•'

### I' 

# I

. C' \· 

# Cause No. 1357233
In Re.**V~ncent** 

# E. Beasley Relator, Pro-Se


# vs.:

Honorable, Jean Hughes Devon Anderson, Dist. Attorney,**~** 

# Respondent.**~** 

# In the District Court of

Harr**J!~i~pymt ~~~~~s**  

# some 

# pages 

# that ar'e of poor quality at the time of imaging. the 228th Judicial**Di~trict** 

# RECEIVED IN COURT OF CRIMINALAPPEALS 

# APPLICATION FOR WRIT OF MANDAMUS 

# ·OCT 19

# 2015 TO THE HONORABLE JUDGE OF SAID COURT:

# A~~\~os~a,**C~e~rk** COMES NOW, Vincent E. Beasley, TDCJ-ID #1867323, Relator, pro
se in the above Stylea and Numbered Cause of action and files this Original Application for Writ of Mandamus, pursuant to the Texas Constitution Art. 

# 1. §10 and Tex. Const. Art. 

# 1 §14, written in the U.S:C.A Const.**A~end** 

# IV. V Mandated and Recognized In the First Court of Appeals (Hou.• 1st Dist) further set In the United States Court of Appeals for the Fifth Circuit would show this Honorable Court of the following:- I. 

# Vincent E. Beasley, TDCJ-ID #1867323, is an offender incarcerated in the Texas Department of Criminal Justice and is appearing pro
se who can be located at the James A. Lynaugh Unit, 1098, South.Hwy 2037, Pecos County, Fort Stockton, Tx 79735. Relator has exhausted his remedies and has no other remedy at law. The act sought to be compelled is ministerial. Not discretionary in nature and requires

· Respondent to**imme~iately** 

# Grant relief to Relator in his**immediat~**



# release from William Stephens custody. He being the director of the

' 

### . - 

### .

# ~~~iication 

# for Writ of Mandamus Page I

# Texas Department of Criminal Justice. Whereas Constitutional violation raises jurisdiction question, Relator shows by clear and convincing law set**~n** 

# both the Texas and United States'Supreme Court precedence at law.



# PREAMBLE
Evans v. Michigan, 133 S.ct. 1069, 185 L.Ed 2d 124 (2013) citing: "Where retrial following a court. Decreed Acquittal was barred under Double Jeopardy Clause of the U.S. Constitution, even in cases where
a Court misconstruced the statue under which a defendant was charged. And the Courts order acquitting Petitioner. Although based on an
error of law, prevented the State from re-trial of the case. In contrast to procedural rulings which resulted in orders dismissing a
case Granting a mistrial on a basis that was unrelated to factual guilt or innocence acquittals were**substantiv~** 

# rulings that was coneluded criminal proceedings and raised significant Double Jeopard' concerns".**Basi~ally,** 

# since the Petitioner in the instant case has already been acquitted of the joindered offense of Burglary with the Intent to commit another felony Sexual Assault. The Substantive decision has already been made of acquittal by this court of Appeals See Beasley v. State, 

# 426 S.W. 3d 140 (2012). Further "over the last half century since the United States Supreme Court first recognized that the Double Jeopardy Clause bars re-trial following a Court decreed acquittal. Even if the acquittal is based upon an egregiously erroneous foundation. A mistaken acquittal cannot be reviewed on error or otherwise without putting a defendant twice in Jeopardy, and thereby violating the U.S. Constitution". Therefore, this Court should recognize its rulings Mandated by Supreme·Court and Constitutional Precedence. Application for Writ of Mandamus Page II

# Cause No. 1357233

In Re. Vfucent 

# E. Beasley**~** 

# s Relator**~** 

# s 

# v.**~** 

# s**~** 

# s Honorable Jean Hughes, Judge**~** 

# s Respondent Devon Anderson, District Atty.**~** 

# s
CERTIFICATE OF INTERESTED PERSONS

The undersigned Counsel of Record certifies that the following listed persons have an Interest in the outcome of this case these representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal.

1. 

# Honorable Jean Hughes 

# 2. Vincent 

# E. Beasley 

# 3. Devon Anderson District Attorney 1201 Franklin, Suite 600 Houston, Texas 77002-1923 Harris County, District Judge Relator Counsel for Respondent

Page 1

# TABLE 

# OF CONTENTS
Contents· Page

Certificate of Interested Persons ..•.•..............•....... 1 Table of Index of Contents

..... Authorities 

# . . '


# Statement of Case.... · .................... ·.................. . 

# Statement of Jurisdiction ............•..•................... Statement of the Issues ...................................... Statement of the Facts ..................................... . 

# Arguments

# ..............·• 

# .................................... Prayer

...... . 

# . . . ..

# ..

# .

# .. . . . . .

# .. . .

# .. ... 

# .. . .

# .. . . . . . . . .•

# .......... Verification

.. 

# .

# . . . .

# ...

# . . . . . ..

# ...

# . .. .

# . .. .

# . . . . .

# .. . .

# . . .. .

# .. .

# . . . Certificate of Service .......................... . 

# .........

Page 2 

# 2 

# 3 4 5 6 7 

# 8' 

# 10 11 12 

# 9, 10"\ 

# INDEX OF AUTHORITIES Cases Page Anderson v. State, 24.Cr. R 705. 7 S.W 40 (1886)

.............. 7 Ashe v. Swenson, 397 U.S. 436, 453-54, 25 L.Ed 90 S.ct

........ 11 1189 (1970) Beasley v. State, 426 S.W. 3d 140**~2012)** 

# ...................... II, 7 Blackledge v. Perry, 417 U.S. 2194 S.ct. 2098, 40 L.Ed 2d

..... 7 628 (1974) French v. Estelle, 692 F.2d· 1021 (5th Cir. 1982)

.............. 10 Johnson v. Estelle, 506 F.2d 347 (5th Cir. 1975)

.............. 7,8,9,10 Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983)

............... 8 Martin Linen U.S. v. Martin Linen Co., 430 U.S. 564, 97

....... 8 S.ct. 1349 McDonald v. Wainwright, 493 F.2d 204 (5th Cir. 1974)

.......... 9 Menna v. New York, 425 U.S. 61, 63 at 96 S.ct. 241 L.Ed (1975) 8, 10 United States v. Saltzman, 537 F.3d 353, 359 {5th Cir. 2008)

.. 7 United States v. Scott, 437 U.S. 82, 98 S.ct. 2187 L.Ed (1970) 8 Evans Vi 

# Michigan, 133 S.ct. 1069, 185 L.Ed. 2d 124 (2013)

.... II

Constitutions Statutes and**Ru~es:** 

# U.S. Canst. Amend V................................ ..........·. I 

# U.S. Const. Amend 14 ............ ............................... I 

# Tex. Const. Art. 1 §10.............. . ·.......................... 4 

# Tex . Const . 

# Art. 

# _1 §

# 14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . 5 , 6 , 7 , 

# 8 ,

# .11 Tex. Const. Art. 

# 1 §13 ........................................ 5,6,8 

# Tex. Code. Crim. Proc. Ann. Art. 11.42

........................ 6 Tex. Code. Crim. Proc. Ann. Art. 11.45 ......•................. 6 Tex. Code. Crim. Proc. Ann. Art. 1.15

........................ 10

Page 3

# STATEMENT OF THE CASE Relator challenged the Director's custody of him currently pursuant Judgment and sentence in the 15th District Court for the 228th District Court of Harris County, Texas, Case No. 135723301010 (The Instant Case) for the offense of Sexual Assault which has been reindicted from the primary case of Burglary with the Intent to commit another felony Sexual Assault Cause No. 1204247,. following a trial where the jury given the wrongful instruction as to lesser included offense found the Relator guilty of the not lessor-included offense of Sexual Assault, violation of Tex. Const. Art. 1 

# §10, Which

on Direct Appeal. The First Court of Appeals (Hou Dist) Reversed and Remanded to the proper lessor included offense of Criminal Trespass. The Court of Appeals .Honorable Judge Jane Bland held that: The Jury effectively acquitted defendant of Burglary with the intent to commit Sexual Assault. By the finding of any lessor charge. The State moved to dismiss the Criminal Trespass and reindicted the Relator in the instant case. To which he plead guilty on June 17, 2013, on the same ·Relator filed Motion to Withdraw plea and was denied twice. Being

sentenced to Eight (8) years confinement in violation of clearly establish Constitutional Law.

Page 4

# STATEMENT OF JURISDICTION
Jurisdiction of this Court of Appeals is invoked under the Rules of Appellate Procedure 57.2.3. Texas Code of Criminal Procedure, as a Writ of Mandamus from the denial of Writ of Habeas Corpus pursuant Art. 11.07, and Vincent E. Beasley seeks Writ of Mandamus, that Respondents follow Mandate set in the Texas Constitution Art. 1 

# §13, 14, Which provides this Cburt with subject matter Jurisdiction.

Page 5

# STATEMENT OF THE ISSUES

(1) Relator asserts the State has no Jurisdiction under the Double Jeopardy Clause in the Texas Constitution Art. 1§ 13, 14. (2) State has failed to follow the Mandate of the Court of Appeals (1st Dist. Hou) (3) Supreme Court has decided that a guilty plea doesn't forclose
a claim of Jurisdiction question in Double Jeopardy. (4) No Evidence of (DNA) is actual innocence where (DNA) evidence where not presented in the first trial. (5) The State having no Jurisdiction the sentence is void. Judgment is void pursuant to Tex. Code. Crim. Proc. Ann. Art. 11.42 and 11.45.

