Myers v. State

JOSEPH I. PINES, Special Judge. Dennis Wayne Myers, Sr., after having been found not guilty of theft on December 14, 1981, in the District Court for Washington County, was tried and found guilty of perjury by a jury in the Circuit Court for Washington County on September 27, 1982 and sentenced to five years’ imprisonment. While “if at first you don’t succeed, try, try again” may be a lofty and worthy ideal for the general public, it has no place in the area of criminal prosecution where the first attempt at success has fully and completely adjudicated the issues and where the second prosecution merely rehashes old evidence. United States v. Drevetzki, 338 F.Supp. 403 at 409 (N.D.Ill.1972).

The statement of charges against appellant in the District Court alleged that he “did steal one pair men’s leather boots from King’s Department store, the property of King’s Department Store, having a value of less than $300.00 (total value $32.99).” ³²⁷ The indictment in the Circuit Court on the 14th day of December, 1981, alleged that Dennis Wayne Myers, Sr.: [O]n his examination as a witness duly sworn to testify, in the case of State of Maryland vs Dennis Wayne Myers, Sr., ... before the District Court for Washington County ... charged with the crime of theft, was duly sworn ... unlawfully and falsely swore that he had purchased a pair of men’s leather boots valued at $32.99, on October 17, 1981 prior to 1240 hours at King’s Department Store, 835 West Hillcrest Road, Hagerstown, Maryland, and that he was wearing said boots when he was apprehended by the King’s Department Store Security people on said date at approximately 1240 hours, the matters sworn to being material, and the testimony of the said Dennis Wayne Myers, Sr. being wilfully and corruptly false. .. . Succinctly stated, in the District Court the defendant was charged with the theft of the boots, and in the Circuit Court the defendant was charged with lying when he testified that he had purchased the boots. On appeal, four questions were presented to this court for resolution: 1. Did the trial of appellant violate the prohibition against double jeopardy? 2.

Did the trial court err in allowing the State’s Attorney to refer in opening statement to a judge’s remark in a prior case? 3. Did the court prejudicially reduce the effectiveness of defense counsel by repeatedly interrupting counsel during closing argument? 4. Was the evidence sufficient to prove perjury? In considering the first question, broadly presented to us as a double jeopardy question, we shall reverse, thereby obviating the necessity of addressing the remaining questions.

While double jeopardy, res judicata and collateral estoppel are often used interchangeably, each has its own ³²⁸ separate meaning. Double jeopardy is derived from the Fifth Amendment which states “. .. nor shall any person be subject for the same offense to be twice put in jeopardy ...” and res judicata and collateral estoppel, of civil origin, are two sub-categories or manifestations of that constitutional provision. Res judicata refers to the preclusion of a claim or cause of action where that claim has or could have been fully litigated and decided in a prior suit. Collateral estoppel involves the preclusion of a claim where the material issue was litigated and decided in a prior suit though that prior suit may have involved a totally different cause of action.

Accordingly, we more precisely identify the question before us as one concerned with collateral estoppel and not double jeopardy as presented. In reversing, we are not unmindful of the complexity of the problem, so well articulated in Adams v. United States, 287 F.2d 701 (5th Cir.1961), wherein the Court stated: Two opposing policy considerations have weighed heavily in prior determinations of this problem. On the one hand the concern exists that allowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely. The resulting detriment to the reliability of evidence and more so, to the stability of the judicial process, would only be enhanced by the obvious fact that the more persuasively flagrant the defendant’s fabrication, the greater his chances of total exoneration.

This completes a vicious circle since the successful acquittal on the substantive offense would immunize him as to the very falsehoods which brought it about. On the other hand some apprehension exists that allowing prosecution for perjury will actually give the state a second shot at the defendant for the same wrong. The mere fact, this argument continues, that one charge relates to the doing of an act and the other to a denial of having done it, or to affirmative proof that it was not so done, is not sufficient basis on which to make a distinction. This is particularly true where the same or substantially the same evidence is presented in ³²⁹ both cases.

Res Judicata in Successive Criminal Prosecutions, 24 Brooklyn L.Rev. 12 (1957). This, we see, approaches closely whether acknowledged or not, an intuitive feeling akin to double jeopardy despite the fact that the two are distinct. The question, as we perceive it, narrows down to whether the prosecution for the perjury crime required relitigation of the issues which had already been judicially determined in the trial of the theft crime. Thus it becomes necessary to decipher what facts were or should have been determined when the District Court judge acquitted the defendant of the theft charge.

