People v. Tyler

• Decision Date: 22 October 1980
• Docket Number: Docket No. 43916
• Citation: 300 N.W.2d 411,100 Mich.App. 782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Bernard TYLER, Defendant-Appellant. 100 Mich.App. 782, 300 N.W.2d 411
• Court: Court of Appeal of Michigan — District of US

Page 411

300 N.W.2d 411

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Bernard TYLER, Defendant-Appellant.

Docket No. 43916.

100 Mich.App. 782, 300 N.W.2d 411

Court of Appeals of Michigan.

Oct. 22, 1980.

Released for Publication Jan. 29, 1981.

[100 MICHAPP 785] Michael W. Krellwitz, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and KELLY and GILLESPIE, ^* JJ.

GILLESPIE, Judge.

Four witnesses testified at the October, 1978, murder trial of Clarence Bernard Tyler concerning an incident on April 2, 1977, where these witnesses had heard gunshots and thereafter saw two black men running at the intersection of Ridgeway and Clyde Streets in the City of Flint. Shortly thereafter, the body of Delano Harris, a heroin dealer and gambler, was found in his car on Ridgeway Street. He had been bound with rope and shot to death.

One witness for the prosecution was Loretta Ruth Banks. Ms. Banks lived with J.T. Tyler, a cousin of the defendant. Her fingerprints were found on Harris's car.

[100 MICHAPP 786] Ms. Banks testified that in February or March, 1977, she had heard the defendant talking to Marzellus Wilson about a "snitch". On the date that Harris was shot, Ms. Banks said that she had seen the defendant, Harris, and J.T. Tyler, her boyfriend in the basement of the home of J.T. Tyler. Harris was bound with a rope. The defendant had a gun at Harris's head, and Harris was pleading "Don't hurt me" and that he had not snitched. Shortly thereafter, Ms. Banks saw the defendant drive away with Harris in Harris's car, followed by J.T. Tyler in her car. Later that evening, the defendant told her he had shot Harris. One Jimmie Lee Martin, another witness, testified to a similar admission.

Scientific evidence identified rope found at the defendant's home as identical with the rope used to bind Harris. Nearly a year later the defendant was arrested wearing a blood-stained jacket. The blood stains matched the blood type of Harris, however, the type was one not uncommon among the black population.

An agent of the United States Drug Enforcement Administration testified that Harris had been a witness before a Federal grand jury in Baltimore, Maryland, on March 2, 1977, and was scheduled as a witness in a pending Federal narcotics case.

After the death of Delano Harris, the defendant was charged in a three-count indictment in Federal District Court in Baltimore, Maryland, with:

(1) conspiracy to influence or injure a witness or to obstruct justice (18 U.S.C. §§ 371, 1503),

(2) aiding and abetting to influence a witness (18 U.S.C. §§ 2, 1503), and

(3) aiding and abetting interstate travel in aid of racketeering (18 U.S.C. §§ 2, 1952).

[100 MICHAPP 787] On June 1, 1978, the defendant was acquitted on all three counts. On July 7, 1978, the prosecutor in Genesee County charged defendant, by information, with an open charge of murder, M.C.L. § 750.316; M.S.A. § 28.548, and M.C.L. § 750.317; M.S.A. § 28.549.

Prior to trial, defendant moved to dismiss the state charges as violative of double jeopardy. Const. 1963, Art. 1, § 15. This motion was denied by the trial court. Defendant was tried and convicted of second-degree murder in Genesee County and on December 5, 1978, sentenced to a prison term of 40 to 60 years from which he appeals.

Defendant argues that the doctrine of collateral estoppel applies to bar the state prosecution for murder after the conclusion of the Federal litigation. In Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), the United States Supreme Court stated:

" 'Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Emphasis added.)

Furthermore, in United States v. Hayes, 589 F.2d 811, 819 (CA 5, 1979), the Fifth Circuit Court of Appeals stated:

"Collateral estoppel does not apply to successive prosecutions by the state and federal governments because the party that the defendant seeks to estop in the second prosecution was not a party to the first trial. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971); United States v. Hutul, 416 F.2d 607, 626 (7th Cir. [100 MICHAPP 788] 1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970)."

