Appeal by defendant from judgment and commitment entered 7
October 1999 by Judge William H. Helms in Union County Superior
Court. Heard in the Court of Appeals 27 March 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General Elizabeth J. Weese, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Constance E. Widenhouse, for defendant-
appellant.
CAMPBELL, Judge.
On 12 January 1998, Howard Eugene Safrit (“defendant”) was
indicted on one count of assault with a deadly weapon with intent
to kill inflicting serious injury (“97 CRS 15635”), and one count
of robbery with a dangerous weapon (“97 CRS 15636”), arising from
an altercation with Tyrone Miller that occurred in the early
morning hours of 15 November 1997. On 18 May 1998, defendant was
charged in a separate indictment (“98 CRS 6730”) with being a
violent habitual felon, based on alleged prior convictions of armed
robbery in 1973, and assault with a deadly weapon inflicting
serious injury in 1977. On 7 October 1999, defendant was found
guilty of assault with a deadly weapon inflicting serious injury,
a lesser included offense of the principal charge in 97 CRS 15635.
Defendant was found not guilty of robbery with a dangerous weapon.
After the jury's verdict in 97 CRS 15635 was returned, argument was
heard on defendant's motion to dismiss the violent habitual felon
indictment in 98 CRS 6730 on the grounds that the State was
precluded from relitigating the allegations contained in the
indictment because defendant had earlier been found not guilty of
being a violent habitual felon based on the same two alleged prior
violent felony convictions. This motion was denied by the trial
court, and defendant was subsequently convicted of being a violenthabitual felon. Pursuant to N.C. Gen. Stat. § 14-7.12, defendant
was sentenced to life imprisonment without parole. Defendant
appeals both the underlying felony assault conviction in 97 CRS
15635, and his conviction of being a violent habitual felon. We
find no error in defendant's conviction in 97 CRS 15635. However,
we do find that the trial court erred in denying defendant's motion
to dismiss the violent habitual felon indictment in 98 CRS 6730,
and, therefore, we reverse defendant's conviction of violent
habitual felon status and remand for a new sentencing hearing in 97
CRS 15635.
The State's evidence at trial tended to show that on the
evening of 14 November 1997, defendant and his wife, Lisa Safrit
(“Lisa”), visited the home of Tyrone and Susan Miller (“Susan”) and
asked Tyrone Miller (“Miller”) if he would purchase some cocaine
for them. During the previous month, Miller had purchased cocaine
for defendant on three or four separate occasions. Miller agreed
to buy defendant some cocaine, and when Miller returned with the
cocaine, defendant and Lisa took it and left the Miller house. An
hour or two later, defendant and Lisa returned to the Miller
residence seeking more cocaine. Miller invited the couple in and
again went to purchase cocaine for them. After Miller returned
this second time, he and defendant began smoking cocaine and
playing cards. Later in the evening, defendant and Lisa again went
home to get more money. Defendant later returned to the Miller
residence with Rick, one of defendant's friends. Defendant and
Miller resumed playing cards and continued playing into the early
morning hours of 15 November 1997. At some point in the evening, the two men began playing cards
for money and cocaine. Miller eventually won all of defendant's
money, as well as all of his cocaine. When Miller decided he was
ready for bed, defendant and Rick got up to leave. Rick started
out the door, followed by defendant and Miller. Miller's wife,
Susan, was standing near the door. As defendant was walking out
the door, Miller turned to see if his money was still on the table,
at which time Miller felt a stab in the lower right back. Miller
turned back around, saw a knife in defendant's right hand, and
began fighting with defendant. Defendant attempted to stab Susan,
causing Susan to run into the back room. She was pursued by Rick.
Miller heard Susan scream from the back room, got up to assist her,
and then was stabbed in the lower left back by defendant. Miller
then ran to the back room towards Rick, allowing Susan to break a
window and escape from the house.
Miller returned to the front room where he found defendant
holding a knife to the throat of Mike, one of Miller's friends, who
had apparently passed out in a chair. Miller snatched Mike out of
the way and was stabbed in the right shoulder. As the altercation
with defendant continued, Miller was again stabbed in the lower
right back. Mike left the house to retrieve his shotgun, but by
the time he returned, defendant and Rick were driving away in a
van.
On cross examination, Miller testified that approximately
three weeks prior to this altercation, defendant's wife had given
Miller's wife, Susan, rings to be pawned in order to acquire money
for cocaine. About a week before the altercation, defendant cameto Miller's house demanding the money and the rings.
