Flittie v. Solem

• Decision Date: 14 October 1985
• Docket Number: No. 84-1248,84-1248
• Citation: 775 F.2d 933
• Parties: Roger George FLITTIE, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 933

775 F.2d 933

Roger George FLITTIE, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; and Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.

No. 84-1248.

United States Court of Appeals Eighth Circuit.

Submitted April 30, 1985.

Decided Oct. 14, 1985.

David R. Gienapp, Madison, S.D., for appellant.

Jeffrey P. Hallem, Pierre, S.D., for appellees.

Before LAY, Chief Judge, HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, En Banc.

JOHN R. GIBSON, Circuit Judge.

Roger Flittie, following the beating death of his stepmother, Ruth Flittie, was convicted in South Dakota state court of conspiracy to commit murder but acquitted of the charge of murder. After a second trial based on the same events, Flittie was convicted as an accessory after the fact to murder. Flittie brought this habeas corpus petition under 28 U.S.C. Sec. 2254 (1982) challenging his second conviction. He claimed his conviction of conspiracy to commit murder and acquittal of murder barred his trial on the accessory charge under double jeopardy and collateral estoppel theories. He further argued that the admission of a videotape recording of a discussion between him and a government informer violated his constitutional rights. A divided panel of this court affirmed the judgment of the district court ¹ denying Flittie relief. Flittie v. Solem, 751 F.2d 967 (8th Cir.1985). We granted rehearing en banc to consider whether the panel correctly ruled on these issues. We now affirm the judgment of the district court.

The original information charged Flittie and Tommy Downs with murder ² and conspiracy to commit murder. ³ The charges arose from the death of Flittie's stepmother on October 10, 1975. Downs pleaded guilty to murder and received a life sentence. On April 26, 1978, a jury convicted Flittie on the conspiracy charge and acquitted him of murder. Eight months later, Flittie was charged with first-degree burglary and accessory after the fact to murder. ⁴ After considering evidence substantially similar to that presented in the first trial, the jury convicted Flittie on both charges. On appeal, a divided panel of the South Dakota Supreme Court reversed the burglary conviction on collateral estoppel grounds. The accessory conviction was upheld. State v. Flittie, 318 N.W.2d 346, 348-49 (S.D.1982).

The evidence at both trials showed that Flittie hired Downs to kill his stepmother and make her death look like an accident. ⁵ Roger Flittie obtained a key to his mother's house from his brother, Bruce, and through Willie Harris delivered the key and a diagram of the house to Downs. Downs testified that he entered Ruth Flittie's residence and struck her twice with a lamp. Flittie was on a hunting trip at the time of the murder. Downs stated that Harris later gave him $200 and told him to go to Tucson, where arrangements would be made to take care of his expenses. Downs and his companion, Lori Kaprelian, traveled to Tucson and contacted one of Flittie's friends, Larry Brandon. Several money orders were sent to Brandon by Flittie; they were cashed and the proceeds given to Kaprelian. Several other money orders were sent to Tucson and picked up by Kaprelian. At the second trial, Downs testified that he was finally paid $6,000 to $7,000 of the $10,000 he had been promised by Flittie, but that the money Flittie sent to Tucson was not a part of this payment.

I.

The fifth amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also Benton v. Maryland, 395 U.S. 784, 794-96, 89 S.Ct. 2056, 2062-63, 23 L.Ed.2d 707 (1969) (double jeopardy clause applied to the states). The Supreme Court has recognized three situations that implicate double jeopardy concerns: retrial for the same offense following acquittal; retrial for the same offense after conviction; and multiple punishments for conviction of a single offense. Illinois v. Vitale, 447 U.S. 410, 413, 415, 100 S.Ct. 2260, 2263, 2264, 65 L.Ed.2d 228 (1980); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2089, 2096, 23 L.Ed.2d 656 (1969). In addition, the fifth amendment embodies the federal rule of collateral estoppel. Ashe v. Swenson 97 U.S. 436, 442-43, 90 S.Ct. 1189, 1193-94, 25 L.Ed.2d 469 (1970).

A.

