*1 of Tennessee STATE
Joey Dewayne THOMPSON. Tennessee,
Supreme Court
at Knoxville. 7, 2009 Session.
Jan.
6,May *2 murder, II, degree
second and for Count murder, both of the first victim. After the returned verdicts for the voluntary lesser-included offenses of man- I slaughter degree on Count and second II, murder on Count the trial court im- Poston, Knoxville, Tennessee, Bruce E. posed merged sentence and the two con- Dewayne Thomp- Joey for the appellant, victions. The appealed, defendant con- son. tending that because the prior Jr., Attorney Cooper, E. General Robert effect returned verdict of on Moore, & Michael E. Solicitor Reporter; the attempted degree first murder of the General; L. victim, H. Bledsoe and Cameron John alleged second and because the at- General; Hyder, Attorneys Assistant tempted degree only first murder was the Nichols, Attorney E. District Gen- Randall possible predicate offense support to Morton, eral; District Philip retrial, and Assistant charge murder General, Attorney appellee, trial court had allowing erred the felo- of Tennessee. ny murder trial. go Criminal affirmed the conviction. Because collateral estoppel, as
OPINION
corollary
in criminal cases of the consti-
WADE, J., delivered the
GARY R.
protection
tutional
against
jeopar-
double
court,
in which
M.
opinion of
JANICE
dy, precludes
guilty
on the requi-
verdict
C.J.,
HOLDER,
A.
CORNELIA
CLARK
murder,
site
offense for
LEE, JJ., joined.
SHARON G.
we must reverse and dismiss the second
KOCH, JR., J„ filed a
WILLIAM C.
degree murder conviction as a lesser-in-
concurring opinion.
improper primary
cluded offense of the
initially charged with
The defendant was
Otherwise,
charge.
judgment
of the
and fel-
premeditated
first
murder
Appeals upholding
Criminal
(Counts I and II
ony murder of one victim
voluntary
conviction and sentence for
man-
indictment)
attempted
slaughter is affirmed.
(Count
of a second victim
degree murder
III).
Latoya
of the lesser-
On June
Robinson
guilty
He was found
(“Robinson”),
killed,
degree was shot and
and her
included offense of second
count,
(“Burgins”),
boyfriend,
Burgins
on the first
a mistrial resulted on
Travis
count, and,
seriously injured.
driving a Buick
the second
as to the third
While
count,
on LaSabre on McPherson Street Knoxville
jury acquitted
defendant
Avenue,
near its intersection with Texas
primary charge
guilty
but returned
degree mur- Robinson suffered two bullet wounds
attempted
verdict of
second
der,
right leg,
right
On direct
her lower
one to her
fore-
a lesser-included offense.
arm,
right thigh.
be-
and one to her
The fatal
appeal,
Appeals,
the Court of Criminal
shot, however,
her
passed through
upper
cause of error
the instructions
chest, breaking ribs
right
I
arm and into the
jury, reversed the convictions
Counts
piercing
lungs
trial.
the heart and both
be-
and III and remanded for a new
trial,
passing through the
side of her
the State volun-
fore
left
Prior to
second
III,
gunshot
body. Burgins
sustained one
tarily
attempted
dismissed Count
which fractured his
charge,
prose-
leg,
wound to his left
I,
right
leg.
to his
thigh,
and four wounds
cuted the defendant
History
jury by completely omitting
portion
and Factual
Procedural
statutory
“knowing,”
definition of
summary
procedural
A detailed
essential element as to each of the crimes.1
history of
case
order.
and factual
39-ll-106(a)(20)
*3
§
Ann.
See Tenn.Code
(the
Dewayne Thompson
“Defen-
Joey
Ducker,
(1997);
889,
27
State v.
S.W.3d
896
dant”)
initially charged
pre-
with the
(Tenn.2000). A new trial was ordered.
degree
first
murder of Robinson
meditated
v. Thompson,
State
No. E2003-00569-
attempted
degree
and the
first
murder of
(Tenn.
CCA-R3-CD, 2004
1592817
WL
Later,
the State
Burgins.
charged
also
2004).
