BEFORE HAWKINS, P.J., PRATHER AND ANDERSON, JJ.
PRATHER, JUSTICE, FOR THE COURT:
At issue in this criminal appeal is whether the acquittal of the substantive offense of jury tampering created a double jeopardy bar to a subsequent trial on the charge of conspiracy to commit jury tampering. While recognizing that a substantive offense and a conspiracy to commit are two separate offenses, this Court holds that where there is a common nucleus of operative facts existing in both indictments, as here, and where the ultimate fact has been determined in the prior
acquittal by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision.
Willie Griffin was indicted by the Grand Jury of the Circuit Court of the Second Judicial District of Bolivar County for the crime of conspiracy, pursuant to 97-1-1, Miss. Code Ann. (1972), as amended. Before trial, Griffin filed a motion to dismiss on the grounds of double jeopardy and collateral estoppel. From the overruling of that motion, Griffin takes this interlocutory appeal assigning as error the following:
(1) The trial court erred in refusing to grant appellant's motion to dismiss this prosecution based on double jeopardy and/or collateral estoppel. The motion should have been granted for the following reasons:
(a) Willie Griffin was acquitted of a jury tampering charge concerning an attempt to influence juror Beverly Powe Hogan;
(b) In the jury tampering prosecution, the jury was instructed to convict if it found Willie Griffin did "any act" to influence juror Powe Hogan;
(c) In this conspiracy prosecution, the State seeks to prove Willie Griffin guilty of conspiracy solely by showing that he attempted to influence juror Beverly Powe Hogan, conduct that the prior acquittal and collateral estoppel bar the State from charging Willie Griffin;
(d) Therefore, this prosecution is barred by appellant's rights against double jeopardy as guaranteed by the Fifth and Fourteenth amendments to the United States Constitution and Art. 3, 22 of the Mississippi Constitution, and as applied in Ashe v. Swenson, 397 U.S. 436 (1970), and Sanders v. State, 429 So. 2d 245 (Miss. 1983).
This is an interlocutory appeal by Willie Griffin from the Bolivar County Circuit Court of a denial of a motion to dismiss based upon double jeopardy and collateral estoppel. The alleged act of jury tampering that gave rise to this conspiracy prosecution related to a prospective juror in a criminal proceeding against Willie Griffin's brother, Melvin Griffin. Melvin Griffin was the defendant in a criminal case set for trial in the Circuit Court of Bolivar County on May 27, 1985. On May 26, 1985, Melvin, accompanied by Willie, went to the home of Milton Tutwiler, the Mayor of Winstonville, Mississippi. Melvin had a list of potential jurors for his trial, and asked Tutwiler if he recognized any of the names. Tutwiler stated that he knew
Beverly Powe Hogan. Melvin asked Tutwiler to "tell her they had been by her house." Tutwiler later testified that Melvin "asked me if I saw her would I ask her to remember him, because the D.A. was trying to try him as a habitual criminal." During this conversation, Willie was sitting near Melvin watching the television.
The one alleged act of tampering led to two criminal proceedings against Willie Griffin, one case charged jury tampering and the other charged conspiracy to jury tamper, which is the case at bar. The jury tampering indictment came to trial first, and Willie was acquitted after a jury trial on September 26, 1986.
On November 11, 1986, Griffin filed in the conspiracy case a motion to dismiss on the grounds of double jeopardy and collateral estoppel. The motion asserted that the acquittal in the jury tampering trial created a double jeopardy bar to the conspiracy case, and set forth the facts and indictments in both cases and the relevant instructions from the jury tampering trial.
A hearing was held on the double jeopardy motion on November 25, 1986. At the hearing it was stipulated that, with the exception of the testimony of Milton Tutwiler, the evidence against Griffin would be the same in the conspiracy case as it had been in the jury tampering case. Tutwiler then testified, and his testimony did not contain any additional information. The State then admitted that the evidence it would offer in the conspiracy trial against Griffin was basically the same as the testimony it had offered in the jury tampering trial. In ruling ...