Butler v. State

MOYLAN, Judge. The indispensable key to understanding the law of double jeopardy is to understand that there is no law of double ⁵¹⁷ jeopardy. This is not to say, however, that there are not many laws of double jeopardy. Double jeopardy, though it once was, is no longer a single species of legal doctrine.

It is, now at least, an entire category; a genus embracing within its ever-widening folds no less than five distinct species: 1) former acquittal, 2) former conviction, 3) simultaneous jeopardy, 4) mistrial/retrial, and 5) collateral estoppel — each tracing back to a different origin, each serving a different purpose, each with a different set of implementing rules. The title “double jeopardy,” moreover, is periodically invoked by false claimants, such as the non-double jeopardy look-alikes of dual sovereignty 1 and enhanced punishment 2 and by the double jeopardy reject of compulsory joinder or “same transaction.” 3 An unfailing compass through the resulting maze of at-times bewildering and frequently contradictory rules and pronouncements is the constant admonition “Think plural.” The Present Case Upon this appeal, Michael Butler relies exclusively upon the collateral estoppel sub-variety of the double jeopardy family of defenses. Collateral estoppel, to an extent not shared by true double jeopardy or res judicata, is stubbornly fact-bound. When looking at a first juridical event to ⁵¹⁸ determine its impact upon a pending second juridical event, we are concerned not with the legal implications of the first event, as we would be in the true double jeopardy or res judicata context, 4 but only with findings of fact actually or almost certainly made by lay fact finders.

We are indifferent to whether those findings were logical or internally consistent. Our exclusive concern is with, to the extent we can discern it, what was found as a matter of fact and not with what might have been found or what should have been found. Butler initially went to trial in the Circuit Court for Howard County before a jury presided over by Judge Raymond J. Kane, Jr. He was charged with having been one of two assailants who together, during the early morning hours of August 12, 1989, made a murderous attack on each of two victims. The other assailant, concededly the triggerman, was Kent Tilghman. 5 The victim Sherman Chenault died of two gunshot wounds to the neck and head.

The victim Sharrell Hudson, girlfriend of the murdered Chenault, was shot in the face, suffering a fractured jaw as a result. At his first trial, some of the charges against Butler for the attack on Chenault produced jury verdicts. As a result of those verdicts, other unresolved charges relating to the attack on Chenault were disposed of by applying traditional double jeopardy precepts. All of the charges relating to the attack on Sharrell Hudson, on the other hand, were left unresolved by a hung jury.

Prior to the scheduled retrial on those charges, Butler interposed the plea in bar of ⁵¹⁹ collateral estoppel. Judge Cornelius P. Sybert, Jr. denied the plea and this interlocutory appeal followed. 6 The Factual Background The murder victim Sherman Chenault was dealing in drugs. On the fateful night, his attempted purchase of drugs led ultimately to his ambush and murder. Sharrell Hudson, who was simply along for the ride, was a random victim.

Chenault, incidentally, had just been released from prison several weeks earlier. On the afternoon of August 11, Chenault had been at Sharrell Hudson’s house from approximately 4:30 P.M. onward. By telephone, he had arranged to meet with Kent Tilghman at 10 P.M. that evening at a McDonald’s restaurant on Security Boulevard. After the meeting was arranged, Ms. Hudson saw Chenault in the bedroom taking “a whole lot of money” out of a metal box and counting the money.

It was subsequently established that “the money” involved in this case was $17,000. After one abortive attempt to find the restaurant, Chenault returned to Ms. Hudson’s house and got her to go along as navigator. He put a gun and the metal box containing the money into a black vinyl bag, which he then placed in the trunk of his mother’s black Riviera. It was in that Riviera that the ultimate shootings took place.

Ms. Hudson, apparently lacking a baby-sitter, took her five-year-old daughter along with her. On that second expedition, they found both McDonald’s and the would-be sellers. Kent Tilghman had been driven to the rendezvous in a Toyota Célica owned and operated by Darcell Butler, the appellant’s sister. It was arranged that Chenault and his entourage in the Riviera would follow Tilghman and Darcell Butler in the Célica back to the home ⁵²⁰ of the appellant’s mother.

The appellant was present when the two groups arrived at his mother’s house. The appellant and Sharrell Hudson were, it turned out, old acquaintances; Ms. Hudson, incidentally, was inherently suspicious of the appellant and kept a wary eye on him throughout the evening. Chenault took the $17,000 from the metal box and handed it to Tilghman, who placed it in a yellow trash bag. According to Ms. Hudson, the appellant observed this transfer of cash.

