Burkett v. State

MOYLAN, Judge. In their criminal manifestations, both res judicata (former jeopardy) and collateral estoppel (since Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970)), are two of the individual members of a larger doctrinal family, known collectively as the law of double jeopardy. Cook v. ⁴⁶⁴ State, 281 Md. 665, 668 , 381 A.2d 671 (1978); Rouse v. State, 202 Md. 481, 486 , 97 A.2d 285 (1953). They are, however, by no means the same.

MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486 (1977); Cook v. State, 281 Md. 665, 668-669 , 381 A.2d 671 (1978); Klein v. Whitehead, 40 Md.App. 1, 13-15 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978). Res judicata looks to a final judgment on the merits earlier entered in the same case or same cause and to the necessary legal consequences of that judgment. In its criminal manifestation as former jeopardy, it looks to a final judgment on the merits of guilt or innocence in a trial by the same parties of the “same offense.” State v. Coblentz, 169 Md. 159, 164-165 , 180 A. 266 (1935) (“In criminal cases the difference[s] between a plea of former jeopardy and res judicata are so slight as to be hardly distinguishable, and in many criminal cases, where the plea of former jeopardy was made, the courts in discussing the question applied the principles of res judicata.”) Its effect, when applicable, is one of claim preclusion. MPC, Inc. v. Kenny, 279 Md. 29, 32-34 , 367 A.2d 486 (1977).

A claim that has once been litigated, or that could have been litigated, in the same case by the same parties or their privies, cannot, in the interests of finality and repose, be re-litigated. Sterling v. Liberty Assn. of Steam & Power Pipe Fitters, 207 Md. 132, 140 , 113 A.2d 389 (1955); Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92 (1961). In its criminal/constitutional manifestation' as former jeopardy, res judicata dictates that, when an individual has once been acquitted (autrefois acquit) or once been convicted (autrefois convict) of an offense, the State may not thereafter reprosecute that individual for “the same offense.” Like res judicata generally, it is a plea in bar, which is interposed in advance of trial so as to bar the defendant even from being brought to trial in a subsequent and sequential effort to relitigate a matter already legally settled. Collateral estoppel shares with res judicata the requirement that the earlier litigation and the later litigation be between the same parties or their privies.

Klein v. White ⁴⁶⁵ head, 40 Md.App. 1, 15 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978). And see Pat Perusse Realty Co. v. Lingo, 249 Md. 33 , 238 A.2d 100 (1968), for a limited relaxation, not here pertinent, of the mutuality-of-parties requirement. In their double jeopardy manifestations, both collateral estoppel and former jeopardy require that the earlier prosecution have been of the same defendant by the same sovereign. At that point, however, the two related legal doctrines part company.

Collateral estoppel is concerned with the factual implications of an earlier litigation of a different case (criminally, the trial of a different offense), whereas res judicata or former jeopardy is concerned with the legal consequences of a judgment entered earlier in the same case (criminally, in the trial of the same offense). Collateral estoppel is concerned, therefore, not with the legal consequences of a judgment but only with the findings of ultimate fact, when they can be discovered, that necessarily lay behind that judgment. Res judicata or former jeopardy, by contrast, is concerned with the legal consequences of a judgment regardless of whether the judgment was based on the ultimate factual merits or, as in this case, on the basis of a legal ruling having nothing to do with the ultimate factual merits. Collateral estoppel is concerned only coincidentally with what happened legally; its special concern is with why it happened in terms of fact finding.

Res judicata or former jeopardy, by contrast, is concerned with what happened legally — with the entering of a final judgment and with the legal consequences of that judgment. It does not matter why the judgment was entered in terms of antecedent fact finding. Its claim-preclusive or reprosecution-preclusive effect arises out of its very existence, and there is no necessity to probe for its probable fact-finding basis. The effect of collateral estoppel, when that doctrine is applicable, is that of issue preclusion (meaning an issue of ultimate fact).

A finding of ultimate fact that has once been made in favor of a party cannot later be relitigated adversely to that party, even in the trial of a different case (or different ⁴⁶⁶ offense). Cook v. State, 281 Md. 665, 669 , 381 A.2d 671 (1978) (“[O]nce an issue of ultimate fact has been determined by a final and valid judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”) See also Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970); Cousins v. State, 277 Md. 383, 398 , 354 A.2d 825 (1976). For purposes of collateral estoppel, the probable fact finding that undergirds a verdict or a judgment must be further scrutinized. The basis for a decision articulated by a judge must be parsed for express fact finding or the trial transcript antecedent to a jury’s deliberations must be analyzed for necessarily implied fact finding.