Page 6 ·

# STATEMENT OF FACTS Relator was charged with Burglary with the Intent to commit another felony Sexual Assault on or about Feb 9, 2009, then going to trial Feb 11, 2011, was wrongfully convicted of a not lessor- ·included offense of Sexual Assault, which in a successful Appeal

The Court of Appeals Reversed the verdict of the lower Court more importantly prosecutors continued to vindictively prosecute to a greater charge than the Mandate. Blackledge v. Perry, 417 U.S. 21 28-29 (1974) also U.S. v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008) In which violates Collateral Estoppels Double Jeopardy. In the precedence set in Ashe v. Swenson, 397 U.S. 436 (1970) where there is a established acquittal the State is Estopped from second action. Const. Amend. Tex. Art. 1 §14 Cited: V.T.C.A. Tex. Const. Art 1§14 "The guarunty in this section of the Texas Constitution is Broader in scope, for not only can a person not be put on trial a second time for an offense of which he has once been placed in Jeopardy, hence discharge for valid causes without a verdict while former conviction and acquittal ar,e based upon verdicts rendered. Anderson v. State, 24 CR. R 705,7 S.W.40 ' (1886)" The Court of Appeals (1st Dist. Hou) Cause No. 01-11-00143 on July 26, 2012, Beasliy v. State·, 426 S.W. 3d 140 (2012) recognized the acquittal Tex. Code. Crim. Proc. Art 1.11 Acquittal of higher offense as Jeopardy" Under Johnson v. Estelle, 506 F.2d 347 (5th ar. 1975). The issues that would be presented in second proceeding would substantially duplicate those presented in the first proceedings.

Page 7 

# ..

# ARGUMENT Relator's guilty plea meets the Menna exception. See Menna v. New York, 425 U.S. 61, 63 at 96 S.cL 241, 242 L.Ed (1975). The Double Jeopardy Clause however prohibits the government from con**victi~g** 

# the**~fendant** 

# regaidless of the factual guilt, because the State lacks Jurisdiction from haling a defendant**i~to ~urt**  

# to face charges as also recognizes in the Texas Constitution Art 1§14. Whereas the acquittal of the Relators Burglary with the Intent to commit Sexual Assault prohibited the State's**~cond** 

# action. The V.T.C.A. Tex. Const. Art 1§ 13, 14 made the acknowledgement of the Federal precedence of Johnson v. Estelle, 506 F.2d 347 Q5th Cir. 1975) "Where
a determination of innocence on one of two issues was the cause of
an acquittal and a determination of guilt on both issues is necessary for a subsequent conviction. The State is stopped from bringing the action". The Court of Appeals has affirmed that acquittal. Further, Lowery v. Estelle, 696 F.2d 333 (5th Cir. 1983). "The Supreme Court has defined acquittal as the ruling Judge whatever is lable, which actually representls g_ 

# resolution in the defendant's favor, correct
or not, of some or all of the factual elements.of the offense charged Martin Linen United States v. Martin Linen Supply Co.,430 U.S. 564, 97 S.ct. 1389, 51 L.Ed 2d 642, 430 U.S. at 571, 97 S.ct. at 1355", United States v. Scott, 437 U.S. 82, 98 S.ct; 2187, 2197, 57 L.Ed 2d 65 (1978). Green and Price v. Georgia, 398 U.S. 323, 9a S.ct. 1757, 26 L.Ed 300 (1970) recognized the partial acquittal implicit in a jurys return of a guilt verdict on a lessor included offense following the trial on**th~** 

# greater charge. In which the Relator has not been tried on the

# les~or included offense charge as Mandate because Sexual Assault is not a lessor included offense of Burglary with the intent to commit another felony Sexual Assault. The acquittal of the Page 8

# joinder offenses is still an acquittal. As held in MclDOnald v. Wain

# wright, 493 F.2d 204 (5th Cir. 1974), "On this record the State l)Ot only violated basic principles of Double Jeopardy but collateral Estoppel. Having failed to prove illegal certain acts once. 1t cannot be permitted to prove again simply by**chan~ing** 

# the name of the crime. Relator asserts that the State made the same mistake 

# in its i.nquiry 40 years ago in Johnson by its application on the blockburger test which doesn't apply to rules of**~llateral** 

# Esteppel. Relator showing that because of closeness of recognized case Johnson v. Estelle, 506 F.2d 347 (5th Ur. 1975) clearly defines the outcome of this Petition will end in reversal. we look to the paralles of the two cases:
JOHNSON V. ESTELLE, 506 F.2d 347 1) Mr. Johnson was charged with Burglary with the intent to commit Aggravated Rape. 2) Mr. Johnson was acquitted by a Jury of Burglary with the intent to commit Rape. 3) Mr. Johnson was reindicted and convicted of Assault with intent to commit Rape. 4) Mr. Johnson filed a application' for Writ of Habeas Corpus both 11.07 and 28 

# u.s.c. §2254 after which both were denied. 5) Mr. Johnson's case. was determine by the Court of Appeals for the Fifth Circuit to be Double Jeopardy and relief was Granted (Reversed). BEASLEY V. STATE, 426 S.W. 3d 140 1) Mr. Beasley was charged with Burglary with the intent to commit the Sexual Assault. 2) Mr. Beasley·was acquitted of Burglary with the intent to commit Sexual Assault. 3) Mr. Beasley was reindicted and convicted of Sexual Assault. 4) Mr. Beasley also filed Application for Writs of Habeas Corpus 11.07 and denied without written order. 5) Mr. Beasley now holds this Court to the precedence set by Federal Court and Grant relief.

The Court reversed the lower Courts decision holding where a determination of innocence one of two**i~sues** 

# was the cause of an acquittal and a**~etermination** 

# of guilt on both**i~sues** 

# is necessary Page 9

# £or a subsequent conviction. The State :Ls Estopped from bringing the action. The Respondent fails to show i.n there analysis of

..J:o'hnson where charged offenses are different When in comparison of the elements of offenses in both cases. Since both Relator and Johnson where both charged**~ith** 

# Burglary with intent in Assaultive crime an both acquitted where the element's of proof**ar~** 

# the same also. Both still stem from the**s~me** 

# criminal transaction. And both have a 

# joinder of two issues 

# in the first indictment of which the acquittal is the same. (2) Actual Innocence

- No Evidence (DNA). Applicant**co~tent~** 

# that he was denied due process because the State fails to introduce any evidence of the Relators; guilt beyond a reasonable doubt. It shall be necessary for the State to introduce evidence into the records, and said evidence shall be accepted by the Court as basis for its Judgment, and in no event shall a person charged 

# ee convicted upon his plea without evidence to support the same. Tex. Code. Crim. Proc. Ann. Art 1.15 See Johnson, 722 S.W. 2d at 422. Supporting evidence has not been submitted. French v. Estelle, 692 F.2d 1021 (5th Cir.**1982~~** 

# The (DNA) was not introduced in the first trial nor was it submitted to the Judge 

# in the second proceedings.
PRAYER WHEREFORE, PREMISES, CONSIDERED. Relator, respectfully requests to be placed in the.recommended out patient and meeting an exceptions held in Me·nna v. New York, 425 U.S. 61, 46 L.Ed 195 96 S.ct 241 (1975). Mr. Justice Brennan agrees that where the**St~te** 

# is precluded by the United States Constitution from Haling a defendant into Court on a charge be set aside even if the conviction was enter pursuant to a counsel plea of guilty, Ante at 62, 44-46 L.Ed 2d 197. But on his Page 10

# view that the Double Jeopardy Clause bar the prosecution from offenses growing the**sam~** 

# criminal**tr~nsaction.** 

# The State is barred from mounting ·a successive prosecution. He believes that the proper disposition of the case is not remand rut outright reversal See Asfu!e v.**Swenson~** 

# 397 U.S. 436, 453-54, 25 L.Ed 90 S.ct. 1189 (1970) Tex. Const. Art 1 §14. Relator brought this litigation in good faith and ·has substantially prevailed through due course of law.
SO PRAYED 

# on this the**)~** 

# day of October, 2015.· Respectfully Submitted,

VERIFICATION I, Vincent E. Beasley, TDCJ-ID #1867323,**declar~** 

# under the penalty of perjury that the foregoing set of facts presented within this Application for Writ pf Mandamus, Memorandum of Law and Brief in support are true and this .Honorable Court will GRANT him Relief.

Page 11 ·Respectfully Submitted,

# x4r~ VLncent 

# E. Beasl¢y TDCJ-ID #1867325 James A. Lynaugh Unit 1098, South**Hwy~2037** 

# Fort Stockton, Tx 79735

# CERTIFICATE OF SERVICE

I, Vincent E. Beasley, TDCJ-ID #1867323, certify that this the 

# /¥ .day of October, 2015, the foregoing Writ of Mandamus pursuant Rule of Appellate Procedure 52.1, was served upon all parties of interest and Harris County District Attorney, Devon Anderson at the District Attorneys office, 1201 Franklin Suite 600, Houston, Texas 77002-1923. A paper copy of this document will be :served by First Glass United States Mail Postage pre-paid by Mr. Vincent E. Beasley TDCJ-ID #1867323.