Susan Miller testified that as defendant was leaving the
Miller residence on 15 November 1997 he demanded his money and his
wife Lisa's rings, and as Miller turned to see if the money was
still on the table, defendant pulled a knife from his coat pocket
and stabbed Miller. Defendant then attempted to stab Susan, and
the altercation intensified. After having escaped from the house,
Susan returned, picked up a kerosene heater, and threw it at
defendant, causing the carpet to catch fire. Susan then picked up
the heater, threw it out the door, and ran next door for help.
On cross examination, Susan admitted that she did not actually
see Miller get stabbed the first time, but she did see Miller get
stabbed in the arm while attempting to protect Mike and in the
lower back when Miller and defendant were fighting in the kitchen.
Susan also testified that she had taken Lisa Safrit to see C.J.
McClure (“McClure”), to whom Lisa pawned rings and earrings in
exchange for cash. About two weeks prior to the altercation, Susan
accompanied defendant, Lisa and defendant's sister, to McClure's
house in an attempt to reclaim Lisa's jewelry. McClure refused to
return the jewelry, saying he needed more money. Susan testified
that to her knowledge defendant and Lisa had not come up with
enough money to get the jewelry back.
Defendant presented evidence that tended to show that in the
early morning hours of 15 November 1997, his sister, Debbie Brooks
(“Debbie”), was waiting with Lisa for defendant to return home from
the Miller residence. Debbie testified that she was worried
because defendant had gone to the Miller residence to get back therings that Lisa had pawned, or money, and he should have been home
sooner. According to Debbie's testimony, defendant arrived home
shortly after 4:10 a.m., extremely upset and in a state of panic.
Defendant had two cuts on his side, and was bleeding from the back
of his head.
Nancy Arne also testified that she saw defendant in the early
morning hours of 15 November 1997, and he had a big red place on
the back of his neck, and a “pretty good size place” on his side
that had been bleeding.
After defendant was found guilty of assault with a deadly
weapon inflicting serious injury, the State presented evidence on
the violent habitual felon charge. This evidence included
certified copies of judgments in two prior cases, one from Rowan
County and one from Caswell County. The State also introduced into
evidence SBI fingerprint cards showing defendant's name and other
information. After considering this evidence, the jury returned a
verdict of guilty of being a violent habitual felon.
Defendant brings forward in his brief the following four
assignments of error: (I) the trial court erred in excluding
evidence of defendant's statements to his sister following the
altercation, because the statements were relevant and fall within
the excited utterance exception to the hearsay rule; (II) the trial
court erred in excluding evidence of defendant's exculpatory
statement to Deputy Rollins because the State opened the door to
its admission by asking Deputy Rollins about a conversation he had
with defendant; (III) the trial court erred in denying defendant's
motion to dismiss the violent habitual felon indictment; and (IV)the trial court erred in admitting into evidence fingerprint cards
offered to prove defendant's identity as the perpetrator of prior
violent felonies for purposes of proving the violent habitual felon
charge. Defendant's remaining assignments of error are not set out
nor argued in appellant's brief and are, thus, deemed abandoned.
See N.C. R. App. P. 28(b)(5)(2000).
I.
[1]Defendant argues that the trial court erred in excluding
evidence of statements he made to his sister, Debbie Brooks,
shortly after the altercation between him and Miller.
At trial, defendant attempted to argue self-defense as a
defense to the felonious assault charge. As part of this defense,
defendant sought to introduce statements he made to his sister on
the morning of 15 November 1997, approximately twenty-five minutes
after the altercation. On direct examination, Debbie Brooks
testified that defendant returned home from the Miller residence a
few minutes after 4:10 a.m. According to Brooks, defendant was in
a “state of panic,” “very upset emotionally,” and “just like
hysterical.” Defendant was bleeding from the back of his head and
had two cuts on his side. When Brooks was asked what defendant
said upon his return home and whether defendant told her what had
happened at the Miller residence, the State made objections which
were sustained by the trial court. At the close of all the
evidence, defendant made an offer of proof for the record that
indicated Brooks would have testified that, upon his arrival in an
emotionally upset condition, defendant told her that he had been in
a fight with Tyrone Miller which started when defendant was hit onthe back of the head. Defendant told Brooks that as he was hit on
the head he heard a door slam, Tyrone Miller jumped on him, and the
two men began fighting. Defendant told Brooks that he was injured
and that he believed Miller was also injured. Defendant argues
that his statements to his sister fall within the excited utterance
exception to the hearsay rule, as they were a spontaneous reaction
to a sufficiently startling event. We disagree.
