State v. White

• Decision Date: 13 August 1996
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert L. WHITE, Appellant. 51927.
• Court: Missouri Court of Appeals

Page 825

931 S.W.2d 825

STATE of Missouri, Respondent, v. Robert L. WHITE, Appellant.

No. WD 51927.

Missouri Court of Appeals,

Western District.

Aug. 13, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 1, 1996.

Application to Transfer Denied

Nov. 19, 1996.

Jonathan L. Laurans, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Fernando Bermudez, Assistant Attorney General, Jefferson City, for respondent.

Before FENNER, C.J., P.J., HANNA and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Robert L. White appeals from a jury verdict finding him guilty of possessing a controlled substance under § 195.202, RSMo 1994. Mr. White was later sentenced to a term of ten years.

Mr. White raises three points on appeal. First, he argues that the double jeopardy clause bars this action in that the State is collaterally estopped from prosecuting him for possession of a controlled substance because he was previously acquitted on a littering charge arising out of the same conduct. Second, Mr. White contends that the State violated a discovery rule in failing to disclose to the defense that the State was aware that the television show "COPS" had videotaped the incident and that two cameramen from the television show "COPS" witnessed the incident. Third, Mr. White alleges that prejudice resulted from the State's closing argument in which the prosecutor implied to the jury that the videotape of Mr. White's arrest, which the prosecutor knew had been destroyed by the "COPS" show, could have been produced at trial by defendant if it had been exculpatory. For the reasons stated below, we reject all three arguments on the facts of this case, and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of July 16, 1994, two Kansas City, Missouri police officers observed a group of approximately twelve to fifteen men gathered together near an intersection. Suspecting that one of the men possessed a weapon, the officers drove past the group and requested backup. Shortly thereafter, another patrol car arrived and the two cars approached the group from opposite directions. By this time only two men remained, one of whom was Mr. White. As they approached, the officers observed what appeared to be a drug transaction.

Mr. White and the other man ran when they became aware of the presence of the officers. As he ran, Mr. White dropped a brown paper bag and later a plastic bag. The police chased and subsequently apprehended Mr. White, but they did not apprehend the other man. The officers retrieved the bags and conducted a field test, which they said confirmed their suspicions that the bags contained crack cocaine and that they had interrupted a drug deal. ¹

Riding in the backup patrol car that night was a two-person film crew from the television show, "COPS." The crew videotaped the officers chase and apprehend Mr. White. Mr. White became aware that evening that the events were being videotaped by the "COPS" show. At least one officer apparently viewed the videotape that night, but apparently no one else not connected with "COPS" did so, and the tape remained in the custody of the "COPS" show personnel. The record does not reveal what was contained on the videotape, for shortly after the incident the COPS show determined that it would not air the incident on television. Consequently, and in accordance with its usual procedure, it erased the videotape. It did not keep a copy of the tape or provide one to the police or to anyone else, so far as the record shows, nor was it requested to do so before the tape was erased.

For reasons not revealed in the record, after being taken into custody, Mr. White was issued a citation for littering and was released without any narcotics charges being brought. On October 4, 1994, Mr. White was acquitted of the July 16, 1994, littering charge in the Municipal Court of Kansas City, Missouri. On March 10, 1995, based on the same July 16, 1994, incident, Mr. White was charged by information with second degree drug trafficking under § 195.223, RSMo 1994. An amended information later charged Mr. White as a prior and persistent offender.

In preparation for depositions in the case, the prosecutor first learned of the fact that "COPS" had taped the incident. It is apparent from the record that he made a good faith effort at that point to obtain the videotape, but by then it had already been destroyed. The prosecutor did not mention the tape to defense counsel, either voluntarily or in response to discovery under Rule 25.03.

Trial was held in July, 1995. At the conclusion of the State's case, the court directed a verdict for the defendant on the charge of trafficking, but allowed the case to proceed on the charge of possession of a controlled substance. Both parties referred to the existence and loss of the tape in their closing arguments. The jury found defendant guilty of the charge of possession of a controlled substance. Mr. White was sentenced to a term of ten years. He appeals.

II. NEITHER DOUBLE JEOPARDY NOR COLLATERAL ESTOPPEL BARRED MR. WHITE'S CONVICTION FOR POSSESSION OF COCAINE

Mr. White first notes that he was acquitted of the littering charges which had been brought against him previously based on the very actions which formed the basis of the prosecution in this case. He argues that, as a result of that acquittal, the principles of double jeopardy and collateral estoppel bar the instant prosecution.

As this is a legal issue, our review of the lower court's denial of Mr. White's double jeopardy claim is de novo. United States v. Okolie, 3 F.3d 287, 289 (8th Cir.1993). The Fifth Amendment to the United States Constitution states in relevant part: "nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision, known as the double jeopardy clause, applies to the states, as it is incorporated by reference in the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994).

Mr. White recognizes that the proper method for addressing a claim that successive prosecutions constitute double jeopardy is determined by application of what is known as the "Blockburger test." That test, also called the "same element" test, was first set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Blockburger held that the double jeopardy inquiry requires a determination whether each offense contains an element not contained in the other. If each of the offenses does not contain different elements then a successive prosecution is barred by the double jeopardy clause. Id.; Burns, 877 S.W.2d at 112. If each offense does have an element not contained in the other, however, then there is no double jeopardy. Id.

The continued validity of the Blockburger "same element" test had briefly been put in question by the Court's seeming adoption in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), of the "same conduct" test. That test had provided "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted," the double jeopardy clause bars a successive prosecution. 495 U.S. at 510, 110 S.Ct. at 2087.

In United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), however, the Supreme Court rejected the "same conduct" test and reaffirmed that the proper test for double jeopardy is the "same element" test set out in Blockburger. Although the issue of collateral estoppel was not directly at issue in Dixon, the Supreme Court also reaffirmed in Dixon that there is a collateral estoppel aspect to double jeopardy which may bar a subsequent prosecution where the State has lost the first prosecution even if the Blockburger test is satisfied. As the Court stated:

The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts.

509 U.S. at 705, 113 S.Ct. at 2860 (emphasis in original).

The rationale for this rule is not solely dependent on principles unique to double jeopardy. Rather it is simply an application of the basic rules of collateral estoppel in a criminal context. In a civil context, collateral estoppel means that once a party has tried an issue of ultimate fact and lost it, the party is collaterally estopped from again litigating that same issue. In a criminal context, it means that once the state has tried the defendant for a criminal act and defendant has been acquitted, he cannot later be tried for an offense which contains an element necessarily determined in favor of defendant in the prior case. State v. Rodden, 728 S.W.2d 212, 220 (Mo. banc 1987). The doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe, 397 U.S. at 445, 90 S.Ct. at 1195. However, because it is an affirmative defense, it is defendant's burden to prove that it applies.

This Court's application of collateral estoppel in State v. Lewis, 599 S.W.2d 94 (Mo.App.1980), is instructive. Lewis involved the issue whether a subsequent prosecution for burglary was barred by collateral estoppel where defendant was acquitted of possession of burglar's tools in a prior prosecution arising out of the same incident. We said:

It is the effect of collateral estoppel to bar a subsequent prosecution where any element required for conviction was a ground for the acquittal in the prior prosecution--even where the offenses are different. In that determination, a court is exhorted to practicality and to avoid rigid doctrine to assess from the entire proceeding the facts actually adjudicated...