Crim.App. July
The State did
degree felony
the Defendant with the first
file
application
permission
Robinson,
charge predicated
murder of
appeal.
attempt
to commit the first de-
Burgins.
of
gree murder
Defendant
court,
After the
trial
remand to the
April
of 2002
of
was tried
and convicted
Defendant
a motion to strike the
filed
degree
two crimes: the second
murder of pending
degree felony
first
murder count
Robinson, as a lesser-included offense to from the indictment. The Defendant con-
charge
premeditated
degree
of
first
tended that because the conviction on the
(Count I);
murder
attempted
and the
sec-
charge
attempted
degree
lesser
of
second
degree
ond
murder of
Burgins, as
lesser-
Burgins
murder of
an acquittal
served as
charge
attempt-
included offense to the
of
primary charge
on the
of attempted first
(Count III).
degree
ed first
murder
Be- degree
Burgins,
murder of
and because
cause the
was unable to reach a ver-
attempted
degree
second
murder was not
degree felony
dict on the first
among
statutory
list of
felo-
(Count II),
charge
a mistrial was declared.
necessary
nies
charge
for a
of
mur-
der,2
appeal
by
On
direct
of the two
the State was barred
convictions,
principles
Court Criminal
of double
reversed, finding that the trial
prosecuting
court
from
on that count in the in-
provide adequate
Although
failed to
instructions to
dictment.
the trial court denied
(Tenn.2001),
1. The United States Constitution and that of
727
this Court ruled that
guarantee
right
State
Tennessee
right
to instructions on lesser-included of
Const,
VI;
jury.
trial
amend.
Tenn.
fenses had
foundations
both statute and
Const,
I,
(providing
right
§
art.
“that the
Recently,
our
Id.
constitution.
at 727.
inviolate”).
by jury
trial
shall remain
This
upheld
principles
these
in the context
right encompasses an entitlement to a correct
challenge
validity
of a
to the
of an instruction
Teel,
complete charge
of the law. State v.
requiring jury
acquit
primary
to first
(Tenn. 1990).
793 S.W.2d
In conse
considering any
before
lesser offenses.
quence,
duty
give
the trial court has a
“to
Davis,
(Tenn.
State v.
266 S.W.3d
complete charge
applicable
of the law
2008).
Harbison,
facts of a case.” State v.
(Tenn. 1986);
see State v.
degree
§
2. Tenn.Code Ann. 39-13-202. First
Forbes,
(Tenn. 1995);
918 S.W.2d
see
(a)
degree
First
murder is:
murder. —
consequence,
also Tenn. R.Crim. P.
In
(1)
“each
of fact
issue
raised
the evidence will
premeditated
killing
A
and intentional
proper
another;
be submitted to the
instruc
Garrison,
tions.” Stale
40 S.W.3d
killing
A
of another committed in the
(Tenn.2000).
perpetration
attempt
perpetrate any
of or
right
complete
The constitutional
to a
in
murder,
terrorism, arson,
degree
act of
requires
struction on the law
trial courts to
theft,
rape, robbery, burglary,
kidnapping,
charge juries
every
on each and
lesser-includ
abuse,
aggravated
aggravated
child
child
Burns,
ed
offense. State
Carol police, hurriedly went her outside with *4 center, the 911 was the first witness for husband. When Burgins she asked who State in She the the second trial. testified shots, answered, had fired the he “Thug p.m. at approximately 5:00 on June King, shot me.” was who unfamiliar with 23, 2001, she received a call telephone from the “Thug,” weapons name did not see any shooting. an caller a reporting unidentified inside the car at the time. She testified audiotape The of the conversation was Robinson, who had to wounds her jury. caller played reported the The side, arm, legs, her and her was unable to that a black had up, man thrown his hands talk apparently and died before the ambu- pulled weapon from his shorts pocket, lance arrived. gun” and “unloaded his into a vehicle. Dixon, Daley, specialist Dr. Brian general
Julian who on lived Texas Ave- crime, surgery nue near the critical care at the scene of the was also a unit the University Center, of On Tennessee State witness. the afternoon of the Medical Burgins treated shooting, his arrival at he noticed small black car come the hospital. He stop to a on found four on McPherson Street near its wounds the Burgins’ right leg outside of matching intersection with Texas Avenue. When a with on leg “marks” the approached right second car behind the inside and from cai’, Defendant, just one wound the black he saw the whom he above left knee. Ac- life,” cording Dr. Daley, Burgins, had known “all his from to who was step the curb able to during into the and communicate the course of street trot the direction of treatment, Dixon, his According initially the second vehicle. identified himself as to Begin. Tyran of pistol Burgins’ the Defendant had “a down None wounds at his thigh.” threatening. were life As the black car was away, driven began the Defendant