North Carolina Rule of Evidence 803(2) provides that
statements “relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the
event or condition” are not excluded by the hearsay rule, “even
though the declarant is available as a witness.” N. C. Gen. Stat.
§ 8C-1, Rule 803(2)(2000). “It is well established that in order
for an assertion to come within the parameters of this particular
exception, 'there must be (1) a sufficiently startling experience
suspending reflective thought and (2) a spontaneous reaction, not
one resulting from reflection or fabrication.'”
State v. Thomas,
119 N.C. App. 708, 712, 460 S.E.2d 349, 352,
disc. review denied,
342 N.C. 196, 463 S.E.2d 248 (1995) (quoting
State v. Smith, 315
N.C. 76, 86, 337 S.E.2d 833, 841 (1985). “While the period of time
between the event and the statement is without a doubt a relevant
factor, the element of time is not always material.”
Id. “'[T]he
modern trend is to consider whether the delay in making the
statement provided an opportunity to manufacture or fabricate the
statement.'” State v. Smith, 315 N.C. 76, 87, 337 S.E.2d 833, 841
(1985) (citation omitted). In the instant case, Brooks testified that defendant told her
he had been involved in a fight during which he was hit on the back
of the head, and that both he and the other combatant, Miller, had
been injured. When defendant made this statement, his head was
bleeding and he had two cuts on his side. These facts clearly
indicate that defendant's statements were related to a sufficiently
startling event or condition. However, we feel that defendant's
statements lacked the spontaneity necessary to show that they were
made free from reflection or fabrication.
Although Debbie Brooks testified that defendant was in a state
of panic, was very emotionally upset, and was acting hysterical
when he talked to her, Brooks also testified that defendant “knew
exactly what he was saying.” Further, the evidence shows that
defendant's statements were made when he arrived home a few minutes
after 4:10 a.m. The emergency telephone call reporting the
altercation and Tyrone Miller's injuries was made at 3:47 a.m., as
defendant was leaving the Miller residence. Therefore, defendant's
statements to Debbie Brooks were made approximately twenty-five
minutes after the altercation with Miller. During this lapse of
time, defendant apparently fled from the Miller house in a van
driven by Rick, who had also been involved in the altercation, and
eventually returned to his home. The evidence does not disclose
what else defendant and Rick did during this time period, where
else the two men drove, whether they discussed the altercation
during this time, or defendant's conduct or state of mind prior to
returning home. We believe that these circumstances, coupled with
defendant's clear motive for fabrication,
see State v. Deck, 285N.C. 209, 214, 203 S.E.2d 830, 834 (1974) (where the Supreme Court
relied on the hearsay declarant's lack of a motive for fabrication
in support of its determination that declarant's statements were
properly admitted as spontaneous utterances), indicate a lapse of
time sufficient to allow manufacture of a statement and show that
defendant's statements to his sister lacked sufficient spontaneity.
See State v. Sidberry, 337 N.C. 779, 448 S.E.2d 798 (1994) (within
an hour of victim's death, sixteen-year-old defendant, distraught
and on the verge of tears, told his aunt about the shooting;
statement not admitted because defendant had time to manufacture
statement and it was not made spontaneously). Therefore, we find
that the trial court properly excluded Debbie Brooks' testimony on
the grounds that it was inadmissible hearsay.
II.
[2]Defendant next argues that the trial court erred in not
admitting into evidence the exculpatory statement made by defendant
to Deputy Robert Rollins on 17 November 1997. Defendant contends
the State opened the door to admission of this statement when it
elicited testimony from Deputy Rollins about a later conversation
he had with defendant, wherein defendant mentioned having a head
injury and asked Deputy Rollins to take a look at it.
On direct examination, Deputy Rollins testified that he saw
defendant within a couple of days of the stabbing of Tyrone Miller
and that he did not notice any injuries to defendant at that time.
On cross examination, Deputy Rollins testified that he interviewed
defendant on 17 November 1997, and defendant signed a waiver of
rights form and gave Deputy Rollins a recorded statement. Whenasked whether he recalled defendant mentioning a knot on the back
of his head that he wanted Deputy Rollins to photograph, Deputy
Rollins stated that he did not remember any mention of injuries.
