Mitchell v. State

Wilner, J., delivered the opinion of the Court. On March 4, 1977, three men armed with at least one handgun entered the Knotty Pine Bar and Grill, a tavern owned by Viola and Burton Foote. They proceeded then (1) to take currency and cheeks from the tavern cash register and safe, from Viola Foote’s purse, and from Marcus Gantt, a customer who entered the establishment while the robbery was in progress, (2) to shoot and kill John Bishop, an employee of the tavern, (3) to shoot and wound Burton Foote, and (4) to hit Viola Foote on the head with a gun. The three assailants were subsequently identified as Walter West, Tony Mitchell, and Farrakhan Bey.

As a result of this eipsode, a series of multi-count indictments were returned against West, Mitchell, Bey, and one Richard Bresee, who had allegedly conspired with the first three to commit the Knotty Pine robbery but had not actually participated in its commission. The indictments against Mitchell were as follows: (1) No. 18,118 charged eight crimes involving John Bishop: murder, robbery with a deadly weapon (hereafter “armed robbery”), assault and battery, use of a handgun in the commission of a felony or crime of violence (hereafter “handgun violation”), and four counts of conspiracy. (2) No. 18,121 charged sixteen crimes involving Burton Foote: armed robbery, larceny, receiving stolen goods, handgun violation, four counts of assault, and eight counts of conspiracy. ⁴⁵³ (3) No. 18,124 charged the same sixteen crimes as No. 18,121, with respect to Viola Foote. (4) No. 18,134 charged twelve crimes involving Marcus Gantt: armed robbery, larceny, receiving stolen goods, handgun violation, two counts of assault, and six counts of conspiracy.

The indictments against the other three — West, Bey, and Bresee — were similar to those returned against Mitchell, but are not particularly relevant to this appeal. On March 6, 1977, a man later identified as Bey coerced Susan Axley at gunpoint to drive him to her home in her car. Bey removed money from her handbag. Upon arriving at the Axley home, Bey forced Thomas Axley, Susan’s husband, to transport him to the water where he took a motorboat belonging to Mrs. Daniel Head.

As a result of this occurrence, Bey was charged under three more indictments — Nos. 18,125,18,126 and 18,137 — for the crimes committed on March 6 against Susan Axley, Thomas Axley, and Mrs. Daniel Head. Over the objection of all four defendants, trials of Bey, West, Mitchell, and Bresee for the March 4 events and trial of Bey for the crimes committed on March 6 were consolidated and held concurrently before the same jury sitting in the Circuit Court for Prince George’s County. At the conclusion of the State’s case — well after jeopardy had attached to each of the four defendants — the State nol prossed & number of counts in each indictment. The remaining counts were subsequently submitted to the jury, which returned a verdict on each of them.

The result, as to Mitchell, was as follows: (1) No. 18,118 (Bishop): all counts except murder and the handgun violation were nol prossed; Mitchell was acquitted of murder and convicted of the handgun violation. (2) No. 18,121 (Burton Foote): all counts except armed robbery, assault with intent to murder, handgun violation, and conspiracy with Bey and West to commit armed robbery were nol prossed; Mitchell was acquitted of assault with intent to murder and convicted of the remaining counts. ⁴⁵⁴ (3) No. 18,124 (Viola Foote): same as No. 18,121 except that the jury convicted on all counts not nol prossed. (4) No. 18,134 (Gantt): all counts except armed robbery, handgun violation, and conspiracy with Bey and West to commit armed robbery were nol prossed; Mitchell was convicted on remaining counts. Bey was convicted on all counts against him that were submitted to the jury, and West and Bresee were also convicted of various crimes.

It is not necessary to catalog the outcome of all the charges against them. All four defendants appealed from the judgments entered upon the guilty verdicts. They alleged numerous grounds for reversal, one of which was the prejudicial joinder of Bey’s trial for the March 6 incidents, which did not involve in any way the other three defendants, with the trial of all four for the March 4 events. This Court, in an unreported per curiam Opinion, West, et al. v. State (No. 1148, Sept. Term, 1977, filed July 13, 1978), reversed all guilty verdicts against all defendants on the sole ground of prejudicial joinder and remanded all cases for new trials.

We specifically did not reach any of the other issues presented in that appeal, concluding that it was not necessary to do so. On remand, in response to various motions, the court (1) denied the motions of Mitchell and Bey to dismiss the indictments on grounds of double jeopardy, (2) granted the State’s motion to consolidate the trial of all defendants with respect to charges emanating from the March 4 incident, and (3) did not decide certain motions to suppress evidence. Mitchell and Bey have taken an immediate appeal from the denial of their motions to dismiss. Such a ruling, although interlocutory in nature, is nevertheless immediately appealable.

See Stewart v. State, 282 Md. 557 (1978). The issues raised by appellants are stated as follows: “I. The acquittal of Appellant Mitchell of murder and assault with intent to murder in indictment #18,118 collaterally estops the State from prosecuting Appellant Mitchell for either the remaining charge in indictment #18,118 or any ⁴⁵⁵ of the other charges arising out of the March 4 incident.

II

The State is barred from further prosecuting Appellants due to the double jeopardy clause of the fifth amendment. A. The Court of Special Appeals Failed to address questions concerning the sufficiency of the evidence. B. The Court of Special Appeals Failed to address questions relating to the overall trial and violations of Appellants’ rights. C. Retrial of Appellants would otherwise subject them to double jeopardy.

