November 30, 2000
DONNELL JOHNSON, APPELLANT,
UNITED STATES, APPELLEE.
Before Steadman, Reid, and Washington, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeals from the Superior Court of the District of Columbia (Hon. Russell F. Canan, Trial Judge)
Argued October 11, 2000
Appellant Donnell Johnson ("Johnson") appeals from the October 30, 1997 order of the Superior Court sentencing him to a term of six to twenty years imprisonment on his 1992 second degree murder conviction, based upon a finding that he subsequently violated his probation by unlawfully possessing a firearm. *fn1 He contends that the trial court erred by: (1) ordering revocation of his probation after his acquittal of the underlying offense; (2) deciding that the preponderance of the evidence standard, rather than the clear and convincing evidence standard applies to probation revocation hearings; and (3) revoking his probation when the government met neither the preponderance of evidence, nor the clear and convincing evidence standard. We hold that probation may be revoked even if the accused is acquitted of an underlying offense; and that the standard for the revocation of probation is "preponderance of the evidence." In addition, we conclude that the trial court properly revoked Johnson's probation; the evidence was sufficient both under the preponderance of the evidence and the clear and convincing evidence standards.
On January 17, 1992, Johnson plead guilty to the offense of second-degree murder (unarmed), in violation of D.C. Code ' 22-2403. *fn2 The trial court eventually imposed a sentence of six to eighteen years imprisonment, suspending all but three years, followed by five years of probation.
During his probation, Johnson was arrested on more than one occasion, but acquitted each time. On January 10, 1995, he was arrested in the District on a charge of possession with intent to distribute cocaine, and on March 28, 1996, he was arrested in Maryland on a charge of burglary. After his acquittal on both charges, and while the issue of whether his probation could be revoked after an acquittal was pending on appeal, *fn3 he was arrested in the District again and charged with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. ' 922 (g) (1996). *fn4
Following Johnson's acquittal of the unlawful possession of a firearm charge, a probation revocation hearing took place on October 17 and 23, 1997. The evidence presented at the probation revocation hearing included the transcript of Johnson's July 1997 federal court jury trial on the firearm charge, the firearm which prompted the charge against him, and other exhibits from the jury trial. The transcript of Johnson's July 1997 jury trial showed, through the testimony of police officers, that on January 21, 1997, at approximately 5:45 p.m., members of the Metropolitan Police Department ("MPD") who were patrolling an area around the 1300 block of Savannah Street, SE, saw a yellow Lincoln town car, with a red Christmas bow on it, and followed it. *fn5 Shortly after the police officers saw the vehicle, the driver, Edgar Watson, and the passenger, Johnson, exited the car and began walking away from it. Police officers stopped and detained them. One of the officers opened the passenger side of the car and saw "a butt of a gun." The officers recovered from the car: 1) a loaded .9mm handgun on the floorboard of the passenger side of the vehicle where Johnson had been seated; 2) .9mm ammunition underneath the passenger's seat; and 3) a .380 handgun with accompanying ammunition on the driver's side of the vehicle. Neither Johnson nor Watson possessed a license to carry either of the weapons, and were therefore promptly arrested. At the conclusion of the evidence, the jury returned a not guilty verdict.
After considering the July 1997 jury trial transcript and examining exhibits, including the gun found underneath the seat of the car where Johnson had been seated, the trial court applied the preponderance of the evidence standard in determining whether Johnson's probation should be revoked despite his acquittal on the underlying offense, *fn6 and concluded that:
[V]iewing all of the evidence in it[s] totality  a number of points raised by the government are valid and . . . in this situation, the defendant was in the car. . . .
The weapon was both bulging in it[s] position, partially hidden by the floorboard but a sizeable portion of the gun is in plain view. So it's not only bulging and would be accessible to one's foot, [and] hard to miss. . . .
And there was credible testimony that the
Officer saw the gun when  the door was open. The gun was readily accessible to the defendant. . . . [T]here is circumstantial evidence  that there were two gentlemen in the car, both Mr. Watson and Mr. Johnson and a second gun was found in the car, where inferentially it would have been in possession of the driver, Mr. Johnson being the passenger.
Accordingly the Court finds by both a pr[e]ponder[ence] of the evidence and indeed,  by clear and convincing evidence that there is - - I'm making clear I rule that upon the pr[e]ponder[ence] of the evidence  but in the alternative, also by clear and convincing evidence [,] that there is sufficient credible evidence to indicate that the defendant was in possession of the weapon at hand, his handgun. That he had the power and intent to exercise dominion and control over that weapon[,] and that this clearly constitutes a violation of his conditions of probation. . . . Therefore, the Court concludes that probation shall be revoked. (Emphasis supplied).
Based upon this decision, Johnson was resentenced to a term of six to twenty years in prison. He filed a timely appeal.
Johnson first contends that the trial court erred by ordering revocation of his probation after his acquittal of the underlying offense. He asserts that "[p]ermitting a revocation in these circumstances . . . would undermine the values underlying the Double Jeopardy Clause . . . [because] [a] criminal defendant may never be retried after an acquittal." He also maintains that the doctrine of collateral estoppel precludes revocation of his probation. The government contends that "the Double Jeopardy Clause [and the doctrine of collateral estoppel] do not apply to probation-revocation proceedings, [and therefore] the prior prosecution of [Johnson] for firearm possession posed no obstacle to the subsequent revocation based on the same incident."
