Lead Opinion
As this case implicates more than one somewhat complex legal doctrine, it may be useful first to state the practical question we confront in as plain English as possible: Can a defendant whose conviction for felony murder has been reversed on appeal be retried for
As detailed below, this case turns on the protection afforded by the Double Jeopardy Clause of the United States Constitution. US Const, Am V This clause protects a criminal defendant from multiple prosecutions and multiple punishments for the same offense. This case also implicates the doctrine of collateral estoppel, which in general imports a final determination from one case into a subsequent case requiring a determination on that same issue. Collateral estoppel and double jeopardy can overlap, and do so here.
We conclude that the collateral-estoppel strand of Double Jeopardy Clause jurisprudence prevents the prosecution from re-charging the defendant with felony murder. Because the defendant’s acquittal of the only supporting felony triggers collateral estoppel, the Double Jeopardy Clause precludes a second felony-murder prosecution of the defendant.
I. FACTS AND PROCEDURAL BACKGROUND
In December 2009, the defendant was convicted by a jury of first-degree felony murder, MCL 750.316(l)(b), second-degree murder, MCL 750.317, assault with intent to commit great bodily harm less than murder, MCL 750.84, carrying a firearm during the commission of a felony, MCL 750.227b, and two counts of unlawful imprisonment, MCL 750.349b. The jury acquitted the defendant of first-degree premeditated murder, MCL 750.316(l)(a), and— importantly — first-degree home invasion, MCL 750.110a(2). Because first-degree home invasion was the only felony that the defendant was charged with that could have supported the conviction for first-
The Court of Appeals reversed the defendant’s convictions, holding that the trial court had committed error by denying the defendant’s constitutional right to represent himself. People v Wilson, unpublished opinion per curiam of the Court of Appeals, issued May 10, 2011 (Docket No. 296693). The Court of Appeals remanded this case to the trial court for a new trial, and this Court denied the prosecution’s application for leave to appeal. People v Wilson,
On April 6, 2012, the prosecution filed an amended information setting forth the charges on retrial. The defendant was re-charged with each of the charges of which he was initially convicted. The defendant moved to dismiss the first-degree felony-murder charge, arguing that the Double Jeopardy Clause prevented a second prosecution on that charge because he stood acquitted of the only predicate felony, which is one of the elements of felony murder. On July 6, 2012, the trial court granted the defendant’s motion to dismiss, agreeing that a second jury could not reconsider the home-invasion element of felony murder given the preclusive effect of the defendant’s acquittal of home invasion.
The Court of Appeals granted the prosecution’s interlocutory application for leave to appeal and reversed the trial court’s order in an unpublished opinion per curiam. The Court of Appeals held that because the jury’s verdict was inconsistent, that inconsistency negated the application of the collateral-estoppel doctrine in the second prosecution, citing United States v Powell,
II. LEGAL BACKGROUND
A. DOUBLE JEOPARDY
The Double Jeopardy Clause of the United States Constitution protects defendants against the threat of successive prosecutions for the same offense and multiple punishments for the same offense. US Const, Am V (“No person shall... be subject for the same offence to be twice put in jeopardy of life or limb ....”).
A double-jeopardy challenge presents a question of law that this Court reviews de novo. People v Herron,
B. COLLATERAL ESTOPPEL
Collateral estoppel, also known as issue preclusion, is a common-law doctrine that gives finality to litigants. In essence, collateral estoppel requires that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v McCurry,
In 1970, the United States Supreme Court explicitly recognized the conceptual overlap between double jeopardy and collateral estoppel, and officially linked them by constitutionalizing collateral estoppel within the Fifth Amendment’s guarantee against double jeopardy. Ashe v Swenson,
The defendant in Ashe had been tried and acquitted of the robbery of one member of a poker game. Following the defendant’s acquittal, the prosecution charged him with the robbery of a different poker player, and he was convicted. The Court explained that collateral estoppel “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.” Id. The question is “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444. Because the “single rationally conceivable issue in dispute before the jury was whether the petitioner had
The Supreme Court applied collateral estoppel in the context of a double-jeopardy analysis again in Yeager v United States,
C. INCONSISTENT VERDICTS
As with collateral estoppel, the Supreme Court authority concerning the validity of inconsistent jury verdicts is well developed. In Dunn v United States,
The Supreme Court reaffirmed this principle in Powell,
III. APPLICATION
Our decision in this case hinges on whether, as the Court of Appeals held, the inconsistent-verdict reasoning of Dunn and Powell is relevant to the defendant’s collateral-estoppel claim such that the rule from Ashe and Yeager does not apply. As an initial matter, we note that the inconsistent-verdict cases, Dunn and Powell, feature only direct appeals from a single jury verdict. By definition, collateral estoppel and double jeopardy are simply not applicable to a single verdict, even when that verdict is inconsistent. Ashe and Yeager, in contrast, each concerned the propriety of a second prosecution.
