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State v. Barnes

March 7, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
BERNARD GILBERT "PETE" BARNES, APPELLANT.



Appeal from Superior Court of Kitsap County. Docket No: 93-1-00708-4. Date filed: 11/03/93. Judge signing: Hon. James I. Maddock.

As Amended on Denial of Motion for Reconsideration April 18, 1997,

Authored by Karen G. Seinfeld. Concurring: David H. Armstrong, John E. Turner.

The opinion of the court was delivered by: Seinfeld

SEINFELD, C.J.--Bernard Barnes appeals his conviction of leading organized crime, contending that the trial court should have applied principles of double jeopardy and collateral estoppel to bar the prosecution. Clallam County had earlier brought a civil forfeiture action against Barnes based upon the same criminal conduct. That action was dismissed with prejudice on Barnes's motion for summary judgment. Barnes's 13 assignments of error also include complaints of prosecutorial vindictiveness, erroneous evidentiary rulings, an inconsistent jury verdict, juror misconduct, and insufficient evidence. He also challenges a provision of his sentence that requires him to pay $500,000 to a County fund. We conclude that policy considerations preclude the application of collateral estoppel under these facts. Finding no trial court error, we affirm the trial court in all respects.

FACTS

During the relevant time period, Barnes lived in a house at 6200 Wye Road in Joyce, Washington, and owned a second residence on Lake Sutherland. He permitted Kim Smith, an acquaintance and an experienced cultivator of marijuana, to live at his Lake Sutherland home.

In 1987, Barnes hired Donald Zimmerman to build a second house on the Wye Road property near his residence. The new home, 6200-B Wye Road, contained a large unfinished basement that was not visible from the exterior. Upon completion of the house, Smith moved in.

About this same time, Barnes hired Jim Bennett, to grade the lot, and Smith hired Thomas Madle, an electrician, to create a power diversion at the residence. Bennett noticed several things about the house that aroused his suspicions. He saw numerous venting mechanisms in the foundation, dirt accumulations that disappeared without any evidence of landscaping, and complete coverings over the home's windows. Suspicious of illegal activity, Bennett shared his concerns with Zimmerman. Barnes later called Bennett to say that he was glad the matter was brought to his attention.

Zimmerman then told Bennett that he and Barnes had found marijuana plants in the house, that the side of the garage had been cut out with a chain saw in order to create access to the basement from the garage, that the staircase inside the house to the basement had been removed, and that the home had closed circuit TV. Zimmerman warned Bennett that they had his picture from the TV and that "if the law found out about it, they would kill [Bennett]."

Shortly thereafter, Jeffrey Wentworth, another of Barnes's acquaintances who also was experienced at cultivating marijuana, moved into the 2600-B Wye Road house with his girl friend, Randi Stansbery. Douglas Chute, another acquaintance, told authorities that he overheard Barnes and Smith discussing plans to grow marijuana in the 6200-B Wye Road house. They said "if that worked, they were going to put them underground." Chute testified at trial that Smith and Barnes had plans for four other similar houses and that individuals like Smith and Wentworth expected to share in the profits with Barnes in exchange for supplying the growing equipment, experience and labor.

In July 1990, the police executed a search warrant at the Wentworth/Stansbery house. They discovered 255 live marijuana plants in the basement, 15 operational halide lights, several venting fans, two Sonizair Polar Neutralizer units for air purification, electrical transformers for the lights, a 200 amp power diversion, venting ducts through the foundation of the house, timers that turned the lights off and on, Thermax insulation on the basement ceiling, and mylar reflecting film on the walls. In a bedroom, police found an electronic scale and in the living room "buy notices." Outside, officers found a truck that belonged to Barnes and a boat trailer that contained additional marijuana plants and various items of equipment and supplies for cultivation.

Police also found a repair order for Barnes's truck in Wentworth's name; receipts for building supplies sold to Wentworth from a local store and charged to Barnes's account; records of narcotics usage and income from sales traceable to Wentworth, Stansbery, and Smith; and phone books containing the phone numbers of Barnes, Chute, Madle, and Smith.

The officers used the evidence from this search as the basis to obtain a search warrant for Barnes's Wye Road residence. There, they seized over 13,000 documents relating to Barnes's financial transactions and his business dealings. Included was a lease for the 6200-B Wye Road house in Wentworth's name executed by Loretta Barnes and a deed and promissory note evidencing the home's sale to Wentworth.

