Flittie v. Solem

• Decision Date: 11 January 1985
• Docket Number: No. 84-1248,84-1248
• Citation: 751 F.2d 967
• 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 967

751 F.2d 967

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 June 15, 1984.

Decided Jan. 11, 1985.

David R. Gienapp, Arneson, Issenhuth & Gienapp, Madison, S.D., for appellant.

Mark V. Meierhenry, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, S.D., for appellees.

Before HEANEY and JOHN R. GIBSON, Circuit Judges, and COLLINSON, ^* Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Ruth Flittie was found dead, with multiple head injuries, having been beaten with the base of a lamp that was found by her body. Her adopted son, Roger Flittie, was convicted of conspiracy to commit murder but acquitted of the charge of murder. A second trial followed, based on the events surrounding the same killing, and 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), alleging that 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 argues that a videotape recording of a discussion between him and a government informer violated his constitutional rights. Having carefully considered these and other arguments that he makes, we affirm the judgment of the district court. ¹

The original information charged Flittie and Tommie 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 Mrs. Flittie 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 the lamp. Flittie was on a hunting trip at the time of the murder. Downs stated that later Harris 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.

Flittie raises several claims under the double jeopardy clause. 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, 2062-64, 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. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see Note, Twice in Jeopardy, 75 Yale L.J. 262, 265-66 (1965). In addition, the fifth amendment embodies the federal rule of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Flittie raises all these issues except the prohibition against multiple punishments.

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 murder or conspiracy to murder is not the "same offence" as accessory to murder. Two offenses are not the same if one requires proof of a fact that the other does not require. 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).

There can be no doubt that murder and accessory to murder are not the same offense. Compare S.D. Codified Laws Ann. Sec. 22-16-4 (1979) (murder) and note 2 supra with id. Sec. 22-3-5 (accessory) and note 4 supra. Only slightly less obvious is that conspiracy to commit murder is not the same offense as accessory to murder. Compare Sec. 22-3-5 and note 4 supra with id. Sec. 22-3-8 (conspiracy) and note 3 supra. Thus, acquittal of the murder charge and conviction on the conspiracy charge did not prevent trial on the accessory count. ⁶

B.

Initially developed in civil cases, the doctrine of collateral estoppel provides that an issue of ultimate fact determined by a valid final judgment cannot be litigated again between the same parties. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). ⁷ The following test is applied in criminal cases:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."

Id. at 444, 90 S.Ct. at 1194 (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39 (1960)).

1.

Flittie argues that collateral estoppel should have prevented trial on the accessory count. Any preclusive effect must flow from Flittie's acquittal on the murder charge; the conviction on the conspiracy charge cannot bar later proceedings by the state. The Ashe rule refers only to acquittals. Collateral estoppel is a good defense only as to ultimate issues determined at the first trial in the defendant's favor. See Moton v. Swenson, 488 F.2d 1060, 1062-63 (8th Cir.1973), cert. denied, 417 U.S. 957, 94 S.Ct. 3086, 41 L.Ed.2d 675 (1974); Percy v. South Dakota, 443 F.2d 1232, 1235 (8th Cir.), cert. denied, 404 U.S. 886, 92 S.Ct. 223, 30 L.Ed.2d 169 (1971); C. Whitebread, Criminal Procedure Sec. 24.04, at 509 (1980).

Thus, the issue narrows to whether the jury acquitting Flittie of murder could have rationally grounded its verdict on an ultimate fact essential to an accessory conviction. The acquittal on the murder charge implied that the jury resolved some issues in Flittie's favor. Under Ashe, then, the next step is to determine what issues were resolved in Flittie's favor, and whether any of these issues are elements of the accessory charge.

We begin by examining the charges to the juries. In the first trial, Flittie was convicted of conspiracy. The jury had to find that: (1) two or more persons conspired to commit murder; (2) one of these persons was Flittie; and (3) either Flittie or Downs' conspirator did any overt act to effect the object of conspiracy.

To find Flittie not guilty of murder, the first jury had to find that one or more of the following elements were not proven beyond a reasonable doubt that: (1) Flittie as an accomplice caused to be inflicted an injury or injuries upon the deceased from which the deceased died; (2) Flittie did so with premeditated design to effect the death of the deceased; and (3) the killing was without authority of law and without justification.

To convict Flittie as an accessory after the fact, the second jury had to find that: (1) Downs murdered Ruth Flittie on October 1, 1975; (2) Flittie concealed or aided Downs after the murder; (3) at the time Flittie concealed or aided Downs he knew that Downs had murdered Ruth Flittie; and (4) Flittie concealed or aided Downs with the intent that Downs would avoid or escape arrest, trial, conviction, or punishment.

The South Dakota Supreme Court found the jury that acquitted the defendant on the murder charge "could not have rationally grounded its verdict on an issue other than whether [Flittie] * * * had aided or abetted Downs." 318 N.W.2d at 348.

Flittie argues that the first jury could have decided that his post-murder conduct was sufficient to support a murder conviction, and that the acquittal on the murder charge indicated that the jury found Flittie was not an after-the-fact participant. Consequently, this issue would be barred in the second trial as resolved in Flittie's favor at the first.

This argument is unconvincing. The guilty verdict on the conspiracy charge belies the contention that the first jury thought Flittie was not guilty of after-the-fact participation. The South Dakota Supreme Court found it "evident that the jury in the first trial convicted defendant on the conspiracy charge based on his post-murder conduct." 318 N.W.2d at 349. ⁸ Even the dissenting justices agreed that the first jury found that Flittie had aided Downs after the murder. See id. at 350-51 (Fosheim, J., dissenting).

This instruction from the first trial helps to rationalize the...