Because Powell involved an appeal from a single trial, no double-jeopardy concerns were present, despite the
It is instead the Yeager holding that demonstrates why the prosecution cannot re-try the defendant for felony murder. Yeager embodies the unremarkable but fundamental proposition that if an issue has been finally resolved at one moment in time, the same issue cannot be resolved differently at a subsequent time. The defendant in this case finds himself facing exactly
The importance of an acquittal in the context of the Double Jeopardy Clause is well established. It is of course long settled that, given his acquittal of home invasion, the prosecution is barred from re-charging the defendant again with home invasion, even though the legal error at trial required vacating his convictions. That error does not permit him to be retried for home invasion, even had the error contributed to his acquittal of that charge just as it contributed to his convictions (which does not seem to be the case here). An acquittal is final and unassailable; double jeopardy is a one-way ratchet. Ball v United States,
The inconsistency in the defendant’s initial jury verdict here — though distracting and confounding as illogical verdicts are — does not alter this fundamental principle, given the subsequent appellate reversal of his convictions. Notwithstanding the dissent’s lengthy protest to the contrary, the initial guilty verdicts are no more. Although the defendant was convicted of felony murder, that conviction has since been vacated because it was constitutionally infirm; the defendant no longer stands convicted, not of anything, not at all. The only final adjudication the defendant carries into his second trial, then, is his acquittal of first-degree home invasion, which must be given effect pursuant to the collateral-estoppel prong of double jeopardy in the retrial. Lydon,
Yeager thus controls: The defendant’s reversed felony-murder conviction here must be treated exactly as the hung counts were treated in Yeager. Neither a hung count nor a count that is reversed on appeal can defeat the preclusive effect of an acquittal. Like a hung count, a reversed count is not a final adjudication; by operation of law the finality of the conviction has been undone. By holding that a legal error required the reversal of a defendant’s convictions, we have legally proclaimed that those convictions are no longer adjudications at all.
*106 [R] ever sal for trial error, as distinguished from evidentiary sufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.... [Burks v United States,437 US 1 , 15;98 S Ct 2141 ;57 L Ed 2d 1 (1978) (emphasis added).][6 ]
The same is not true of the defendant’s acquittal. An acquittal is never recast or disturbed, no matter what error might have produced it. Ball,
The prosecution is free to retry the defendant on all the other vacated convictions. But the Double Jeopardy Clause collaterally estops a new prosecution for felony murder.
We conclude that the Double Jeopardy Clause prevents the prosecution from re-charging the defendant with felony murder when the only verdict that remains is the defendant’s acquittal of the predicate felony. Therefore, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.
Notes
The defendant has not argued that the “same offense” rationale of double jeopardy is implicated. Thus we address only whether the collateral-estoppel strand of double jeopardy is implicated.
The dissent is correct that Justice Scalia relied on Dunn and Powell “to support his position that the inconsistent nature of the verdict in Yeager nullified Yeager’s reliance on the valid and final acquittal for collateral estoppel purposes.” Justice Sealia’s view, however reasonable, is not the rule of law we must apply here as he, of course, dissented in Yeager. We cite Justice Sealia’s dissent for the unremarkable proposition that double-jeopardy concerns are only implicated when there is a second trial.
There is one exception: in two cases the Supreme Court has applied the Double Jeopardy Clause to midtrial acquittals. In both instances, the Court held that the midtrial acquittals were final and that the Double Jeopardy Clause barred their reconsideration. Smith v Massachusetts,
We agree with the dissent that the Supreme Court squarely and thoroughly addressed whether collateral-estoppel principles are relevant to inconsistent verdicts in Powell, but we are not similarly troubled by why the Court did so given that double-jeopardy concerns are simply not applicable within the scope of a single trial. The defendant made the argument that collateral estoppel should bar his inconsistent verdict and managed to convince the United States Court of Appeals for the Ninth Circuit of his view. The Supreme Court disagreed, and naturally explained its reasoning.