Page 12 Respectfully Submitted,

Vincent E. Beasley TDCJ-ID #1867323 James A. Lynaugh Unit 1098, South Hwy 2037 Fort Stockton, Tx 797351.0 N 

# "'"" 0 <1.) CD 

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# MANDATE 

# Qeourt rtf**~peal~** 

# jftrstm.istrict of**~.e~as** NO. 01-11•00143-CR VINCENT ERIC.BEASLEY, Appellant 

# v. THE STATE

# OF TEXAS, Appellee**~** 

# Appeal**fr~m** 

# the 228thDistrict CourtofHarris Gounty. (Tr. Ct. No. 1204247).



# TOTHE228TH DISTRICT COURT OF'IIA.lUUS COUNTY, GREETINGS:· Beforethis Court, on the26th day ofJuly 2012,thecauseupon appeal torevise orto revetseyourjudgmentwas determined. This Courtmade its· order in these words:**~:·:** "' 

# Thiscase is an appeal from the.finaljudgmentsignedby tbe trial coUrt on February 24,·

# 2011. After submitting the**ca,s~** 

# on the appe11ate record and the**~guments**

# properlyraised· bytheparties, the Courtholds thattherewasreversible errorin the·trial court'sjudgment.Accordingly, the Court reversesthe trial. court'sjudgmentand remandsthe case to the trial court for further proceedings

.. The Court orders that this decision be certified below for observance

.. JudgmentrenderedJuly**~6,** 

# 2012

. Panel consists of.Justices Keyes, Bland, and Sharp. Opinion delivered by Justice Bland. STATE'S EXHIBIT



# l)

# We'stlaw..

426 S.W.3d 140 (Cite as: 426 S.W.3d 140)



# c CourtofAppeals ofTexas, Houston (1st Dist.). Vincent Eric BEASLEY, Appellant 

# v. The STATE ofTexas, Appellee. No. 01-11-00143-CR. July 26, 2012. Background: Defendant who was charged with burglary of a habitation with the intent to commit sexual assault was convicted in the 228th District Court, Harris County, Marc C. Carter, J., of.sexual assault. Defendant appealed. Holdings: The Court of Appeals, Jane Bland, J., 

# held that: (1) sexual assault was not a lesser-included offense of burglary of a habitation with intent to commit sexual assault as the latter offense was alleged in indictment; (2) erroneous submission ofsexual assault as lesser-included offense caused egregiousharm; 

# ;ll{(3) for double jeopardy purposes, jury.**ef~ectiv:ly** 

# acquitted defendant ofburglary ofa hab1tat10n w1th intent to commit sexual assault by finding him guilty ofsexual assault; (4) acquittal on sexual assault was not appropriate disposition on appeal given the sufficiency of the evidence to establish each element ofthat offense, and jeopardy did not attach to prevent state from pursuing an indictmentfor sexual assault; and (5) case would be remanded for new trial on proper lesser-included offense ofcriminal trespass, which jury was prevented byjury charge error from considering. Reversed and remanded for new trial. West Headnotes (1] Indictment and Information 210 €:=188



# STATE'S EXHIBIT 210 Indictment and Information 21OXIII Included Offenses Page 1

210kl88 k. Sufficiency ofcharge oflesser offense. Most Cited Cases Constitutional right to notice of criminal charges does not prevent the state from prosecuting or the trial court from instructing thejury on a lesser-included offense of the charged crime, even if the indidment does not expressly allege it. U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas Const. Art. I, § 

# I0. [2] CriminalLaw 110 €=795(1.5) 110 Criminal Law IIOXX Trial llOXX(G).Instructions: Necessity, Requisites, and Sufficiency 11Ok795 Grade or Degree ofOffense; Included Offenses 110k795(1.5) k. Relation between offenses; sufficiency of charging instrument. Most Cited Cases To determine whether an offense is a lesserincluded offense of another offense, the reviewing court must ask whether the indictment for the greater-inclusive offense either: (I) alleges all ofthe elements ofthe lesser-included offense, or (2) alleges elements plus facts, including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice, from which all of the elements of the lesser-includedoffense may be deduced. (3] Indictmentand Information 210 €=191(.5) 210 Indictment and Information 21OXIII Included Offenses 21Ok191 Different Offense Included in Offense Charged 210kl91(.5) k. In general. Most Cited ·cases Whether an offense is a lesser-included offense ofan offense charged in indictment is a question of


# (_ © 

# 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

# -1**~_:**

# __-------------------------------------------- -----------

if:1 

# I. Billy Lee JOHNSON, Petitioner-Appellant. v.

### W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee · UNITED STATES COURT OF APPEALS FORTHE FIFTH CIRCUIT 506 F.2d 347; 1975 U.S. App. LEXIS 16662 No. 73-3945 January 9, 1975
Editorial Information: Prior History Appeal from the United States District Courtforthe Northern DistrictofTexas. Judges: Goldberg. Godbold and Morgan. Circuit Judges. CASE SUMMARY
PROCEDURAL POSTURE: Appellant sought review of a decision ofthe United States District Courtfor the Northern District ofTexas. that denied appellant's writ of habeas corpus petition after appellant was convicted of assaultwith intent to commit rape after an acquittal on charges stemming from the same incident.The denial of defendant's writ of habeas corpus petition on doublejeopardy grounds was improper because the issues presented in a second criminal trial substantially duplicated those presented in thefirst trial.
OVERVIEW: Appellantwas found not guilty by ajuryofthe crime of burglary ofa private residence at nighttime with intent to commit rape. Five months later appellant was convicted ofassaultwith intent to commit rape. on charges stemming from the same incident for which he was acquitted in his first trial. Appellant"s conviction was upheld on direct appeal. The state courts and the district court**de~ied** appellant's petition for a writ of habeas corpus based on doublejeopardy. The court granted appellant"s writ and released him from custody. The court held that where

# adetermination ofinnocence on one oftwo issues was the cause of an acquittal and a determination ofguilt on both issues was necessaryfor a subsequent conviction. the state was estopped from bringing the action. The issues presented in the second trial substantially duplicated those presented in the first triaL
OUTCOME: The court granted appellant's writ and released him from custody. The court held that the issues presented in the second trial substantially duplicated those presented in the first trial. The state was estopped from bringing an action where a prior determination of innocence existed as to charges.
LexisNexis Headnotes 

### Constitutional Law >Bill ofRights > Fundamental Rights > ProceduralDue Process > Double Jeopardy CriminalLaw& 

### Procedure 

### > Double Jeopardy> Collateral Estoppel Civil Procedure > Trials > Jury Trials > Verdicts > General Overview Civil Procedure > Trials > Jury Trials > Verdicts > General Verdicts 

## 805_11CS
9 2015 Matthew Bender& Company. Inc

.. a memberofthe LcxisNexis Group. All rights reserved. Use ofthis product is subject to the restrictions and terms and conditions ofthe Matthew BenderMasterAgreement.



### 11'! if:1 

### II'!**-~-----------** ------1



### CivilProcedure >Judgments 

### > Preclusion & 

### Effect ofJudgments 

### > General Overview CivilProcedure > Judgments > Preclusion & 

### EffectofJudgments > Estoppel> General Overview Civil Procedure >Judgments > Preclusion & 

### Effect ofJudgments > Estoppel> CollateralEstoppel The Fifth Amendment, U.S. Cons!. amend. V. guarantee against double jeopardywas enforceable against the states through the Fourteenth Amendment, U.S. Const. amend. XIV. Collateral estoppel is part ofthe Fifth Amendmentdoublejeopardy prohibition. When an issue ofultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in anyfuture lawsuit. 

### CriminalLaw& 

### Procedure 

### > DoubleJeopardy> Collateral Estoppel CriminalLaw& 

### Procedure >Appeals 

### > Standards ofReview> General Overview Civil Procedure> Trials> Jury Trials> JuryInstructions 

### > General Overview Civil Procedure > Eminent Domain Proceedings >Jury Trials A court reviewing for duplication of issues must: 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 thatwhich the defendant seeks to foreclose from consideration. 

### CriminalLaw& 

### Procedure 

### > Double Jeopardy

### > CollateralEstoppel Where a determination of innocence on one oftwo issues was the cause of an acquittal and a determination of guilt on both issues is necessaryfor a subsequent conviction, the state is estopped from bringing the action. 

### CriminalLaw& 

### Procedure > Criminal-Offenses > CrimesAgainstPersons >Assault& 

### Battery> General Overview CriminalLaw& 

### Procedure > Criminal Offenses > Property Crimes > Burglary& 

### Criminal Trespass > General Overview CriminalLaw& 

### Procedure > Criminal Offenses > Sex Crimes > SexualAssault> General Overview CriminalLaw& 

### Procedure > Criminal Offenses > Sex Crimes > SexualAssault> Rape > General Overview There are three components ofa "burglary of a private residence at nighttime with intentto commit rape" charge which are not involved in an "assaultwith intent to commit rape" charge. They are: (1) the defendant entered the house without breaking; (2) that he entered by breaking with intent to commit theft but that the intentto commit rape was laterformed; (3) that there was insufficient evidence that the site of the alleged crime was a private residence. 