The first question is whether Flittie's acquittal of the murder charge or conviction on the conspiracy charge prevented a trial on the accessory count. The second trial was permissible if neither murder nor conspiracy to murder is the "same offense" as accessory to murder. Two offenses are not the same if one requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). This test focuses on the statutory elements of the offenses, rather than the evidence presented at trial, Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980), and applies "notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). See Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L.J. 962, 966 (1980).

There can be no doubt that murder and accessory to murder are not the same offense. While the former requires proof that the defendant kill another human being, the latter only requires evidence that the defendant knowingly has rendered assistance to one who has committed such a killing. Compare S.D.Codified Laws Ann. Sec. 22-16-4 (1979) (murder) and note 1 supra with id. Sec. 22-3-5 (accessory) and note 3 supra. Similarly, conspiracy to commit murder is not the same offense as accessory to murder. Compare Sec. 22-3-5 and note 3 supra with id. Sec. 22-3-8 (conspiracy) and note 2 supra. Conspiracy requires proof of an agreement; a defendant may render assistance to a felon without necessarily having reached an agreement to commit a felony. See State v. Johns, 184 Conn. 369, 378-79, 439 A.2d 1049, 1053-54 (1981). Thus, under Blockburger and Vitale, acquittal of the murder charge and conviction on the conspiracy charge did not prevent a second prosecution on the accessory count. ⁶

The jury charges in both prosecutions, enumerating the elements of these crimes, highlights this conclusion. Cf. Garrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 2415-16, 85 L.Ed.2d 764 (1985) (proper analysis of successive prosecution issue requires examination of not only statutes but also specific charges constituting basis of prosecutions). A conviction of conspiracy required a finding that Flittie and another had conspired to commit murder and that an overt act was committed by one of them. A murder conviction required findings that Flittie as an accomplice caused the infliction of an injury from which Ruth Flittie died, and that he did so with premeditated design to effect the death. Conviction as accessory after the fact required findings that Flittie concealed or aided Downs after the murder knowing that Downs had murdered Ruth Flittie and that he did so with the intent that Downs avoid arrest, trial, conviction or punishment.

The statutes and jury charges make evident that conspiracy involves an agreement to commit an offense that of necessity must be pre-offense, and that conduct punished as conspiracy is quite different from concealing or assisting a person post-felony. It is true that a conspiracy charge may be proved, as in this case, by evidence of overt acts that occurred after the underlying felony. Looking only to the evidence at trial, however, is misleading. The elements of the two crimes are substantially different. Each charge requires proof of an additional fact which the other does not. Conspiracy does not require a finding of aid and concealment. Accessory after the fact does not require a finding of agreement. While the proof offered to establish the crimes may overlap, the crimes are separate and distinct. ⁷ See Iannelli, 420 U.S. at 785 n. 17, 95 S.Ct. at 1293 n. 17.

The Supreme Court in Vitale left open the possibility that under certain circumstances, two offenses might be considered the "same offense," despite dissimilar statutory elements, where the same evidence proves both offenses. 447 U.S. at 419-20, 100 S.Ct. at 2266-67. Vitale held that a second prosecution was not automatically barred by the double jeopardy clause because the defendant's failure to slow, which was the basis of the first prosecution, was not necessarily a lesser included offense of involuntary manslaughter, the charge in the second prosecution; the two offenses would be "the same" only if the reckless conduct required for the manslaughter charge was always a failure to slow. Id. The Court did suggest, however, that if the manslaughter conviction actually rested on proof of a failure to slow as the reckless conduct, the defendant's double jeopardy claim would be "substantial." Id. at 421, 100 S.Ct. at 2267.

Vitale does not suggest that it is necessarily a constitutional violation to offer the same evidence at a second prosecution. The Court was concerned that the same evidence would be offered at retrial solely to prove conduct that was a necessary element of the offense of which the defendant had already been convicted. The Court, therefore, saw the issue as whether, in retrospect, the state had merely proven a lesser (or greater) included offense. ⁸ See id. at 420-21, 100 S.Ct. at 2267 (citing Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)).

In the present case, the conduct punished by the second prosecution was hiding Downs and providing him with aid to avoid detection. Evidence of this conduct was introduced at the first trial, along with evidence of the defendant's acts before...