Immediately thereafter, Tilghman and the appellant adjourned upstairs for two or three minutes. What then followed seems to have been a scenario arranged for Chenault’s benefit. A beeper contact followed by a telephone contact was ostensibly made with Tilghman’s brother, Milton Tilghman, who was presumably setting up the time and place for the actual delivery of the drugs that Chenault had just constructively purchased. When the last signal apparently came in at about midnight, all concerned parties headed for the rendezvous in two separate cars.

While waiting for the telephoned communications to come in, Kent Tilghman had made several trips to or out the door, apparently with Sherman Chenault. Just preceding one such trip, the appellant was observed by Ms. Hudson looking out the door. By process of elimination, it appears likely that the yellow trash bag containing $17,000 had ended up in the trunk of the Toyota Célica before the group departed the elder Mrs. Butler’s home. Sherman Chenault drove his Riviera, with girlfriend Sharrell Hudson in the right front seat, with drug seller Kent Tilghman in the rear passenger compartment, and with Ms. Hudson’s daughter in the back with Tilghman.

The appellant Butler followed, alone in his sister’s Célica. The two cars drove to the 6600 block of Waning Moon Way in the Village of Owen Brown in Columbia. Kent Tilghman directed Chenault to pull into the parking lot of an apartment complex. The appellant Butler remained poised in the Célica on the road leading into the parking lot.

How the appellant came to be piloting the auxiliary vehicle had evidentiary significance. According to the ap ⁵²¹ pellant, he and his wife simply wanted Kent Tilghman to give them a ride home from the elder Mrs. Butler’s house to their own home in Baltimore. Kent Tilghman, however, conditioned the providing of a ride home upon the appellant’s willingness to drive out to Columbia in the auxiliary vehicle and then to chauffeur Kent Tilghman back to the departure point. Despite the logistical asymmetries of both time and distance, the appellant agreed.

Why no one else, such as his sister Darcell, could have driven him and his wife home was not explained. Why it would not have been more logical for Sherman Chenault, who also lived in the Baltimore area, to have driven Kent Tilghman back to Baltimore, after their mutual trip to Columbia, was also not explained, except by the theory that both Kent Tilghman and the appellant knew that Sherman Chenault would, by that time, be dead. The appellant’s driving of the extra car to Columbia arguably had such sinister significance. He was not, at first glance, a logical choice in that the Célica was not his car and in that he did not, moreover, even own a driver’s license.

If the yellow trash bag containing $17,000 was in the trunk of the Célica, however, Kent Tilghman needed a trusted minion at the wheel. The appellant apparently had the qualifications. He and Kent Tilghman had served time together in a correctional facility in Hagerstown. The appellant had served eight years for robbery.

Tilghman, furthermore, was romantically involved with the appellant’s sister Darcell. After Kent Tilghman and the appellant had their brief meeting upstairs at the Butler home, the appellant did not even have to ask to borrow the keys to the Célica. He already had them in his pocket. The fact that the midnight rendezvous was to be in a quiet residential comer of Columbia was also very relevant.

The stated reason given to Sherman Chenault and Sharrell Hudson for the selected rendezvous point was that brother Milton Tilghman, the apparent drug source, ostensibly lived in Columbia. Extensive records checks by the Howard County police, however, turned up no connection of any sort ⁵²² between anyone named Milton Tilghman and the town of Columbia or any other location in its vicinity. There was a Milton Tilghman, on the other hand, living in Baltimore. The appellant, significantly, acknowledged that he, as part of a job he had once had installing pools, had worked on a job not only in Columbia generally but in the small Village of Owen Brown specifically.

The appellant, inferentially, knew the remote area selected for the execution. As they came to a halt in the Village of Owen Brown but with the motor still running, Chenault asked Tilghman if his brother was there yet. Tilghman replied, “No, not yet” and immediately began shooting. Ms. Hudson did not see a gun but felt a sharp pain on the left side of her head.

Chenault’s body fell on top of her. She heard car doors shutting and a car drive away. She looked up and saw that the Célica was gone. She was able to get her daughter out of the car and to knock on the door of an adjacent apartment.