The following morning, on redirect examination, the State offered
Deputy Rollins an opportunity to clarify his prior testimony,
whereupon Rollins testified as follows:
A. Yes. There was an issue raised about
whether I recalled any conversation between
myself and Mr. Safrit during the interview
when he raised an issue of having an injury.
And when I testified yesterday, I said I
couldn't recall. And I didn't have any notes
to that effect. And I do recall that there
was conversation between me and Mr. Safrit at
the close of the interview when I interviewed
him.
And I do recall him making mention of
having some type injury. And if I'm not
mistaken, he was saying something about
possibly having a head injury, and wanted me
to look at it. And I did look at it, but I
didn't note anything that I thought was
significant or would be significant or would
be sufficient injury in this case, or any
noticeable injury. But I do recall having a
conversation with Mr. Safrit about that.
Thereafter, on re-cross, defense counsel asked, “Officer Rollins,
during that conversation when Gene Safrit was telling you about the
head injury, did he tell you how he got that injury?” When the
State's objection to this question was sustained, defendant
contended that the State had opened the door to this inquiry. As
part of his offer of proof at the close of all the evidence,
defendant offered his entire recorded statement to Deputy Rollins.
In that statement, defendant told Deputy Rollins that the fight
between him and Miller started when someone hit defendant over the
head with a hard object, and that he stabbed Miller in the heat ofbattle because he was scared. Defendant argues that by eliciting
testimony that Deputy Rollins had a conversation with defendant
about a head injury, the State opened the door for defendant to
introduce his entire statement about what happened on 15 November
1997. We disagree.
It is well-settled law in North Carolina that “[w]here one
party introduces evidence as to a particular fact or transaction,
the other party is entitled to introduce evidence in explanation or
rebuttal thereof, even though such latter evidence would be
incompetent or irrelevant had it been offered initially.”
State v.
Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). Under this
doctrine, commonly referred to as “opening the door,” the courts of
this State have consistently held that if the State introduces into
evidence part of a statement made by a defendant, the defendant is
entitled to have the rest of the statement introduced, even if
self-serving, so long as the statements are part of the same verbal
transaction.
State v. Vick, 341 N.C. 569, 578-79, 461 S.E.2d 655,
660 (1995);
State v. Weeks, 322 N.C. 152, 167, 367 S.E.2d 895, 904
(1988). Thus, by simply introducing into evidence a statement made
by a defendant, the State does not open the door for the
introduction of another statement made by the defendant at some
other time during that day.
State v. Lovin, 339 N.C. 695, 709, 454
S.E.2d 229, 237 (1995).
In the instant case, we do not believe the State “opened the
door” to the introduction of defendant's entire recorded statement
to Deputy Rollins. The testimony elicited by the State from DeputyRollins was that he and defendant had a conversation at the
conclusion of defendant's recorded interview, during which
defendant mentioned having a head injury and asked Rollins to take
a look at it. Defendant's statement about his head injury did not
provide any additional details into what happened on the morning of
15 November 1997, and it was not recorded as part of defendant's
earlier interview with Deputy Rollins. Therefore, we hold that
defendant's remarks to Deputy Rollins concerning his head injury
constituted a separate verbal transaction from defendant's prior
recorded statement. Further, the record shows that the State made
no attempt to offer into evidence any portion of defendant's
recorded statement, or any testimony concerning its contents.
Consequently, the State did not open the door to the admission of
defendant's recorded statement.
Defendant, relying on
State v. Albert, 303 N.C. 173, 177, 277
S.E.2d 653, 656 (1981), and other cases, contends that the State,
by eliciting testimony from Deputy Rollins as to a conversation
with defendant concerning a possible head injury, offered “evidence
as to a particular fact or transaction” which opened the door to
cross examination by defendant in regard to the earlier statement
given to Deputy Rollins. The “particular . . . transaction” to
which the State opened the door was the conversation between
defendant and Deputy Rollins that occurred after defendant's
recorded interview had ended. It did not include defendant's
entire recorded statement.
Compare Lovin, 339 N.C. 695, 710, 454
S.E.2d 229, 237-38.
For the foregoing reasons, defendant's second assignment oferror is overruled.
III.
[3]Defendant next argues that the trial court erred in
denying his motion to dismiss the violent habitual felon indictment
in 98 CRS 6730 on the grounds that the State was precluded from
relitigating the allegations contained in the indictment because
defendant had previously been found not guilty of being a violent
habitual felon pursuant to an indictment alleging the same two
prior violent felony convictions.