to fire shots into the Elkins, Dr. Sandra the chief medical of passenger side vehicle. Dix- second examiner for County, performed Knox on testified vehicle lurched for- autopsy on Robinson. She testified that ward and along- the Defendant followed grazed Robinson was shot five times and side, firing seven to ten shots from three bullets, a sixth bullet. One of the which away. four shooting stopped feet The wounds, caused the most of serious beyond when the car traveled Dixon’s upper right passed entered her arm and vision, Defendant, range of but the who through just the arm into her chest foot, still was on into view and returned armpit, fracturing below the one rib then went “back across Texas [Avenue].” right and one side left. The bullet At shooting, Shirley passed heart, time of the through lung, the right King, who was her husband and left lung exiting three and the before the left Elkins, grandchildren porch body. of her side of the According resi- to Dr. forearm, at the dence corner McPherson Street shot the right fractured bullet, cop- Beretta. As to fourth right thigh shot entered the third only the jacket separated, per the lower tissue behind soft lodged remained; therefore, Agent core lead right pelvis. causing fracture spine origin was unable to determine Scott wounds were gunshot Two other markings. . there no the bullet because were knee. leg below right Smith, with the agent a federal Todd Smith, Officer Gerald Police Knoxville Firearms, Alcohol, Bureau Tobacco scene within investigated the crime who patrol officer with the Knoxville was shooting, nine discovered minutes the time of the Department Police all which were cartridges, mm spent scene, he at the shooting. arrived When have fired from determined later fired who Agent Burgins Smith asked were cartridges The weapon. same answered, “Joe, Burgins Thug.” shots. Texas Av- Street at on McPherson located he asked whether “Amo When square of some 240 over a enue distance brother, Joey Wright’s Thompson,” Bur- passenger side window feet. answered, According to gins Agent “Yes.” LeSabre, partial- which was victims’ Buick *5 Smith, “very, very a had weak Robinson down, single a was shattered ly rolled he arrived and “almost no pulse” when scene, investigating the Offi- While bullet. Burgins in- respiration.” He recalled that weapon notice a cer Smith did him that the Defendant ran at formed Afterward, however, the Buick vehicle. car, pistol, a and then fired displayed their search and towed for a more extensive was the several shots into vehicle. impound contents. At the inventory the “Beretta, lot, Reeves, found a caliber Officer Smith Eric also an officer with the 380,” a short ... better known as Department, nine knew the Knoxville Police passen- front seat the the on prior shooting underneath Defendant and had magazine gun A contain- ger given pager side. him his number. Unaware the front was found on a ing shooting, eleven rounds that there had been Officer a of the vehicle underneath CD case. page seat Reeves received a from Defen- any Defendant, find usable la- Smith did not Officer dant and then called him. The the Beretta. There fingerprints tent if who nervous and asked “the sounded spent two bullets the driver’s side explained were was he girl” okay, that had on the floor on of the vehicle and another problem Burgins, who had shot at his weapon conversation, The Defendant’s During the driver’s side. Officer brother. recovered. apparently was never on his Reeves turned radio learned suspect that the Defendant in a was Scott, a forensic at the Steve scientist calls, shooting. “back After and forth” laboratory at the Tennessee Bureau crime encouraged the Defendant to turn officer Investigation, pistol examined the found police. Although himself in to the LaSabre, cartridge Buick nine so, agreed Defendant to do he failed to street, found in the the three bullets cases designated appear location also vehicle, the one bullet removed failed to show at a second location. On the from He determined that the Robinson. however, meet following day, he did Offi- cartridge fired from a nine cases police department. cer Reeves at the An pistol. 