The police and an ambulance responded to the scene. The First Set of Verdicts After the uneventful granting of a motion for judgment of acquittal on Count 7, charging the transportation of a handgun, eight charges contained in seven counts remained against the appellant. Pour of them involved the attack on Sherman Chenault. The jury reached a verdict on two of the charges and was hung on the other two: Attack on Sherman Chenault Count 1 (1st Degree Murder) — Hung Count 1 (Second Degree Murder) — Not Guilty Count 3 (Use of Handgun) — Hung Count 8 (Accessory After Fact) — Guilty The apparent anomaly between a hung jury on first degree murder and an acquittal on second degree murder is readily explainable.

The evidence, the State’s closing argument and the judge’s instructions on the alternative theory of felony-murder all highlighted the State’s primary reliance on felony-murder perpetrated in the course of an ⁵²³ armed robbery. The murderous mens rea under that theory does not entail any intent to kill at all but only the intent to perpetrate the underlying felony. Any co-felon, including the appellant seated behind the wheel of the getaway car, would thus be endowed with a murderous mens rea even if he never remotely contemplated that a killing would take place. Second-degree murder, by contrast, requires the specific intent either to kill or to commit grievous bodily harm against the victim.

Although second-degree murder of the intent-to-kill variety is thereby a lesser, included offense subsumed within premeditated murder, it is not a lesser included offense within felony-murder. Thus, the acquittal for second-degree murder is in no way inconsistent with the jury’s irresolution on felony-murder; nor, under double jeopardy principles, does it have any foreclosing effect on further proceedings with respect to felony-murder. That acquittal of second-degree murder was a non-factor in what followed. Wooten-Bey v. State, 67 Md.App. 606 , 508 A.2d 1010 (1986); Wooten-Bey v. State, 308 Md. 534 , 520 A.2d 1090 (1987).

And see Huffington v. State, 302 Md. 184 , 486 A.2d 200 (1983). The other four charges arose out of the attack on Sharrell Hudson. The jury was hung on all four charges: Attack on Sharrell Hudson Count 2 (Assault to Murder) Hung Count 4 (Use of Handgun) Hung Count 5 (Assault) Hung Count 6 (Battery) Hung The Double Jeopardy Plea When the State indicated its intention of retrying him on the six charges that had resulted in mistrials, the appellant interposed the plea in bar of double jeopardy. His argument was based upon the theory that the conviction for being an accessory-after-the-fact to the murder of Chenault had established, as a matter of law, that the appellant could not have been a principal in the murder.

Osborne v. State, 304 Md. 323 , 327 n. 3, 499 A.2d 170 (1985); Hawkins v. ⁵²⁴ State, 87 Md.App. 195 , 200-201 n. 8, 589 A.2d 524 (1991). 7 With respect to the two remaining charges involving the attack on Sherman Chenault, Judge Sybert granted the motion to dismiss, apparently on grounds of traditional double jeopardy. It is unnecessary for us to analyze the propriety of that ruling. That disposition with respect to the charges involving Chenault was, in any event, of no influence on the other charges involving Sharrell Hudson. One overarching principle of double jeopardy law is that with respect to crimes against the person involving multiple victims, each victim is, for double jeopardy computations, a separate unit of prosecution.

Thus, none of the charges from the package of crimes against Sherman Chenault is remotely the “same offense” as any of the charges from the separate package of crimes against Sharrell Hudson. When the “same offense” is not involved, the law of double jeopardy is not involved, with the single and exclusive exception of its shadowy, interloping, post-1970 poor relation called collateral estoppel. Lest the analysis become shamefully muddied, therefore, from this point on in any appellate opinion, no double jeopardy principle and no double jeopardy precedent should be invoked unless it be one dealing explicitly and exclusively with collateral estoppel as such. This is only a collateral estoppel case and no other aspect of double jeopardy is involved. ⁵²⁵ A Shaky Pedigree: The Rush to Federalization It is not to demean the importance of the collateral estoppel protection in a criminal setting to point out that its Fifth Amendment pedigree, and thereby its status as a part of double jeopardy law, is exceedingly suspect.

Collateral estoppel, as a first cousin of res judicata, is a legal doctrine furthering the interest in finality that had its origins in civil practice. The Supreme Court first applied the doctrine in the context of a criminal case in 1916 in United States v. Oppenheimer, 242 U.S. 85 , 37 S.Ct. 68 , 61 L.Ed. 161 (1916). The opinion of Justice Holmes disclaimed any reliance on the Fifth Amendment and, in doing so, rejected the government’s argument that the Fifth Amendment Double Jeopardy Clause necessarily exhausts the panoply of protections available to a criminal defendant. The Supreme Court held that the enunciation of certain constitutional protections in the Double Jeopardy Clause did not imply that other protections, brought over from civil law, were not also available: “The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could.