At the conclusion of the District Court trial the judge said: All right .. . Mr. Myers in view of the testimony of you and your wife that you went out to the store earlier in the day and bought these boots, I am going to give you the benefit of the doubt and find you not guilty. You swear that you got these earlier in the day and that you did so and had paid for them when Miss Gibson stopped you out on the parking lot. I am going to take your word for it at this time.

Mr. Long, I am very much upset about them lying to you under oath here. I would suggest that you take these slips, check with the store to find out, and they can find out. I see ... a $3.45 item above here, then a $32.99, then a $1.65, $34.64, and $40.00 paid, and $5.36 change. I’d suggest that you check them with the slips on October 17, find out if this $32.99 plus tax item was purchased after the other ones.

If they were, I would like both Ms. Myers and Mr. Dennis Myers charged with perjury. I have a good idea here that he went back later on and bought a pair of shoes, a pair of boots in this way and if they did do it . . ., I want charges brought. The central issue which the District Court judge decided in rendering a general verdict of not guilty was whether or not defendant Myers stole the boots. Upon the record of the District Court proceedings that is available to us, the trier of ³³⁰ fact, in acquitting the defendant, relied on the truth of the defendant’s testimony and the authenticity of the sales receipt produced on behalf of the defendant to substantiate his testimony that the boots were purchased'.

In the perjury trial, the jury was similarly required to assess the veracity of the defendant’s testimony and the authenticity of the sales receipt. It therefore becomes apparent that the jury verdict in the perjury trial necessarily depended on resolution of the same issue which had been tested and found in favor of the defendant when he was acquitted at the theft trial. Upon examination of the records of the theft and perjury trials, one cannot escape the conclusion that the perjury indictment must be considered as an effort to relitigate the theft charge. The State seeks to avoid this fact on grounds that are unrealistic.

The State, while it had available to it a transcript of the proceedings of the theft trial in the District Court, did not introduce it in the perjury trial in the Circuit Court. Instead, the State chose to rely largely on the recollection of the Assistant State’s Attorney who prosecuted the theft case, to recount the evidence of that trial in the perjury trial. It is apparent that the principal difference between the two trials was the additional evidence adduced at the perjury trial, that the sales receipt which the defendant introduced at the theft trial was for goods purchased at the store several hours after the defendant was apprehended and charged with the theft of the boots. This additional evidence could have been available to the State at the time of the theft trial if the State had requested a short postponement to verify the validity of the sales receipt.

At the perjury trial, the Assistant State’s Attorney, over objection, was permitted to recount the former testimony of the State’s witnesses in the District Court. He testified that the King’s Department Store Security Officer, Ms. Sheri Gibson, had testified that the defendant entered the Shoe Department of King’s Department Store, took his shoes off, ³³¹ slid them under a shoe display, took a pair of work boots, put them on, and walked out of the store without paying for them. As a result, she took the defendant into custody on the store parking lot. The Assistant State’s Attorney then related how the defendant, after having an oath administered to him, testified to the purchase of the boots and to the introduction into evidence of a sales receipt which purported to represent a purchase of boots for $32.99 from King’s Department Store on that day.

Having determined that a pivotal point in the District Court acquittal was the sales receipt, the State, in the perjury trial, for the first time undertook to prove that the sales receipt was in fact evidence of a similar purchase at King’s Department Store, made hours after the defendant had been apprehended for the theft of the boots. To solidify its premise that the sales receipt in evidence did not relate to the boots alleged to have been stolen, the State called the Office Manager of King’s Department Store to the witness stand. She testified that she had reviewed the King’s Department Store register tapes for the day in question, specifically looking for the transaction purportedly covered by the sales receipt in evidence. She explained that the store tapes reflected that she had emptied or “picked” the cash register at 3:30 p.m. on that day and that the sales receipt in evidence reflected a transaction which was completed after that time.

Since the defendant had been apprehended for theft at approximately 12:30 p.m. on that date, the State theorized that the receipt was not related to the purported purchase of the boots earlier that day as maintained by the defendant. She further noted that the transaction number and cash register number were missing from the bottom corner of the sales receipt, having been torn off subsequent to the District Court trial, admittedly while in the possession of either the King’s Department Store employees or the Washington County Police Investigator who shared custody of the re ³³² ceipt from the time of the District Court theft trial until the Circuit Court perjury trial. She testified that when she first saw the register receipt produced on behalf of the defendant, two months after the District Court trial, she immediately recognized the receipt as being from King’s Department Store cash register number three; however, in September 1982, at the Circuit Court trial, the receipt had somehow become obliterated to the point where the store and transaction number had become illegible. After the receipt was introduced into evidence at the District Court theft trial, neither the defendant nor his representatives had access to or custody of the sales receipt.

Substantially, these are the facts upon which we are asked to sustain the perjury