We know of no other situation in a criminal prosecution in which we permit a defendant’s vacated conviction to be used to the defendant’s detriment and see no reason why we should create an exception. See, e.g., People v Holt,
We disagree with the dissent’s understanding of Burks'. Burks stands for the proposition that a reversed conviction is legally meaningless, which is what matters for our purposes. Of course it is always the case that “society maintains a valid concern for insuring that the guilty are punished,” Burks,
The Yeager Court’s discussion of the rationality of verdicts in determining whether collateral estoppel applies is not particularly relevant here, where there is only one verdict to consider. It is noteworthy, however, that the jury verdict in Yeager was not obviously rational or consistent. The Supreme Court instead rationalized the verdict by treating the hung counts, which were inconsistent with the acquittals, as legal “nonevents,” given that they were not final adjudications. The Court of Appeals’ reversal of the defendant’s felony-murder conviction in this case renders that conviction a “nonevent” as well. A reversed conviction is of even less legal consequence than a hung count. Although it is understandable that the Supreme Court
The Yeager and Ashe Courts were not considering vacated convictions in their collateral-estoppel analyses, of course, but undisturbed jury findings. Those undisturbed findings, therefore, were still available for discernment. In cases, like Yeager and Ashe, in which there is an undisturbed jury verdict to examine at the time of retrial, a reviewing court must delve into the facts and circumstances of the jury’s findings in order to understand the verdict’s specific meaning. When, as here, there simply is no conviction to be so analyzed, as it was previously vacated by the Court of Appeals, we are bound by that legal finding. We cannot undo the reversal and delve back into a jury finding that has been held to be invalid. The dissent jumps over this critical step. Because a reversal renders a conviction meaningless, there is nothing left for a reviewing court to examine or decipher.
Neither State v Kelly, 201 NJ 471;
Dissenting Opinion
(dissenting). Defendant, armed with a handgun, entered his ex-girlfriend’s apartment while she was out with another man, Kenyetta Williams. Defendant lay in wait for his ex-girlfriend to return, and when she did so with Williams, he fired his handgun three times, killing Williams. Defendant’s charges included first-degree premeditated murder, first-degree felony murder predicated on first-degree home invasion, second-degree murder, and first-degree home invasion.
Defendant sought to represent himself at his first trial, but the trial court denied his motion to do so. Defendant’s first trial resulted in the jury’s convicting him of first-degree felony murder and second-degree murder, but acquitting him of first-degree premeditated murder and first-degree home invasion. Because the offense of first-degree felony murder was predicated on the first-degree home invasion charge, and the jury could only rationally convict defendant of first-degree felony murder if it also convicted defendant of first-degree home invasion, the verdict rendered by the jury was inconsistent and irrational. Defendant appealed his convictions for first-degree felony murder and second-degree murder, contending that he was denied his right
Back before the trial court, defendant moved to dismiss the first-degree felony murder charge on the theory that retrial was barred by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution because defendant’s first jury had acquitted him of the felony of first-degree home invasion on which the first-degree felony murder charge was predicated. The trial court granted defendant’s motion, but the prosecutor filed an interlocutory appeal and the Court of Appeals reversed. People v Wilson, unpublished opinion per curiam of the Court of Appeals, issued November 15, 2012 (Docket No. 311253). This Court then granted leave to appeal on the question whether the protection against double jeopardy found in the Fifth Amendment prevents retrial of a compound offense when the first trial resulted in the jury’s convicting defendant of such offense but acquitting defendant of the predicate offense and the conviction on the compound offense was subsequently overturned.
I. COLLATERAL ESTOPPEL
A. PRINCIPLES
The seminal case involving collateral estoppel and the protection against double jeopardy is Ashe. In Ashe, the prosecutor believed that the defendant and several other masked persons broke into a house and participated in the robbery of six individuals. Id. at 437. The prosecutor put the defendant on trial for the robbery of one of the six individuals. Id. at 438. The sole defense raised was that the defendant was not one of the masked persons who had participated in the robbery, id. at 438-439, and the jury acquitted him. Id. at 439. Despite the acquittal, the prosecutor brought a new charge against the defendant for the robbery of another of the individuals who had been robbed. Id. After the defendant’s second trial resulted in a conviction, he contended that his first jury had determined that he was not a participant in the robbery and to convict him of the robbery of the second individual would be to derogate the finding made by the first jury about whether the defendant participated in the robbery. Id. at 440.
