                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2002-CA-00820-SCT

STATE OF MISSISSIPPI

v.

DARRELL OLIVER


DATE OF JUDGMENT:                                 04/19/2002
TRIAL JUDGE:                                      HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                        WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           G. GILMORE MARTIN
ATTORNEY FOR APPELLEE:                            PATRICK JOSEPH McNAMARA, JR.
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      REVERSED AND REMANDED - 10/02/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     The State of Mississippi appeals the dismissal by the Circuit Court of Warren County of the

indictment charging Darrell Oliver with possession of cocaine. Because the trial court's dismissal of a

petition to revoke a previously imposed suspended sentence based upon new criminal charges does not

prevent a subsequent indictment and trial on the same criminal charges, we reverse and remand.

                                   FACTS AND PROCEEDINGS
                                     IN THE TRIAL COURT

¶2.     On July 10, 2001, officers of the Vicksburg Police Department were dispatched to the Relax Inn

because of a reported disturbance caused by an irate female. Upon their arrival, the female was not in sight
but a trail of blood led the police officers to Room 406. The officers knocked on the door of the room, and

it was opened by Darrell Oliver. After a conversation with Oliver on the walkway outside of the room,

Sergeant William Combs entered the room to check on the well-being of the unnamed female. After a brief

search of the bathroom, Officer Combs discovered the female hiding in the shower. Officer Combs further

discovered on a table a green leafy substance that had the appearance and smell of marijuana. Oliver then

acknowledged that he was on probation and gave the officers the name of his probation officer. Combs

obtained verbal consent to search the room; however, he soon became suspicious, due to the actions of

Oliver, that Oliver might have some substance on his person. Combs then instructed Oliver to enter the

bathroom and submit to a body cavity search. Upon entering the bathroom, Oliver threw into the toilet a

substance which had been concealed on his person. The officers alleged this substance was cocaine. A

struggle ensued, resulting in Oliver's arrest for possession of cocaine. Oliver was subsequently charged by

the Vicksburg Police Department with possession of cocaine with the intent to deliver.

¶3.     Inasmuch as Oliver was a prior convicted felon still under a suspended sentence and supervised

probation at the time of the events of July 10, 2001, the State, on August 22, 2001, filed a petition to

revoke Oliver's prior suspended sentence, alleging that he had committed a new offense in violation of the

terms of the previously imposed suspended sentence and supervised probation.1 On August 24, 2001, a

revocation hearing was held in the Circuit Court of Warren County involving the alleged violations of


        1
         On March 20, 1996, in the Circuit Court of Warren County, Oliver was convicted for the crime
of sale of cocaine and sentenced, inter alia, to a term of eight years, with four years suspended plus five
years supervised probation to commence upon his release from custody. One of the stated terms of
probation was that Oliver “shall hereafter commit no offense against the laws of this or any other state, or
the United States.” Needless to say, as of July 10, 2001, Oliver was still under the terms of his supervised
probation.

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probation. Oliver, who was represented by counsel at the revocation hearing, waived the required five-day

notice. At the close of the State's case-in-chief, Oliver moved to dismiss the charges. The trial court

granted the motion, finding that the State failed to prove cocaine possession with the intent to deliver

because no crime lab report was introduced into evidence establishing that the substance was in fact

cocaine.

¶4.     Subsequently on October 16, 2001, Oliver was indicted by the Warren County Grand Jury on the

charge of possession of cocaine, enhanced as a subsequent drug offender under Miss. Code Ann. § 41-29-

147 (Rev. 2001). Oliver then filed a motion to dismiss the indictment or, in the alternative, to suppress

evidence. A hearing was held on January 25, 2002, and on March 7, 2002, the trial court granted Oliver's

motion to dismiss the indictment on the grounds of collateral estoppel. The trial court reaffirmed its decision

on April 19, 2002. The State timely perfected this appeal citing only one issue for this Court's

consideration–whether the trial court erred in dismissing the indictment charging Darrell Oliver with

possession of cocaine on the grounds of collateral estoppel.