Clallam County filed a civil action against Barnes, his wife, and two other defendants. The complaint alleged that the defendants violated the Criminal Profiteering Act, RCW 9A.82, by possessing and conspiring to possess cocaine with the intent to deliver, committing and conspiring to commit the theft of utilities, manufacturing and conspiring to manufacture marijuana, and leading organized crime. The County sought forfeiture of considerable property that it had seized; damages in the amount of the profits from the illegal activities, RCW 9A.82.100(4)(g); civil penalties of $250,000 from each defendant, RCW 9A.82.100(1)(d); and costs of prosecution, RCW 9A.82.100(4)(e). Finding a lack of evidence to support the allegations, the trial court granted Barnes's motion for summary judgment.

The State then filed a criminal information charging Barnes with leading organized crime. It included the crimes listed in the civil complaint as predicate acts establishing the required pattern of criminal profiteering. Barnes moved for dismissal, arguing that the doctrine of collateral estoppel barred the criminal prosecution. The court denied his motion, finding that the decision in the civil case was not a final judgment on the merits and that the application of the doctrine created an inJustice.

The jury retired to begin its deliberations on a Friday. After a day of deliberating, the jury sent the court a note that stated:

We cannot reach a unanimous agreement on any of the 8 predicate acts with no hope of resolution (at least 3 Dissenting votes on each one). Do we have to be unanimous on a verdict of not guilty in order to find Barnes not guilty on each predicate? The trial court rejected Barnes's proposed instruction and instead told the jury to reread the instructions and continue deliberating.

On Monday afternoon the jury sent the following note to the court:

We reviewed the instructions - thoroughly, per your request and understand them clearly. We have reviewed all of the evidence numerous times in great detail and remain unable to reach a unanimous verdict. Same vote as we had Friday with no way to resolve it. What do we do apart from doing "violence" to the dessenters [sic] judgments? The trial Judge declared a mistrial based on the jury's declared inability to reach a verdict.

Following a second trial, the jury found Barnes guilty of leading organized crime. It found that he led Smith, Wentworth, and Stansbery, and that he had committed the following three predicate acts: conspiracy to commit theft from the power company; conspiracy to manufacture marijuana; and possession of marijuana with intent to deliver.

The trial court sentenced Barnes to serve a mid-range sentence of 60 months. It also ordered him to make full restitution to the power company for the stolen electrical power and to pay $500,000, gained as a result of his illegal activities, to the Clallam County Racketeering Fund.

Leading Organized Crime

To convict a defendant of leading organized crime, the State must prove that the defendant "intentionally organized, managed, directed, supervised, or financed any three or more persons with the intent to engage in a pattern of criminal profiteering activity." RCW 9A.82.060(1)(a). The statute defines pattern of criminal profiteering activity as engaging in at least three acts of criminal profiteering . . . . In order to constitute a pattern, the three acts must have the same or similar intent, results, accomplices, principals, victims, or methods of commission, or be otherwise interrelated by distinguishing characteristics including a nexus to the same enterprise, and must not be isolated events.

RCW 9A.82.010(15). Enumerated criminal profiteering acts include delivery or manufacture of controlled substances or possession with intent to deliver or manufacture controlled substances and theft. RCW 9A.82.010(14)(e), (n).

I

Double Jeopardy

Barnes claims that the double jeopardy clauses of the federal and state constitutions prevent a criminal prosecution for the same acts prosecuted under a civil action. But in a recent case, the United States Supreme Court held that generally civil forfeiture is remedial, not punitive, for purposes of double jeopardy analysis. Thus, the State did not violate Barnes's federal constitutional rights by pursuing the criminal action after the dismissal of the civil action. United States v. Ursery, U.S., 116 S. Ct. 2135, 2148-49, 135 L. Ed. 2d 549 (1996). We have interpreted the state constitution similarly. Tellevik v. 6717 100th Street S.W., 83 Wash. App. 366, 370-71, 921 P.2d 1088 (1996). Thus, this claim lacks merit.

II

Collateral Estoppel

Barnes argues that the trial court erred in denying his motion to dismiss the criminal action on the basis of collateral estoppel. Relying on the fact that he was successful in the earlier civil forfeiture action, Barnes had asked the trial court to bar the criminal prosecution.