### Criminal Law& Procedure > Criminal Offenses > Property Crimes > Burglary& Criminal Trespass 

### > General Overview Texas courts have long held that opening a shut door is an entry byforce which constitutes breaking. 

### Criminal Law& Procedure > Criminal Offenses > Property Crimes > Burglary& Criminal Trespass 

### > General Overview CriminalLaw& 

### Procedure 

### > Trials 

### > Burdens ofProof> Prosecution Texas courts have not put the burden on the prosecutor to show the nature ofthe intention at the exact moment of breaking, but have upheld convictions where intention has been read. post hoc, from


## 805 IICS
C2015 Matthev. Bender& Company. Inc

.. a mcmbcro(thc LcxisNexis Group. All rights reserved. Use ofthis product is subjt;et to the restrictions and tcnns and conditions ofthe Matthew BenderMasterAgreement.


## IPs 

## ;-:·:

-··--·· -----· ·----c--------------**------------------------------------~-------··------------"'"-**

# r--

subsequent actions. 

### CriminalLaw& 

### Procedure > Criminal Olfenses 

### > PropertyCrimes > Burglary& 

### Criminal Trespass >General Overview Tex. Penal CodeAnn. 

### § 1391, defines private

### residen~ce as any building or room occupied and actually used at the time ofthe offense by any person as a place of residence. 

### CriminalLaw& 

### Procedure > Double Jeopardy> CollateralEstoppel Civil Procedure >Judgments 

### > Preclusion & 

### EffectofJudgments 

### > Estoppel> General Overview CivilProcedure 

### > Judgments 

### > Preclusion & 

### EffectofJudgments 

### > Estoppel

### > CollateralEstoppel The rule of collateral estoppel in criminal cases is notto be applied with the hypertechnical and archaic approach ofa 19th century pleading book, butwith realism and rationality. 

### Criminal Law& 

### Procedure > DoubleJeopardy> CollateralEstoppel ConstitutionalLaw> Bill ofRights >FundamentalRights > ProceduralDue Process >Double Jeopardy Double jeopardy is not a semanticist's paradise, but is to be determined by applying conventional idioms to thejurors' deliberations. There must be some legal necessity basicto one acquittal, not involved in the next trial, tojustify a superseding conviction. The court cannot permit initialllial deficiencies to be·cured by subsequent trials. Opinion Opinion by: GOLDBERG Opinion

{506 F.2d 348} GOLDBERG, Circuit Judge: This case presents a good illustration ofthe perils ofdoublejeopardy. On May 23, 1967 Billy Lee Johnson was found not guiltyofthe crime of "burglary ofa private residence at nighlime with intent to commit rape." Five months later hewas convicted of "assaultwith intent to commit rape," on charges stemming from the same incidentforwhich he was acquitted in his first trial. He was sentenced to 99 years in jail. His conviction was upheld on direct appeal; Johnson v. State, Tex.Cr.App.1968, 432 S.W.2d 98, and his subsequent petitions fora writ of habeas corpus were denied in State and federal district courts.

· He appeals to this Courtfor his writ. Todaywe find that the issues presented in the second trial substantially duplicated those presented in the first Ilia!. We cannot conclude that a rational jurywould have acquitted or convicted defendant on the basis ofthe differences between the proof necessaryto substantiate each indictment. Unfortunately, ourknowledge of the facts and the legal issues presented to thejury in the first case is limited. This Courtwas advised, after it had received no transcriptfrom thefirst proceeding, "that no furthertranscripts are available in the above-styled cause". Letterto the Court, Sept. 25, 1974. from District Courtfor Northern DistrictofTexas. Our knowledge of the testimony at the first trial is limited 

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### ff.1 r;) to stipulations between defense attorney and prosecutoraboutthe testimony ofthe prosecuting witness and the police officerwho conducted the initial investigation. Those stipulations are: "That ifthe witness, Mrs. Corah Bell Crandell, were present in Court, she would testifythat on May 22, 1967 in the Criminal Court Room Number Five of Dallas County, Texas thatshe appeared as awitness in Cause Number67-1034-JL, styled State ofTexas Vs. Billy Lee Johnson, which said casewas a case charging Billy Lee Johnson with burglary of a private residence at nighttimewith intent to commit rape, and after being sworn as a witness in that case, she testified on direct examination that she was eighty-two (82) years ofage, that she lived then atthe time she testified at 1403 South Fitzhugh, and had lived thereforforty (40) years; that on February4, 1967, she was living there and she had lived and resided in a residence there in a house which had four (4) walls, a ceiling, floor, doors and windows; that about 9:45 that evening she was at home at that location at 1403 South Fitzhugh, and she waswatching television when she heard someone at the back side ofthe house; that she went to the door and saw a man therewho said that hewanted to see about buying a carthat she had for sale. She testified that she told him that she did not have any carfor sale. She identified the man as being a colored man, a member ofthe Negro race. She testified that colored people lived around her. She testified that shewent back in to where the T.V. was, and the nextthing she knew the grabbed her by the shoulders. She ran forthe phone and tlied to call the police or dial the operator, and he grabbed her bythe shoulders, dragged her all over the house, turned offthe T.V., tore off herdress, threw herdown on the front ofthe couch and was trying to assault her; that she was thrown to the·floor, her clothes were tom; that he said that, "I am going to assault you and kill you and take all your money". He also said that hewas going to rape her. About thattime she testified there was a {506 F.2d 349} bright lightthrown on the house and that she screamed, 

### "0 God, he is going to kill me", and she resisted him as best she could; that he was trying to have intercourse with herwithout herconsent; that she was a female person, awoman; that his assault on her and his attempts to have carnal knowledge and intercoursewith herwaswithout her consent and against herwill; that she could not identifythe man whowas in the house, whowas committing the assault upon her. On cross examination she testified that she had the clothing that she had worn at the time ofthe assault; that the police came out and investigated the case".The stipulated testimony ofthe police officerwas: "If OfficerW. T. Mikel were present in court and sworn as awitness, hewould testify that he is a memberofthe Dallas Police Department assigned to the Radio Patrol Division with particular specialty ofthe Canine Corps, and he worl<ed in that capacity on February4 and 5, 1967when, with a police dog named Rex, at about 9:45 p.m., hewas near 1403 South Fitzhugh and he.ard a woman scream. He could not determinewhere the screams were coming from, but he did stop his police car and gotout and determined thatthe screams were coming from the house at 1403 South Fitzhugh. He could hear awoman screaming, "Help, you are killing me," orwords to that effect. Hetestified that he went to thefront door ofthe house and that hewas let in by a woman whom he identified as Mrs. Corah Bell Crandell; that her clothes were torn; that she said something to the effect, "He is going outthe back door", and he ran around to the back door and saw a man whom he identified in court as the Defendant coming out the back door or on the back porch ofMrs. Crandell's house; that he hollered for him to stop; thatthereafter he shot him two or ttiree times and the Defendantwas badlywounded and he remained there atthe scene until he was removed by the ambulance". We also have a transcript ofthe instruction which thejudge gave the jury in this first case. We will refer to it below as it elucidates particular points.


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In Benton v. Maryland, 1969, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707, the Supreme Court held that the Fifth Amendment guarantee against doublejeopardywas enforcible againstthe states through the Fourteenth Amendment. The following term, the Court held that collateral estoppel is part ofthe Fifth Amendment doublejeopardy prohibition. Ashe v. Swenson, 1970, 397 U.S. 436, 90S. Ct. 1189, 25 L. Ed. 2d 469. "When an issue of ultimatefact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in anyfuture lawsuit." 397 U.S. at443, 90S. Ct."at 1194, 25 L. Ed. 2d at475. The Court in Ashewent on to saythat wihere the jury in the first trial had returned a general verdict, a court reviewing for duplication of issues must: Examine the record ofa prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude wihether a rationaljurycould have grounded its verdict upon an issue otherthan thatwhich the defendant seeks toforeclose from consideration. 397 U.S. at 444, 90S. Ct. at 1194, 23 

## L. Ed. 2d at 475-476, quoting Mayers & Yarborough; Bis Vexari: NewTrials and Successive Prosecutions, 1960, 74 Harv.L.Rev. 1, 38-39. Ashewas acquitted in hisfirst trial of robbery ofone ofthe players in a poker game. He**wa~_then** tried and convicted for robbing another player in the game. Since the only controverted issue ineach trial was the identity ofthe robber, the Court held thatthe second trial, by requiring relitigation, had put the defendant in double jeopardy. ' As noted by the United States Magistrate in the present case. there are two {506 F.2d 350) issues upon which thejury in the first trial could have based its acquittal, wihich were controverted in the second trial. One was the identityof Mrs. Crandall's assailant and the otherwas the intention ofthat assailant to commit rape. The State argues that Ashe applies onlywihere one issue is in question in both trials. We disagreewith the State. Application ofthe rule depends upon wihether some issue necessaryfor the prosecution's case in the second trial has necessarily been found forthe defendant in the first trial. See Sealfon v. United States, 1948,332 U.S. 575,68 S. Ct. 237,92 L. Ed. 180. Thus the fact that either identity or intent could have been the basisfor the firstjury's decision does notforeclose the application ofAshe v. Swenson, because both factors would have to be proven in orderto convict at the second trial. Where a determination of innocence on one oftwo issueswas the cause of an acquittal and a determination ofguilt on both issues is necessaryfor a subsequent conviction, the State is estopped from bringing the action. II. The State contends, however, that a "rational jury" could have based its decision in the first trial on the State's failure to establish essential elements not in controversy in the second trial. Ifthis is in fact the case, then the doublejeopardy criterion would, ofcourse, not apply. In the present casewe find that no rational jury could have acquitted on the basis ofthe different "issues" presented in the first trial, absent a defendant's reliance on those factors. 1The State cannot produce a record here showing· such reliance. 2 The State's suggested bases for acquittal in the first trial are nothing more than the sheerest speculation. There are three components of a "burglary ofa private residence at nighttime with intent to commit rape" charge which are not involved in an "assault with intent to commit rape" charge and upon which the State believes the jury in the first trial could have based its verdict of acquittal. They are: "[(1}] the Petitionerentered the house without breaking; (2} that he entered by breaking with intent to commit 

