best of our knowledge at this time.” Defense counsel responded: “If Your Honor please, pursuant of that contention, I would show to the State and offer for the Court’s consideration a copy of the arrest register for the Defendant, Clarence Holloway, the victim’s name being Paul Fairbanks, and ⁷¹⁰ that is the same victim who is named in this particular indictment, and the charge is assault and attempted cutting, and I think, if Your Honor please, that this does constitute assault. I don’t say that the Court is precluded from hearing the evidence on assault with intent to murder, but I think that the Court would have to find that if the only act that is shown that the Defendant did, in fact, commit, if he, in fact, committed anything, is assault, then this Court would be barred from ruling on the case, because it has, in fact, placed the Defendant in jeopardy twice for the same offense.” After a short recess the Assistant State’s Attorney told the court there was “some question whether the judge below was sitting as a committing magistrate or trial judge” with respect to the assault on Fairbanks.

So he called two other indictments, 752 and 753, as he had been “advised that [they] would not be subject to defense counsel’s claim of double jeopardy, and I am prepared at this time to call those two indictments, all of which are alleging out of the same facts and circumstances * * Holloway was thereupon arraigned on those two indictments, 753 charging, according to the Clerk, that Holloway “did unlawfully carry upon and about his person a certain dangerous and deadly weapon, to wit: a butcher knife, on the 11th of November, 1970”, that he was a rogue and vagabond, and that he “did unlawfully carry a weapon openly with intent to injure.” The plea was not guilty and a court trial was elected. Defense counsel added: “[B]efore we begin, so not to be precluded from filing preliminary motions, upon the statements of the State’s Attorney calling this case to trial wherein he stated these cases all arose from the same facts and circumstances, we would move to dismiss all indictments based on the theory of collateral estoppel as stated by the ⁷¹¹ Court in Ashe v. Swenson, wherein the Court said that if certain cases are tried and other cases are not tried and they arose from the same facts and circumstances, then the State is collaterally estopped from calling those cases to trial at a later date.” The State told the court that the charges against Billy Anderson “were not brought at the Municipal Court level. * * * [T]his is the first time these charges have ever been brought * * *.” And the charges regarding the weapon had “never been brought before * * *.” The court withheld ruling on the motion to dismiss. At this point in the proceedings it was apparent that the State would proceed at that time to try only indictments 752 and 753, and that a pending motion to dismiss them on the ground that prosecution was barred by collateral estoppel was to be resolved at the trial of the general issue. No evidence had been offered on the motion.

As the rule of collateral estoppel in criminal cases requires the court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter so as to determine whether the trier of fact could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration, we look to the record here to see what evidence was adduced relating to the proceeding before the Municipal Court concerning Holloway. We examine the evidence adduced by the State as well as that adduced by the defense, observing, however, that as Holloway was the moving party in the motion to dismiss, it was encumbent upon him to produce proper evidence sufficient for the court to rule. Officer Billy Anderson, after describing the incident on 11 November 1970 involving him, Officer Fairbanks and Holloway, said he had not been present in the Municipal Court when “some of the charges were before Judge Murphy” — “I was on a case in Criminal Court.” On cross-examination it was brought out that the Municipal Court ⁷¹² proceedings had been postponed twice because a State’s witness had not been present. Officer Paul Fairbanks, after recounting what had occurred on 11 November was asked about the proceedings in the Municipal Court.

He said he testified. He was questioned about the charges before the Court. The transcript reads: “Q. [By Assistant State’s Attorney] : And, the charges that were presented against the Defendant at that time, were — correct me if Pm wrong — larceny of the pocketbook, the radio and the butcher knife? A. Yes, sir.

Q. And, assault by attempting to cut with that twelve-inch knife yourself? A. Yes, sir. Q. And, resisting arrest of yourself; is that correct? A. Yes, sir.

Q. And those were the only three charges before Judge Murphy that you placed ? A. Yes, sir.” On cross-examination it was elicited that a preliminary hearing scheduled in the Municipal Court on 11 November 1970 had been postponed. About two weeks later it was again postponed and it may have been that it was postponed a third time. On each of these occasions a Theresa Dorsey, who had been involved in the incident resulting in the charges against Holloway, was not present.

On 7 February 1971 the case again came up. The transcript of the examination of Fairbanks reads: “Q. (By Mr. Cardin) [Defense Counsel]: There came a hearing on February 7th, 1971, and Judge Murphy threw the entire case out; isn’t that right ? A. Yes, sir.

Q. And threw it out because he said it was too ⁷¹³ dark for this man to tell whether or not you were police officers; isn’t that right? A. No, sir. Q. Why did he throw it out? A. He didn’t explain.

He just said, ‘Dismissed.’ MR. CARDIN: May I have the State’s Attorney’s file, please? Q. (By Mr. Cardin) In any event, Judge Murphy threw the case out, right?

A. Yes, sir. * * Q. When you testified before Judge Murphy, did you not give the same testimony you gave today? A. Yes, sir. Q. And, on that same testimony, Judge Murphy dismissed those charges; is that right? A. There was no question as to the quality of the illumination; some other things— Q. Officer Fairbanks, that is not my question.

My question is, on the same testimony as you have just given in this court, Judge Murphy dismissed those charges; isn’t that correct? A. Yes, he dismissed them. Q. And, if any assault occurred on you and occurred on Officer Anderson, they occurred at the same time within seconds of each other; isn’t that true? A. Yes, sir.” The State rested.

Motion for judgment of acquittal was made, argued and denied. One of the points argued on the motion was that collateral estoppel barred the prosecution. Holloway testified in his own behalf and gave his version of what occurred. He said he had appeared in the Municipal Court three times and “finally on February