Before Ashe, collateral estoppel had not been viewed as a basis for raising a double jeopardy claim. Id. at 440-441, citing Hoag v New Jersey,
When the doctrine of collateral estoppel has been invoked by defendant, “[t]he burden is ‘on [him] to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.’ ” Schiro v Farley,
“examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” [Ashe,397 US at 444 , quoting Mayers & Yarbrough, Bis*112 Vexari: New Trials and Successive Prosecutions, 74 Harv L Rev 1, 38-39 (1960) (emphasis added).]
Put another way, a defendant will only prevail in sustaining his burden when the court, “ ‘with an eye to all the circumstances of the proceedings’ ” is convinced that the first jury, in acquitting the defendant, resolved the issue of ultimate fact in defendant’s favor. Ashe,
Conversely, if “[tjhere are any number of possible explanations for the jury’s acquittal verdict at [defendant’s] first trial,” he will be unable to satisfy his burden and the doctrine of collateral estoppel will not preclude relitigation of the issue from the first verdict upon which defendant seeks to rely. Dowling,
The United States Supreme Court has had multiple opportunities to discuss whether a defendant can satisfy his burden of demonstrating that an issue of ultimate fact was actually and necessarily determined by a jury that rendered a “truly inconsistent” verdict. See United States v Powell,
Powell involved an even more logically inconsistent verdict in which the jury convicted the defendant of several compound offenses while acquitting her of several predicate offenses required to be proved to sustain the convictions for the compound offenses. Powell, 469
The problem is that the same jury reached inconsistent results; once that is established, principles of collateral estoppel — which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict — are no longer useful. [Id. at 68]
Accordingly, the Court rejected Powell’s double jeopardy argument premised on collateral estoppel, uphold
The reason that “principles of collateral estoppel.. . are no longer useful” when there is an inconsistency in the verdict relied on by the defendant for an issue of ultimate fact is that it is simply not possible to apprehend whether the jury resolved the issue of ultimate fact in the defendant’s favor in accordance with the part of the verdict acquitting the defendant, or in the prosecutor’s favor in accordance with the part of the verdict convicting the defendant. Pertinent to the verdict in the instant case, it is simply not possible to apprehend whether the jury resolved the issue of ultimate fact in defendant’s favor in accordance with the part of the verdict acquitting him of first-degree home invasion, or in the prosecutor’s favor in accordance with the part of the verdict convicting him of first-degree felony murder, a charge necessarily encompassing a finding that he had “engaged in conduct satisfying the elements of the predicate offense of first-degree home invasion.”
It is well understood that there are multiple potential explanations for why juries sometimes render inconsistent verdicts. At least some (if not most) of these explanations fail to support the conclusion that the jury “actually and necessarily” decided an issue of ultimate fact in the defendant’s favor. Perhaps, the most commonplace explanation for why a jury might do this is that the jury simply sought to grant the defendant some degree of mercy or lenity.
*116 “The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” [Dunn,284 US at 393 , quoting Steckler v United States, 7 F2d 59, 60 (CA 2, 1925)][8 ]
Obviously, when mercy or lenity are the precipitating causes of a jury’s inconsistent verdict, it becomes impossible to argue that it has “actually and necessarily decided the issue of ultimate fact in defendant’s favor.” Indeed, when an inconsistent verdict is the product of mercy or lenity by the jury, the exact opposite conclusion must result, to wit, that the jury “actually and necessarily decided the issue of ultimate fact against defendant,” for had it not, there would be no need for mercy or lenity.
Other typical explanations for why a jury might have rendered an inconsistent verdict are equally of little
In the end, the mere fact alone that there are myriad explanations for why a jury has rendered an inconsistent verdict only underscores that there is no way of determining whether such a jury has “actually and necessarily decided the ultimate issue of fact upon which defendant seeks to rely.” It is for this reason that it is usually as possible that a jury determined the issue of ultimate fact against defendant as that the jury determined the issue of ultimate fact in favor of defendant:
The rule that the defendant may not upset [an inconsistent] verdict embodies a prudent acknowledgment of a number of factors. First,... inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense — should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then ... arrived at an inconsistent conclusion on the lesser offense.
