APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. HONORABLE RANDALL L. MACY Judge.
The opinion of the court was delivered by: Konenkamp, Justice (on reassignment).
[¶1.] This case requires us to decide whether a defendant, acquitted of grand theft, may be prosecuted for perjury on his trial testimony if the issue in the pending perjury trial was raised in the former trial. In dismissing the perjury charge on double jeopardy grounds, the circuit court reasoned that defendant's truthfulness on whether he fixed a 1950 Studebaker had been litigated as an essential issue in the former case. But the question is whether the jury verdict in the former case necessarily decided the issue to be determined in the perjury trial. Because the jury's acquittal could have been based on grounds other than accepting as true defendant's allegedly false statements about fixing the Studebaker, we reverse and remand.
[¶2.] In 2003, Rocket Lube of Spearfish, South Dakota, hired Trent Danielson. He worked there both as a mechanic and auto painter until he was fired in September 2006. Rocket Lube reported to the police that Danielson had stolen auto parts and had failed to remit checks for work done on a customer's vehicle. All the checks were from Dr. Tom Cox for mechanical work Danielson performed.
[¶3.] Danielson was indicted on one count of grand theft under SDCL 22-30A-1 and SDCL 22-30A-17. An amended bill of particulars listed all the parts and money Danielson allegedly stole.*fn1 In the jury trial, the State presented evidence that the checks Danielson obtained from Dr. Cox were property of Rocket Lube. Danielson claimed that he and Dr. Cox had a private agreement, outside his employment with Rocket Lube, to perform mechanical work on Dr. Cox's vehicles. Danielson testified that the arrangement with Dr. Cox resulted from a discussion where Dr. Cox told Danielson he felt Rocket Lube was taking advantage of him.
According to Danielson, Dr. Cox asked him if he would work on Dr. Cox's vehicles in his spare time to save expenses. Danielson agreed, doing the work on his own time, at his father's house. Dr. Cox also testified. While he agreed that he felt he was being overcharged by Rocket Lube, he claimed that he thought Danielson was acting as an agent for Rocket Lube when performing the work on his vehicles.
[¶4.] The jury found Danielson not guilty of grand theft. Shortly afterwards, Danielson was indicted on one count of perjury. The indictment alleged that during Danielson's grand theft jury trial he testified falsely by saying that "he had replaced parts inside the transmission of Dr. Tom Cox's 1950 Studebaker pick-up truck," when no such work was actually done. Danielson moved to dismiss the indictment as a violation of the prohibition against double jeopardy guaranteed by the South Dakota and United States constitutions. See US Const amend V; SD Const art VI, §9. Danielson argued that the State was collaterally estopped from prosecuting him for perjury arising out of his jury trial in which he was acquitted. To Danielson, the jury's acquittal was a final determination that he had indeed replaced the 1950 Studebaker transmission parts. The circuit court agreed and dismissed the perjury charge.
[¶5.] In Danielson's trial for grand theft, the issue before the jury was whether he had taken money or property owed to his employer for work he performed on his employer's behalf. Danielson testified that he had an outside agreement with Dr. Cox to perform mechanic's work. He described his work on Dr. Cox's 1950 Studebaker, even offering photographs to prove that he performed the claimed work. As a means of challenging Danielson's credibility, the State called expert witnesses to show that Danielson had not worked on the 1950 Studebaker. In closing remarks, the prosecutor went so far as to say that the jurors "should find him innocent" if they believed Danielson did the claimed work.
[¶6.] Relying on the fact that work performed on the 1950 Studebaker was disputed and that counsel for the State underscored this dispute in closing remarks, Danielson maintains that when the jury acquitted him it concluded that he performed the work on the 1950 Studebaker. But the State argues that it was not necessary for the jury to determine whether Danielson did the work in order to acquit him of grand theft.
[¶7.] The Fifth Amendment of the United States Constitution and Article Six of the South Dakota Constitution forbids placing a person in jeopardy twice for the same offense. US Const amend V; SD Const art VI §9.*fn2 In Ashe v. Swenson , the United States Supreme Court held that the Fifth Amendment's prohibition against double jeopardy encompasses the doctrine of collateral estoppel. 397 US 436, 443, 90 SCt 1189, 1194, 25 LEd2d 469 (1970). Generally, the doctrine applies when an issue of fact or law was actually litigated and determined by a final and valid judgment, and the determination was essential to the judgment. Id.
Collateral estoppel in a criminal case applies when an "'issue of ultimate fact has once been determined by a valid and final judgment[.]'" State v. Flittie, 318 NW2d 346, 348 (SD 1982) (quoting ...