But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice ...” (citation omitted). 37 S.Ct. at 69 . Our present point is that although collateral estoppel became a valuable protection as part of federal criminal law, it was not a part of double jeopardy law. Indeed, the Double Jeopardy Clause guards against a person being placed twice in jeopardy of life or limb “for the same offense.” Collateral estoppel does not involve double exposure for the same offense. If it did, it would be called “direct estoppel” and not “collateral estoppel.” Cook v. State, 281 Md. 665, 668 , 381 A.2d 671 (1978).

By definition, it deals with the possibly foreclosing effect of an earlier adjudication of a “different offense.” ⁵²⁶ The Supreme Court further developed its collateral estoppel protection in a criminal context in Collins v. Loisel, 262 U.S. 426 , 43 S.Ct. 618 , 67 L.Ed. 1062 (1923); Sealfon v. United States, 332 U.S. 575 , 68 S.Ct. 237 , 92 L.Ed. 180 (1948); United States v. Williams, 341 U.S. 58 , 71 S.Ct. 595 , 95 L.Ed. 747 (1951) and Yates v. United States, 354 U.S. 298 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 (1957). In none of those opinions did the Supreme Court give the slightest intimation that the constitutional law of double jeopardy was remotely involved. In the Collins v. Loisel opinion, Justice Brandéis pointed out that the protection extended did not arise out of double jeopardy law and that the Double Jeopardy Clause “was not intended to supplant the fundamental principle of res judicata in criminal cases.” 262 U.S. at 430 , 43 S.Ct. at 619 . The point again is not that the protection did not exist but simply that it was not an aspect of double jeopardy protection.

In Sealfon v. United States, Justice Douglas expressly stated that the collateral estoppel protection was applicable even though the Double Jeopardy Clause was not. How then did this relatively extensive body of doctrine that traditionally had been separate and distinct from double jeopardy become miraculously transformed into an aspect of double jeopardy? The fortunes of the doctrinal pedigree were wrapped up in the larger fortunes of the massive federalization of criminal procedure that occurred between 1960 and 1970. Hoag v. New Jersey, 356 U.S. 464 , 78 S.Ct. 829 , 2 L.Ed.2d 913 (1958), was the first attempt to make the federal collateral estoppel law apply to a state criminal prosecution.

The Supreme Court acknowledged that the petitioner had no legitimate double jeopardy claim. “At the outset it should be made clear that Petitioner has not been twice put in jeopardy for the same crime.” 356 U.S. at 466 , 78 S.Ct. at 832 . The Supreme Court had serious reservations about whether its collateral estoppel law, even as a part of general due process, was of constitutional dimension: ⁵²⁷ “Despite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly this Court has never so held.” 356 U.S. at 471 , 78 S.Ct. at 834 . In Hoag , the Supreme Court ultimately declined to hold that its collateral estoppel protection was a part of fundamental due process and, therefore, binding upon the states.

Twelve years after Hoag v. New Jersey, Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), presented a factual situation that was indistinguishable from Hoag. The primary change between 1958 and 1970 was in the makeup of the Court. If federal collateral estoppel law applied, the defendant, Ashe, would clearly prevail. As a matter of general due process, however, the Court was obviously reluctant to overturn a precedent but twelve years old.

One opportunity presented itself. A year earlier, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), had overruled Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937), and held for the first time that the Double Jeopardy Clause of the Fifth Amendment was part of the due process of law guaranteed by the Fourteenth Amendment against State action. Incorporated into the Fourteenth Amendment, thereby, was not simply the core principle of double jeopardy but all of the federal case law over the years that had interpreted and implemented the Double Jeopardy Clause. If, therefore, federal collateral estoppel law were deemed to have been historically a part of the federal double jeopardy protection, it would ipso facto become binding on the states with no necessity of overruling Hoag v. New Jersey.

It could be incorporated indirectly rather than directly. The analysis by which the Supreme Court then overturned 54 years of precedent, including disclaimers from such Olympians as Holmes and Brandéis that collateral estoppel was not double jeopardy, was casual to the point of being cavalier: ⁵²⁸ “The ultimate question to be determined, then, ... is whether this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy. We do not hesitate to hold that it is. For whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to 'run the gantlet’ a second time.” (footnote and citations omitted) (emphasis supplied). 397 U.S. at 445-446 , 90 S.Ct. at 1195 .