*118 Second, respondent’s argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. .. . [Defendant’s] argument necessarily assumes that the acquittal on the predicate offense was proper — the one the jury “really meant.” This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government could just as easily — and erroneously — argue that since the jury convicted on the compound offense the evidence on the predicate offense must have been sufficient. [Id. at 65-68.]
Just as a prosecutor is unable to prevail on a collateralestoppel argument by relying on the convicted charges to seek retrial on the acquitted charges, a defendant in support of a claim of collateral estoppel is unable to rely on the acquitted charges to avoid retrial on the convicted charges. Id. When the burden of proof is on the defendant to sustain the claim of collateral estoppel, the inconsistency in the verdict, which prevents a reviewing court from knowing with any certainty what the defendant’s jury actually and necessarily determined, will foreclose the defendant’s ability to prevail on the claim.
The verdict here on which defendant relies for his collateral-estoppel defense was genuinely inconsistent. Because the jury convicted defendant of first-degree felony murder predicated on the first-degree home invasion charge but acquitted him of first-degree home invasion, it is not possible to know what determination it “actually and necessarily” made regarding whether defendant engaged in conduct satisfying the elements of first-degree home invasion. The appellate reversal of defendant’s conviction for first-degree felony murder because he was not permitted to represent himself during his first trial neither alters what factual findings the jury actually and necessarily made nor enables any rationality to be ascribed to the jury’s verdict.
The majority opinion offers three arguments for why Powell and Dunn are not “relevant” to the instant case: (1) Powell’s and Dunn’s discussions of the doctrine of collateral estoppel took place within the context of a single trial and should not be applied when, as here, a second trial is involved, (2) Powell and Dunn are in conflict with Ashe and Yeager, which should control this case, and (3) reliance on Powell and Dunn to defeat defendant’s collateral-estoppel defense would alter the “legal meaning” given to defendant’s reversed conviction and in so doing conflict with Burks v United States,
A. MULTIPLE TRIALS
The majority opinion distinguishes Powell and Dunn on the grounds that they “feature only direct appeals from a single jury verdict” and that principles of “collateral estoppel and double jeopardy are simply not applicable to a single verdict.” There is no dispute that principles of collateral estoppel and double jeopardy have no place within the context of a single trial, but the majority opinion fails to ever consider why this is so. In overlooking this basic question, the majority opinion erroneously dismisses Powell’s and Dunn’s counsel regarding the interplay between inconsistent verdicts and collateral estoppel.
The only time a defendant might, even theoretically, advance a claim of collateral estoppel within the context of a single trial is when a jury has rendered an inconsistent verdict. This is because, in order for a defendant to advance a claim of collateral estoppel, he must first identify an issue of ultimate fact that the jury has resolved in his favor. The only time he can identify such
If Powell and Dunn stand only for what the majority opinion views as the pedestrian proposition that collateral estoppel and double jeopardy have no relevance in the context of a single trial, then what explains the United States Supreme Court’s decision to discuss at length in those cases principles of collateral estoppel and inconsistent verdicts and ground its holdings on those very issues? If the majority opinion’s position regarding Powell’s significance is correct, the unanimous Court in Powell could have easily authored a one-page opinion stating that (a) Dunn allowed for inconsistent verdicts and (b) principles of double jeopardy never apply within the context of a single trial because the defendant has only been tried once. Instead, however, the Court clearly, and without any qualification, announced that when the jury renders a truly inconsistent verdict, principles of collateral estop
The majority opinion’s narrow reading oí Powell is all the more perplexing in light of what Supreme Court caselaw after Powell has understood Powell to represent. See part 11(B) of this opinion. In this respect, Powell’s rule is not in conflict with other cases examining principles of collateral estoppel, but is in full concert with the manner in which other cases understand how and when principles of collateral estoppel prevent the retrial of a defendant.