As Judge (now Chief Judge) Wilner explained for this Court in Klein v. Whitehead, 40 Md.App. 1, 19 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978): For that doctrine to apply, we must conclude that the issues raised in this proceeding were actually litigated in the earlier actions (or that the facts necessary to resolve these issues were adjudicated in those actions). When such issue preclusion operates in the context of the same case or trial of the same offense, coincidentally, it should technically not even be referred to as collateral estoppel. The adjective “collateral” denotes that the estopping influence came into the case in issue from some other outside case, to wit, collaterally. In the context of a single case, the issue-preclusive operation should actually be called “direct estoppel” rather than collateral estoppel as an aspect of true res judicata, which is frequently labeled “direct estoppel.” For the sake of uniformity, however, we shall follow the almost universal, albeit imprecise, linguistic habit of using the term “collateral estoppel” to embrace the phenomenon of issue preclusion both in its directly estopping and in its truly collaterally estopping contexts.

The present appeal requires us to distinguish meticulously between res judicata (in its manifestation as the former acquittal subspecies of former jeopardy), with its exclusive focus on the legal effect of the judgment of acquittal for the ⁴⁶⁷ sexual attack in the first degree, and collateral estoppel, with its very different focus on actual or necessarily implied findings of ultimate fact made in support of that judgment of acquittal. The appellant, Robert Dean Burkett, was convicted by a Prince George’s County jury of a first-degree sexual offense, a second-degree sexual offense, a third-degree sexual offense, assault with intent to disable, and carrying a dangerous weapon openly with the intent to injure. For sentencing purposes, the convictions for the second-degree sexual offense and the third-degree sexual offense were merged into the conviction for the first-degree sexual offense. On this appeal, the appellant raises the two contentions: 1. that the trial judge erroneously allowed the charges of both first-degree sexual offense and second-degree sexual offense to go to the jury after having granted the appellant’s Motion for Judgment of Acquittal as to the first-degree sexual offense; and 2. that the trial judge erred in imposing punishment for the weapon-carrying conviction in addition to the other punishments imposed.

The Facts The victim of the appellant’s attacks was his one-time girlfriend, Cindy Lee Edelen. On August 11, 1992, he was extremely angry at her because he thought she had stolen $100 from his wallet. The ongoing course of first verbal and then physical abuse directed by the appellant at Ms. Edelen began when the two of them were parked at Piscataway Park. Initially, he “smacked her around” and punched her.

At one point, he ripped off her clothing and threw it out the car window. Shortly thereafter, the two of them left Piscataway Park and drove to a house on Holly Lane. After the two arrived at the house on Holly Lane, the appellant preliminarily “punched” Ms. Edelen a number of times and then walked to the kitchen and got a knife. He started swinging the knife at her and threatened to kill her ⁴⁶⁸ that night if she did not produce the money.

She received one cut above her eye and was also stabbed in the arm. She was sufficiently bloody that she went to the bathroom and got into the bathtub in an effort to clean herself. The appellant then got into the bathtub with her and “proceeded to put the knife up inside [her] vagina.” He again admonished Ms. Edelen to produce the money or he would “cut her insides out.” After “a couple of minutes of him playing with the knife down there,” he “pulled it out” and stabbed Ms. Edelen in the hand. He then left the bathroom.

After she left the bathroom, the beating resumed with more punches, kicks, and “stomps.” Sometime later, the appellant, who had left the house for about an hour, came back and started beating Ms. Edelen again. He got another knife on that later occasion and stabbed her in the thigh with it. The Hasty Judgment of Acquittal The appellant was charged, inter alia, with both a firsts degree sexual offense and a second-degree sexual offense. Both require the commission of a “sexual act.” Article 27, § 461(e), defines “Sexual Act”: “ ‘Sexual act’ means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse.

Emission of semen is not required. Penetration, however slight, is evidence of anal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body if the penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party and if the penetration is not for accepted medical purposes.” (emphasis supplied). Md.Ann.Code art. 27, § 461(e) (1992).

At the end of the State’s case, the appellant moved for a judgment of acquittal. He directed his argument initially at Counts 6 and 7, both of which charged a sexual offense in the first degree. In attempting to come to grips with what a sexual offense in the first degree actually was, the court ⁴⁶⁹ committed an irremediable legal error, with all parties contributing it. For a first-degree sexual offense, it is necessary that a sexual act be committed and also that it be committed under certain aggravating circumstances.

Appellant’s counsel erroneously characterized a “sexual act” as consisting of cunnilingus or fellatio and nothing else. The trial judge accepted that limited definition and, accordingly, rendered a judgment of acquittal as to the counts charging a first-degree sexual offense. The State initially took no exception to that definition. The pertinent exchange among all parties consisted simply of: “Defense Counsel: In this particular ease, the sexual act under Section 461(e) is defined as cunnilingus or fellatio, and it is not any of those.