9 mm automatic examination of case, bullets, After three of the one taken from the the State rested its de- vehicle, Burgins, from indi- fense called who had testified for body and two taken trial, the first as its initial through that had been the State in cated all fired Although admitted that pistol, Burgins barrel of a 9 mm and not the witness. single brother, he and the Defendant’s Amo tionship between the two “rough.” Wright, shortly had confrontation before Defendant claimed that their relationship shooting, he believed that everything even continued after began Robinson “cool” was between them. When he saw Burgins, date whom the Defendant had later, Defendant few minutes Bur- known all of explained his life. He that his and, claimed, gins peace sign flashed he brother telephoned him just before the the Defendant responded kind. Bur- shooting claiming that he had been threat- gins anticipating any denied trouble until gun by ened with a Burgins. While insist- he gun heard a click from a as the Defen- ing that he prior had no issues with Bur- “jogging” dant was towards his vehicle and gins, the Defendant admitted that his began the black car Burgins move. experienced brother had difficulties with testified that placed Defendant had Burgins. The Defendant acknowledged about one-half of the gun barrel his into that he armed himself after receiving the the car when the first shots were dis- brother, call from his contending that Bur- charged. While that acknowledging gins always gun. carried a The Defendant Defendant was not looking into the car claimed that approached as he the passen- during gunfire, Burgins that estimated vehicle, ger side of the Burgins “point- the Defendant shot inside some ten times. ing gun at my direction.” He asserted Although police he was aware that “slumped Robinson was over” when lot, gun found a in his car at impound pulled he gun his Burgins ordered Burgins spec- denied it was his. He “drop it.” The explained Defendant *6 “somebody ulated that it threw in there.” he had no intention of shooting Robinson He also drugs denied that there were in and had aimed for Burgins’ legs so he Burgins, the vehicle. ” testimony whose “wouldn’t kill him.... conflicting, was often also that denied he Officer Gerald Smith was recalled to had testified at the preliminary hearing testify for the defense. He confirmed that that the first bullet struck in the Robinson he had recovered the gun from the Defen- head. When with confronted the tran- vehicle, magazine, dant’s and some bul- said, script of the hearing, he “I ain’t never lets. He acknowledged that he also found say .... that wrong.” [t]hat’s On cross- a small bag marijuana in the interior State, by examination the Burgins ac- handle of the passenger side at the front knowledged that charged he had been plastic door. A cigar tube in the middle of criminal impersonation for several times the front seat contained “four crack “givfing] police.” fake name to the rocks.” Defendant, who testified on his own behalf, deliberations, completing After their the acknowledged that some had called guilt him returned verdicts of for Thug” “Joe since he volun- was about ten years tary manslaughter on I explained big old. He that he and second had eyes degree as a child and his friends him murder on Count II. The trial called Bug,” imposed “Joe which court eventually twenty became “Joe sentences of and six half-brother, Thug.” years respectively, He stated that merged his and then the Amo Wright, dated for single judgment Robinson about offenses into a of convic- year and a half. He the described rela- tion.3 (or provides merger degree felony Our law of dual murder its lesser-included offenses): degree premeditated "Obviously, convictions person for first mur when one (or offenses) murdered, der guilt its lesser-included and first has been verdict of on ‘prior degree the mit first murder as suit’ for appeal, Court of Criminal
On direct sufficiency the con purposes.” the upheld Appeals rejected the claim victing evidence Thompson, No. E2006-02093-CCA-R3- verdict of second (Tenn.Crim. Defendant CD, 465269, at *8 2008 WL murder for death of Robinson degree 2008). Feb.21, App. aside as inconsistent with should be set application This for granted Placing manslaughter verdict. voluntary permission to consider whether appeal protec on fact that significance some acquittal charge of attempted not against jeopardy double do bar tions first murder in first trial was felony both and its convictions for murder final collateral estoppel, and whether offense,4 the Court ruled that grounded in and state constitution- federal prosecution charge, murder protections against jeopardy, ap- al double mur which resulted plies to Our these circumstances. stan- conviction, doc der barred questions dard of mixed law review for estoppel.
trine of collateral Because any and fact without presump- is de novo mistrial court concluded Rush, tion correctness. State trial on the first (Tenn.2001). 5.W.3d it refused to prosecution, extended the the attempted classify “prior for collat degree murder as suit” Jeopardy and Double Collateral estoppel purposes. eral The Court Estoppel distinguished holding Criminal jeopardy The double clause of States United provides the United States Constitution Swenson, U.S.