B. POWELL CONSISTENT WITH YEAGER AND ASHE
Yeager is the most recent United States Supreme Court case to apply collateral-estoppel principles within the context of the Double Jeopardy Clause. The defendant in Yeager was charged with various counts of fraud and insider trading predicated on the fraud. Yeager,
At issue was whether a verdict encompassing acquittals and hung counts is the type of verdict from which a court can conclude that the jury “actually and necessarily determined an issue of ultimate fact” such that principles of collateral estoppel would preclude retrial of the hung counts, id. at 118-119, or whether such a verdict instead implicates Powell’s holding that principles of collateral estoppel do not apply within the context of an inconsistent verdict, id. at 124-125. Yeager held that a verdict consisting of acquittals and hung counts (as opposed to a verdict consisting of acquittals and convictions) was not a truly inconsistent verdict, but was only “seemingly inconsistent” and not indicative of a jury that had acted irrationally, such that principles of collateral estoppel were applicable. Id. at 122-123. Nonetheless, Yeager once again emphasized that principles of collateral estoppel are only applicable when the jury’s verdict is consistent and rational, and premised its application of collateral estoppel on being able to ascribe sufficient consistency and rationality to the verdict rendered by the jury in the defendant’s case. Id. at 123-125.
In speaking of the proposition of law for which Powell stands, Yeager stated that Powell “reason[ed] that issue preclusion is ‘predicated on the assumption that the jury acted rationally.’ ” Yeager,
Yeager rejected the government’s attempt to rely on Powell to label the verdict in Yeager as inconsistent because to do so would take “Powell's treatment of inconsistent verdicts and import[] it into an entirely different context involving both verdicts and seemingly inconsistent hung counts.” Id. In rejecting the government’s reliance on Powell, the Court noted that relevant to the question of what facts the jury has, in fact, determined, a hung count “is evidence of nothing— other than, of course, that [the jury] has failed to decide anything.” Id. at 125. In considering the range of
But for the government’s failure to persuade the Supreme Court that a hung count supported its claim that the jury acted irrationally, there is no indication that Yeager would not have identically applied Powell and Dunn to defeat the defendant’s collateral-estoppel defense. Id.
Ashe, like Powell, Dunn, and Yeager, also focused the collateral-estoppel analysis on what “a rational jury” has determined. Ashe,
To overlook the factual findings made by defendant’s first jury with regard to the first-degree felony murder conviction would also run afoul of Ashe’s requirement that a court reviewing a defense of collateral estoppel do so “ ‘with an eye to all the circumstances of the proceedings.’ ” Ashe,
C. “LEGAL MEANING”
The majority opinion argues that allowing retrial would give new “legal meaning” to defendant’s reversed conviction and permit it to be used against defendant in a manner inconsistent with Burks. Respectfully, it is incorrect for three reasons.
First, when the defendant has the burden of establishing that the jury determined an issue of ultimate fact in his favor, and must do so in light of “all the circumstances of the proceeding,” the reversed conviction is not being “used to the defendant’s detriment.” Instead, the jury’s findings in convicting defendant are “circumstances” that the defendant is simply unable to overcome in establishing his collateral-estoppel defense. See footnote 4 of this opinion.
Second, determining whether collateral estoppel applies to prohibit retrial focuses on a highly factual analysis. Only the underlying factual elements of defendant’s reversed conviction are given continuing effect, not the reversed conviction itself. The distinction between giving effect to factual elements of a reversed conviction and giving continued legal effect to a reversed conviction can be demonstrated by looking at People v Crable,
That is not to say, however, that factual elements from the first trial, which resulted in the reversed conviction, must also be ignored or disregarded and cannot have any continuing relevant legal significance. For instance, if a hypothetical defendant testified at both trials (his first trial ending with a conviction that was subsequently reversed), and the defendant’s testimony at the first trial contradicted his testimony at the second trial, that the conviction from the first trial was reversed would not preclude the prosecutor from impeaching defendant at the second trial with his testimony from the first. Cf. United States v Havens,
[R] ever sal for trial error, as distinguished from evidentiary sufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.... [Burks,437 US at 15 .]
However, the very next sentence of Burks premises the proposition that a reversed conviction “implies nothing with respect to the guilt or innocence of the defendant” on the specific fact that when a conviction is reversed, retrial is possible:
When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. [Id. at 15-16, citing Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U Chi L Rev 365, 370 (1964).]