See also United States v. Malatesta, 583 F.2d 748 (CA 5, 1978), and United States v. Braunstein, 474 F.Supp. 1 (D.N.J., 1979).

The State of Michigan was not a party to the Federal litigation. Therefore, the doctrine of collateral estoppel does not apply in the present case to bar the litigation of factual issues previously litigated in the Federal trial. In addition, defendant's failure to provide the transcript of the Federal trial to the Genesee County Circuit Court with his motion to dismiss the state charges or to this Court makes review of the factual issues impossible. United States v. Smith, 446 F.2d 200, 202 (CA 4, 1971). See also Turley v. Wyrick, 554 F.2d 840, 842 fn. 2 (CA 8, 1977).

In a related argument, defendant maintains that the doctrine of dual sovereignty is not applicable to the present case and, thus, his state murder prosecution and the Federal acquittal of obstruction of justice arising out of the same criminal act, was a violation of double jeopardy.

Under the dual sovereignty doctrine as set forth in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), successive prosecutions by the state and Federal governments for the same act do not constitute double jeopardy. See also People v. Morillo, 90 Mich.App. 655, 282 N.W.2d 434 (1979). In United States v. Hayes, supra, the United States Court of Appeals reemphasizes that there is no United States constitutional bar to successive state and Federal prosecutions for the same criminal conduct.

[100 MICHAPP 789] However, in People v. Cooper, 398 Mich. 450, 460-461, 247 N.W.2d 866 (1976), the Michigan Supreme Court, recognizing the possibility of coincident state and Federal interests in prosecuting a defendant for offenses arising out of the same criminal act, qualified the dual sovereignty doctrine as follows:

"We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). We perceive that approach as requiring, and we so hold, that Const. 1963, Art. 1, § 15 prohibits a second prosecution for an offense arising out the the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case-by-case basis cannot be avoided." (Emphasis added.)

In the recent case of People v. Gay, 407 Mich. 681, 694-695, 289 N.W.2d 651 (1980), the Michigan Supreme Court further explained the approach adopted in Cooper, supra:

"Cooper represents a strong and uncompromising statement by this Court that a defendant's right not to be twice tried in Federal and state court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests. 398 Mich. 459 (247 N.W.2d 866). Cooper makes clear that as a firm rule dual prosecution ordinarily will not be tolerated in Michigan. It is only in the rare instance where the social interests of the state are not addressed in substance by the Federal statute that a second prosecution will be allowed."

The Cooper Court suggested a three-factor approach for determining whether the interests of [100 MICHAPP 790] the state and the Federal governments are "substantially different":

"A prosecutor would be entitled to direct the attention of the court to factors which are pertinent to a determination of whether a Federal prosecution satisfies the state's interest. Such factors, for prosecutions arising out of the same criminal act, may include whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction's interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive. While we would prefer that our interpretation produce clear distinctions, we are comforted by our belief in the correctness of this approach, the judiciary's ability to apply this test, and the infrequency of successive Federal and state prosecutions." Cooper, supra, 461, 247 N.W.2d 866.

Regarding the maximum penalties of the statutes involved, the state statutes for first-degree and second-degree murder carry a maximum penalty of life imprisonment. M.C.L. § 750.316; M.S.A. § 28.548, M.C.L. § 750.317; M.S.A. § 28.549. The Federal offense of aiding and abetting in the obstruction of justice, 18 U.S.C. §§ 2, 1503, carries a maximum sentence of 5 years imprisonment, or $5,000 fine, or both. ¹ This question was clearly settled by the Michigan Supreme Court in People v. Formicola, 407 Mich. 293, 284 N.W.2d 334 (1979), in which it held that such a disparity in penalties is substantial.

Defendant argues that the penalties under the two other Federal offenses with which he was charged should also be considered in comparing [100 MICHAPP 791] the penalties between the state and Federal statutes. Defendant reasons that only then could the Federal and state interests in prosecuting defendant be properly compared....