Subsequent to being indicted in the case
sub judice, defendant
was indicted on 13 July 1998 on a separate set of charges related
to events that occurred on 24 May 1998. These separate charges
against defendant also included an ancillary indictment charging
defendant with violent habitual felon status (“98 CRS 10003”). The
allegations in the indictment in 98 CRS 10003 are identical to the
allegations in the violent habitual felon indictment in 98 CRS
6730. Defendant was tried on this subsequent set of charges prior
to being tried on the charges in the instant case. Having been
found guilty of assault with a deadly weapon inflicting serious
injury, robbery with a dangerous weapon, felony larceny, and felony
possession of stolen goods, defendant was tried for being a violent
habitual felon in 98 CRS 10003. The jury returned a verdict of not
guilty. Defendant argues that since he has previously been found
not guilty of violent habitual felon status as charged in an
indictment alleging he committed the same two prior violent
felonies upon which the State charged him as a violent habitual
felon in the instant case, the State is precluded from tryingdefendant as a violent habitual felon on the indictment in 98 CRS
6730. Defendant does not contend that he may never again be
charged as a violent habitual felon, but merely that he cannot be
charged and convicted of being a violent habitual felon based on
the same combination of alleged prior violent felony convictions
upon which a jury has previously found him not guilty of violent
habitual felon status.
In support of his argument, defendant relies on the common law
principles of res judicata and collateral estoppel, the North
Carolina General Statutes, and the protections against double
jeopardy contained in Article I, Sec. 19 of the North Carolina
Constitution and the Fifth Amendment to the Federal Constitution.
Concluding that this case is resolved by a straightforward
application of the doctrine of collateral estoppel as it is applied
to criminal cases pursuant to N.C. Gen. Stat. § 15A-954(7), we do
not address defendant's constitutional arguments. However, we do
begin with a brief discussion of the doctrine of res judicata, and
its relevance to the case
sub judice.
Under the doctrine of res judicata, also referred to as claim
preclusion, “a final judgment on the merits in a prior action will
prevent a second suit based on the same cause of action between the
same parties or those in privity with them.”
Thomas M. McInnis &
Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556
(1986). Here, defendant does not argue that the State may never
again charge defendant as a violent habitual felon (i.e., bring a
second suit on the same cause of action), but simply that the Statecannot do so based on the same alleged prior violent felonies on
which a jury has previously found defendant not guilty of violent
habitual felon status. Therefore, the doctrine of res judicata
does not bar the State in the instant case. However, we believe
the companion doctrine of collateral estoppel does prevent the
State from relitigating whether defendant is a violent habitual
felon based on the same combination of prior violent felonies
alleged in 98 CRS 10003.
The doctrine of collateral estoppel, also referred to as issue
preclusion or estoppel by judgment, precludes relitigation of a
fact, question, or right in issue
when there has been a final judgment or
decree, necessarily determining [the] fact,
question or right in issue, rendered by a
court of record and of competent jurisdiction,
and there is a later suit involving an issue
as to the identical fact, question or right
theretofore determined, and involving
identical parties or parties in privity with a
party or parties to the prior suit.
Masters v. Dunstan, 256 N.C. 520, 524, 124 S.E.2d 574, 576 (1962).
“' . . . (W)hen a fact has been agreed upon or decided in a court
of record, neither of the parties shall be allowed to call it in
question, and have it tried over again at any time thereafter, so
long as the judgment or decree stands unreversed.'”
Id. at 523-24,
124 S.E.2d at 576 (citing
Humphrey v. Faison, 247 N.C. 127, 100
S.E.2d 524 (1957) (citations omitted)). Simply put, “the doctrine
of collateral estoppel operates, following a final judgment, to
establish conclusively a matter of fact or law for the purposes of
a later lawsuit on a different cause of action between the partiesto the original action.” E.H. Schopler, Annotation,
Modern Statu
s
of Doctrine of Res Judicata in Criminal Cases, 9 A.L.R.3d 203, 214
(1966).
The application of the common law doctrine of collateral
estoppel to criminal cases has been codified by N.C. Gen. Stat. §
15A-954(a)(7), which requires dismissal of the charges stated in a
criminal pleading if it is determined that “[a]n issue of fact or
law essential to a successful prosecution has been previously
adjudicated in favor of defendant in a prior action between the
parties.” N.C. Gen. Stat. § 15A-954(a)(7)(2000);
State v. Parsons,
92 N.C. App. 175, 177, 374 S.E.2d 123, 124 (1988),
disc. review
denied, 324 N.C. 340, 378 S.E.2d 805 (1989).
