Wise v. State

Lowe, J., delivered the opinion of the Court. Dennis Wise has appealed his conviction of the first degree murder of James Reid after having been tried by a jury in the Criminal Court of Baltimore. Wise had previously been indicted for having conspired to murder, and for having murdered, James Reid in Baltimore City. He had also been charged with having conspired (in Baltimore City) to murder B. A. Addison in New York City.

Whether appellant consummated that act in New York has yet to be determined although appellant agreed to waive extradition at the conclusion of his Maryland problems. The State’s theory was that Mr. Wise’s conspiracies were in the nature of contracts to kill and that in these two instances he fully performed. It believed that Mr. Wise had been hired by one Gilbert Wiley to kill the victims because they had raped and robbed Derochea Leak, a girlfriend of ⁶⁵⁸ Wiley who was a major narcotics dealer and who kept much of his profit in the .apartment he rented for her. At least one of the victims, along with two unidentified persons, went to the apartment to steal both drugs and profits and inferentially also intending to assault Ms. Leak, which they did. 'Wiley and Leak then contacted an acquaintance, Harry Lockwood, presumably to have Lockwood find the perpetrators of the crimes.

As to Addison he succeeded, notifying Wiley that Addison was in New York. The next day appellant arrived in New York, told Lockwood that "Gil sent me” and shot Addison after Lockwood had pointed him out. It did riot appear, however, that Wiley had used Lockwood as a middleman in disposing of Reid. Reid was killed not for his actual participation in the theft and assault, but rather because he was suspected by Wiley of having planned it.

Apparently, the deaths of both were arranged at about the same time and for the same underlying reasons. . , The two conspiracy cases were tried and concluded in September of 1979. The Reid murder case was also commenced at that time. The trials of Wise were joined with those of Wiley, obviously because they were allegedly the contracting partners in both instances and thus, the primary conspirators. Ms. Leak, who was to testify for the State, became the vortex of a plethora of procedural and evidentiary problems even before the trial actually commenced, and so remained throughout since her testimony regarding the conspiracies was essential — but admissible only if she were a conspirator.

When the cases were called, among the pending defense motions were those to sever the Reid and Addison conspiracy charges. Yet when appellant raised the severance issue prior to jury selection, he could not decide whether to fish or cut bait. He conceded that "... at this point we are not entitled to a severance because we have no grounds that we can give the court to indicate, as such, a severance.” ⁶⁵⁹ Because of a conversation with Ms. Leak, however, he expressed the conviction that the State’s evidence would show that rather than there having been two conspiracies to kill two people, there was in fact but one conspiracy to kill two people and that, somehow, this would entitle him to a severance at the end of the State’s case for which he contended he could not be retried upon the second case for double jeopardy reasons. He suggested that the court defer its ruling until the end of the State’s case, as was done in Ellerba v. State, 41 Md. App. 712, 728 , cert. denied, 285 Md. 729 , 734 (1979).

Hesitantly, although seemingly. acquiescently, the trial judge formally denied the severance on the information he had at that time, but suggested that counsel was free to renew the motion at the end of the State’s case if it felt it proper to do so in light of the evidence elicited. At the end of the State’s case it was Ms. Leak’s testimony that again brought on procedural and evidentiary difficulties. The first of a series of defense motions was to "suppress” 1 Ms. Leak’s testimony as hearsay evidence of the conspiracies, without which the State conceded it had no case. The State stood upon the premise that her testimony was admissible because she was a part of the conspiracy, i.e., a "co-conspirator.” After substantial agonizing, the court held that there was sufficient evidence to indicate that she had conspired in the death of Addison, but, while privy to the plan to kill Reid, there was no evidence that she had participated in his negotiated departure.

Her testimony, as it related to the Reid conspiracy, was therefore "suppressed.” There followed defense motions for judgment of acquittal in all cases, but only one was granted, i.e., as to the Reid conspiracy — there having been insufficient evidence without Ms. Leak’s testimony. Appellant then moved for mistrial of both the Addison conspiracy and the Reid murder. The court denied these motions. Immediately appellant moved to sever the two charges remaining against ⁶⁶⁰ appellant, that is, conspiracy to murder Addison and the murder of James Reid.