The nonchalant, almost ipse dixit tone of so significant a holding occasioned the outraged cry of Chief Justice Burger in dissent: “[T]he only expressed rationale for the majority’s decision is that Ashe has ‘run the gantlet’ once before. This is not a doctrine of the law or legal reasoning but a colorful and graphic phrase, which, as used originally in an opinion of the Court written by Mr. Justice Black, was intended to mean something entirely different. The full phrase is ‘run the gantlet once on that charge ... ’; it is to be found in Green v. United States, [ 355 U.S. 184, 190 , 78 S.Ct. 221, 225 , 2 L.Ed.2d 199 ] (1957), where no question of multiple crimes against multiple victims was involved____ This Court held nothing more than that Green, once put in jeopardy — once having ‘run the gantlet ... on that charge’ — of first degree murder, could not be compelled to defend against that charge again on retrial. Today’s step in this area of constitutional law ought not to be taken on no more basis than casual reliance on the ‘gantlet’ phrase lifted out of the context in which it was originally used.

This is decision by slogan.” (citation omitted) (emphasis in original) (emphasis supplied). 397 U.S. at 465 , 90 S.Ct. at 1205 (dissenting opinion by Burger, C.J.). 8 ⁵³⁰ The point to be made in recounting this constitutional revisionism is that when two or more distinct bodies of doctrine — stemming from different origins, serving differ ⁵³¹ ent albeit related purposes, and implemented by different rules — are generically labeled with the same “umbrella term,” there arises the recurring semantic danger that a statement in the case law, correct in its original context of one variety of double jeopardy law, may be randomly misapplied to some other variety where it does nothing but generate confusion. This is why any discussion of collateral estoppel should meticulously confine itself to nothing but collateral estoppel cases. Collateral Estoppel Under Maryland Common Law Maryland has also long recognized the collateral estoppel defense as one available in a criminal trial as part of the common law of this state. It was always recognized, however, as something separate and distinct from the common law of double jeopardy in this state.

Cook v. State, 281 Md. 665 , 668 n. 2, 381 A.2d 671 (1978) (“Appellant alleges no double jeopardy violation in the present case.”); Rouse v. State, 202 Md. 481, 484-485 , 97 A.2d 285 (1953) (“The appellant concedes expressly that former jeopardy would not prevent his conviction in the present case, because that defense can be invoked only when the crimes are the same in law and in fact.”); Scarlett v. State, 201 Md. 310, 318-319 , 93 A.2d 753 (1953); State v. Coblentz, 169 Md. 159, 164 , 180 A. 266 (1935) (“The defendant does not contend that a plea of former jeopardy could be interposed in this case, nor could it be, for the statutory offenses for which the defendant was indicted are so dissimilar as not to justify such a plea.”). Indeed, on three earlier occasions collateral estoppel-type arguments were raised under the rubric of double jeopardy and were soundly rejected. Gilpin v. State, 142 Md. 464 , 121 A. 354 (1923); Novak v. State, 139 Md. 538 , 115 A. 853 (1921); Watson v. State, 105 Md. 650 , 66 A. 635 (1907). In any event, it is not the narrow Maryland version of comfortable 19th Century double jeopardy law but the vastly distended federal version that now commands our attendance. ⁵³² The Federal Case Law The Supreme Court, since Ashe v. Swenson, has considered collateral estoppel on six occasions. 9 Three of those were summary dispositions rendered by per curiam opinions.

