Oliphant v. Koehler
594 F.2d 547 (6th Cir.), cert. denied, 444 U.S. 877 (1979)

WEICK, J. The petitioner Oliphant has appealed from a judgment of the District Court denying his application for a writ of habeas corpus.... Oliphant had been convicted by a jury, in the Circuit Court of Ingham County, Michigan on charges of forcible rape, in violation of M.C.L.A. 750.520; M.S.A. 28.788, and gross indecency, in violation of M.C.L.A. 750.338b; M.S.A. 28.570(2) of an eighteen year old white girl who was a freshman at Michigan State University. His conviction followed a second trial on the above charges. He was sentenced on June 2, 1972 to a term of four to five years' imprisonment on the gross indecency conviction and twenty to thirty years' imprisonment on the rape conviction. He served his sentence on the gross indecency conviction and was discharged on February 19, 1975 and is now serving the unexpired sentence on his rape conviction. His first trial resulted in a mistrial when the jury was unable to reach a verdict. His conviction was affirmed by the Michigan Court of Appeals and by the Supreme Court of Michigan.

In his appeal from the denial of the writ of habeas corpus, Oliphant contends that in his trial, the admission of certain evidence under Michigan's "similar acts" statute put him in double jeopardy for the "same" offense and was barred by collateral estoppel....

We affirm. In our opinion, in his conviction for rape there was no double jeopardy or any violation of the doctrine of collateral estoppel. His rape of complainant involved a different person than the young women complaining in the similar acts shown....

[A description of the rape is omitted.]

At no time was she beaten or were her clothes torn. No weapon was exhibited. Following the intercourse, complainant replaced her clothing and was driven directly back to her dormitory. Oliphant advised her not to endeavor to prosecute him for rape, stating that she could not prove rape. He further stated that he had a tape recorder in the car although none was ever found. He asked her to sign an agreement not to prosecute, but could not find a pencil. Oliphant also told complainant that he was married and had children. As she was getting out of Oliphant's car, he told her to be sure to get the license plate number of his car. Complainant then returned to her dormitory crying and telling her girl friend that she had been raped. The campus police were called. She was taken to the Olin Health Center of Michigan State University where she was examined by the Center's attending physician....

After Oliphant dropped complainant off, he proceeded to the East Lansing Police Department. He told officers that he had engaged in sex with a girl that evening. Oliphant stated that when he complained of her body odor she became angry with him. Her alleged body odor, however, did not seem to deter Oliphant from committing the atrocities on her body. He indicated to the police that he feared she might charge him with rape. Shortly thereafter a report of her complaint of rape came in to the police and Oliphant was arrested.

Testifying in his own behalf, Oliphant admitted that he engaged in acts of fellatio and sexual intercourse with complainant. He claimed, however, that all of these acts were consensual.... Oliphant denied that he attempted to orchestrate the events and circumstances of the evening in order to make proof of the alleged rape more difficult. Ordinarily a rapist is not cunning enough to devise such an elaborate scheme as was adopted by Oliphant to escape conviction, and he nearly succeeded as is evidenced by the result of the first trial.

In rebuttal, and in an effort to prove that Oliphant carried out such a planned orchestration of events, the people proposed to call three additional witnesses. Testimony was offered pursuant to Michigan's similar acts statute, which read as follows:

In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant. [M.C.L.A. 768.27; M.S.A. 28.1050]

Two of the rebuttal witnesses had been complainants in two prior rape trials involving Oliphant. In both prior trials he had been acquitted. The testimony of these two women is the basis of Oliphant's double jeopardy and collateral estoppel claim.(1)2

Before the testimony of the two women was offered the trial judge conducted a hearing in the absence of the jury where the matter was carefully considered and resolved, particularly that its probative value was not substantially outweighed by the potentially unfair prejudicial effect. Immediately prior to the introduction of any of the rebuttal testimony the trial judge advised the jurors of the limited purpose for which the testimony was offered and for which it could be used. The court also advised the jurors of Oliphant's acquittal both before and after the testimony of rebuttal witnesses. In his final instructions to the jury, the trial judge restated the limited purpose for which such evidence could be considered. This point was also made by the prosecutor in his closing argument....

[Descriptions of the three other alleged rapes are omitted.]

Oliphant relies on the decision of the Supreme Court in Ashe v. Swenson, 397 U.S. 436 (1970), in support of his claim of double jeopardy and collateral estoppel. Such reliance is misplaced. The Supreme Court of Michigan distinguished Ashe stating:

"The keystone of defendant's argument is Ashe v. Swenson, 397 U.S. 436 (1970). Ashe involved a conviction for the robbery of a participant in a card game after the defendant had previously been acquitted of robbing another of the players in the same game. The Supreme Court held that the first jury had determined that the state had failed to prove defendant had been one of the robbers in the first trial and was, therefore, precluded from trying to prove the same fact in the second trial which was identical in all aspects except for the named victim. Ashe involved a single criminal episode and the relitigation of the same fact after it had been decided in defendant's favor in the first trial.

"In the case at bar, the jury had to decide whether defendant raped complainant on June 1, 1971. The two other incidents testified to which resulted in acquittals were not part of the same criminal episode, nor did they turn on the same crucial fact. An issue of fact in each of the prior trials was whether B and C consented to the intercourse or submitted as the result of the threat of force. These issues are distinct from the question of whether complainant consented to intercourse or submitted as the result of the threat of force. Assuming the only rational basis for the prior acquittals was a consent determination favorable to defendant, this could in no way bar the people from proving nonconsent on the part of complainant."

In this case the people were endeavoring to prove that Oliphant had engaged in similar, prior acts of "orchestration." The Supreme Court of Michigan held that such proof was "material" under state law. It was also not barred by collateral estoppel. The juries which acquitted Oliphant could easily have concluded both that Oliphant orchestrated the events surrounding the prior sexual encounters and that the women had in fact consented to his ultimate advances. See Ashe, supra, 397 U.S. at 444. Since the state prosecutor did not seek to relitigate any issue which had previously been determined in Oliphant's favor, his claim of collateral estoppel is without merit.

EDWARDS, C.J., dissenting.

With all respect to my colleagues, I do not think this case can be decided without reference to the important issue of federal constitutional law which it presents. The Fifth Amendment to the United States Constitution says in part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...."

Here, two witnesses were allowed to testify that appellant (at times and places totally unrelated to the instant charge) performed acts which (if the testimony was believed) constituted the crime of forcible rape. Mich. Comp. Laws Ann. 750.520. The constitutional problem is posed by the fact that in both of these instances that identical charge had been filed by each of these two witnesses, appellant had been subjected to a jury trial, and the jury had found him "not guilty." To allow these same complainants to testify to these same events to buttress another complainant's charge of the same offense committed against her appears to me to allow appellant to be put in jeopardy twice in each such instance. Certainly the state should be estopped from relitigating the forcible rape issue, as was done here. Ashe v. Swenson, 397 U.S. 436 (1970).

I dissent.

1. 2. The testimony of a third rebuttal witness was similar to that of the other two except that no charge was ever brought against Oliphant. Oliphant does not now challenge the use of the testimony of this third witness. All three women were white ladies of college age, one of whom attended Michigan State University.


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