Ashe subject that no “be person shall (1970), ruling 25 L.Ed.2d put same offence to be twice “pro the mistrial Const, or life limb.” V.5 amend. prosecution through another longed] Similarly, article section 10 of Ten transforming] ... it than] trial [rather *7 provides nessee per Constitution “no prosecution. three ‘subsequent’ into a The shall, offense, son for the same be twice launched together counts were put in limb.” of life or Tenn. jeopardy and we do not prosecution, stream of this Const, 1, attempt § deem the to com art. 10.6 In State v. Penning- 1, charg Although application of an 6. more than one count indictment our of article sec- committing ing "guided means of by different tion 10 in part” is sometimes only support judgment of murder will one precedents construing the similar federal con- Cribbs, v. 967 conviction....” State 773, S.W.2d precedents provision, stitutional these federal (Tenn. State, 1998); 788 Carter v. 958 are "useful" but "not conclusive.” State v. 620, (Tenn. 1997). n. 6 S.W.2d 624 Denton, 373, (Tenn.1996) 379 938 S.W.2d (discussing Blockburger the role of v. United 251, (Tenn. Ralph, 6 S.W.3d 256 States, 180, 299, S.Ct. 284 U.S. 52 76 L.Ed. 1999), legis Court confirmed that "when (1932), Black, application 306 of State in clear, may lative intent is defendant be 913, (Tenn.1975)). 524 S.W.2d 919 The dou- separately convicted of two which offenses jeopardy ble clauses of the United States and from one criminal transaction.” arise distinct, are indepen- Tennessee constitutions that, times, protections dent at differ in their guarantee against 5. The Fifth Amendment Stephenson, details. 195 See State S.W.3d jeopardy against is double enforceable 574, (considering jeopardy double through 586-88 the Fourteenth Amendment. stales 784, Maryland, claims the federal and Benton v. 2056, 395 (1969). 89 S.Ct. under Tennessee con- U.S. separately). L.Ed.2d 707 23 stitutions
847 ton, (Tenn.1997), 420 we ex- anxiety insecurity, 952 S.W.2d state of as well as plained enhancing the possibility that even [when] innocent may guilty.” he be found State v. jeopardy only
double
violations arise
Smith,
667,
(Tenn.1994)
871 S.W.2d
671
in
placed
when an individual is twice
States,
(quoting Green v.
355
United
U.S.
jeopardy for
same offense. Custom-
184, 187-88,
221, 2
78 S.Ct.
L.Ed.2d 199
in
arily,
jury proceedings, jeopardy at-
(1957));
K. Mayers
see also Daniel
&
sworn,
when the
in
taches
Fletcher L. Yarbrough, Bis Vexari: New
nonjury proceedings, jeopardy attaches
and,
Prosecutions,
Trials
Successive
74
when the first witness testifies. A de-
(1963).7
1,
Harv. L.Rev.
32
put
jeopardy
fendant must be
at least
once,
point
“for
if that
has once While
jeopardy applies
double
any subsequent pros-
been reached does
law,
context of criminal
collateral estoppel
bring
ecution of the defendant
the guar-
has its
origins
litigation,
civil
as ad-
against
antee
double
even po-
dressed
Supreme
Crom-
tentially
play.”
into
351,
well v.
353,
Sac
94
County,
Bretz,
351,
(1876).
422 (quoting
Id. at
Crist v.
437 U.S. Otto
the same offense.”
S.Ct.
classified its
(also
judicata
of the doctrine of res
tension
guarantee against
Fifth Amendment
preclusion)
applicable
known as claim
445,
Id. at
90 S.Ct.
jeopardy.”
double
“it
affirmatively appears
when
warning
scrutiny
that a careful
1189.While
involved in the
consid
the issue
case under
prior adjudication
of the record in a
in a
already
litigated
eration has
been
essential in order to determine “whether a
even
prior
parties,
suit between
same
have
ver-
grounded
rational
could
its
though
upon
based
a different cause of
other than that which
dict
an issue
action, if the determination of such issue in
to foreclose from con-
the defendant seeks
necessary
the former action was
to the
sideration,”
acquit-
ruled that an
In
judgment....”
Id. at 631-32.
Gibson
juiy
might
verdict
bar
general
tal
Trant,
(Tenn.2001),
103
v.
58 S.W.3d
this
any subsequent prosecution.
altogether
promotion
finality
Court cited
(footnote omitted).