                                              DISCUSSION

¶5.     In considering a motion to dismiss, the trial court should consider the evidence fairly and should

dismiss the case only if it would find for the defendant. Alexander v. Brown, 793 So.2d 601, 603 (Miss.

2001) (citing Stewart v. Merchants Nat'l Bank, 700 So.2d 255, 259 (Miss. 1997)). The court must

deny a motion to dismiss "only if the judge would be obliged to find for the [State] if the [State's] evidence

were all the evidence offered in the case." Id. Therefore, this Court applies the "substantial

evidence/manifest error" standards to an appeal of a grant or denial of a motion to dismiss. Id.



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¶6.     The State argues the trial court erred by dismissing the indictment on the grounds of collateral

estoppel. The State also argues that where there is no violation of the double jeopardy clause of either the

United States Constitution or the Mississippi Constitution, then collateral estoppel is inapplicable.

¶7.     The doctrine of collateral estoppel provides that an issue of ultimate fact determined by a prior

judgment may not be relitigated between the same parties in a subsequent action. Ashe v. Swenson, 397

U.S. 436, 442, 90 S.Ct. 1189, 1193, 25 L.Ed.2d 469 (1970). Because Ashe and its progeny construe

collateral estoppel to mean much more, this Court, although it has followed Ashe and its progeny, has not

extended the protection beyond that provided by double jeopardy. Sanders v. State, 429 So.2d 245,

250 (Miss. 1983). In Sanders this court stated:

        In civil cases collateral estoppel functions as though it were a rule of evidence. It stipulates
        how certain facts may be established at trial. Where an issue of fact is actually litigated and
        resolved in one trial and where that fact was essential to the judgment in the first trial, that
        fact is taken as established in subsequent trials involving the same parties. The fact thus
        need not be--and cannot be--relitigated in the second trial. The party in whose favor such
        fact was resolved in the first trial is said to enter the second trial with that fact established
        in his favor. This notion works reasonably well in civil litigation, where facts are established
        by a preponderance of the evidence, because their existence is by a factor of 51 to 49
        more probable than not.

        But it doesn't work at all in criminal cases. This is so because by no stretch of the
        imagination can a not guilty verdict be said to establish affirmatively that the defendant was
        innocent of the crime.

        Technically speaking, a not guilty verdict means that the jury failed to find beyond a
        reasonable doubt that the defendant was guilty. The jury may well have concluded that
        there was strong evidence against the defendant though of a lesser dignity than beyond a
        reasonable doubt. For example, the jury may have found by a preponderance of the
        evidence that the defendant was guilty. The jury may even have considered that the
        evidence of guilt was clear and convincing but because it did not rise to the dignity of
        beyond a reasonable doubt nevertheless, taking their oaths seriously, the jurors returned
        a not guilty verdict.


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Id. at 251. In Sanders, this Court adopted the collateral estoppel analysis of Ashe only because "it has

become so firmly embedded in federal criminal constitutional procedural jurisprudence--illogical though it

is." Id.

           Because collateral estoppel does not work in [all] criminal cases, "[W]e would prefer to
           cast the Court's decision here in pure double jeopardy terms, never mentioning collateral
           estoppel." Sanders v. State, 429 So.2d 245, 251 (Miss. 1983). Whether framed in
           terms of "collateral estoppel"--that the issue of fact has been previously decided
           unfavorably to the [S]tate--or in terms of "double jeopardy"--successive prosecutions for
           the same criminal conduct--the analysis is identical.

Griffin v. State, 545 So.2d 729, 734 n.1 (Miss. 1989) (emphasis added).