D. The duplicitous conspiracy charges against Appellant Mitchell will subject him to double jeopardy.” (1) Retrial of Mitchell on Indictment No. 18,118 As noted, Indictment No. 18,118 contained eight counts, each dealing with a crime perpetrated on John Bishop. Six counts were nol pressed; two were submitted to the jury, which acquitted Mitchell of murder and convicted him of the handgun violation. It is, of course, clear that Mitchell may not be retried either on the murder count, of which he was acquitted, or on the counts that were nolprossedbj the State without his consent; and it does not appear that the State has made any effort to the contrary. The question here is whether he may be retried on the handgun count; and to resolve that question, we must consider the effect of a nol pros, as opposed to a direct acquittal, in terms of the “constitutionalized” doctrine of collateral estoppel.

Conviction of Mitchell on the handgun count in the face of a direct acquittal on all of the underlying felonies or crimes of violence to which that count could relate would clearly have been an inconsistent verdict. When rendered at the same trial, however, such inconsistent verdicts may stand, for, as ⁴⁵⁶ described by the Court in Ford v. State, 274 Md. 546, 552 (1975): (1) “Each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts." (Emphasis supplied), quoting from Williams v. State, 204 Md. 55, 64 (1954); and (2) “Consistency in the verdict is not necessary... “That the verdict may have been the result of compromise, or of a mistake on the part of the jury is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Id., quoting from Dunn v. United States, 284 U.S. 390, 393-394 (1932). The same rationale does not necessarily apply, however, where the inconsistency would arise from separate and successive trials.

Rather than being the possible product of compromise or mistake, an inconsistent verdict rendered after a second trial would involve the relitigation of facts and issues previously decided in the defendant’s favor; and the doctrine of collateral estoppel precludes that from happening. The United States Supreme Court made clear in Ashe v. Swenson, 397 U.S. 436 (1970), that collateral estoppel applies to criminal cases and is of Constitutional dimension. It is “embodied in the Fifth Amendment guarantee against double jeopardy,” 397 U.S. at 445 , and thus binding upon the States through the “due process” clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969); Greene v. Massey, 437 U.S. 19 (1978).

This doctrine, so embodied in the broader concept of double jeopardy, was defined by the Court in these terms, 397 U.S. at 443 : “It [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 ⁴⁵⁷ future lawsuit....” (Emphasis supplied.) See also Simpson v. Florida, 403 U.S. 384 (1971); Harris v. Washington, 404 U.S. 55 (1971). The Court of Appeals said of this doctrine in Powers v. State, 285 Md. 269 (1979), that “The primary purpose of the doctrine of collateral estoppel ... is to avoid compelling an accused to prove his innocence to two or more juries. More precisely, the doctrine's purpose is to avoid compelling relitigation of a fact material to the question of innocence when it appears substantially certain that a jury has already decided that fact in the accused’s favor.” 285 Md. at 287 . (Emphasis supplied) and ..

If the jury in the second trial were to convict on the related offense, inconsistent verdicts in successive trials would result— an acquittal on one count in the first trial and, in the second trial, a conviction on the related count having a common issue of ultimate fact essential to conviction. Under established collateral estoppel principles, such a result is impermissible.” 285 Md. at 288 . (Emphasis supplied) and “The very nub of collateral estoppel is to extend res judicata beyond those cases where the prior judgment is a complete bar. The Government is free, within the limits set by the Fifth Amendment,... to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial, no matter how unreasonable the Government may consider that determination to be....” (Citations and footnote omitted) (Emphasis added) 285 Md. at 285 , quoting United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961). ⁴⁵⁸ As both the statute (Md. Ann. Code art. 27, § 36B(d)) and Ford v. State, supra, 274 Md. 546 , make clear, in order to convict Mitchell at a retrial of the handgun violation charged in Indictment No. 18,118, it will be necessary to prove beyond a reasonable doubt that he used a handgun in the commission of a felony or crime of violence committed against John Bishop as charged in the other counts in that indictment. 1 Thus, under the principles noted above, had there been in the earlier case a conclusive determination that Mitchell did not commit such a felony or crime of violence, that determination simply could not be relitigated. 2 The critical question here, however, is whether there has in fact been a prior determination, in Mitchell’s favor, of the facts necessary to support a new conviction on the handgun charge.

Does a nol pros, entered at the conclusion of the State’s case, but without benefit of any factual predicate or explanation for it, serve as a determination of ultimate issue of fact in the defendant’s favor so as to trigger the application of collateral estoppel? From the context of the cases in which the doctrine has been applied, and from the language used ⁴⁵⁹ by the Courts in describing and applying the doctrine, we think not. Ashe v. Swenson and the other cases in which the Supreme Court has invoked this doctrine have all involved situations where the issues of fact sought; to be retried had previously been adjudicated by means of a verdict rendered by the trier of fact. The defendant had been acquitted by a judge or a jury, and that acquittal necessarily involved the resolution of disputed underlying facts in the defendant’s favor.

See, for example, in addition to Ashe, Simpson v. Florida, supra, 403 U.S. 384 ; Harris v. Washington, supra, 404 U.S. 55 ; Turner v. Arkansas, 407 U.S. 366, 370 (1972). That was also the case in Powers v. State, supra. We are aware of no instance in which the doctrine has been held triggered by a