444,
1189
Id.
90 S.Ct.
re
litigation,
judicial
conservation of
assessing
estoppel
In
whether collateral
sources,
prevention
and the
of inconsistent
situation,
must,
applies
given
in a
courts
policy
decisions as
considerations warrant
therefore,
consider
indictment and
ing
application
estoppel
of collateral
evidence,
pleadings,
instructions to
113;
litigation.
civil
Id. at
also Stan
see
jury,
any other relevant matter “in
States,
23,
10,
v.
447
n.
United
U.S.
defer
practical
eye
frame and viewed with an
1999, 64
L.Ed.2d 689
proceed-
to all the circumstances of the
that the
(stating
policy behind the doctrine
(quoting
Id.
ings.”
United
Sealfon
reliability
judg
lies in the inherent
of final
States,
575, 579,
92
S.Ct.
ments).
courts,
Like the federal
this
(1948)).
L.Ed. 180
The burden is on the
party seeking
has held that the
collateral
party asserting
estoppel to dem-
estoppel
litiga
invoke collateral
as a bar to
specific point
onstrate that a
at issue has
proving
tion “has the burden of
that the
finally
previously
decided. See
was,
fact,
prior
in a
issue
determined
Bailey,
States v.
34 F.3d
United
parties
suit between
same
and that the
(8th Cir.1994); see also United States v.
necessary
determination was
to the
issue’s
(D.C.Cir.1996).
Vaughn, 80 F.3d
judgment.”
Godfrey,
Dickerson
Scott,
Massengill
Id. at jurisprudence 631. In the context of a civil a of our criminal for part as (also See, relatively period e.g., collateral a short of time. estoppel known as issue
849
508,
McKennon,
finality
511 considerations for
consistency
State v.
6 S.W.3d
in a criminal
(holding
proceeding
prosecu
that the de
when the
(Tenn.Crim.App.1998)
tion
showing
application. Scarbrough,
the burden of
asserts its
fendant bears
(quoting
doctrine versus
application
its
as defense
the proof
by
Because
offered
particular charge,
to a
we held that
clearly
support
State is
sufficient to
convic
right
jury
accused’s
to a
embodies the
voluntary manslaughter
tions of either
or
every
because,
entitlement “to have
fact tried and
murder and
jurors
determined
twelve
and to have
general,
inconsistency multiple
count
all issues of fact submitted to the same
in a
prosecution
verdicts
criminal
is not a
relief,10
jury
trumps policy
single question pre-
at the same time” and
basis for
Ingenito,
required
jury
In State v.
87 N.J.
432 A.2d
the same
to consider each
(1981),
guilty
essential issues to a
verdict. See also
Jersey Supreme
the New
Goss,
People v.
446 Mich.
N.W.2d
apply
refused to
offensive collateral
(1994) (estopping
the accused from
strong,
because the doctrine “constitutes a
contesting
robbery
armed
element of
irresistible,
perhaps
gravitational pull towards
preclude
would
an in
verdict,
guilty
utterly
which is
inconsistent
dependent
jury).
evaluation
the second
Al
requirement
that a
free and
remain
rare,
though
appears
the situation is
to be
untrammeled in its deliberations.”
Id. at
general
among
rule
states.
though
918-19. Even
there
prior proceeding,
Ingénito
court
State,
Wiggins
10. In
*10
right
jury
concluded that the
accused's
(Tenn.1973),
involving
a case
a multi-count
part
is whether collateral
The witnesses were for the most
in this case
sented
same, though
this time their testimo-
prosecu-
as a bar to the
estoppel applies
ny
substantially stronger
was
on the
murder
tion
example,
acquit-
identity.
that his
issue of
For
[Ashe’s]
II. The Defendant asserts
two witnesses who at the first trial had
degree murder in the
attempted
tal
identify
by
wholly
unable to
[Ashe]
become final
retrial
first trial had
robbers,
...
testified that his
charge;
argues,
he
one of
features, size,
matched
therefore,
and mannerisms
the doctrine of
pro-
those of one of their assailants. Anoth-
upon principles
founded
estoppel, as
jeopardy, precludes
er witness who before had identified
tecting against double
only by
size and actions now
[Ashe]
of the issue as an essential
his
reconsideration
by
him
prosecution.
also remembered
unusual
element
information on two of
sound of his voice. The State further
background
Some
refined its case at the second trial
subject
cases on this
leading
call
may
declining
participants
be
one of the
Supreme
States
United
question.
poker game
of this
whose identification
helpful in our resolution
testimony at the first
trial had been
Swenson, Ashe,
v.
who was one
Ashe
conspicuously negative.
charged with
of four1masked individuals
Id. at
Similarly,
stated,
Turner v.