The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States "safeguards a defendant from multiple trials or successive prosecutions or multiple punishments for the same offense." United States v. Allen, 755 A.2d 402, 406 (D.C. 2000) (referencing Lindsay v. United States, 520 A.2d 1059, 1061 (D.C. 1987)). However,
Because probation revocation proceedings are not criminal prosecutions, . . . and any consequent revocation does not punish the defendant for any crime charged subsequent to the imposition of probation, . . . a probation revocation hearing cannot be the basis for a claim of either multiple prosecution or multiple punishment. Krochta v. Commonwealth, 711 N.E.2d 142, 144-45 (Mass. 1999) (citations omitted); see also Jones v. United States, 669 A.2d 724, 727 (D.C. 1995) ("[T]his court has noted that jeopardy does not attach in parole, probation, or bond revocation hearings, because these proceedings are not designed to punish a defendant for violation of a criminal law.") (internal quotations omitted); Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990) ("[J]eopardy does not attach in probation or parole revocation proceedings because they are not new criminal prosecutions, but rather, continuations of the original prosecutions which resulted in probation or parole."). Similarly,
While the doctrine of collateral estoppel is applicable to criminal cases as a matter of common law, Bowling v. State, 470 A.2d 797 (Md. 1984), and the principle is embodied in the fifth amendment prohibition against double jeopardy, Ashe v. Swenson, 397 U.S. 436 (1970), *fn7 it has never been held to apply to revocation of probation proceedings. See Scott v. State, 208 A.2d 575 (Md. 1965); 76 A.L.R.3d 564, Probation Revocation - - Following Acquittal . . . . The reason for this is due to the fundamental difference between the nature and levels of proof in a criminal proceeding and a revocation of probation hearing. Dunn v. State, 501 A.2d 881, 884-85 (Md. 1985). See also Dowling v. United States, 493 U.S. 342, 349 (1990) (concluding that "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof"). In light of these double jeopardy and collateral estoppel principles, we agree with the government and trial court that neither the doctrines of double jeopardy nor collateral estoppel apply to probation revocation proceedings. *fn8
Second, Johnson argues that the trial court erred by deciding that the preponderance of the evidence standard, rather than the clear and convincing evidence standard, applies to probation revocation hearings. Prior to conducting Johnson's probation revocation hearing, the Honorable Russell F. Canan wrote an extensive memorandum which, in part, analyzed the standard of proof governing a probation revocation proceeding, and cited cases from other jurisdictions indicating that the appropriate standard is preponderance of the evidence. In addition, Judge Canan noted that D.C. Code ' 16-2327 (c) (1997), which is applicable to juvenile probation revocations, uses the preponderance of the evidence standard: "Probation revocation proceedings shall be heard without a jury and shall require the establishment of the facts alleged by a preponderance of the evidence."
While not deciding the precise standard of proof issue presented in this case, we said in Harris v. United States, 612 A.2d 198 (D.C. 1992): "We are persuaded that preponderance is the appropriate minimum standard of proof required for establishing substantive and technical violations of probation." Id. at 203 (footnote omitted). Other jurisdictions have applied the preponderance of the evidence standard. See People v. Brown, 704 N.Y.S.2d 88, 2000 N.Y. App. Div. LEXIS 907 (N.Y. App. 2000); State v. Jones, 739 A.2d 697, 700 (Conn. App. 1999); State v. Fortier, 533 P.2d 187, 188 (Or. App. 1975). In keeping with what appears to be the majority rule, we hold that the standard for the revocation of probation is "preponderance of the evidence."
Third, Johnson asserts that the trial court erred by revoking his probation when the government met neither the preponderance of evidence, nor the clear and convincing evidence standard. Judge Canan concluded that even though he based his probation revocation order on a preponderance of the evidence standard, the evidence presented by the government also met the clear and convincing evidence standard. In light of our holding, we need address only whether the evidence met the applicable preponderance standard. "The decision whether to revoke probation involves a two step inquiry: (1) determining whether a violation has occurred, and if so, (2) determining what action, if any, should be taken as a result." Harris v. United States, supra, 612 A.2d at 203 (other citations omitted). The determination of whether a violation has occurred "is essentially a factual one," id. at 203, and is therefore Areviewed deferentially under the clearly erroneous standard. Griffin v. United States, 618 A.2d 114, 117 (1992). See also D.C. Code ' 17-305 (a). We see no reason to disturb the trial court's factual findings in this case. Judge Canan found that the gun underneath Johnson's passenger seat in the Lincoln town car was "bulging" and "in plain view." Thus, it "was readily accessible to [Johnson]." Two guns were in the car and two passengers, permitting a reasonable inference that each man had access to a gun. Therefore, we conclude that the trial court's judgment that the preponderance of the evidence was sufficient to show that Johnson violated his probation by constructively possessing a firearm, was not clearly erroneous. See In re F.T.J., 578 A.2d 1161, 1163 (D.C. 1990).
Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.