When the ability to retry a defendant on a reversed conviction is foreclosed, the reversal, coupled with the inability to retry the defendant, necessarily implies something about defendant’s guilt or innocence. The premise of a collateral-estoppel defense is that, on the basis of factual findings by a jury, defendant cannot be guilty of the charged offense, thus implying something about defendant’s guilt or innocence. Despite relying on Burks, which held that a reversed conviction “implies nothing with respect to the guilt or innocence of the defendant,” the majority opinion employs principles of
III. MAJORITY OPINION STANDS APART
In foreclosing the state’s ability to retry a defendant when a jury returns an inconsistent verdict and the convictions are subsequently overturned, the majority opinion stands apart from all other courts that have addressed this issue. Unanimous high courts in New Jersey and the District of Columbia have determined that when the jury renders an inconsistent verdict, principles of collateral estoppel have no place even if the convictions that make up the inconsistent verdict are subsequently overturned. State v Kelly, 201 NJ 471;
The Supreme Court’s recent decision in Yeager does nothing to undermine this analysis. The distinguishing feature in Yeager was that the jury had acquitted on some counts and hung on others. The Court treated “the jury’s inability to reach a verdict on the insider trading counts [as] a nonevent[,]”129 S. Ct. at 2367 , “hold[ing] that the consideration of hung counts has no place in the issue-preclusion analysis.” Id. at 2368. It explained that the situation was “quite dissimilar” from that presented in Powell, where “respect for the jury’s verdicts counseled giving each verdict full effect, however inconsistent.” Yea*130 ger,129 S. Ct. at 2369 . In Yeager, there was no inconsistent verdict of guilt standing in opposition to the acquittals, and the Court held that “conjecture about possible reasons for a jury’s failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return.” Id. at 2368. [Evans,987 A2d at 1142 .]
Both Kelly and Evans understood correctly the threshold premise that principles of collateral estoppel are only applicable when the jury has acted rationally, and in so doing, both Kelly and Evans relied on Powell to resolve the defendants’ claims of collateral estoppel. Kelly, 201 NJ at 488; Evans,
Similarly, the United States Court of Appeals for the Second Circuit reached this same conclusion in United States v Bruno and found the answer to the issue sufficiently clear to enable it to resolve the case by summary order, stating,
We see no merit to Bruno’s argument because, unlike the cases [including Ashe} on which he relies (where collateral estoppel barred retrial), Bruno was convicted of the offenses that are now the subject of retrial. These convictions are significant because they indicate that, notwithstanding the acquittals, the jury found that Bruno possessed the requisite intent to devise a scheme to defraud. See 18 U.S.C. § 1341 (including intent as an element of mail fraud). While Bruno argues that the now-vacated convictions should be considered a non-event and the jury’s determinations on those counts should be ignored, there is no legal or factual support for this proposition. [United States v Bruno,531 Fed Appx 47 , 49 (CA 2, 2013) (second emphasis added).][14 ]
IV CONCLUSION
Principles of collateral estoppel are only applicable when a defendant can demonstrate that a rational jury has resolved an issue of ultimate fact in the defendant’s favor. A defendant is unable to establish that the jury “actually and necessarily determined any issue of ultimate fact” when it has rendered an inconsistent verdict. Defendant’s jury rendered an inconsistent verdict by convicting defendant of the compound offense of first-degree felony murder while acquitting him of the predicate offense of first-degree home invasion. Accordingly, defendant is unable to satisfy his burden of establishing that the jury actually and necessarily de
As defendant’s first jury acquitted him of first-degree premeditated murder and first-degree home invasion, retrial on those offenses was barred hy the Double Jeopardy Clause of the Fifth Amendment. Retrial on those charges is not at issue in this appeal, and the jury’s verdicts of acquittal of first-degree premeditated murder and first-degree home invasion have been given full effect.
A “compound offense” is one that has as an element the commission of some other enumerated offense. People v Robideau,
Defendant specifically eschews any reliance on the argument that first-degree felony murder and the predicate offense of first-degree home invasion are the “same offense” for double jeopardy purposes. See Blockburger v United States,
The majority opinion entirely overlooks that defendant bears the burden of demonstrating what issues of ultimate fact were decided during the first trial. This causes it to embark upon its analysis from the wrong starting point — whether defendant is being denied his double jeopardy rights rather than whether defendant has made out his collateral-estoppel defense — leading it to the mistaken conclusion that retrying defendant on the first-degree felony murder charge would amount to using his subsequently reversed conviction against him. When the burden is rightly placed on defendant to demonstrate that the first jury resolved an “issue of ultimate fact” in his favor, the jury’s verdict convicting defendant of first-degree felony murder cannot properly be said to have been “used to [his] detriment.” After all, it is defendant in these circumstances who has come forward and who seeks to rely on the verdict containing the first-degree felony murder conviction.