As
there were originally three
(I)
92 S.Ct.
Obviously,
discharge. The
jury
than to order his
action
Burgins. When
kill
efforts to
final,
could
was
and
acquittal
commit second
of
attempt to
verdict
an
found
otherwise,
necessarily
reviewed,
estab-
murder,
on error or
their verdict
be
not
was insufficient
jeopardy,
evidence
him
putting
that the
twice
lished
without
That not
premeditation.
of
thereby violating
the element
the constitution.
primary
on the
acquittal
an
only served as
this
may
England, in
it
be in
However
State’s theo-
rejection of the
charge, but a
although
acquittal,
of
country a verdict
attempted to
Defendant had
ry that
a bar
by any judgment,
is
not followed
Our ex-
premeditation.13
Burgins
kill
subsequent prosecution
to a
evi-
entire record of the
amination
offense.
same
trial court’s instructions
and the
dence
671,16
1192.
at
S.Ct.
163 U.S.
conclu-
to the inevitable
jury leads us
Further,
Scarbrough, a new
in State v.
ground-
could not “have
jury
that the
sion
felony murder
trial was ordered
trial
verdict
in the first
ed its
predi-
but the conviction
conviction
the Defendant
than that which
issue other
offense,
af-
burglary, was
aggravated
cate
Swenson, 397
Ashe v.
to foreclose.”
seeks
counts in the
appeal.
two
firmed
444,
U.S.
the same criminal
arose out of
indictment
final,
produced
trial
The first
the same
part
and were a
transaction
attempt
judgment as to
unappealable
purposes
of resolv-
For
prosecution.
general
“As a
murder.
ed
aggravated
of whether the
ing
question
rule,
becomes final
judgment
a trial court’s
by the State in an
could be used
burglary
timely
entry unless
thirty days after its
trial,
subsequent
in a
offensive manner
specified post-trial
appeal
or
notice
as final.
treated the conviction
Pendergrass,
v.
937
motion is filed.” State
from utiliz-
prohibited
the State was
While
(Tenn.1996).
834,
judgment
A
837
S.W.2d
to establish an essential
ing that conviction
however,
upon entry.
final
is
acquittal,
felony murder trial which
element in the
141, 143,
U.S., 369
Fong Foo v.
followed,
recognized
specifically
this Court
(quoting
direct and the doctrine of collater- N.E.2d 220 n. 4 estoppel Restate (Second) c, al than estoppel § is more semantic. The ment Judgments cmt. 149-50); estoppel “prevents par- Henning, doctrine of direct Peter J. see also Vacuum,: ty from a fact which al- relitigating was Precedents in The ready it in ‘a against determined decision Court to Tinker with Double Continues irrational."). jury's approach,
or the actions To the ex which is the one taken the ma analysis tent our is based the United jority addressing of federal circuits the issue. Constitution, it States is consistent this L.Rev. 13 n. 66 31 Am.Crim. Jeopardy, Fleissner,
(1993); P. Constitutional James Procedure, L.Rev. 48 Mercer
Criminal (1997).
1485,1507 delights accuracy preci- law The fact that a number of
sion. United have blurred the Courts of
States between the doctrine of direct
distinction of collateral es-
estoppel and doctrine jus- little provides in criminal cases
toppel ignore our own decisions
tification us recognized preserved have I Accordingly, would hold that
distinction. prevents
the doctrine of direct retrying Thompson
State from Mr. he ac- because
quitted offense in the first
trial. *16 MANN, Partnership
FLAUTT & OF the COUNCIL CITY MEMPHIS, et
OF al. Tennessee, Appeals of
Court of
at Jackson.
Oct. 2007 Session.
Feb. 2008. Rehearing
Order on Denial of
April 2008.
Application Appeal for Permission to by Supreme
Denied
Oct.