State v. McMullen

Jack Holt, Jr., Chief Justice.

This is an appeal by the State of Arkansas, pursuant to Ark. R. Crim. P. 36.10(b) and (c),from the Randolph County Circuit Court’s dismissal by.pretrial motion of the criminal charges against the appellee, Jack McMullen, on the basis of former jeopardy.

On June 7, 1989, the State charged McMullen with the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver.

On September 18, 1989, McMullen pleaded guilty in the United States District Court for the Southern District of Texas to the federal offenses of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute, possession of more than 100 kilograms of marijuana with intent to distribute, and travel in interstate commerce with the intent to promote, manage, or carry on the unlawful activity of possession of marijuana with intent to distribute.

On October 11, 1989, McMullen made a motion to dismiss the State’s charges predicated on Ark. Code Ann. § 5-1-114 (1987); the trial court granted the pretrial motion to dismiss, from which the State appeals.

Section 5-1-114 addresses the former prosecution in another jurisdiction as an affirmative defense to subsequent prosecution and provides as follows:

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or territory thereof, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:

(1) The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is based on the same conduct unless:

(A) The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil ....

(Emphasis added.)

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The State argues on appeal that the trial court erred when it dismissed the charges of public servant bribery and possession of a controlled substance with intent to deliver against McMullen on former jeopardy grounds because these offenses have different elements and are intended to prevent substantially different harms than the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute.

We find that it is not necessary to distinguish the elements of the State offenses from the federal offenses inasmuch as the State’s charges of possession of a controlled substance with intent to deliver and public servant bribery are based on different conduct at different times and places from the underlying conduct upon which the various federal offenses relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute are based, and we reverse.

The facts underlying this case are that McMullen, as an Arkansas State Police Officer, stopped a vehicle for speeding in Randolph County, Arkansas, in January or February of 1989. McMullen subsequently discovered approximately one-quarter pound of marijuana in the vehicle. The two male occupants of the vehicle told McMullen that they could make him rich; as a result, McMullen did not arrest the two men for possession of marijuana, did not issue a speeding ticket, and did not make a report that he had stopped the vehicle. McMullen kept the marijuana, which was subsequently found at his residence after his arrest.

McMullen thereafter traveled to Pasadena, Texas, on two occasions at the invitation of the two men. On March 7, 1989, during his second trip, McMullen received twelve trash bags of marijuana, weighing a total of 302 pounds, from the two men. After loading the marijuana into his car and beginning the return trip to Arkansas, McMullen was arrested by Pasadena police officers and later charged with criminal offenses by the United States of America and the State of Arkansas.

McMullen pleaded guilty, for purposes of this appeal, to the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute. 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1).

Section 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both . . .,” and section 841(a)(1) provides in pertinent part that “. . . it shall be unlawful for any person knowingly or intentionally — (1) to . . . possess with intent to . . . distribute ... a controlled substance . . . .”

Arkansas Code Ann. § 5-64-401 (a)(l)(iv) (1987) addresses the State charge of possession of less than ten pounds of marijuana with intent to deliver and provides, in pertinent part, as follows:

(a) . . . [i]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.

(1) Any person who violates this subsection with respect to:

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(iv) A controlled substance classified in Schedule VI shall be guilty of a felony ....

The conduct upon which the federal conviction was based was McMullen’s activities in Pasadena, Texas, on March 7,1989, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen’s car. In contrast, the Arkansas charge relates to McMullen’s conduct on January or February of 1989 when he took possession of the one-quarter pound of marijuana from the two men in Randolph County, Arkansas.

Consequently, the underlying conduct upon which the federal conviction and the Arkansas charge are based is not the same, and the former jeopardy protection provided in section 5-1-114 does not apply.

The State charge of public servant bribery is addressed in Ark. Code Ann. § 5-52-103 (1987) and provides, in pertinent part, as follows:

(a) A person commits public servant bribery if:

(1) He offers, confers, or agrees to confer any benefit upon a public servant as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant; or

(2) He solicits, accepts, or agrees to accept any benefit, the conferring of which is prohibited by this section.

The conduct underlying this Arkansas charge is that of McMullen’s acceptance in January or February of 1989, while employed as a state police officer, of one-quarter pound of marijuana in exchange for not arresting the two men for possession of marijuana or issuing a ticket for speeding in Randolph County, Arkansas.

Again, this conduct is not the same as the conduct underlying the various federal convictions relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute because McMullen’s underlying conduct for the federal conviction occurred on March 7, 1989, in Pasadena, Texas, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen’s car.

Consequently, McMullen’s federal convictions will not prevent, on the grounds of former jeopardy, the State from proceeding with its prosecution of the charges against McMullen.

Reversed and remanded for trial.

Glaze, J., concurs. Dudley and Newbern, JJ., concur in part and dissent in part.