¶8.        Because of the different issues in a revocation hearing and trial on the indictment, the different

burdens of proof, the different arbiters of fact, and issues of public policy, collateral estoppel does not

forbid subsequent prosecution. The specific issue litigated in a revocation hearing differs from that of a trial

on the merits. A revocation hearing is conducted to enforce the court's order imposing conditions on a

defendant under a suspended sentence. The issue to be determined at trial on the indictment is whether the

State has proven beyond a reasonable doubt the elements of the charge. These are very different issues;

therefore, collateral estoppel does not apply.

¶9.        A revocation hearing requires proof showing a defendant more likely than not violated the terms

of probation. Wallace v. State, 607 So. 2d 1184, 1190 (Miss. 1992). This decreased burden of proof

also allows for a relaxed rules of evidence and procedure. See Williams v. State, 409 So.2d 1331,

1332 (Miss. 1982) ("It is a narrow inquiry; the process [of a revocation hearing] should be flexible enough

to consider evidence including letters, affidavits, and other material that would not be admissible in an

adversary criminal trial."). The sole determiner of fact is a judge. This Court has also held that "[a]n order


                                                       5
revoking a suspension of sentence or revoking probation is not appealable." (Pipkin v. State, 292 So.2d

181, 182 (Miss. 1974). See also Beasley v. State, 795 So.2d 539, 540 (Miss. 2001).

¶10.       A revocation hearing is comparable to a preliminary hearing. Both hearings are conducted to

determine probable cause, and both hearings are decided by a single arbiter of fact. Like a revocation

hearing, a preliminary hearing also involves relaxed rules of evidence. Pursuant to URCCC 6.04, the

dismissal of a charge at a preliminary hearing does not bar further prosecution by the State for the same

offense.

¶11.       "The question then is primarily whether or not a revocation hearing comes within th[e] term [criminal

prosecution]. Clearly, it does not. This statement is borne out by all authorities." Williams, 409 So.2d at

1331-32. Because the subsequent indictment was not barred by the dismissal of the prior probation

revocation proceeding, the circuit court erred in dismissing the indictment.

                                               CONCLUSION

¶12.       The trial court erred in dismissing the indictment charging Darrell Oliver with cocaine possession

on the grounds of collateral estoppel. Therefore, the judgment of the Warren County Circuit Court is

reversed, and this case is remanded for further proceedings consistent with this opinion.

¶13.       REVERSED AND REMANDED.

      PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. EASLEY,
J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY McRAE, P.J. DIAZ, J., NOT PARTICIPATING.


           GRAVES, JUSTICE, DISSENTING:




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¶14.     Because I disagree with the majority, I must respectfully dissent. The majority cites no precedent

or authority for its conclusion that “These are very different issues; therefore, collateral estoppel does not

apply.” Maj. op. ¶ 8. In fact, the State's burden of proof at a revocation hearing is less than at a trial. The

State did not even meet the lesser burden at the revocation hearing. Yet the majority concludes that the

State should be given a second opportunity at a trial where the burden of proof is beyond a reasonable

doubt.

¶15.     On July 10, 2001, officers of the Vicksburg Police Department were dispatched to the Relax Inn

because of a disturbance by an irate female. Upon arrival, the female was not in sight but a trail of blood

led to room 406. The officers knocked on the door of the room, and it was opened by Darrell Oliver.

After a conversation with Oliver on the balcony outside of the room, Sergeant William Combs reportedly

entered the room to check on the well being of the unnamed female. After a brief search of room 406's

bathroom, Combs discovered the female hiding in the shower. The officer further observed on a table a

green leafy substance that had the appearance and smell of marijuana. Oliver then acknowledged that he

was on probation and gave officers the name of his probation officer. Combs obtained a verbal consent

to search the room. Combs became suspicious, because of Oliver’s actions, that he might have some

substance on his person. Shortly thereafter, but before any arrest were made, Combs instructed Oliver

to enter the bathroom and submit to a strip/body cavity search. Oliver then threw into the toilet a substance

which had been concealed on his person and was alleged to be cocaine. A struggled ensued, and during

that struggle, Oliver was placed under arrest for possession of cocaine. Oliver was subsequently charged

by the Vicksburg Police Department with possession of cocaine with the intent to deliver.



