State v. Baxter

ROSALYN B. BELL, Judge. In rare circumstances, resolution of an appellate case will be greatly aided by an appellate opinion in another case issued after submission of the parties’ briefs, but before final decision. In this case, even more rare circumstances are presented: we have two such opinions, both issued within the last month, to guide our determination of the issues in this criminal case. They are United States v. Felix, — U.S.—, 112 S.Ct. 1377 , 118 L.Ed.2d 25 (1992) and Butler v. State, 91 Md.App. 515 , 605 A.2d 186 (1992).

The facts of this case are relatively straightforward. Pursuant to an anonymous tip, a police officer stopped appellee, Ronald Baxter, on October 25, 1990. A search of Baxter and his car uncovered seven grams of cocaine. Baxter was charged with possession of cocaine and possession with intent to distribute.

On May 29, 1991, Baxter was found guilty of the former and acquitted of the latter. The State then sought to prosecute Baxter for conspiracy to distribute cocaine, based on the following scenario. ²¹⁵ When Baxter was arrested on October 25, 1990, a separate undercover drug operation was underway that indirectly involved Baxter. On that date, an undercover officer was meeting with a man named McSweeney to buy cocaine from him. Baxter was suspected to be McSweeney’s cocaine supplier.

At the time he was arrested, the police believed Baxter was on his way to supply McSweeney with cocaine for sale to the undercover officer. In response to Baxter’s motion to dismiss, the State alleged that the undercover officer in the McSweeney investigation had knowledge as to Baxter being a co-conspirator with McSweeney, that the co-conspirator McSweeney was observed at Baxter’s residence both before and after his arrest on October 25, 1990, and that the co-conspirator took the undercover officer to Baxter’s residence on that date to show him that Baxter had been arrested. Following a hearing on Baxter’s motion to dismiss, the trial judge dismissed the indictment against Baxter, ruling that Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), barred a subsequent prosecution for conspiracy when establishing that conspiracy would involve reproving the facts previously used to prove the substantive offense already prosecuted. The State then appealed to this Court.

FORMER JEOPARDY Subsequent to the filing of the State’s initial brief and Baxter’s response, but before the State’s reply brief, the United States Supreme Court decided Felix . Prior to this decision, the federal circuit courts had split on the impact of the Grady decision on successive prosecutions for substantive offenses and conspiracies. The Second and Tenth Circuits held that conspiracy prosecutions, which involved proof of overt acts already prosecuted as substantive offenses, were barred under Grady , while the First and Fourth Circuits had reached the opposite conclusion. Compare United States v. Rivera-Feliciano, 930 F.2d 951 (1st Cir.1991); United States v. Clark, 928 F.2d 639 (4th Cir. ²¹⁶ 1991); Felix v. United States, 926 F.2d 1522 (10th Cir.1991); United States v. Calderon, 917 F.2d 717 (2d Cir.1990).

Both the Supreme Court in Felix and the trial judge in this case were faced with resolving the tension between Grady and Dowling v. United States, 493 U.S. 342 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990). The trial judge understandably 1 read Grady as meaning what it said: the Double Jeopardy Clause bars a prosecution where, “to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady, 495 U.S. at 508 , 110 S.Ct. at 2087 . The Supreme Court in Felix, however, “decline[d] to read the language so expansively....” Felix, — U.S. at —, 112 S.Ct. at 1384 . Instead, the Court reaffirmed the “established doctrine that a conspiracy to commit a crime is a separate offense from the crime itself.” Felix, — U.S. at —, 112 S.Ct. at 1385 .

The Court concluded: “Thus, in this case, the conspiracy charge against Felix was an offense distinct from any crime for which he had been previously prosecuted, and the Double Jeopardy Clause did not bar the prosecution on that charge.” Felix, — U.S. at —, 112 S.Ct. at 1385 . Following Felix, it is now clear that the trial judge’s ruling that Grady barred a subsequent prosecution for conspiracy based on previously prosecuted substantive offenses is no longer tenable. The State, invoking Felix in its reply brief, declares that there is now no bar to prosecution of Baxter for conspiracy. We do not agree.

In his brief, Baxter notes two alternative bases for upholding the trial judge’s decision to dismiss the indictment ²¹⁷ charging him with conspiracy. Acknowledging that these arguments were neither raised nor decided in the trial court, Baxter nevertheless seeks to have us exercise our discretion to review these issues to avoid the prospect of another appeal. Rule 8-131(a). Having considered the sufficiency of the record with respect to the issues raised by Baxter, to which the State offered no rebuttal in its reply brief, we will exercise our discretion to review these issues. 2 COLLATERAL ESTOPPEL Baxter claims that this prosecution is barred by the collateral estoppel version of double jeopardy originally set forth by the Supreme Court in Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), and explicated in Dowling v. United States, 493 U.S. 342 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990).