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### I!! theft but that the intent to commit rapewas later formed; (3} that therewas insufficient evidence that the site ofthe alleged crimewas a private residence." Appellee's Brief at6. We address ourselves to each issue, in order. 1} Petitioner entered without breaking. That this is an improbablejury rationale is evident from the trial court'sjury instruction in the firsttrial: By the term "entry'' into a house is meant every kind of entry but one made byfree consent ofthe occupant. orofone authorized to give such consent. Bythe term breaking is meantthat the entry must be made with actual force. The slightestforce, however, is sufficient to constitute breaking, such as lifting a latch of a doorthat is shut or pulling or pushing open a door. 3 {506 F.2d 351} There is no available testimonyoffering a scintilla of evidence that defendant might have come into the Crandall homewithout breaking, and thejudge's charge to thejury gave an expansive definition of breaking. No rational jury could have acquitted, on the grounds that defendant did not break into the home, on the basis ofwhatwe have before us. The State's second alternative, that the jury may have doubted that the requisite intent existed at the moment of entry, is equally implausible. With not a speck offactual foundation the State speculates that thejury may have believed that Johnson entered the Crandall housewith another purpose, such as burglary, but that, upon casting his eyes on this eighty-two year old woman he was suddenly overcome with a passion which caused him to change his intention. Thejudge's instruction to thejurywould not alert it to a special concern over the momentwihen defendantformed his intention. Thejudge's instructions on this scorewere: You are instructed that the offense of burglaryofa private residence in the nighttime with intent to commit rape, is constituted by entering a house. that is, a private residence, byforce, threats orfraud, at night, or in any manner by entering a private residence at anytime, by eitherday or night, and remaining concealed therein until night, with the intent ofcommitting the offense of rape. The charge in this case is the entry into a private residence, at night, byforce, with the intent to commit rape. The punishment is by confinement in the Texas Department ofCorrections for any term ofyears not less than five

.... before you would be warranted in finding a verdict of guilty, you must find from the evidence, beyond a reasonable doubt, that the entrywas made in the nighttime, and with the intent to commit the crime of rape. While thejudge gave individual definitions of many ofthe terms in the charge he did not specifically draw attention to the proposition thatthe intention must be in the mind of the burglar atthe time of entry. 4 We do not believe that any rationaljury, sua sponte, could have been moved to acquit defendant on the groundsthat his intention turned from robbery to rape in midflight from the threshold to Mrs. Crandall. Finally, the State argues that thejury could rationally have doubted that the alleged incident transpired in a "private residence." This isthe mosttransparent ofthe State's speculations. In his instruction, the judgetold the jury: "Private residence," as used in the statute, means any building or room occupied and aCtually used at the time ofthe offense by any person or persons as a place of residence. 5 Mrs. Crandall testified in herfirst trial "that she lived then at the time she testified at 1403 South Fitzhugh, and has lived there forforty (40} years; that on February 4, 1967, shewas living there and she had lived and resided in a residence there in a house which had four (4} walls, a ceiling, floor, doors and windows

...;" {506 F.2d 352) and since Officer Mikel is stipulated to have testified that he 

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### :,;**~:·· it.~**  "determined that screams (emphasis added), there is simply nothing to suggest that Mrs. Crandall was not in a residence and.that thejury could have entertained real and rational doubts on this issue. 

### Ill. This Court usuallyfinds that its supply of ingenious semantic puzzles and fantastic hypotheticals emanate from the supplications ofdefendants. In keeping with deeply rooted American notions of justice and Constitutional edicts, we examine these applications to see ifin fact the defendantwas denied due process in his trial orwhetherthe facts presented leverthe probabilitythat he engaged in criminal activity belowthe "reasonable doubt" marker. Butfantastic hypotheticals introduced by the State to avoid the defense ofdoublejeopardyare subjectto a different standard. We must see ifa "rationaljury" could have based its decision on such factors, guided by the principle enunciated in Ashe, 397 U.S. at444, 90S. Ct. at 1194, 25 L. Ed. 2d at 475, that "the rule ofcollateral estoppel in criminal cases is notto be applied with the hypertechnical and archaic approach ofa 19th century pleading book, butwith realism and rationality." By its injunction to apply collateral estoppel with "realism and rationality" we believe that the Supreme Court means that we should not allowa second trial, merely because technical requisites ofthe first charge are not involved in the second, where there is no evidence suggesting that those factors were even presented to the firstjuryfor its active consideration. In the present case the alternative grounds hypothecated by the.State are not ofthe sortwhich could move a rationaljury, on its own, to acquit. We are convinced that both juries stood their decisions on identity ofassailant and intent to rape and did not engage in mental gymnastics so as to land on differing components. Doublejeopardy is not a semanticist's paradise, but is to be determined by applying conventional idioms to the jurors' deliberations. There must be some legal necessity basic to one acquittal, not involved in the next trial, tojustifya superseding conviction. We cannot permit initial trial deficiencies to be cured by subsequent trials. There are only four quarters to afootball game. The exorcised doublejeopardy is the constitutional eliminator ofthe might have beens. Puristic parallelism is not an absolute in the law ofdoublejeopardy. Multitudinous criminal charges may spring from the same incident. The State's argument in the present case would nullifythe doctrine ofdoublejeopardy because any slight deviation in the indictmentwould give the State another Monday morning quarter. It is therefore ordered that the petition·of Billy Lee Johnsonforawrit of habeas corpus is granted and that he be released from custody. Footnotes

We keep in mind the warning given in the same article that the Supreme Court quoted from in Ashe: It is probable that in the large majorityof criminal prosecutions the defendantwill litigate only one issue. For example, hewill present an alibi, plead a lack of requisite criminal intent. ordeny that the act was perpetrated at all. If a lattercourt is permitted to state that the jury may have disbelieved substantial and uncontradicted evidence ofthe prosecution on a pointthe defendant did noicontest, the possible multiplicityofprosecutions is staggering. Mayers & Yarbrough, 74 Harv.L.Rev. at 37-38. 

### 2 There is no suggestion that the lack ofa record owes in any way to the fault of petitionerJohnson or his counsel, so we need not considerwhethershowing ofsuch fault would raise any hostile 

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### l[;**.';~j** presumption. 

### 3 Norwas there room for interpretation ofthe meaning of "breaking" by defense counsel. The Texas courts have long held that opening a shut door is an entry byforce which constitutes breaking. See, e.g., Mixon v. State, Tex.Cr.App.1966, 401 S.W.2d 806. It is worthy ofnote thatappellant contends in his brief, and the State does not deny, that among the items ofevidence submitted in the first trial, and resubmitted in the second, was a picture ofa screen doorcut open. 

### 4 Texas courts have not put the burden on the prosecutorto showthe nature ofthe intention at the exact momentof breaking, but have upheld convictions where intention has been read, posthoc, from the subsequent actions. See e.g., Friga v. State, Tex.Cr.App. 1973, 488 S.W.2d 430; Eagan v. State, Tex.Cr.App., 1970,451 S.W.2d 514; Dickson v. State, Tex.Cr.App.1901, 64 S.W. 1043. So, there can be no presumption of prosecutorial failure on this issue

.. 

### 5 The statute to which thejudge referred is Vernon's Ann.Tex.Penal Code

### Art. 1391, which defines private residence as "any building or room occupied and actually used at the time ofthe offense by any person as a place of residence."