                                                      7
¶16.    Oliver was under a suspended sentence for a prior conviction for sale of cocaine. The State filed

a petition to revoke the suspended sentence on August 22, 2001, alleging that Oliver had committed a new

offense in violation of his probation. He was charged with possession of cocaine with intent to deliver,

possession of marijuana, and failure to pay supervision fees.

¶17.    On August 24, 2001, a revocation hearing was held in the Circuit Court of Warren County

involving the alleged violations of probation. At the close of the State’s case-in-chief, Oliver moved to

dismiss the charges on general grounds. The court ruled in favor of Oliver finding that the State failed to

prove possession with intent to deliver because there was neither a crime lab report nor was there any

other evidence to establish that the substance was in fact cocaine.

¶18.    Subsequently on October 16, 2001, Oliver was indicted by the Warren County Grand Jury on the

charge of possession of cocaine, enhanced as a subsequent drug offender under Miss. Code Ann. § 41-29-

147 (Rev. 2001). This is the same charge that was the subject of the prior revocation hearing.

¶19.    Oliver then filed a motion to dismiss the indictment or in the alternative to suppress evidence. A

hearing was held to address this motion on January 25, 2002. The trial court entered an opinion on March

7, 2002, granting Oliver’s motion on the grounds of collateral estoppel and reaffirmed its decision on April

19, 2002.

¶20.    The doctrine of collateral estoppel provides that an issue of ultimate fact which was determined by

a valid and final judgment may not be relitigated between the same parties in a subsequent action. Ashe

v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Moreover, collateral estoppel

has been defined by the U. S. Supreme Court as



                                                     8
        ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important
        principle in our adversary systemof justice. It means simply that when an issue of ultimate
        fact has once been determined by a valid and final judgment, that issue cannot again be
        litigated between the same parties in any future lawsuit. Although first developed in civil
        litigation, collateral estoppel has been an established rule of federal criminal law at least
        since this Court’s decision more than fifty years ago in United States v. Oppenheimer
        ....

Id. at 443. "This doctrine is a practical civil extension of the Double Jeopardy Clause in the Fifth

Amendment to the United States Constitution, which states that 'nor shall any person be subject for the

same offence to be twice put into jeopardy of life or limb. . . .' U.S. Const. amend. V." Farris v. State,

764 So. 2d 411, 423 (Miss. 2000). It is evident from the courts' repeated recognition of the public interest

in the stability of this doctrine that collateral estoppel remains a permanent fixture in this society. Cotton

v. Walker, 164 Miss. 208, 144 So. 45, 47 (1932). We have has determined that collateral estoppel is

applicable in criminal cases. Pickle v. State, 791 So.2d 204 (2001).

¶21.    Here, it is clear that the State is attempting to relitigate the issue of whether Oliver possessed

cocaine at the Relax Inn on July 10, 2001. This issue was fully litigated at the revocation hearing held in

August, 2001. Testimony was given by three State witnesses in an attempt to connect the alleged cocaine

with Oliver. At this hearing, it was determined that probable cause did not exist to warrant the search of

Oliver and the alleged cocaine was never proven to, in fact, be cocaine. Additionally, the arrearage in

supervision fees was not a factor in the action. The presence or possession of marijuana was never

established, and no arrest or charge relating to marijuana was ever made. The findings by the trial court

led to the dismissal of that revocation proceeding, and the elements of collateral estoppel were met in the

case at bar. This issue may not be relitigated in a subsequent action. Therefore, the dismissal of the



                                                      9
indictment was proper by the trial court. For the reasons stated, I find that collateral estoppel applies and

bars the subsequent indictment of Oliver after the State failed to prove the charges at the prior revocation

hearing. Accordingly, I would affirm the trial court's judgment.

        McRAE, P.J., JOINS THIS OPINION.




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