Simpson v. Florida, 403 U.S. 384 , 91 S.Ct. 1801 , 29 L.Ed.2d 549 (1971) (although a defendant may rely on an earlier acquittal to invoke collateral estoppel at the subsequent trial of a closely related offense, the State may not rely on an even earlier conviction to cancel out the decisional impact of the intervening acquittal); Harris v. Washington, 404 U.S. 55 , 92 S.Ct. 183 , 30 L.Ed.2d 212 (1971) (evidentiary error arguably leading to an earlier acquittal does not preclude defendant from relying on that acquittal for collateral estoppel purposes); Turner v. Arkansas, 407 U.S. 366 , 92 S.Ct. 2096 , 32 L.Ed.2d 798 (1972) (doctrine of collateral estoppel applies even when state procedural rules precluded joining all charges against a defendant in a single trial). ⁵³³ The two cases of One Lot Emerald Cut Stones v. United States, 409 U.S. 232 , 93 S.Ct. 489 , 34 L.Ed.2d 438 (1972), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 , 104 S.Ct. 1099 , 79 L.Ed.2d 361 (1984), both dealt, for purposes of their collateral estoppel analysis, with the distinction between the criminal and civil burdens of persuasion. 10 Both cases held that an earlier acquittal on a criminal charge would not collaterally estop a subsequent civil forfeiture proceeding notwithstanding the fact that the forfeiture would depend upon the establishment of facts already decided in the defendant’s favor in the criminal trial. The holdings were that the failure of the prosecution, in a criminal trial, to prove a fact beyond a reasonable doubt did not necessarily establish that the fact in issue may not well have been proved at least by a preponderance of the evidence, all the persuasion that is required for a forfeiture. 11 See in this regard, Dunn v. State, 65 Md.App. 637, ⁵³⁴ 644-647 , 501 A.2d 881 (1985) (One strong reason, among others, that an acquittal in a criminal trial does not collaterally estop the State from proving a probation violation based upon the same alleged criminality is that the finding of a violation may be based upon a lower standard of persuasion than is required for the criminal conviction). Dowling v. United States, 493 U.S. 342 , 110 S.Ct. 668 , 107 L.Ed.2d 708 (1990), was the first Supreme Court decision since Ashe v. Swenson to provide a plenary examination of collateral estoppel principles. Ashe and Dowling together represent, effectively speaking, the sum total of collateral estoppel law in its new, constitutional manifestation.

The core meaning was stated by Ashe v. Swenson, 397 U.S. at 443 , 90 S.Ct. at 1194 : “[WJhen [1] an issue of ultimate fact has [2] once been determined by [3] a valid and final judgment, that issue cannot again be litigated [4] between the same parties in any future lawsuit.” (emphasis supplied). “Ultimate Fact” Versus “Evidentiary Fact” The first question that arises is that of what is “an issue of ultimate fact?” Every fact that a defendant has ⁵³⁵ once had litigated in his favor is not constitutionally shielded from being relitigated against him a second time around. Some facts, however, are so shielded. The requirement is that they be “ultimate.” The availability of the collateral estoppel defense in Ashe and the unavailability of that defense in Dowling effectively bracket the target of “an issue of ultimate fact.” Bob Ashe, and others, allegedly pulled off an armed holdup of an all-night poker game, relieving six separate poker players of money and other property. Ashe went to trial initially for the robbery of one of the victims.

The only trial issue was that of his criminal agency. The eyewitness identification was exceedingly shaky. A jury returned a verdict of not guilty. When the State subsequently sought to try Ashe for the robbery of one of the other poker players, he interposed the plea of collateral estoppel.

To prove him guilty of the second robbery, it would have been necessary to prove that he was there at the robbery scene. The only explanation for the earlier acquittal, however, was that the first jury had necessarily concluded, as a matter of fact, that he was not there. Having received the benefit of a determination in the trial of one offense that he had not been at the crime scene, he sought to bar the State from relitigating that fact against him at the trial of a different offense. He succeeded.

Absent some theory of constructive participation not there pertinent, presence at the crime scene was “an issue of ultimate fact.” Reuben Dowling also received the benefit of an initial determination of fact in his favor. He was tried, in the Virgin Islands, for the armed robbery of Ms. Vena Henry. He was acquitted. He was subsequently tried for the armed robbery of a bank, which had occurred several weeks before the robbery of Ms. Henry.

Because of a retrial necessitated by an earlier hung jury, however, the bank robbery trial in issue came after the trial for the Vena Henry robbery. At the bank robbery trial, the government introduced the testimony of Ms. Henry describing, in some ⁵³⁶ detail, Dowling’s robbery of her. Various circumstances— the wearing of a similar ski mask, the carrying of a similar gun, the association with a confederate named Delroy Christian — were a common denominator of the two robberies. Ms. Henry was able to make a better identification of Dowling, moreover, than were the eyewitnesses from the bank.

Understandably, Dowling was chagrined at having offered against him testimony of a crime for which he had been acquitted. The Supreme Court held, for several reasons, that collateral estoppel did not bar the introduction of Vena Henry’s testimony. His participation in the robbery of her — the issue of fact that he sought to have barred from relitigation — was not an issue of ultimate fact at the trial of the bank robbery (although it had, of course, been an issue of ultimate fact at the earlier trial). It was simply an “evidentiary fact” offered, as “other crimes” evidence, to strengthen the identification of him as the bank robber.