Collateral estoppel applies only if (1) the issues presented in both cases are identical; (2) there was a final judgment on the merits in the first action; (3) the party against whom the doctrine is asserted was a party to or in privity with a party to the prior action; and (4) application of the doctrine does not work an inJustice against the party to whom it is applied. Rains v. State, 100 Wash. 2d 660, 665, 674 P.2d 165 (1983). The burden of proof is on the party asserting collateral estoppel. McDaniels v. Carlson, 108 Wash. 2d 299, 303, 738 P.2d 254 (1987). We conclude that Barnes failed to establish elements (1), (2) and (4).

Regarding element (1), the State conceded identity of issues in its response to Barnes's motion to dismiss. But in its appellate brief, the State suggests that the concession may have been premature because financial gain is an issue peculiar to a civil forfeiture action.

The purpose of a civil forfeiture action is to obtain from the defendant financial gains traceable to the criminal profiteering conduct. RCW 9A.82.100(5)(c). This requires proof that the defendant was successful in obtaining gains. The crime of leading organized crime contains, as an element, the doing of acts for financial gain. But to prove the crime, the State need only prove the purpose of the defendant's acts; it need not prove that the defendant was successful in his crime and actually obtained his goal. RCW 9A.82.060(1)(a); RCW 9A.82.010(14). Thus, we agree that the identity of issues prong is not satisfied.

To satisfy element (2), the proponent must show that in the earlier litigation there was a final judgment on the merits of the issue at hand. United States v. Dowling, 493 U.S. 342, 350, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990); State v. Kassahun, 78 Wash. App. 938, 949, 900 P.2d 1109 (1995): Beagles v. Seattle-First Nat'l Bank, 25 Wash. App. 925, 932, 610 P.2d 962 (1980); Roper v. Mabry, 15 Wash. App. 819, 821, 551 P.2d 1381 (1976), review denied, 88 Wash. 2d 1001 (1977). The proponent must provide the reviewing court with a sufficient record of the prior litigation to facilitate such analysis. Beagles, 25 Wash. App. at 932. Where it is not clear whether an issue was actually litigated, or if the judgment is ambiguous or indefinite, application of collateral estoppel is not proper. Mead v. Park Place Properties, 37 Wash. App. 403, 407, 681 P.2d 256, review denied, 102 Wash. 2d 1010 (1984); See 14 Lewis H. Orland & Karl B. Tegland, Wash. Prac. Trial Practice sec. 368, at 747-48 (5th ed. 1996).

Here, Barnes has not provided us with a record of the summary judgment proceeding. *fn1 Consequently, we cannot say that the summary judgment court's adjudication of the issue of Barnes's role in leading organized crime was "sufficiently firm to be accorded conclusive effect.'" Cunningham v. State, 61 Wash. App. 562, 567, 811 P.2d 225 (1991) (quoting Restatement (Second) of Judgements sec. 13 (1982)).

To establish element (3), identity of parties, the proponent must show that "the party against whom the plea of collateral estoppel is asserted was a party or in privity with a party in the prior litigation." State v. Dupard, 93 Wash. 2d 268, 273, 609 P.2d 961 (1980). Here, both the County in the civil action, and the State, in the criminal action, were represented by the prosecutor who decided whether to bring charges and how to proceed. The County and State both operated under the same state law, relied upon the same search warrant and subsequent search, and could have benefited from an order of forfeiture. Thus, we conclude that the State and County were in privity as they "had a mutual interest and shared a common purpose in a successful prosecution . . . as well as a successful forfeiture of [the defendant's] possessions." Barlindal v. City of Bonney Lake, 84 Wash. App. 135, 143, 925 P.2d 1289 (1996).

To analyze element (4)--whether application of the doctrine would work an inJustice against the State--we must evaluate competing policy interests. Dupard, 93 Wash. 2d at 275-76. The judicially created doctrine of collateral estoppel evolved in response to the need to conserve judicial resources and to provide finality for litigants. Dupard, 93 Wash. 2d at 272. But under the facts here, compelling public policy considerations support the trial court's refusal to apply the doctrine.

The purpose of the criminal code is to protect the community from "conduct that inflicts or threatens substantial harm to individual or public interests." RCW 9A.04.020(1)(a); RCW 9.94A.010(4). It does so, in part, by incarcerating the perpetrator. The community also has an interest in promoting respect for the law by providing just punishment. RCW 9.94A.010(2).

A civil forfeiture action may deter crime but it cannot halt the defendant's criminal activity by incarcerating him. Nor does it satisfy the public policy of punishing the defendant in proportion to the seriousness of ...


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