Because they were separate and distinct crimes, the court granted the motion. Acknowledging that he may have been somewhat premature because the State had not been called upon to elect where it "was going with the case,” appellant then revived his motion for mistrial: "... the specific reason for the renewal of the motion for mistrial is that if the State proceeds on the Addison conspiracy, then the evidence the jury heard this morning, I would submit is completely inadmissible, that is, statement about the murder of Reid and the res gestae statement of Dale Streams which came in through Officer Mallinoux, I believe would be absolutely inadmissible. If on the contrary the State elects to proceed with the murder of Mr. Reid, then I believe that the testimony of Mr. Lockwood would be completely inadmissible in that case, and as such I believe that no matter which case the State would elect to pursue at this time that there has been evidence produced, a significant amount of evidence, prejudicial evidence that no curative instruction could remove this prejudice from the jury, and in such the Court should grant the mistrial.” The court again denied the motion but called upon the prosecutor to "elect which of the two charges against Mr. Wise he want[ed] to proceed with.” Because it was more reasonable to keep both alleged conspirators in the same trial (i.e., Wiley and Wise), the State chose to proceed with the conspiracy to kill Addison. While it would seem that the evidence of the Reid murder previously produced by the State might have prejudiced the jury against appellant in the Addison conspiracy, it obviously did not because on September 27,1979, the jury found appellant not guilty of so conspiring.

On October 15,1979, appellant moved to dismiss the Reid murder charge on grounds of double jeopardy, among others. ⁶⁶¹ The motion was heard and denied on January 23, 1980, and the case was set for trial and tried on March 11, 1980, 30 days having been provided appellant in which to appeal the double jeopardy denial. From the time of his arrest on March 6, 1979, appellant repeatedly sought a speedy trial individually and through diligent efforts of his attorney. He asserts a denial of that constitutional right as an issue on appeal here, just as he contends that his conviction was improper as he was twice exposed to jeopardy. Neither of those direct assertions of constitutional violation gives us but slight pause under the facts of this case. —collateral estoppel— The primary issue raised by appellant is an amalgam of evidentiary and constitutional issues, and as indicated below, it again focuses on Derochea Leak.

Her testimony was crucial not only to prove that Wise killed Reid, but also that he did so premeditatedly. She was to testify primarily about conversations with Gilbert Wiley regarding his having hired Wise to kill Reid, then circumstantially support that hearsay with her own observations, as would the State with other evidence. But such conversations were inadmissible hearsay unless they could come in through some exception to the hearsay rule. The State proffered two exceptions to avoid the hearsay stymie.

It contended that Ms. Leak was a co-conspirator together with Wiley and Wise; however, the Reid conspiracy acquittal was expressly predicated upon a finding by the trial judge as a matter of law that she was not a conspiratorial participant in the Reid case. Furthermore, since a jury had acquitted Wise of conspiracy to kill Addison in New York, the "ultimate fact” that there was no conspiracy could not be relitigated. Powers v. State, 285 Md. 269 , cert. denied, 444 U.S. 937 . This is precisely what the trial judge hearing the murder case ruled preliminarily, and the record indicates he carried out his resolve.

No hearsay evidence was offered, or if offered, it was not admitted. ⁶⁶² Appellant does not assert any violation of the hearsay rule; however, he sought before and during the murder trial to preclude any evidence which had been introduced in the previous conspiracy trials. "But the Court left one little phrase out that bothers me. That is why I am asking the Court now for a more explicit ruling. The Court indicated the State cannot bring in hearsay.

I understand that. My suggestion or my argument is the State cannot bring in any evidence of the conspiracy either, that that has already been litigated between the parties and therefore cannot be brought in. Now, the question or the point I am coming to is the robbery, for example, of Derochea Leak. That is all part of a conspiracy.

Whether she was robbed or not has nothing to do with whether Mr. Wise killed Jamey Reid other than to show the beginning of a conspiracy between Wise and Wiley. That is Derochea Leak is attacked, Wiley then hires Wise. They have been acquitted of that. Therefore in my opinion and what I am arguing to the Court, there can’t be any reference to that.

