Butler v. State, 618

• Decision Date: 01 September 1991
• Docket Number: No. 618,618
• Citation: 91 Md.App. 515,605 A.2d 186
• Parties: Michael BUTLER v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 515

91 Md.App. 515

605 A.2d 186

Michael BUTLER v. STATE of Maryland.

No. 618, Sept. Term, 1991.

Court of Special Appeals of Maryland.

April 29, 1992.

Mark Colvin, Asst. Public Defender, argued (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen., Baltimore, argued (J. Joseph Curran, Jr., Atty. Gen., Baltimore and William R. Hymes, State's Atty. for Howard County, Ellicott City, on the brief), for appellee.

Argued before MOYLAN, GARRITY and ALPERT, JJ.

MOYLAN, Judge.

The indispensable key to understanding the law of double jeopardy is to understand that there is no law of double jeopardy. This is not to say, however, that there are not many laws of double jeopardy. Double jeopardy, though it once was, is no longer a single species of legal doctrine. It is, now at least, an entire category; a genus embracing within its ever-widening folds no less than five distinct species: 1) former acquittal, 2) former conviction, 3) simultaneous jeopardy, 4) mistrial/retrial, and 5) collateral estoppel--each tracing back to a different origin, each serving a different purpose, each with a different set of implementing rules. The title "double jeopardy," moreover, is periodically invoked by false claimants, such as the non-double jeopardy look-alikes of dual sovereignty ¹ and enhanced punishment ² and by the double jeopardy reject of compulsory joinder or "same transaction." ³ An unfailing compass through the resulting maze of at-times bewildering and frequently contradictory rules and pronouncements is the constant admonition "Think plural."

The Present Case

Upon this appeal, Michael Butler relies exclusively upon the collateral estoppel sub-variety of the double jeopardy family of defenses. 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 not with the legal implications of the first event, as we would be in the true double jeopardy or res judicata context, ⁴ but only with findings of fact actually or almost certainly made by lay fact finders. We are indifferent to whether those findings were logical or internally consistent. Our exclusive concern is with, to the extent we can discern it, what was found as a matter of fact and not with what might have been found or what should have been found.

Butler initially went to trial in the Circuit Court for Howard County before a jury presided over by Judge Raymond J. Kane, Jr. He was charged with having been one of two assailants who together, during the early morning hours of August 12, 1989, made a murderous attack on each of two victims. The other assailant, concededly the triggerman, was Kent Tilghman. ⁵ The victim Sherman Chenault died of two gunshot wounds to the neck and head. The victim Sharrell Hudson, girlfriend of the murdered Chenault, was shot in the face, suffering a fractured jaw as a result.

At his first trial, some of the charges against Butler for the attack on Chenault produced jury verdicts. As a result of those verdicts, other unresolved charges relating to the attack on Chenault were disposed of by applying traditional double jeopardy precepts. All of the charges relating to the attack on Sharrell Hudson, on the other hand, were left unresolved by a hung jury. Prior to the scheduled retrial on those charges, Butler interposed the plea in bar of collateral estoppel. Judge Cornelius F. Sybert, Jr. denied the plea and this interlocutory appeal followed. ⁶

The Factual Background

The murder victim Sherman Chenault was dealing in drugs. On the fateful night, his attempted purchase of drugs led ultimately to his ambush and murder. Sharrell Hudson, who was simply along for the ride, was a random victim. Chenault, incidentally, had just been released from prison several weeks earlier.

On the afternoon of August 11, Chenault had been at Sharrell Hudson's house from approximately 4:30 P.M. onward. By telephone, he had arranged to meet with Kent Tilghman at 10 P.M. that evening at a McDonald's restaurant on Security Boulevard. After the meeting was arranged, Ms. Hudson saw Chenault in the bedroom taking "a whole lot of money" out of a metal box and counting the money. It was subsequently established that "the money" involved in this case was $17,000. After one abortive attempt to find the restaurant, Chenault returned to Ms. Hudson's house and got her to go along as navigator. He put a gun and the metal box containing the money into a black vinyl bag, which he then placed in the trunk of his mother's black Riviera. It was in that Riviera that the ultimate shootings took place. Ms. Hudson, apparently lacking a baby-sitter, took her five-year-old daughter along with her.