Collateral estoppel does not bar the relitigation of all factual issues. It is required that the issue as to which preclusion is sought be one of ultimate fact. The Supreme Court was very clear as to this limitation on the collateral estoppel doctrine, holding at 493 U.S. at 348 , 110 S.Ct. at 672 : “[U]nlike the situation in Ashe v. Swenson, the prior acquittal did not determine an ultimate issue in the present case. This much Dowling concedes, and we decline to extend Ashe v. Swenson and the collateral-estoppel component of the Double Jeopardy Clause to exclude in all circumstances, as Dowling would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” In Simms v. State, 83 Md.App. 204, 213-216 , 574 A.2d 12 (1990), the defendant at an earlier sentencing proceeding had received the benefit of a trial judge’s fact finding that the evidence of a prior conviction was legally insufficient and that that conviction could not, therefore, be used for ⁵³⁷ sentence enhancing purposes.

Following a separate conviction in another county, the State sought to prove that same prior conviction against the defendant for purposes of sentence enhancement. We held that the existence of the earlier conviction was not an issue of ultimate fact capable of engaging the gears of collateral estoppel. 12 In Cook v. State, 281 Md. 665 , 381 A.2d 671 (1978), the Court of Appeals held that an earlier suppression ruling in a defendant’s favor did not collaterally estop the State from relitigating that same search and seizure as a predicate for submitting evidence at a subsequent trial of another offense. At the trial for armed robbery, the constitutional propriety of an antecedent search for evidence was a mere evidentiary fact and not an issue of ultimate fact. The appellant, Michael Butler, satisfies this requirement of the collateral estoppel defense.

He claims that his conviction at the first trial as an accessory-after-the-fact established that he did not aid and abet Kent Tilghman as a principal in the second degree but only came to the aid of Tilghman after the fact of the murderous attacks. Whether the appellant can persuade us that the jury necessarily found this as a matter of fact is yet to be determined. For immediate purposes for this aspect of the analysis, however, the “fact” urged upon us is indeed an issue of ultimate fact. Upon the retrial of the appellant for the murderous assault upon Sharrell Hudson, the State is relying upon the theory not that the appellant was the triggerman but that the appellant was a principal in the second degree, aiding and abetting Kent Tilghman.

The arguable fact that the appellant did not aid and abet Kent Tilghman is, by definition, an issue of ultimate fact, the relitigation of which the appellant seeks to have estopped. On this aspect of collateral estoppel, the appellant qualifies. ⁵³⁸ What Is “A Valid and Final Judgment”? One of the requirements is that there have been an earlier determination in a defendant’s favor made by a “valid and final judgment.” A “valid and final judgment” contemplates that “the earlier proceeding must have ended with a final judgment or ‘final determination’ of the issue.” Bowling v. State, 298 Md. 396, 402 , 470 A.2d 797 (1984); Cousins v. State, 277 Md. 383, 398 , 354 A.2d 825 (1976). “[N]o estoppel can be based upon an informal probation-like disposition which involved neither verdict nor judgment.” LaFave and Israel, Criminal Procedure (1985), § 17.4 at 676. The entry in a criminal case of a nol pros by the State, for instance, has been held by us in Mitchell v. State, 44 Md.App. 451, 456-460 , 409 A.2d 260 (1979), to be “a premature termination [that] does not suffice to trigger the ‘constitutionalized’ doctrine of collateral estoppel.” 44 Md.App. at 460 , 409 A.2d 260 .

Judge (now Chief Judge) Wilner analyzed this inadequacy of the nol pros as a trigger at 44 Md.App. 459 -460, 409 A.2d 260 : “We are aware of no instance in which the doctrine has been held triggered by a nol pros. As the Supreme Court pointed out in Ashe, collateral estoppel is a doctrine that arose in the civil, rather than the criminal, law; and it is therefore not inappropriate to look at how the doctrine has been viewed and applied in civil cases. The touchstone of the doctrine in the civil law is the requirement that the earlier determination — that which forms the basis of the estoppel — be a judgment on the merits; and in that context, it has generally been held that a judgment for the defendant entered upon a voluntary nonsuit, nolle prosequi, or non prosequitur is not a judgment on the merits and does not bar a subsequent action. The reason for this is evident from the very nature of a nonsuit, a voluntary dismissal.

