Odum v. State

BARBERA, J. During the early morning hours of June 10, 2001, five men, one of whom was Petitioner, came into contact with Michael Patten and Lee Ann Brown. That contact led to the armed robbery, carjacking, kidnapping, and murder of Mr. Patten and Ms. Brown. Petitioner was tried before a jury on charges related to those crimes. The jury acquitted him of all charges save for two counts of kidnapping.

He challenged the kidnapping convictions on appeal and won the right to be retried on those charges. See Odum v. State, 156 Md.App. 184 , 846 A.2d 445 (2004). At the retrial, the State presented, over Petitioner’s objection, evidence concerning the crimes of which he was acquitted. Petitioner again was convicted of both kidnapping charges.

Petitioner has challenged those convictions, arguing that the jury should not have been presented with evidence of the murders and other criminal conduct involving Petitioner and his cohorts. He advances two grounds in support: (1) the State was collaterally estopped from presenting evidence of ⁵⁹⁷ the crimes of which he was acquitted at the first trial; and (2) the evidence was not relevant to prove the kidnappings and, even if relevant, the trial court should have excluded it because its probative value was outweighed by the danger of unfair prejudice to his right to a fair trial. For the reasons that follow, we reject both arguments and hold that the court neither erred nor abused its discretion in admitting the evidence. I. The jury heard the following evidence at Petitioner’s retrial.

On the night of Saturday, June 9, 2001, Petitioner attended a party in the Fort Washington area of Prince George’s County, near where he lived. Aaron Hollingsworth, Cortez Carroll, and Marco Butler, all neighbors and friends of Petitioner, were also in attendance at the party. After the party, the four men were joined by another friend from the neighborhood, Eric Thomas. The five men—Petitioner, Hollingsworth, Butler, Carroll, and Thomas—found their way during the early morning hours of June 10 to a nearby wooded area adjacent to the parking lot of the Fort Washington United Methodist Church.

Butler and Carroll were carrying handguns. Sometime after 2:00 a.m., an Acura was driven onto the church parking lot. Michael Patten, the owner of the Acura, was behind the wheel. In the passenger seat was his friend, Lee Ann Brown.

Mr. Patten and Ms. Brown had come from a night of entertainment at a nightclub in Washington, D.C. Mr. Patten, a congregant at the Fort Washington United Methodist Church, evidently pulled the car onto the church parking lot to allow Ms. Brown to step out and relieve herself. Shortly thereafter, the two were confronted by Petitioner and his companions. Aaron Hollingsworth, who testified for the State as part of a plea bargain, described what happened next. One of the men approached the car and ordered Mr. Patten out of it.

Hollingsworth then went up to Mr. Patten and demanded money. ⁵⁹⁸ When Mr. Patten claimed he had no money, Hollingsworth searched him and found $30. Hollingsworth, angered that Mr. Patten had lied to him, struck Mr. Patten several times. When Mr. Patten fell to the ground, Hollingsworth kicked him. Meanwhile, others in the group approached Ms. Brown, who by this time was standing next to the passenger side of the car.

Hollingsworth and one other member of the group, whose identity Hollingsworth did not recall, put the unconscious Mr. Patten into the trunk of the Acura. Hollingsworth and a second, unnamed member of the group then forced Ms. Brown into the trunk. . Hollingsworth hit Ms. Brown, and Carroll pistol whipped her, to make her duck down into the trunk. Hollingsworth closed the trunk by sitting on its lid.

Then, with Eric Thomas behind the wheel of the Acura and the victims in the trunk, the five men drove ten to fifteen minutes to a secluded spot in the Accokeek area of Prince George’s County. During the drive to Accokeek, Hollingsworth gave $5 to each of the men from the money he had taken from Mr. Patten. Upon arrival at their destination, Hollingsworth, with help from one of the others whose identity he could not recall, removed Mr. Patten and Ms. Brown from the trunk of the car. Soon thereafter, one or more persons (not Hollingsworth) shot and killed Mr. Patten and Ms. Brown.

The five men, including Petitioner, got back into the car, with Eric Thomas once again in the driver’s seat. Thomas, who was drunk, almost crashed the car after driving it a short distance. Petitioner then took over the driving. The five men drove to Southeast Washington, where they pooled the $30 that Hollingsworth had earlier distributed to them and used $20 of it to purchase marijuana.