This Court similarly has upheld the validity of inconsistent verdicts and rejected a defendant’s attempt to employ a verdict’s inconsistent character to undermine charges for which he had been convicted by way of charges for which he had been acquitted. People v Vaughn,
Notably, the inconsistency in the verdict in the instant case is the same as the inconsistency in the verdict in Powell. Wilson was convicted of first-degree felony murder but acquitted of home invasion (the predicate-felony), and Powell was convicted of the “compound offenses” of using the telephone in committing and in causing and facilitating certain felonies — conspiracy to possess with intent to distribute and possession with intent to distribute cocaine — but acquitted of conspiracy to knowingly and intentionally possess with intent to distribute cocaine and possession of cocaine with intent to distribute (the predicate felonies).
As the majority opinion appears to believe that the particular explanation for an inconsistent verdict is irrelevant once the convictions have been reversed, it never affords consideration to what might have caused the jury here to render an inconsistent verdict. Under this analysis, even if it were known with certainty that the jury had acquitted defendant of the predicate offense out of mercy or lenity, the majority opinion would
This Court has similarly concluded that mercy and lenity are the most likely explanations for why a jury might render an inconsistent verdict:
Juries are not held to any rales of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jury reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant’s release.... But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility. [People v Vaughn,409 Mich 463 , 466;295 NW2d 354 (1980) (citations omitted).]
Notably, the majority opinion fails to give any weight to Powell’s unequivocal statement on this point.
The majority opinion quotes Justice Scalia’s dissent in Yeager for the proposition that “[a]s a conceptual matter, it makes no sense to say that events occurring within a single prosecution can cause an accused to be ‘twice put in jeopardy.’ ” This quotation, however, is removed from context as the next three sentences of Justice Scalia’s dissent proceed to discuss how Dunn and Powell accepted the validity of inconsistent verdicts, but rejected the application of collateral estoppel in the context of an inconsistent verdict. Yeager,
And our cases, until today, have acknowledged that. Ever since Dunn v. United States,284 U.S. 390 , 393 (1932), we have refused to set aside convictions that were inconsistent with acquittals in the same trial; and we made clear in United States v. Powell,469 U.S. 57 , 64-65 (1984), that Ashe does not mandate a different result. There is no reason to treat perceived inconsistencies between hung counts and acquittals any differently [Id.]
When read in full, Justice Scalia’s argument is not that Yeager understood collateral estoppel differently from Dunn, Powell, and Ashe, but that Yeager applied principles of collateral estoppel because it erroneously concluded that a verdict featuring hung counts and acquittals was not an inconsistent or irrational verdict.
In fact, the primary disagreement between the majority and the dissent in Yeager was whether hung counts demonstrated that the jury had acted irrationally. Justice Scalia disagreed with the majority only in viewing the hung counts, in combination with the acquittals, as evidencing that there was “no clear, unanimous jury finding,” thus preventing defendant from satisfying his burden under Ashe. Yeager, 557 US at 132 (Scalia, J., dissenting).
Defendant does not argue, and no reasonable argument could be made, that this is a case in which the error resulting in the reversal— defendant’s being denied his right to represent himself on any of the charges— somehow explains the jury’s irrational verdict as might be the case when, for example, there was some instructional error affecting only the charge on which defendant was convicted by the jury.
In this regard, I do not, as the majority opinion contends, “jumpG over [the] critical step” of recognizing that defendant’s conviction was reversed but simply view the reversal as nullifying only the legal consequences associated with the conviction and not the factual elements of the first trial. The reversal of Wilson’s conviction is just not relevant to the collateral-estoppel analysis.
The majority opinion’s attempt to diminish the relevance of Bruno on the basis that the convicted and acquitted counts in that case did not share in common an issue of ultimate fact does nothing to call into question the legal proposition that Bruno stands for. The Second Circuit delivered its opinion on the assumption that the convicted and acquitted
This is, of course, not to say that this Court is reliant on the decisions of other courts, hut merely to point out that the majority opinion has failed to identify a single authority for the proposition it asserts concerning the meaning of Ashe, Powell, and Yeager.