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### /fi Thomas J. McDONALD, Petitioner-Appellant,

### v. Louie L. WAINWRIGHT, Respondent-Appellee

. UNITED STATES COURT OF APPEALS FORTHE FIFTH CIRCUIT 493 F.2d 204; 197 4 U.S. App. LEXIS 8963 No. 73-1656 April26, 1974 Judges: Aldrich, Senior Circuit Judge, • and Bell and Gee. Circuil Judges. CASE SUMMARY
PROCEDURAL POSTURE: Petitioner appealed an order ofthe United Slates District Court, which denied his petition for habeas corpus afterhe was convicted in a state court of breaking and entering with intent to commit rape, having earlier been found not guilty ofassaultwith intent to commit rape and rape.A denial of petition forwrit of habeas corpus was reversed for doublejeopardy reasons where petitionerwas convicted of breaking and entering with intent to commit rape, having earlier been acquitted of assault with intent to commit rape and rape.
OVERVIEW:' Petitionerwas charged in a state court with breaking and entering with intent to commit rape and, separately, with assault with intent io commit rape and rape. Thefirst charge was postponed, while the others tried together. At this trial the state court.charged thejurythat it could convict petitioner for either ofthe two specified offenses orfor attempted rape, as a lesser-included offense. Thejuryfound him not guilty. Thereafter, defendant was convicted by anotherjuryon the charge of breaking and entering with intent to commit rape on the same evidence as the first. The conviction was affirmed, and petitioner sought relief, which the lower court denied. Petitioner contended that he could not be tried for breaking and entrywith intent because of his acquittal not only for rape, but also ofan attemptto commit rape. The court reversed the lower court's decision because it was an impermissible attempt to convict petitionerfor one crime by proofof anotherthat had been determined that he did not commit. The court ruled that the state not only violated basic principles of collateral estoppel, but ofdoublejeopardy. The court remanded with instructions to grant writ.
OUTCOME: The court reversed the lower court's decision that denied petitione(s application for a writ of habeas corpus, holding that it was impermissible to convict petitionerfor one crime by proof ofanother that had been determined that he did not commit. The court ruled that the state not onlyviolated basic principles of collateral estoppel, but ofdoublejeopardy. The court remanded with instructions to grant writ.
LexisNexis Headnotes 

### CriminalLaw& 

### Procedure > Double Jeopardy> Collateral Estoppel CivilProcedure >Judgments 

### > Preclusion & 

### Effect ofJudgments,> Estoppel

### > General Overview Civil Procedure >Judgments 

### > Preclusion & 

### Effect ofJudgments 

### > Estoppel

### > CollateralEstoppel Having failed to prove certain illegal acts once, the state cannot be permitted to prove them again simply



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__ by changing the name ofthe crime. Opinion Opinion by: ALDRICH, SR. Opinion

{493 F.2d 205} ALDRICH, Senior Circuit Judge: This is an appeal from the denial ofa petition for habeas corpus. Thomas McDonald, hereinafter defendant, was charged in the Florida state courtwith breaking and entering with intent to commit rape, and, by separate indictment, with assault with intent to commit rape, and rape. Thefirst charge was postponed, and the remaining two tried together. At this trial the court charged thejury that it could convict defendantfor eitherofthe two specified offenses, orfor attempted rape, as a lesser included offense. Thejuryfound him not guilty. The evidence atthe trial, which came from the alleged victim, a Mrs. Certain, the police, and a codefendant, Taylor, was to the effect that Taylor and defendant in the nighttime broke a rear door of, and entered, Certain's apartment, where each defendant had intercourse with her. Certain testified that it was against herwill: Taylortestified that she consented. Defendant did not take the stand. The state agrees with defendant that thejury must have found consent. Thereafterdefendant was tried to anotherjury on the charge of breaking and entering with intent to commit rape. Except that the evidence as to the breaking was more detailed, it is conceded {493 F.2d 206} that, as the district court found, the evidence at this trial was "basicallythe same" as at the first trial, including Certain's testimonythat she did not consent. Defendantwas convicted, and on appeal the judgmentwas affirmed. McDonald v. State, 249 So. 2d 451 (4 D.C.A. Fla. 1971), cert. dismissed, 253 So. 2d 708 (Sup. Ct. Fla.). The court took the position, with which the district court subsequently agreed, that defendant could well have entered with intent to commit rape even though, because Certain proved to be willing, he had no occasion to carry out his purpose. The state's brief puts it, "Although the raper had the requisite intent upon breaking and entering to commit rape, he was thwarted before attempting the act of rape." Although we have seen the proposition more felicit·)usly expressed, 1the state's logic is impeccable. There are, however, a numberofdifficulties. The most obvious difficulty is that the state did not try its case on that theory. Faced with the burden of showing defendant's intent atthe time ofentry, which, unexplained, might equally have been simply to attempt to persuade, the state, both by evidence and oral argument, sought to prove an initial intent to rape by the alleged circumstance that a rape occurred. But whether one call it doublejeopardy, or collateral estoppel byjudgment, this was a naked and impermissible attempt to convict defendant for one crime by proofqf anotherwhich, as between defendant and the state, it had been conclusively determined defendant did not commit. The evidence of non-consent was constitutionally inadmissible, Ashe v. Swenson, 1970, 397 U.S. 436, 446, 90S. Ct. 1189, 25 

### L. Ed. 2d 469; Turner v. Arkansas, 1972, 407 U.S. 366, 92 S. Ct. 2096, 32 

### L. Ed. 2d 798 (per curiam), and clearly prejudicial. The verdict was fatally tainted. Burgett v. Texas, 1967, 389 U.S. 109, 88 S. Ct. 258, 19

### L. Ed. 2d 319; Bumperv. North Carolina, 1968, 391 U.S. 543, 550, 88 S. Ct. 1788, 20 

### L. Ed. 2d 797. Indeed, with this evidence excluded, it may be asked on what basis could ajury, simply because defendant made a felonious entry of one character, find·beyond a reasonable doubt that at the time he intended another? 2 

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__JDefendant goes further, and asserts not merelytrial error, butthat he can not even be tried for breaking and entering with intent because he has been acquitted, not only of rape, but of an attempt to commit rape undercircumstances where such an attemptwould have had to have been found ifhe had committed !he alleged breaking and entrywith the requisite intent. The state initially soughtto answerthis by saying flatly that "neither breaking and entering norintentwhile doing so were before the firstjury," but it later realized that this allegation was more easily made than proved. The evidence ofbreaking and entering was introduced before the firstjury, and the court specifically instructed the jury as to an attempt, and as to the necessityfor both an intent to commit the crime and an overt act. See Groneau v. State, 201 So. 2d 599, 603 (4 D.CA Fla. 1967), cert. denied, 207 So. 2d 452 (Sup. Ct. Fla.). The state is reduced to arguing that breaking and entering was merely "preparation." and not an overt act sufficientto constitute an attempt. Passing the fact that in any event defendantwas placed in jeopardyforan attempt, we cannot think ofany more classic overt act 3 than something which, like breaking and entering with intent, is a {493 F.2d 207} felony itself. 4 Charging thejury on this evidence as to attempted rape necessarily placed before it the question whether defendant broke and entered with intentto rape. · On this record the state not only violated basic principles ofcoilateratestoppel, but ofdouble jeopardy. Having failed to prove certain illegal acts once, itcannot be permitted to prove them again simply by changing the name ofthe crime. Hartow v. United States, 5 Cir

.. 1962. 301 F.2d 361, 375, cert. denied, 371 U.S. 814, 83 S. Ct. 25, 9 

### L. Ed. 2d 56, reh. denied, 371 U.S. 906, 83 S. Ct. 204, 9 

### L. Ed. 2d 167; United States v. Sabella, 2 Cir., 1959. 272 F.2d 206, 210-212. Reversed and remanded with instructions to grantthe writ. Footnotes

"He in a few minutes ravished this fair creature, or at leastwould have.ravished her, ifshe had not, by a timely compliance, prevented him." H. Fielding, Jonathan Wild, Book Ill, ch. 7. 

### 2 We may add that ifthejurywere to learn ofdefendant's conduct once within the apartment, he would be entitled to an instruction that it had been conclusivelyfound to have been consented to. 

### 3 "Any acttoward the commission ofsuch an offense." Fla. Stat. Ann.§ 776.04 (1965). 

### 4 "Commencement ofthe consummation

.... Such progress that itwould be consummated unless interrupted bycircumstances independent ofthe will ofthe attempter." Groneau v. State, 201 So. 2d ·at 603. 

### Cf. ln. 1, ante.

;•"



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# .iDarrell Gene BLACKBURN, Petitioner-Appellant,v. Armond CROSS, Chairman and Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees UNITED STATES COURT OF APPEALS FORTHE FIFTH CIRCUIT 510 F.2d 1014; 1975 U.S. App. LEXIS 15361

.

Editorial Information: Subsequent History No. 74-2333 April2, 1975

Rehearing and Rehearing En Bane Denied August 6, 1975. Editorial Information: Prior History Appeal from the United States District Court forthe Southern District of Florida. Judges: Morgan and Clark. Circuit Judges, and Gordon, District Judge. CASE SUMMARY
PROCEDURAL POSTURE: Defendant appealed from ajudgment entered bythe United States District Courtforthe Southern District of Florida, which denied his petition for awrit of habeas corpus. Defendant had been convicted for breaking and entering a dwelling and unlawfullyassaulting a person therein and for attempted crime against nature.Atrial court committed reversible error at a defendant's trial for assault when it admitted the testimony of awitness who claimed that she was also assaulted by the defendant where the defendant had previously been acquitted ofassaulting her.
OVERVIEW: Defendant was convicted for breaking and entering a dwelling and unlawfully assaulting a person therein and for attempted crime against nature. At trial, the victim and two otherwomen who had also allegedly been assaulted by defendant testified as to his identity. Defendant filed a petition for a writ of habeas corpus, which was denied by the district court. On appeal, the court reversed the districtcourt judgment and remanded with instructions to issue the writ, subject to the state's right to retry defendant. The courtfound that the testimony of one the prior victims was improperlyadmitted because defendant had previously been acquitted of assaulting her. For authority, the court relied on a case that was decided after defendant's trial which held that evidence of such prior acquittalswas prejudicial and violative ofthe doublejeopardy clause. The courtfound that the new rule warranted retroactive application because it went to the basic integrity and accuracyofthe guilt-innocence determination. The admission ofthe witness' testimonywas therefore constitutional error, and the court could.notsay that it was harmless beyond a reasonable doubt.
OUTCOME: The court reversed thejudgment ofthe district court which denied defendant's petition for a writ of habeas corpus because defendant's constitutional rights were violated when the trial court admitted evidence ofan earlier assault forwhich defendant had previously been acquitted. The court remanded the case with instructions to issue the writ of habeas corpus, subject to the state's right to retry defendant.