The five men then drove to an ATM machine and withdrew $20, using Ms. Brown’s ATM card and PIN that at some point during the episode one of the five men had obtained from her. 1 Thereafter, the men headed ⁵⁹⁹ home. During the ride, they discussed that “this shouldn’t come back up no more,” which, according to Hollingsworth, meant that they were “not to talk about it.” The State presented significant forensic evidence and witness testimony corroborating the testimony of Hollingsworth. Specifically, the State introduced evidence that the victims’ bodies were discovered in Accokeek on the afternoon of June 10, 2001, the abandoned vehicle was found several days later, and blood stains on the church parking lot were created by Mr. Patten’s blood. The State offered evidence that the exterior of the Acura had Mr. Patten’s blood on it, the trunk of the Acura contained an earring and the blood of both Mr. Patten and Ms. Brown, and the rearview mirror contained a latent fingerprint matching Petitioner’s fingerprint.

The State also offered evidence of shell casings that were found under and near the victims’ bodies. The Motion in Limine All of the above evidence relating to the murder of Mr. Patten and Ms. Brown and the subsequent activity of Petitioner, including use of the robbery proceeds to purchase drugs, was admitted over the continuing objection of the defense. Petitioner challenged the admissibility of that evidence at a pretrial hearing. He argued that evidence relating to the murders and other criminal activity was barred by the doctrine of collateral estoppel, among other related constitutional and common law doctrines.

Petitioner also argued that evidence of those crimes was not relevant to the kidnapping charges because the kidnappings were complete as soon as the victims were placed in the trunk of their car and driven away. He further argued that the challenged evidence, even if relevant to the kidnappings, was unduly prejudicial to his right to a fair trial, rendering it inadmissible under Maryland Rule 5-403. Petitioner offered to stipulate that the victims were ⁶⁰⁰ unavailable to testify and to agree to an instruction “that the jury is not to draw any negative inferences from that.” 2 The State responded that the doctrine of collateral estoppel neither prohibited retrial on the kidnapping charges nor foreclosed admission of evidence of the crimes of which Petitioner was acquitted. The State also argued that evidence of those crimes was relevant to make sense of the charged kidnappings, show Petitioner’s role in the entire episode, and corroborate Hollingsworth’s testimony concerning what happened and the part Petitioner played.

The State said: “I can’t imagine a jury listening to a case involving a kidnapping, not being presented with information as to the force used, as to the location of the transportation, and where the journey ended. And why it ended. And how it ended.” The State argued further that the jury naturally would question the failure of the State to have the victims testify. The State also pointed out that the jury needed to hear corroboration of Petitioner’s statement (which, as it turned out, was not admitted into evidence) and Hollingsworth’s testimony implicating Petitioner as an accomplice.

Finally, the State argued: “What happened afterwards is very much relevant to show whether or not [Petitioner] was part of the team.” The trial court denied Petitioner’s motion to exclude evidence of the crimes of which he had been acquitted at the first trial: [T]he court finds that the events leading up to the course and aftermath of the kidnappings are certainly relevant to ⁶⁰¹ the kidnappings charge [sic], to the overall criminal venture and to the Defendant’s role and participation with others in it. Having viewed the transcripts of the prior trial and proceedings, the course of the State’s order and burden of proof, the fact that the series of events and crimes are so inextricably intertwined in time and circumstances and that the evidence integral to prove one is similarly integral to proof of the other, the Court finds that the probative value of evidence of events leading up to the kidnappings and evidence of events that take place after the kidnappings outweigh any unfair prejudice. Assuming that there are no problems of identity, however, the Court finds, certainly, with respect to the scene, photographs of victims and the autopsy photographs, that the prejudice to the Defendant would outweigh any probative value in that light. The Court will reserve its ruling on the autopsy report depending upon the course of certain events that may or may not take place during trial.[ 3 ] The court granted Petitioner a continuing objection to any and all evidence or testimony concerning the facts of the crimes of which he was acquitted in the first trial.

The Appeal Petitioner argued before the Court of Special Appeals that the trial court’s allowance of evidence of the other crimes that ⁶⁰² occurred during the criminal episode violated the doctrine of collateral estoppel and the relevant rules of evidence. The Court of Special Appeals, over the dissent of one judge, affirmed the convictions in an unreported opinion. With regard to Petitioner’s collateral estoppel argument, the Court of Special Appeals observed that “the doctrine of collateral estoppel prohibits re-litigation of the same factual issue [,]” (emphasis in original), and Petitioner “has not established that—when acquitting him of various charges—the jury resolved in his favor any factual issue that would have to be resolved in the second trial.” The Court therefore held that “the evidence was not subject to exclusion on the ground of double jeopardy collateral estoppel.” The Court further held that the trial court correctly ruled that the other crimes evidence was relevant to the charged kidnapping offenses and did not abuse its discretion in deciding that the probative value of the evidence outweighed the risk of unfair prejudice to Petitioner. Petitioner filed a petition for writ of certiorari, which we granted, Odum v. State, 405 Md. 290 , 950 A.2d 828 (2008), to answer the following question: Was it was error to allow, at the retrial, evidence of the many other felonies and crimes of violence of which Petitioner was acquitted by a jury, at his first trial?