It terminates the action prior to a decision on the merits. The case is ended without the adjudication of disputed facts necessary to ⁵³⁹ render a judgment on the merits. This is equally true with a nol pros entered in a criminal case. Although if entered after jeopardy attaches and without the defendant’s consent, it serves as an acquittal and, by virtue of traditional double jeopardy principles bars reprosecution for the same offense, it nevertheless, like its cousin the nonsuit, terminates the cause without an adjudication of disputed facts.

The defendant is deemed acquitted and the imputation of guilt is removed, but there has been no adjudication that he did not commit the offense alleged.” (emphasis in original) (citations omitted). In Stevens v. State, 34 Md.App. 164, 169-171 , 366 A.2d 414 (1976), we held that a determination of Probation Before Verdict was not the type of valid and final judgment that could activate collateral estoppel. In Perkins v. State, 26 Md.App. 526, 528-529 , 339 A.2d 360 (1975), we held that the starting point for collateral estoppel was “an issue previously determined by a valid and final judgment” and that “[a] preliminary hearing is obviously not a final judgment in any sense.” Findings and rulings made at a suppression hearing do not qualify as valid and final judgments. Cook v. State, 281 Md. 665, 668-670 , 381 A.2d 671 (1978) (“[I]t is widely agreed that exclusionary orders resemble mere evidentiary rulings, interlocutory in nature and hence are intrinsically non-final.” Id. at 670 , 381 A.2d 671 ).

In Ohio v. Johnson, 467 U.S. 493 , 500 n. 9, 104 S.Ct. 2536 , 2541 n. 9, 81 L.Ed.2d 425 , 434 n. 9 (1984), the Supreme Court observed that: “[T]he taking of a guilty plea is not the same as an adjudication on the merits after full trial, such as took place in Ashe v. Swenson.” Hoag v. New Jersey, 356 U.S. 464, 470 , 78 S.Ct. 829, 834 , 2 L.Ed.2d 913, 919 (1958) (quoting Restatement, Judgments, § 68(1)), captured the essence of this requirement of an actual decision on the ultimate merits with its use of the phrase “actually litigated”: ⁵⁴⁰ “A common statement of the rule of collateral estoppel is that ‘where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action.’ ” (emphasis supplied). Thus, such adjudicatory phenomena as the entry of a nol pros, the awarding of probation before verdict, the determination in a preliminary hearing that no probable cause exists to hold a defendant, the ruling on a constitutional issue at a suppression hearing, and the taking of a guilty plea are not valid and final judgments within the particular contemplation of collateral estoppel law. Some of these adjudicatory phenomena, to be sure, may have binding legal effect in the context of res judicata or traditional double jeopardy law. They do not, however, have binding fact-finding effect within the very different context of collateral estoppel law.

Once again, the appellant here qualifies. The triggering event he relies upon was the jury verdict of guilty on the charge of being an accessory after the fact to murder, finalized by the sentence. That was “a valid and final judgment.” There is, to be sure, a bit of “reverse English” on the triggering event here, for the appellant is relying, atypically, upon a conviction rather than an acquittal. Because the triggering event for collateral estoppel is so frequently an earlier acquittal, much of the case law has fallen into the easy linguistic habit of referring to the necessary activating event as an “acquittal.” See, e.g., Powers v. State, 285 Md. 269, 283-284 , 401 A.2d 1031 (1979) (emphasis supplied).

(“Thus, the primary purpose of the doctrine of collateral estoppel is to protect an accused from the unfairness of being required to relitigate an issue which has once been determined in his favor by a verdict of acquittal”) Such references, however, are nothing more than careless language. ⁵⁴¹ The earlier ruling, as a matter of course, must be considered by wily counsel to be “a ruling in the defendant’s favor” now or he would not invoke it. It need not necessarily have been in the defendant’s favor when made, however. “In one’s favor,” moreover, is a relative notion that may shift with the tides. One seeks to make the best of even a bad situation. A verdict of guilty of manslaughter, for instance, is not in one’s favor, compared to going free.

It is most definitely in one’s favor, however, compared to a verdict of guilty of first-degree murder. Thus, the appellant now seeks to find, as he may, some present utility in his earlier conviction as an accessory after the fact. Judge Adkins addressed just such a situation in Robinson v. State, 307 Md. 738, 742 , 517 A.2d 94 (1986): “The State counters by contending that in the criminal context a defendant may raise the bar of collateral estoppel only when an ‘issue of ultimate fact’ has been determined in her favor by an acquittal. Since Robinson was convicted of assault with intent to disable, says the State, she cannot raise collateral estoppel.

We reject the State’s position. Although both Ashe and Powers