That issue has been litigated. There can be no reference to that conspiracy. Not just the hearsay exception, but any reference to it whatsoever.” He now embellishes his objections upon appeal by contending that the doctrine of collateral estoppel — "kissin’ cuzzin” to res judicata — precluded any evidence which had been considered by the acquitting jury. This argument is predicated upon the gist of Ashe v. Swenson, 397 U.S. 436, 443 (1970), which is that: " 'Collateral estoppel’ ... means simply that when an issue of ultimate fact has once been determined by a valid and! final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” ⁶⁶³ The decision in Ashe v. Swenson, which incorporated collateral estoppel into the constitutional protection against double jeopardy, raises the question of whether double jeopardy precludes the evidentiary use of crimes for which there has been a prior acquittal, or whether the doctrine applies only in situations of reprosecution.

Although one might read "intimations” into Ashe v. Swenson that the constitutional incorporation of collateral estoppel goes beyond reprosecution, the fact situation presented in that case related solely to reprosecution and did not stretch the constitution further into the field of evidence. At least two federal circuit courts of appeal appear to have held that the Constitution demands the exclusion of evidence of crimes of which the defendant has been acquitted: Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972), and United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979). But both of these cases stress the relitigation of an issue decided theretofore in an accused’s favor. Wingate could perceive no distinction in quality between relitigating an "ultimate” fact and an "evidentiary” fact which had been once decided in an accused’s favor.

Id. at 213-14 . Significantly, its reasoning followed expressly Judge Friendly’s language in United States v. Kramer, 289 F.2d 909 (2d Cir. 1961), which stated that: " 'The Government is free within the limits of the Fifth Amendment,... to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it in the first trial, no matter how unreasonable the Government may consider that determination to be.’ ” Wingate, supra at 214 , quoting from Kramer, supra at 916. (Emphasis added). Although some jurisdictions have held that the theory underlying res judicata is confined to ultimate facts and does not extend to evidentiary ones, e.g., State v. Thompson, 241 Iowa 16 , 39 N.W.2d 637 (1947), Maryland has never decided ⁶⁶⁴ specifically whether collateral estoppel goes beyond multiple or fragmented prosecutions.

See generally Annot., 9 ALR3d 203, 228 et seq. (1966). A recent and exhaustive case from the Court of Appeals (Powers v. State, supra) while not deciding the question, clearly indicates that it will interpret Ashe v. Swenson, supra, as not distinguishing between ultimate facts and evidentiary facts for purposes of relitigation. We hasten to caution, however, that the same case also clearly indicates that it will apply the limitations that were explicit in Judge Friendly’s admonitions.

In Powers v. State, supra, Judge Davidson carefully analyzed all of the relevant Supreme Court cases relied upon by appellant (among others) interpreted in the light of a multitude of jurisdictional analyses. While Powers did not turn upon whether collateral estoppel precluded relitigation of evidentiary facts, its statement of purposes of that doctrine seems quite clearly to indicate that it will apply to evidentiary facts but also, more importantly, that it will apply only to those "necessarily determined.” "One of the purposes of the doctrine of collateral estoppel is to prevent prosecutors from purposefully using their powers to provide plural opportunities to convict an accused. Ashe v. Swenson, 397 U.S. at 445 n. 10, 90 S. Ct. at 1195 n. 10. Another is to encourage care in the preparation and presentation of the prosecutor’s initial case in order to prevent relitigation which overburdens already crowded dockets and wastes public funds.

Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1 , 32 (1960). The primary purpose of the doctrine of collateral estoppel, however, is to avoid compelling an accused to prove his innocence to two or more juries. More precisely, the doctrine’s purpose is to avoid compelling relitigation of a fact material to the question of innocence when it appears substantially certain that a jury has already decided that fact in the accused’s favor.” Id. at 287 (Emphasis added). ⁶⁶⁵ That same limitation appears in every case cited by appellant and notably in those upon which he especially relies, Turner v. Arkansas, 407 U.S. 366 (1972); Simpson v. Florida, 403 U.S. 384 (1971), and Sealfon v. United States, 332 U.S. 575 (1948) (his mainstay), as well as Wingate and Kramer , both supra.

A recent case in the Third Circuit found it unnecessary to address whether collateral estoppel constitutionally barred the evidentiary use of conduct of an accused for which he had been acquitted because that circuit had so applied the doctrine long before Ashe v. Swenson (1970), in United States v. Simon, 225 F.2d 260 (3d Cir. 1955), and even before Sealfon (1948), in United States v. De Angelo, 138 F.2d 466 (3d Cir. 1943). It held that however Ashe v. Swenson was interpreted, it surely did not proscribe extending the doctrine as that circuit had previously extended it. That case, United States v. Keller, [ 1980], 27 Crim. L. Rep.