On that second expedition, they found both McDonald's and the would-be sellers. Kent Tilghman had been driven to the rendezvous in a Toyota Celica owned and operated by Darcell Butler, the appellant's sister. It was arranged that Chenault and his entourage in the Riviera would follow Tilghman and Darcell Butler in the Celica back to the home of the appellant's mother. The appellant was present when the two groups arrived at his mother's house. The appellant and Sharrell Hudson were, it turned out, old acquaintances; Ms. Hudson, incidentally, was inherently suspicious of the appellant and kept a wary eye on him throughout the evening. Chenault took the $17,000 from the metal box and handed it to Tilghman, who placed it in a yellow trash bag. According to Ms. Hudson, the appellant observed this transfer of cash. Immediately thereafter, Tilghman and the appellant adjourned upstairs for two or three minutes. What then followed seems to have been a scenario arranged for Chenault's benefit. A beeper contact followed by a telephone contact was ostensibly made with Tilghman's brother, Milton Tilghman, who was presumably setting up the time and place for the actual delivery of the drugs that Chenault had just constructively purchased. When the last signal apparently came in at about midnight, all concerned parties headed for the rendezvous in two separate cars.

While waiting for the telephoned communications to come in, Kent Tilghman had made several trips to or out the door, apparently with Sherman Chenault. Just preceding one such trip, the appellant was observed by Ms. Hudson looking out the door. By process of elimination, it appears likely that the yellow trash bag containing $17,000 had ended up in the trunk of the Toyota Celica before the group departed the elder Mrs. Butler's home.

Sherman Chenault drove his Riviera, with girlfriend Sharrell Hudson in the right front seat, with drug seller Kent Tilghman in the rear passenger compartment, and with Ms. Hudson's daughter in the back with Tilghman. The appellant Butler followed, alone in his sister's Celica. The two cars drove to the 6600 block of Waning Moon Way in the Village of Owen Brown in Columbia. Kent Tilghman directed Chenault to pull into the parking lot of an apartment complex. The appellant Butler remained poised in the Celica on the road leading into the parking lot.

How the appellant came to be piloting the auxiliary vehicle had evidentiary significance. According to the appellant he and his wife simply wanted Kent Tilghman to give them a ride home from the elder Mrs. Butler's house to their own home in Baltimore. Kent Tilghman, however, conditioned the providing of a ride home upon the appellant's willingness to drive out to Columbia in the auxiliary vehicle and then to chauffeur Kent Tilghman back to the departure point. Despite the logistical asymmetries of both time and distance, the appellant agreed. Why no one else, such as his sister Darcell, could have driven him and his wife home was not explained. Why it would not have been more logical for Sherman Chenault, who also lived in the Baltimore area, to have driven Kent Tilghman back to Baltimore, after their mutual trip to Columbia, was also not explained, except by the theory that both Kent Tilghman and the appellant knew that Sherman Chenault would, by that time, be dead.

The appellant's driving of the extra car to Columbia arguably had such sinister significance. He was not, at first glance, a logical choice in that the Celica was not his car and in that he did not, moreover, even own a driver's license. If the yellow trash bag containing $17,000 was in the trunk of the Celica, however, Kent Tilghman needed a trusted minion at the wheel. The appellant apparently had the qualifications. He and Kent Tilghman had served time together in a correctional facility in Hagerstown. The appellant had served eight years for robbery. Tilghman, furthermore, was romantically involved with the appellant's sister Darcell. After Kent Tilghman and the appellant had their brief meeting upstairs at the Butler home, the appellant did not even have to ask to borrow the keys to the Celica. He already had them in his pocket.

The fact that the midnight rendezvous was to be in a quiet residential corner of Columbia was also very relevant. The stated reason given to Sherman Chenault and Sharrell Hudson for the selected rendezvous point was that brother Milton Tilghman, the apparent drug source, ostensibly lived in Columbia. Extensive records checks by the Howard County police, however, turned up no connection of any sort between anyone named Milton Tilghman and the town of Columbia or any other location in its vicinity. There was a Milton Tilghman, on the other hand, living in Baltimore. The appellant, significantly, acknowledged that he, as part of a job he had once had installing pools, had worked on a job not only in Columbia generally but in the small Village of Owen Brown specifically. The appellant, inferentially, knew the remote area selected for the execution.

As they came to a halt in the Village of Owen Brown but with the...