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### I1!J I1!J I1!J LexisNexis Headnotes 

### ConstitutionalLaw

### > BillofRights 

### > Fundamental Rights 

### > ProceduralDue Process 

### > Double Jeopardy CriminalLaw& 

### Procedure 

### > Double Jeopardy>AttachmentJeopardy CriminalLaw& 

### Procedure 

### > Double Jeopardy> Collateral Estoppel Civil Procedure 

### > Judgments 

### > Preclusion & 

### EffectofJudgments 

### > General Overview Civil Procedure >Judgments 

### > Preclusion 

### &EffectofJudgments 

### > Estoppel

### > General Overview CivilProcedure 

### >Judgments 

### > Preclusion 

### &EffectofJudgments 

### > Estoppel

### > Collateral Estoppel CriminalLaw& 

### Procedure 

### > Double Jeopardy> DoubleJeopardyProtection >Acquittals The doublejeopardy clause, which includesthe doctrine of collateral estoppel, prohibits the statefrom relitigating, for any purpose, an issue which was determined in a prior prosecution ofthe same party. Hence, there is no difference between relitigating an ultimate fact or an evidentiaryfact; relitigation of either is prohibited. 

### CriminalLaw& 

### Procedure 

### > Habeas Corpus 

### > RetroactivityofDecisions

### > General Overview The constitution neither prohibits nor requires retroactive application of new decisions. 

### CriminalLaw& 

### Procedure 

### > Habeas Corpus 

### > RetroactivityofDecisions 

### > General Overview The standards for retroactive application are codified in a three-pronged test: (a) The purpose to be served bythe new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration ofjustice ofthe new standards. Foremost among these factors is the purpose to be served by the new constitutional rule. Substantial consideration should be given the last two factors only when the purpose ofthe rule in question does not clearly favor either retroactivity or prospectivity. 

### CriminalLaw& 

### Procedure 

### > Habeas Corpus 

### > RetroactivityofDecisions 

### > General Overview Where the major purpose ofa new constitutional doctrine isto overcome an aspect ofthe criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracyof guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state orfederal authorities on priorconstitutional law oraccepted practice, nor severe impact on the administration ofjustice has sufficed to require prospective application in these circumstances. 

### CriminalLaw& 

### Procedure 

### > Habeas Corpus 

### > RetroactivityofDecisions 

### > General Overview Retroactivity has been denied where a new rule serves a broad social policy, where the rule does not go to the fairness ofthe trial, orwhere the flaw in thefact-finding process is either of secondary importance or of infrequent occurrence. Butwhere a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy ofthe guilt-innocence determination, retroactive effect is required. 

### Constitutional Law

### > BillofRights 

### > Fundamental Rights 

### > Procedural Due Process 

### > Double Jeopardy Criminal Law& 

### Procedure 

### > DoubleJeopardy

### > CollateralEstoppel Civil Procedure 

### >Judgments 

### > Preclusion & 

### Effect ofJudgments 

### > General Overview Civil Procedure 

### >Judgments 

### > Preclusion 

### &Effect ofJudgments 

### > Estoppel

### > General Overview


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### I1!J :'?:;**r~.**

....l

### f!i CivilProcedure >Judgments

### > Preclusion & 

### Effect ofJudgments 

### > Estoppel> CollateralEstoppel The doublejeopardy clause, which includes the doctrine ofcollateral estoppel, prohibits a state from relitigating any issuewhich was determined in a prior prosecution ofthe same party. The purpose ofthis rule is bound up in the whole complex ofvalues that the guarantee against doublejeopardy represents. 

### Constitutional Law >Bill ofRights >FundamentalRights >ProceduralDue Process 

### > Double Jeopardy CriminalLaw& 

### Procedure 

### > DoubleJeopardy> General Overview The policy underlying the prohibition against doublejeopardy is thatthe state with all its resources and power should not be allowed to make repeated attempts to convicfan individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal, and compelling him to live in a continuing state ofanxietyand insecurity, as well as enhancing the possibilitythat even though innocent·he may be found guilty. 

### ConstitutionalLaw >BillofRights 

### > Fundamental Rights >ProceduralDue Process 

### > Double Jeopardy CriminalLaw

### &Procedure 

### > DoubleJeopardy>AttachmentJeopardy It is fundamentally unfairand totally incongruous with our basic concepts ofjustice to permit the sovereign to offer proofthat a defendant committed a specific crime which ajury ofthat sovereign has concluded he did not commit. Otherwise a person could never remove himselffrom the blight and suspicious aura which surround an accusation that he is guilty ofa specific crime. 

### CriminalLaw & 

### Procedure 

### > Habeas Corpus >RetroactivityofDecisions 

### > General Overview People are notto be punished by procedures which present a serious risk that the issue of guilt or innocence may not have been reliably determined, orwhich produce a clear danger ofconvicting the innocent. Practices, procedures, or statutes which present the probability of risk of such consequences must be eradicated and the surest way is to prescribe retroactivity. Opinion Opinion by: MORGAN Opinion·

(510 F.2d 1016j MORGAN, Circuit Judge. At issue in this case is the retroactivity 

### velnon ofthe principle announced in Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive application ofthe 

### Wingate principle, and we therefore reverse the district court.
On January 19, 1967, the petitionerwas charged in an amended information with (1) breaking and entering a dwelling and unlawfully assaulting a person therein, a_nd (2) attempted crime against nature. The petitioner entered a plea ofnot guilty and the trial byjurycommenced. 

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.. a memberofthe Le.xisNexis Group. All rights reser\'td. Use ofthis productis subjectto the restrictions and Lerms and conditions ofthe Matthew BenderMaster Agreement.**l~l** lft if; At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and attempted to sexually assault her. She had seen only the profile and back of herassailant, but she furnished police with a description ofthe assailantand she identified the petitioner in a line-up. In addition to Fletcher, the state presented the testimony oftwo additional women, Catherine Austin and Patricia McCune, both ofwhom lived in the same apartment complex as Fletcher. Austin and McCune identified the petitioner as the assailantwho had likewise broken into their apartments and had sexually assaulted them. The petitioner had previously been acquitted after a trial byjury ofthe assaulton McCune.At trial for the assault on Fletcher, McCune's testimonywas admitted overpetitioner's objection as evidence ofa similar offense tending to establish the identityofthe petitioneras Fletcher's assailant. Petitionertestified in his own behalfand presented an alibi defense. In addition to the three positive identifications ofthe petitioner, the state presented evidence thatfourfingerprints ofone hand and the thumb print ofthe other hand lifted from thejalousiewindow slats ofthe kitchen doorof Fletcher's apartment (where the breakin occurred) were those ofthe petitioner. The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that McCune's testimony was improperly admitted into evidence. Blackburn v. State, 208 So. 2d 625 (Fia.App.1968). Defendant's petition for awrit ofhabeas corpus- alleging that the holding in 

### Wingate should be retroactively applied to histrial, and, hence that McCune's testimonywas inadmissible
- was subsequently denied bythe districtcourt. 1 

### II. The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal law only recently. In Ashe v. Swenson, 397 U.S. 436,90 S. Ct. 1189,25 L. Ed. 2d 469 (1970) a federal (510 F.2d 1017) habeas corpus petitionerattacked his state conviction forthe robbery ofone ofsix men engaged in a· pokergame. The petitioner had previously been acquitted ofthe robbery ofanotherone ofthe same poker players. The single issue In dispute at both trials was whetherthe**petition~r** had been one ofthe robbers. The Supreme Court held that the federal notion ofcollateral estoppel precluded relitigation of the petitioner's participation in the robbery and that this rule is embodied in the doublejeopardy clause ofthe Fifth Amendment. In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the 

### Ashe holding. In 

### Wingate a federal habeas corpus petitionerattacked his conviction forthe**rob~ery** ofa small store. At his trial, the state introduced evidence tending to show thatWingate had committed four additional robberies; he had been tried forand acquitted oftwo ofthese robberies. In his closing remarks there was heavy reliance bythe prosecutoron the evidence of additional robberies. This court held that 

### Ashe does not merely bar a subsequent state prosecution, the maintenance of which depends upon a successful relitigation ofa fact issue which had previously been settled adverselyto the state by an earlier acquittal. Rather, the doublejeopardy clause, which includes the doctrine of collateral estoppel under

### Ashe, prohibits the state from relitigating, for any purpose, an issuewhich was determined in a prior prosecution ofthe same party. Hence, there is no difference between relitigating an ultimate factoran evidentiaryfact; relitigation ofeither is prohibited. Ill. Blackburn's trial occurred before ourdecision in 

### Wingate. Since the facts before us are virtually identical to those of 

### Wingate, we must determine whether 

### Wingate is to be applied retroactively. 2 

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## •1':

.•{510 F.2d 1018} In Linkletterv. Walker. 381 U.S. 618,85 S. Ct.1731, 14 

### L. Ed. 2d 601 (1965), the Supreme Court held that the Constitution neither prohibits nor requires retroactive application ofnew decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior history ofthe rule in question, its purpose and effect, and whether retrospective effectfurthers or retards its operation. 