(BNA) 2294 (3d Cir. May 23, 1980), is significant in that it seems to carry the doctrinal application to evidence, even beyond the Friendly limitations of facts "necessarily determined,” which we indicated appeared implicit in Powers and all of the cases therein discussed. In Keller the accused and others were charged with conspiracy to distribute PCP. Keller admitted his participation but testified that he had been entrapped because he was cajoled and persuaded to do so by, for and at the behest of a government informer. The government sought to undercut that testimony by cross-examining the defendant about his involvement in drug deliveries at different times, for which transactions he had been acquitted as a result of an entrapment defense.

The court allowed no evidence of the accused’s conduct which had been the subject of the prior acquittal. Significantly, the court noted: "The government argue[d] .. . that this case is distinguishable from the situations previously before this court because Keller did not deny the fact of his participation in the drug distributions but claimed that he was excused from criminal ⁶⁶⁶ prosecution because he was entrapped. The Government -contends that collateral estoppel is inapplicable because '[i]t is not the result of the prior case that was material, but rather the facts which were undisputed.’ Thus, the Government would have us hold that the prior-conduct is admissible notwithstanding the determination by the earlier fact finder that the defendant’s state of knowledge and level of participation did not satisfy the requirement of the criminal law. * * * We decline to so hold since that would eviscerate the effect of the prior acquittal. We agree with the Fifth Circuit that '[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded, he did not commit.’ Wingate v. Wainwright, 464 F. 2d at 215 .

The Government position 'places an unjust burden on a defendant to require him to relitigate the very issue a jury decided in his favor.’ U.S. v. Mespoulede, 597 F. 2d at 334 .” Keller, supra at 2295-96. That is but a tiny step from holding that no evidence introduced in a case resulting in an acquittal may ever be used in a subsequent prosecution for any purpose — but even there it does fall short of that extreme. We cannot believe that any jurisdiction would close that last gap, especially in conspiracy cases and their underlying crimes. We are certainly satisfied that Maryland would not.

If such broad interpretation were placed upon the doctrine of collateral estoppel, it could. not stand together with the well-established principle that an acquittal of a conspiracy to commit a crime does not bar a subsequent prosecution of the crime. See Annot., 92 L. Ed. 185 , 188 (1949). See, also, Sealfon v. United States, supra at 578-79. A conspiracy is a corrupt combination to accomplish a criminal or unlawful purpose by any means, or to accomplish any purpose by criminal or unlawful means.

L. Hochheimer, Criminal Law § 285 (2d Ed. 1904). Although the gist of the ⁶⁶⁷ crime is the combination, it is necessary in either case to submit evidence of the purpose or means of the commission of or attempt at the underlying crime. If we accept the theory of appellant, any evidence in a conspiracy case, whether relating to the combination or to the ultimate criminal object of an accused, would be forever barred from use at a subsequent prosecution for commission of the underlying crime, which case may have been severed at his own insistence. Whatever may be the law in the third circuit or elsewhere, that is not the law of Maryland.

In Scarlett v. State, 201 Md. 310 , cert. denied, 345 U.S. 955 (1953), the defendant who had previously been acquitted of having violated the lottery laws was subsequently convicted on the same evidence of having conspired to violate them. On appeal, Scarlett contended that evidence used in the case for which he had been acquitted should not have been admitted in the subsequent conspiracy case. Relying on the language (not the result) of Sealfon, supra, the court said: "We cannot agree with appellant that his acquittal of the charges of violating the lottery laws on the three specified days barred the use of evidence obtained on those days to substantiate the charge of conspiracy.” Id. at 319. Six months later, in that same term of court, Judge Hammond addressed more explicitly the fact that res judicata (the "kissin’ cuzzin” of collateral estoppel) does not prevent evidence of acts constituting a crime for which an accused was convicted from use in a subsequent trial for another and separate crime.

Rouse v. State, 202 Md. 481 , cert. denied, 346 U.S. 898 (1953), differed somewhat from Scarlett and from the case at bar. Rouse had been convicted at his first trial of having violated the lottery laws. Thereafter he was convicted in a second trial of having conspired to violate those laws. The Court of Appeals affirmed although the State used much of the same evidence to convict in each case.

Significantly in