II

Petitioner argues, as he did in the Court of Special Appeals, that for two reasons the trial court committed reversible error by admitting evidence of the crimes of which he was acquitted at the first trial. He argues that admission of the evidence ran afoul of the doctrine of collateral estoppel. He further argues that the evidence was irrelevant to proof of the kidnapping charges, and, even if it was relevant, the trial court abused its discretion by admitting the evidence because its probative value was outweighed by the danger of unfair prejudice to him. We shall address each argument, in turn. ⁶⁰³ Collateral Estoppel The Fifth Amendment to the United States Constitution forbids any person from being “twice put in jeopardy of life or limb.” That prohibition “against making a defendant twice accountable for the same offense is a provision applicable to the States” through the Fourteenth Amendment.

See State v. Long, 405 Md. 527, 535-36 , 954 A.2d 1083, 1088-89 (2008) (citing Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056, 2062 , 23 L.Ed.2d 707, 716 (1969)). The Supreme Court has recognized that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 444-45 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469, 475-76 (1970). The Court in Ashe defined collateral estoppel as meaning “simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443 , 90 S.Ct. at 1194 , 25 L.Ed.2d at 475 .

Ashe involved the robbery by a group of masked men of six persons playing poker in the basement of a home. Ashe was tried for the robbery of one of the poker players and acquitted. He was later tried for the robbery of another of the players and convicted. The Supreme Court reversed the conviction, holding that the State was collaterally estopped from pursuing the second robbery charge.

The Court cautioned that the “rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” 397 U.S. at 444 , 90 S.Ct. at 1194 , 25 L.Ed.2d at 475-76 . Therefore, “[wjhere a previous judgment of acquittal was based on a general verdict,” courts must “examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. (internal quotation marks and citation omitted). Applying ⁶⁰⁴ that rule, the Court concluded that the acquittal of Ashe in the first trial barred the second trial because the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that [the named victim in that case] had not been a victim of that robbery.

The single rationally conceivable issue in dispute before the jury was whether [Ashe] had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of [the second named victim] wholly impermissible. Id. at 445 , 90 S.Ct. at 1195 , 25 L.Ed.2d at 476 .

Later, in Dowling v. United States, 493 U.S. 342, 347-48 , 110 S.Ct. 668, 671-72 , 107 L.Ed.2d 708, 717 (1990), the Court was asked to apply the rationale and holding of Ashe to reverse the defendant Dowling’s bank robbery conviction. The government had been permitted to offer at trial on the bank robbery charges evidence that Dowling had been involved in a burglary two weeks after the bank robbery, notwithstanding that the trial of the burglary case had resulted in his acquittal. Dowling argued that, by extension of the rationale underlying Ashe , the Government should have been collaterally estopped from offering that evidence. The Court first considered the lower burden of proof that governs the admission of “similar act evidence,” under Federal Rule of Evidence-404(b).

The Court noted that, under that rule, “ ‘similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.’ ” Id. at 348, 110 S.Ct. at 672 , 107 L.Ed.2d at 718 (quoting Huddleston v. United States, 485 U.S. 681, 689 , 108 S.Ct. 1496, 1501 , 99 L.Ed.2d 771, 782 (1988)). Further, “[b]ecause a jury might reasonably conclude that Dowling was the masked man who entered [the burglary victim’s] home, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the first trial, the collateral-estoppel component of the Double Jeopardy Clause is inapposite.” Dowling, 493 U.S. at 348-49 , 110 S.Ct. at 672 , ⁶⁰⁵ 107 L.Ed.2d at 718 . In other words, a defendant’s acquittal of a charged crime does not preclude the prosecution, on collateral estoppel grounds, from offering at a later proceeding evidence of the defendant’s commission of the crime, so long as the admissibility of evidence of the defendant’s commission of that other crime is governed by a lower standard of proof. Id. at 349-50 , 110 S.Ct. at 672-73 , 107 L.Ed.2d at 719 .