### /d. at 626, 85 S. Ct. 1731. Shortly thereafter, the standards for retroactive application were codified in athree-pronged test: (a) The purpose to be served bythe new standards, (b) the extent of reliance by lawenforcement authorities on the old standards, and (c) the effect on the administration ofjustice ofthe new standards. Stovall v. Denno, 388 U.S. 293,297,87 S. Ct. 1967, 1970, 18 

### L. Ed. 2d n99 (1967). "Foremost among these factors isthe purpose to be served bythe new constitutional rule." Desist v. United States, 394 U.S. 244, 249, 89 S. Ct. 1030, 1033, 22 

### L. Ed. 2d 248 (1969). Substantial consideration should be given the last two factors "onlywhen the purpose ofthe rule in question [does] not clearlyfavor either retroactivity or prospectivity." /d. at 251, 89 S. Ct. at 1035; see Michigan v. Payne, 412 U.S. 47, 55, 93 S. Ct. 1966, 36 

### L. Ed. 2d 736 (1973); United States v. Scott, 425 F.2d 55, 58 (9th Cir. 1970) (en bane). Moreover, where the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracyofguiltyverdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state orfederal authorities on prior constitutional law or accepted practice, nor severe impact on the administration ofjustice has sufficed to require prospective application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S. Ct. 1148, 1152, 28 

### L. Ed. 2d 388 (1971) (plurality opinion). Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v. Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness ofthe trial, or where the flaw in thefact-finding process is either ofsecondary importance orof infrequent occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en bane) and cases cited therein. But where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy ofthe guilt-innocence determination, retroactive effect is required. United States v. Scott, supra. at 58 and cases cited therein; seeWilliams v. Estelle, supra, 500 F.2d at 208. We musttherefore determine the purpose behind the Wingate rule and whether this purpose relates to the integrity ofthe fact-finding system. The Wingate case. ofcourse, held that the doublejeopardy clause. which includes the doctrine ofcollateral estoppel, prohibits a state from relitigating any issue which was determined in a prior prosecution ofthe same party. The purpose ofthis rule is bound up in the whole complex ofvalues that the guarantee against doublejeopardy represents. Cf. Tehan v. Shott, 382 U.S. 406,414, 86 S. Ct. 459, 15 

### L. Ed. 2d 453 (1966). The policy underlying the prohibition against doublejeopardy is that the State with all its resources and power should not be allowed to {510 F.2d 1019} make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. United States v. Jom, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L. Ed. 2d 543 (1971). In order to protect "a man who has been acquitted from having to 'run the gantlet' a second time," Ashe incorporated the rule of collateral estoppel into the guarantee ofdoublejeopardy. Ashe v. 

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### If\**~ ~Pi**  

### liS Swenson, 397 U.S. 436, 446, 90S. Ct. 1189, 1195, 25 

### L. Ed. 2d 469 (1970). Wingate expanded this notion to include evidentiary as well as ultimate facts because

IV. it is fundamentally unfairand totally incongruous with our basic concepts ofjustice to permit the sovereign to offer proofthat a defendant committed a specific crime which ajury ofthat sovereign has concluded he did not commit. Otherwise a person could never remove himselffrom the blight and suspicious aura which surround an accusation that he is guilty ofa specific crime. Wingate v. Wainwright, 464 F.2d 209,215 (5th Cir. 1972). The Wingate court indicated that this evidence of prioracquittals was "prejudicial" and, hence, admission ofsuch evidence could certainly influence the integrityofthefact-finding system. 3 We therefore find thatthe Wingate rule warrants retroactive application.

The state argues that any error made in Blackburn's trial was harmless, but petitioner responds that it would be inappropriate to apply the "harmless error analysis" to a doublejeopardyclaim. We need not decidewhether a collateral estoppel claim is susceptible to harmless error analysis, forwe find that the errorcommitted in this case could not be adjudged harmless even ifthe appropriate constitutional standards were applied. Recent Supreme Court decisions regarding "harmless constitutional error'' inquire as to "whether there is a reasonable possibilitythat the evidence complained of might have contributed to the conviction." Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 

### L. Ed. 2d 705 (1967). Only ifthe court can declare with confidence "beyond a reasonable doubt" that such a possibility is excluded bythe record can it declare a constitutional error harmless. /d. at 24, 87 S. Ct. 824; see Schneble v. Florida, 405 U.S. 427,430,92 S. Ct

.. 1056,31 

### L. Ed. 2d 340 (1972); Milton v. Wainwright, 407 U.S. 371,92 S. Ct. 2174,33 L. Ed. 2d 1 (1972); Harrington v. California, 395 U.S. 250,89 S. Ct. 1726,23 L. Ed. 2d 284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626, 637-38 (5th Cir. 1972). The evidence against Blackburn was quite convincing." However, in his closing argument the prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case subjudice) and relied upon the combined effect ofall three identifications to establish reliability. 4 Underthese circumstances {510 F.2d 1020} it is impossible for us to conclude thatthe erroneous admission of McCune's testimony was harmless beyond a reasonable doubt. • Reversed and remanded with directions to issue the writ, subject to the state's right to re-try the defendant. Footnotes

Petitionerwas paroled on May 1, 1973, from the sentence presently under attack. 

### 2 Petitionercontends that the Wingate court's application ofthe modified Ashe principle to a conviction that became final priorto the date ofthe Ashe decision is indicative ofthis court's view ofthe retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule retroactively in reversing the denial ofhabeas corpus relief to Wingate. While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively 

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### .'i'J

### ::5 enunciaies a retroactive rule, see Johnson v. NewJersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 16 

### L. Ed. 2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not**d~cide** that question becausewe find that a retroactive application ofthe Wingate rule is required by the Linkletter v. Walker, 381 U.S. 618,85 S. Ct. 1731, 14 

### L. Ed. 2d 601 (1965) analysis. Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 

### L. Ed. 2d 29 (1973) mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v. Florida, 397 U.S. 387, 90S. Ct. 1184, 25 

### L. Ed. 2d 435 (1970) which barred a state and municipal prosecution for the same actoroffense, fully retroactive. The court indicated that "the prohibition against being placed in doublejeopardy is

... not readily susceptible ofanalysis underthe Unkletter line ofcases." Robinson v. Neil, supra, 409 U.S. at 508, 93 S. Ct. at 878. We believe thatthe Supreme Court's retroactive application ofdoublejeopardy principles, see Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we do not believe that Robinson is entirelydispositive ofthe question before us, forthe rationale of Robinsonwas based upon the fact that doublejeopardy principles normally preclude a new trial entirely, while procedural guarantees merely relate to the method ofconducting trials: The guarantee against doublejeopardy is significantly differentfrom procedural guarantees held in the Unk/etlerline ofcases to have prospective effect only. While this guarantee, like the others, is a constitutional right ofthe criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct ofa trial. A number ofthe constitutional rules applied prospectively only underthe Unklettercases were found notto effect the basic fairness ofthe earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court's ruling was squarely directed to the prevention ofthe second trial's laking place at all, even though it might have been conducted with a scrupulous regard for all ofthe constitutional procedural rights ofthe defendant. Robinson v. Neil, supra, 409 U.S. at 509, 93 S. Ct. at878. While the Wingate rule is rooted in the principle ofdoublejeopardy, its operation merely precludes the introduction ofcertain disfavored evidence. In light ofthe Robinson rationale itwould be unreasonable for us to conclude that the Supreme Court in Robinson was addressing itselfto the exclusion of evidence ofprior crimes and, hence, intended Robinson to apply to procedural guarantees based upon the principle ofdoublejeopardy. We therefore preferto rest ourdecision upon the Unkletlet line ofcases. 

### 3 See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): "We distill from this whole body of cases the Court's valuejudgmentthat people

...are not to be punished by procedures which present 'a serious risk that the issue of guilt orinnocence may not have been reliably determined,' orwhich produce a 'clear danger ofconvicting the innocent.' Practices, procedures or statutes which present the probability of risk ofsuch consequences must be eradicated and the surestway is to prescribe retroactivity'' (footnotes omitted). 

### 4 In his closing argument, the prosecuting attorney said: Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher seeing his profile, the thinning hair in the back ofthe head, possibly heralone I would hate to convict this man on that kind of identification (sic]. Iwould be loathed too [sic], even in the case of the kind oftestimonywhen you are trying a man by (sic]lhe heinous crime, but we are trying him


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### fil 

### 11\ 

### t: because he committed a crime against the laws ofthe State of Florida. So that Rosemarie Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin. nowwe've gotthe law of probability working. Take that again. It gets better, much better. Pat McCune.·Now we've got an identification that is almost nailed down. We've gotthree sensible girls standing up there and neverflinching, neverturning an eye. Are you going to kick that away like itwas trash and rubbish, that kind ofidentification?



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