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Donald M. Wingate, Petitioner-appellant, v. Louie L. Wainwright, Director, Division of Corrections,department of Health and Rehabilitative Services,state of Florida, Respondent-appellee
United States Court of Appeals, - 464 F.2d 209
Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Miami, Fla., for petitioner-appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.
GEWIN, Circuit Judge:
Donald Wingate appeals from the judgment of the district court dismissing his petition for a writ of habeas corpus in connection with his Florida state conviction for robbery. After careful examination of the record we conclude that harmful constitutional error was committed in the course of the state court trial. We therefore reverse the judgment of the district court and remand with instructions.
Wingate was tried before a jury in the Florida Criminal Court for the July 9, 1968 robbery of a small store. Over defense objections the state announced to the jury that it would prove that the petitioner had committed four other robberies for the purpose of showing a "course of conduct." During the trial and over defense objection one Joseph Hellman testified that Wingate had robbed him at a Farm Store on December 11, 1967 and again on January 2, 1968. One James Angel also testified over objection that Wingate had robbed him at a gas station on December 23, 1967. The defense objected and moved to strike this testimony on the ground that Wingate had been tried and acquitted in the Florida Courts on the charges of robbing Hellman on January 2, 1968 and Angel on December 23, 1967. The defense also objected on the ground that the testimony bore no relevance to the instant case and constituted an attack on the character of the defendant. The motions to strike and for a mistrial were denied by the state court.
During the closing arguments to the jury, the state prosecutor commented:
". . . I hope you realize that there is more at stake today than one man's freedom. I think there is at stake today the protection and safety of society. [Defense counsel] is asking you to let this man walk back on the streets again; and I am asking you not to; I am asking you not to allow this man to go back on the street and to redo those things that he has done." (emphasis added)
Wingate was found guilty by the jury and sentenced to 15 years at hard labor in the state penitentiary.
In considering Wingate's petition for habeas corpus the district court concluded that he had exhausted his state remedies. However the court found that the admissibility of the evidence of the two prior robberies for which Wingate had been tried was not affected by the fact that he had been acquitted of those robberies. The court held that the admission of the evidence of those two robberies in this case did not amount to a denial of due process.
The court correctly observed that evidence of other crimes is generally admissible when such evidence tends to directly establish the requisite intent in the commission of a particular crime, or a common scheme or plan related to the crime for which a defendant is being tried. This is the rule in the federal courts, United States v. Mancuso, 444 F.2d 691 (5th Cir. 1971); United States v. Hayes, 444 F.2d 472 (5th Cir. 1971), even where the defendant has not been convicted of the other crimes shown, United States v. Perkins, 444 F.2d 1329 (5th Cir. 1971). A similar rule is applied in the Florida courts, Williams v. State, 247 So.2d 425 (Fla.1971); Hawkins v. State, 206 So.2d 5 (Fla.1968); Williams v. State, 143 So.2d 484 (Fla.1962); Williams v. State, 117 So.2d 473 (Fla.1960); Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).
In view of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and its progeny, it is our opinion that the district court erred in holding that the fact that Wingate was actually tried and acquitted of the two robberies does not affect the admissibility of such evidence, particularly in light of the accumulated error of the prosecutor's assertion and argument.1 Not only did the prosecutor assure the jury that the state would prove that the petitioner had committed four other burglaries, he kept his promise and then asked the jury not to allow the petitioner the liberty to go back on the street and again do those things which he had done.
Wingate's conviction was affirmed by a two to one decision of the District Court of Appeal of Florida, Third District, Wingate v. State, 232 So.2d 44. Chief Judge Pearson dissented on the ground that it was error to admit evidence of the two robberies of which the petitioner had previously been tried and acquitted and because of the prejudicial nature of the prosecutor's comments. In the course of his dissent he stated:
It is my firm persuasion that the appellant was not afforded a fair trial because of the accumulated errors in the admission of evidence concerning other crimes and the unwarranted and prejudicial comments of the prosecutor.
Prosecutors should content themselves with presenting competent, relevant evidence and refrain from overkill, which as in the present case, prejudices a defendant's right to a fair trial.
The court in Hoag rejected a broad challenge under the 14th amendment that the defendant's consecutive trials for different offenses arising out of the same occurrence violated due process. The Court denied Hoag's contention that the state was collaterally estopped to relitigate the issue of his identity. The Court said that it was not necessary to decide whether collateral estoppel was constitutionally required since the New Jersey Courts recognized the rule, but had concluded that in this case the previous acquittal did not give rise to such an estoppel. The Court declined to overturn that finding of the New Jersey Court
The State relies on the decisions of this court in Pilcher v. United States, 113 F. 248 (5th Cir. 1902) and Lindsey v. United States, 227 F.2d 113 (5th Cir. 1955) for the proposition that a prior acquittal is immaterial in considering the admissibility of evidence of a separate crime. In Lindsey the court held that the acquittal of Lindsey's wife on state charges of prostitution would not preclude the United States from proving that she had engaged in prostitution in connection with Lindsey's prosecution under the federal Mann Act. In such a case there is no possibility of collateral estoppel since both cases involved different defendants and different prosecuting sovereigns. See United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971); Serio v. United States, 203 F.2d 576, 578 (5th Cir. 1953). In Pilcher the court in reversing for other erroneous testimony at trial, noted that testimony offered by the government to prove the defendant broke a warehouse lock was admissible in his trial for removal and concealment of distilled spirits-notwithstanding his prior acquittal on a charge of breaking the lock. It is not clear whether the issues in the first case would have given rise to a collateral estoppel in the second, but to the extent that Pilcher is inconsistent with Ashe the decision in Ashe must be followed
The State also argues that Wingate has failed to demonstrate that the testimony as to facts sought to be excluded at the trial were actually concluded by the prior acquittal. In view of the State's offer of the evidence of the prior robberies to show a common scheme or modus operandi it is apparent that the State was seeking to broadly relitigate all of the issues in the previous trial in order to assert that Wingate was guilty of these earlier robberies
The State's proof consisted of the testimony of the robbery victims who identified the defendant, the arresting and investigating police officers and the two other robbery victims who identified the defendant as having robbed them on three separate occasions. In rebuttal the defendant offered proof that he had been tried for two of the three other robberies and had been acquitted on both charges. The records show that the transcript of testimony tending to establish Wingate's guilt of other crimes is more than twice as long as the transcript of testimony tending to establish his guilt of the crime charged
Wingate additionally asserts that the admission of the evidence of the prior offenses for which he was tried and acquitted and the argument of the prosecutor violated his rights under the due process clause of the Fourteenth Amendment. In light of the disposition we make of this case under the Double Jeopardy Clause we do not find it necessary to pass on any of Wingate's due process contentions
In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) the court concluded that even a prior conviction could not be used to impeach a defendant if the defendant had not been provided with counsel at the time of the prior conviction. If a party cannot even be impeached by the use of a crime for which he has been convicted without counsel, surely guilt should not be established by proving the commission of alleged crimes of which there has been a final judgment of acquittal