The Court: So as to first degree [sexual] offense, Mr. State’s Attorney, unless you have some argument I am not aware of, I am going to have to grant it on that basis. Mr. Spencer [The Prosecutor]: There was testimony by the victim that he attempted, he wanted to have sex at one point. The Court: As to Counts 6 and 7, which charges first degree [sexual] offense, motion is granted.” The same mistake would inevitably have led to a similar mistaken verdict as to the second-degree sexual offense if second thoughts had not promptly intervened to put the colloquy back on its proper course. The Correction of Course Within less than a minute, however, both the trial judge and the prosecutor began to have those second thoughts.

They decided to turn to the statute itself rather than to rely on appellant’s counsel’s characterization of the statute: “The Court: First degree [sexual] offense, 464, says a person is guilty of a sexual offense in the first degree if the person engages in a sexual act.... It is defined in Section 461(e). Let me make sure — I don’t think it’s been changed. ⁴⁷⁰ Mr. Spencer: Specifically under Subparagraph (e). The Court: What that says is, sexual assault means cunnilingus, which is not alleged, fellatio, which is not alleged, and anal intercourse.

But it does not include vaginal intercourse. Emission of semen is not required. Penetration, however slight, is evidence of anal intercourse. We are not dealing with that.

Sexual acts also means penetration, however slight, by any object into the anal [or genital] area if the penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party and if the penetration is not for accepted medical purposes. That would be where you would rely. Mr. Spencer: Yes. The Court: Tell me why, Mr. Aarons, why the State hasn’t made a prima facie case on the latter part of that definition.” (emphasis supplied).

The Legal Effect of the Rethinking On the basis of that revised thinking, the court then belatedly denied the appellant’s Motion for Judgment of Acquittal as to a sexual offense in the first degree, as well as denying the motion as to the other charges. The problem is that that correction of course came too late as far as the first-degree offense was concerned. It was the holding of Brooks v. State, 299 Md. 146, 151-153 , 472 A.2d 981 (1984) that once a judgment of acquittal as to a certain count has actually been rendered, no matter how erroneously, the court cannot subsequently change its mind. See also Pugh v. State, 271 Md. 701 , 319 A.2d 542 (1974); Daff v. State, 317 Md. 678, 684 , 566 A.2d 120 (1989).

Indeed, the State concedes that it was error for the trial court to have denied the Motion for Judgment of Acquittal as to the first-degree sexual offense after once having granted it. Accordingly, that judgment of conviction on that charge will have to be reversed. ⁴⁷¹ The Possible Further Repercussions The appellant goes further, however, and urges that the admittedly mistaken judgment of acquittal on the first-degree sexual offense necessarily compels a similarly erroneous verdict with respect to the second-degree sexual offense. We do not agree. When we look, for double jeopardy purposes, at the possibly preclusive effect of one verdict on another, we look at one or the other of two possibly preclusive agents or instrumentalities.

The preclusive agent will be either 1) the judgment itself or 2) the necessary fact finding, if it can be discerned, that explains the judgment. The appellant is attempting to combine the two, but they do not combine. It must be one or the other. When we look to the possibly preclusive effect of a judgment per se, we are applying principles of res judicata or former jeopardy.

We are concerned with the necessary legal implications of the judgment in a starkly mechanical fashion, quite aside from any concern with what the judgment-rendering judge or verdict-rendering jury may actually have had in mind. In terms of inevitable legal implications, a judgment of acquittal on a greater inclusive offense does not necessarily preclude a subsequent judgment of conviction for a lesser included offense. The converse, of course, is not true. A judgment of acquittal on a lesser included offense would preclude a subsequent conviction on the greater inclusive offense.

The logic, however, is one-directional. To fail to prove “a part of the whole” logically precludes a subsequent proving of “the whole.” A failure to prove “the whole,” however, does not logically preclude a subsequent proving of “a part of the whole.” The acquittal, which could not be revoked, only for a first-degree sexual offense not accompanied by an acquittal for a second-degree sexual offense established, as a matter of law, only that the State had failed to show, and was thereafter precluded from showing, the existence of one of the aggravating factors that might raise a sexual offense from the second degree to the first degree. That, we know, is not what was ⁴⁷² going through the mind of the trial judge, but our knowledge of why he did what he did is immaterial. In terms of res judicata or former jeopardy, the judgment of acquittal speaks for itself as a matter of law.

The precipitous, but binding, judgment of acquittal established only that the aggravating factors attending a sexual act that might raise a sexual offense from the second degree to the first were removed forever from the universe of possible verdicts in this case. The fact that the trial judge, in rendering that judgment, may not even have been considering those aggravating elements is of no consequence. The judgment itself removed them from any further consideration as a matter of law. Our probing for the probable rationale of the judgment, on the other hand, is an exercise that we indulge only when we enter the very different realm of collateral estoppel.

The fact finding that enters into a verdict or a judgment and that may, when we are privy to it, explain that verdict or judgment, is simply not an aspect or a concern of res judicata or former jeopardy. It is the concern exclusively of collateral estoppel. When operating in that very different world, our focus changes. We become totally unconcerned with the legal effect of a judgment and confine our interest exclusively to