The requirements for the identity of issues to which
collateral estoppel may be applied have been established by the
North Carolina Supreme Court as follows:
(1) the issues must be the same as those
involved in the prior action, (2) the issues
must have been raised and actually litigated
in the prior action, (3) the issues must have
been material and relevant to the disposition
of the prior action, and (4) the determination
of the issues in the prior action must have
been necessary and essential to the resulting
judgment.
State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000)
(quoting
King v. Grindstaff, 284 N.C. 348, 358, 200 S.E.2d 799, 806
(1973)). Therefore, we must examine what issues were involved in
the two respective actions. Specifically, we must determine what
issues were fully litigated and finally decided by the jury's
verdict of not guilty in 98 CRS 10003, and whether those issueswere implicated in 98 CRS 6730.
Under N.C. Gen. Stat. § 14-7.7, “[a]ny person who has been
convicted of two violent felonies in any federal court, in a court
of this or any other state of the United States, or in a
combination of these courts is declared to be a violent habitual
felon.” N.C. Gen. Stat. § 14-7.7 (2000). For purposes of N.C.G.S.
§ 14-7.7, “convicted” means that the person has been found guilty
or has entered a plea of guilty or no contest to the violent felony
charge, and judgment has been entered on said charge on or after 6
July 1967.
Id. Therefore, in order to find a defendant guilty of
being a violent habitual felon, the State must prove beyond a
reasonable doubt that the defendant has been convicted of two prior
violent felonies, with both convictions occurring on or after 6
July 1967. Consequently, the only issue for the jury to determine
in a violent habitual felon proceeding is whether the defendant who
has just been convicted of the underlying substantive felony is the
same person as the individual the State alleges has two prior
violent felony convictions since 6 July 1967.
In the prior action (98 CRS 10003), the jury was instructed
that in order to find defendant guilty of being a violent habitual
felon, the State had to prove two things beyond a reasonable doubt.
First, that on 1 May 1973, in the Superior Court of Rowan County,
North Carolina, defendant was convicted of the violent felony of
armed robbery that was committed on 11 March 1973, in violation of
the laws of the State of North Carolina. Second, that on 8
December 1977, in the Superior Court of Caswell County, North
Carolina, defendant was convicted of the violent felony of assaultwith a deadly weapon inflicting serious injury that was committed
on 5 May 1977, in violation of the laws of the State of North
Carolina. Having been so instructed, the jury returned a verdict
of not guilty. In the instant case (98 CRS 6730), the jury
received the exact same instructions and returned a guilty verdict.
The issue to be determined in the violent habitual felon
proceeding in the instant case, whether defendant was convicted of
armed robbery on 1 May 1973 in Rowan County Superior Court and
convicted of assault with a deadly weapon inflicting serious injury
on 8 December 1977 in Caswell County Superior Court, was raised and
litigated in the prior action, was material and relevant to the
disposition of the prior action, and was necessary and essential to
the jury's not guilty verdict in the prior action. Therefore, we
hold that the State was collaterally estopped from attempting to
convict defendant of being a violent habitual felon based on the
same two alleged prior violent felony convictions upon which a jury
has already found defendant not guilty of violent habitual felon
status. Consequently, the trial court erred in denying defendant's
motion to dismiss the violent habitual felon indictment in 98 CRS
6730, and we remand for a new sentencing hearing for defendant.
IV.
Having found that the trial court erred in denying defendant's
motion to dismiss the violent habitual felon indictment in the
instant case, we need not address defendant's final assignment of
error that the trial court erred in admitting into evidence the SBI
fingerprint cards during the violent habitual felon proceeding.
In conclusion, we find no error in defendant's conviction ofassault with a deadly weapon inflicting serious injury.
However,
we hold that the trial court erred in denying defendant's motion to
dismiss the violent habitual felon indictment in 98 CRS 6730.
Therefore, we reverse defendant's conviction of being a violent
habitual felon and remand for a new sentencing hearing, at which
defendant is to be sentenced for his conviction of assault with a
deadly weapon inflicting serious injury, a Class E felony.
No error in 97 CRS 15635.
Reversed in 98 CRS 6730, and remanded for resentencing.
Judges GREENE and McGEE concur.
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