As was the case with the former jeopardy issues discussed above, we have the benefit of a recent appellate decision to guide our analysis of this issue. In Butler v. State, 91 Md.App. 515 , 605 A.2d 186, 195-199 (1992), Judge Moylan, analyzing both Ashe and Dowling , outlined in great detail the prerequisites for invocation of the collateral estoppel “species” of the double jeopardy “genus.” Our evaluation of these prerequisites leads us to conclude, based on the State’s proffer at the hearing on the motion to dismiss, that the State’s prosecution of Baxter for conspiracy is barred by collateral estoppel. We explain. We said in Butler, 605 A.2d at 195 , speaking through Judge Moylan: “Ashe and Dowling together represent, effectively speaking, the sum total of collateral estoppel law in its new, constitutional manifestation.

The core meaning was stated by Ashe v. Swenson, at 397 U.S. 443 , 90 S.Ct. at 1194 : ²¹⁸ “ ‘When [1] an issue of ultimate fact has [2] once been determined by [3] a valid and final judgment, that issue cannot again be litigated [4] between the same parties in any future lawsuit.’ ” (Emphasis in original) In explicating the issues set forth in Ashe and restated in Butler , it is helpful to recall the setting of both Ashe and Dowling . In Ashe, collateral estoppel was held to apply, while in Dowling , collateral estoppel was held inapplicable. In Ashe, the defendant was prosecuted for and acquitted of the robbery of one of six men in attendance at a poker game in a basement. The State of Missouri then sought to reprosecute Ashe for the robbery of one of the other poker players.

He was convicted and sentenced to 35 years in prison. Applying the test set forth above to the circumstances of the case, the Supreme Court reversed Ashe’s conviction: “Straightforward application of the federal rule to the present case can lead to but one conclusion. For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers.

And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of Roberts wholly impermissible.” Ashe, 397 U.S. at 445 , 90 S.Ct. at 1195 . The Court then held the federal rule of collateral estoppel applicable to the states on the authority of Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969) and North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). Ashe, 397 U.S. at 445-446 , 90 S.Ct. at 1195-1196 .

In Dowling , on the other hand, the Supreme Court held that the collateral estoppel form of double jeopardy protection was inapplicable. Dowling was charged with attempted robbery and burglary of the home of one Vena Henry; ²¹⁹ he was acquitted. Subsequently, Dowling was tried for several bank robberies unrelated to the events involving Vena Henry. Nevertheless, the government sought to have Henry’s testimony admitted, under Rule 404(b) 3 of the Federal Rules of Evidence, for two reasons.

First, the government believed that Henry’s description of Dowling as wearing a mask and carrying a gun similar to the mask worn and the gun carried by the robber of the bank reinforced its identification of Dowling as the perpetrator. Second, the government sought to link Dowling with another man who was also at Henry’s home. The trial court admitted the testimony, and the Third Circuit affirmed. Dowling, 493 U.S. at 343 , 110 S.Ct. at 670 .

The Supreme Court asserted two reasons in upholding the admissibility of the evidence elicited from Vena Henry. First, as Dowling acknowledged, the circumstances of the acquittal did not relate to any “ultimate fact” in the bank robbery. After discussing Ashe, Justice White continued: “Dowling contends that, by the same principle, his prior acquittal precluded the government from introducing into evidence Henry’s testimony at the third trial in the bank robbery case. We disagree because, unlike the situation in Ashe v. Swenson, the prior acquittal did not determine an ultimate issue in the present case.

This much Dowling concedes, and we decline to extend Ashe v. Swenson and the collateral estoppel component of the Double Jeopardy Clause to exclude in all circumstances, as Dowling would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” Dowling, 493 U.S. at 348 , 110 S.Ct. at 672 . The Supreme Court also noted that the burden of proof for admissibility ²²⁰ of the evidence under Rule 404(b) of the Federal Rules of Evidence was less than that required for conviction. “Because a jury might reasonably conclude that Dowling was the masked man who entered Henry’s home, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the first trial, the collateral estoppel component of the Double Jeopardy Clause is inapposite.” Dowling, 493 U.S. at 348 , 110 S.Ct. at 672 . With the circumstances of Ashe and Dowling firmly in mind, we shall proceed to apply the test of collateral estoppel set forth in Ashe and explicated in Butler . —Ultimate Fact?— Baxter had already been acquitted óf possession of cocaine with the intent to distribute. The State, in this case, is seeking to show that Baxter was part of a conspiracy.

To establish that conspiracy, the State proffered (1) that an undercover officer was investigating an individual named McSweeney for suspected drug violations; (2) that the undercover officer would testify that McSweeney planned to sell the officer drugs on October 25,1990, the day Baxter was arrested; (3) that the undercover officer had reason to believe that Baxter was McSweeney’s supplier; and (4) that McSweeney had told the undercover officer that Baxter was part of the conspiracy. The State implicitly admitted that the transferee of the cocaine on October 25 was McSweeney. Under these circumstances, it is clear, as it was in Ashe and Butler , but not in Dowling , that the evidence the State is seeking to prove constitutes an ultimate fact in the present case: whether Baxter had reached an agreement (the sine qua non of a conspiracy) to deliver drugs to McSweeney. —Has the Ultimate Fact Been Previously Determined?— In Butler, 605 A.2d at 187 , Judge Moylan aptly described the nature of the “previous determination” component of collateral estoppel: ²²¹ “Collateral estoppel, to an extent not shared by true double jeopardy or res judicata, is stubbornly fact-bound. When looking at a first juridical event to determine its impact upon a pending second juridical event, we are concerned