The Court added that evidence of the burglary was not barred in Dowling’s bank robbery trial, even under an Ashe analysis. The Court “agreefd] with the Government that the challenged evidence was nevertheless admissible [under Ashe 1 because Dowling did not demonstrate that his acquittal in his first trial represented a jury determination that he was not one of the men” who participated in the burglary that formed the basis of the other crime evidence. Id. at 353, 110 S.Ct. at 675 , 107 L.Ed.2d at 721 . The Court adopted the rule employed by a number of United States Courts of Appeals in cases applying Ashe that “placefs] the burden on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Id. at 350-51, 110 S.Ct. at 673 , 107 L.Ed.2d at 719 .

After examining the entire record in the case, as required by Ashe , the Court concluded: “There are any number of possible explanations for the jury’s acquittal verdict at Dowling’s first trial. As the record stands, there is nothing at all that persuasively indicates that the question of identity was at issue and was determined in Dowling’s favor at the prior trial....” Id. at 352, 110 S.Ct. at 674 , 107 L.Ed.2d at 720 . Consequently, Dowling’s acquittal of the subsequent burglary did not bar admission of evidence of that crime at his bank robbery trial. 4 Id. at 353 , 110 S.Ct. at 675 , 107 L.Ed.2d at 721 . ⁶⁰⁶ Much like the Supreme Court has done in recognizing collateral estoppel as a form of constitutionally based double jeopardy, we recognize the collateral estoppel form of double jeopardy as a part of Maryland common law. See Long, 405 Md. at 538 , 954 A.2d at 1090 .

We define collateral estoppel in the same way as is done in the federal constitutional context, and, in that regard, we have said that the “critical question to be confronted when considering the proper invocation of the principles of collateral estoppel is ‘whether an issue of ultimate fact has been previously determined in favor of the defendant.’ ” Id. at 539 , 954 A.2d at 1090 (quoting Butler v. State, 335 Md. 238, 253 , 643 A.2d 389, 396 (1994)). In other words, “if the verdict must have, by logical necessity, decided a particular fact in favor of a defendant, then the State will be barred by collateral estoppel principles from relitigating that fact.” Butler, 335 Md. at 253 , 643 A.2d at 396 (internal quotation marks and citation omitted). And, as did the Dowling Court, we place the burden of proof on the defendant “to demonstrate that the fact for which he or she is seeking to bar relitigation was decided in a prior proceeding.” Long, 405 Md. at 539 , 954 A.2d at 1091 . That burden is a difficult one to carry.

See State v. Woodson, 338 Md. 322, 331 , 658 A.2d 272, 277 (1995) (stating that “a defendant has a difficult burden to ⁶⁰⁷ overcome in establishing that the issue was actually decided in the first proceeding”). We agree with the Court of Special Appeals that Petitioner did not carry the difficult burden of establishing that the State was collaterally estopped from offering evidence of the other crimes that occurred before and after the kidnappings. Like the trial court did when ruling on the motion in limine and the Court of Special Appeals did when reviewing the trial court’s ruling, we have examined the entire record, including the transcript of the first trial. The first jury’s guilty verdicts on the kidnapping counts are easily reconciled with the jury’s acquittals on the remaining counts.

Petitioner’s confession to the police, which the jury in the first trial saw and heard about, provides one rational explanation for the verdicts. Petitioner told the police that he did not participate in the initial encounter between the victims and his cohorts, but rather observed it from a vantage point across the street from the church parking lot. He also told the police that he accompanied the others in the car ride to Accokeek only because two of his cohorts, Thomas and Carroll, told him to do so, and he “was scared.” The jury rationally could have credited Petitioner’s assertion that he did not participate in the robberies, carjacking, murders, and other criminal behavior, while rejecting his assertion that he accompanied the others in the kidnappings solely out of fear for his safety. There is, however, an even more fundamental impediment to Petitioner’s collateral estoppel argument.

The acquittals of Petitioner at the first trial did not preclude the State at the retrial from offering evidence of his involvement in the commission of those crimes, by application of the Dowling rationale that a defendant’s acquittal of a crime does not erect a collateral estoppel bar to admission of evidence of the defendant’s commission of that crime at a later proceeding. As the Dowling Court held, other crimes evidence, under Federal Rule of Evidence 404(b), is subject to a lower burden of proof than is required for conviction. 493 U.S. at 348 , 110 S.Ct. at 672 , 107 L.Ed.2d at 718 . For reasons we shall discuss in the ⁶⁰⁸ next part of this opinion, evidence that