Powers v. State

Davidson, J., delivered the opinion of the Court. This case presents two questions. The first is whether the doctrine of collateral estoppel applies after a jury at a single trial acquits on one count of a multicount indictment 1 and is unable to agree upon a verdict on a related count of the same indictment involving a common issue of ultimate fact, which if found in favor of an accused would establish his innocence on both counts. The second is whether, under the present circumstances, that doctrine, if it applies, precludes the accused from being tried a second time on the related count.

On 24 August 1977 at about 2:00 p.m., Sea Man Kim, Chond Ham Kim, and Sung Ryum Kim were working in a food market on Carrollton Avenue. Three men, one of whom wore glasses, entered. One of the men drew a gun and ordered the Kims to lie down on the floor. Glen Wallace, a 14-year-old boy, entered the store and was also ordered to lie down.

Thereafter, one of the men remained standing near the door while the other two removed about $16 from the cash register, a set of keys and about $18 from Chond Ham Kim’s pockets, and about $200 from Sea Man Kim’s pockets, for a total amount of about $234. They also searched Sung Ryum Kim’s pockets but found nothing. After one of the robbers said, “Don’t move,” the three robbers left. An alarm was sounded at the store which brought a number of policemen into the area.

A woman, Sandra Banks, who was leaning out of a window at a nearby apartment house at 715 Carrollton Avenue, waved to them and pointed to the rear of 717 Carrollton Avenue, where the ladder of a fire escape had been lowered to the ground. The policemen climbed the fire escape to the third floor where through a window they saw ²⁷² two men, Fred Barksdale and Norman Turner, coming out of apartment B-6. Barksdale and Turner were arrested. The policemen then entered apartment B-6, where they found Edward Wells and Warren McLeod, whom they also arrested.

The policemen searched apartment B-6 and found Chond Ham Kim’s keys in a canister full of flour, $71 in a glass one-third full of milk, $15.79 in a pot, and $72 in a pair of black pants, for a total of about $158.79. In addition, they found a gun in a pot under the kitchen sink. While Barksdale, Turner, McLeod, and Wells were being apprehended and arrested, another policeman, who was inside the building, saw Herman Roosevelt Powers, the appellant, come down a flight of steps to the first floor. He was wearing glasses, blue jeans and a blue jacket.

Sea Man Kim, who with Sung Ryum Kim had followed the robbers, saw Powers and spoke to him in an agitated manner. Thereafter, Powers was arrested. When the policeman later searched Powers, they found $202 in his pocket. Of the five men arrested, only Powers wore glasses.

On 22 September 1977, a grand jury returned indictments charging Powers with the robbery of Chond Ham Kim, the attempted robbery of Sung Ryum Kim, and the robbery of Sea Man Kim. 2 Insofar as here relevant, Indictment No. 57726524 charged Powers with robbery with a deadly and dangerous weapon of Chond Ham Kim; Indictment No. 57726529 charged Powers with attempted robbery with a deadly and dangerous weapon of Sung Ryum Kim; and Indictment No. 57726534 charged Powers with robbery with a deadly and dangerous weapon of Sea Man Kim. In the Criminal Court of Baltimore, Powers was tried by a jury presided over by Judge Milton B. Allen. 3 At trial the State presented unassailable proof that an armed robbery had been committed and that personal property had been taken from Chond Ham Kim and Sea Man ²⁷³ Kim. The State called the four eyewitnesses to the crime, Chond Ham Kim, Sea Man Kim, Sung Ryum Kim, and Glen Wallace, to testify on these issues. Their testimony in this respect was consistent both internally and with one another, and was otherwise uncontradicted.

On the other hand, the State’s proof that Powers had been one of the robbers was not as strong. One of the eyewitnesses, Chond Ham Kim, testified that there had been three robbers but did not identify Powers or either of his codefendants. The remaining three eyewitnesses identified Powers as one of the robbers. They each stated that at the time of the robbery the robber had been wearing jeans, a blue or black jacket and glasses.

This description of the robber’s identifying characteristics at the time of the robbery was so lacking in detail and was so generalized that it could have fit any number of men. None of these eyewitnesses was able to describe or identify either of the other two robbers. Finally, the testimony of these three eyewitnesses was in certain respects inconsistent both internally and with one another. The only other evidence tending to identify Powers as one of the robbers was the testimony of Sandra Banks who said that she had seen four or five men, one of whom was wearing a dark jacket and glasses, running up the fire escape of 717 Carrollton Avenue.

This evidence was contradicted by the testimony of two State’s witnesses who said Ms. Banks had told them she had not seen and could not describe any of the people running up the fire escape. Powers did not testify. In closing argument, the State’s Attorney said: “[T]he only matter I believe that you will have to consider will be the agency or the identification [of the robbers].” He pointed out that Powers had been identified by four eyewitnesses and that this evidence, combined with the additional circumstantial evidence, showed beyond a reasonable doubt that Powers had been one of the robbers. Defense counsel agreed that the only issue was identification.

He pointed out that although there had been only three robbers, five persons were arrested. He argued that the only reason Powers had been identified as one of the robbers was because he had been the only one arrested who ²⁷⁴ wore glasses. He asserted that the direct evidence presented by the three identifying eyewitnesses, based on their observations at the time of the commission of the crime, did not show beyond a reasonable doubt that Powers had been one of the robbers because it was too generalized and contained certain inconsistencies. He pointed out that each of the identifying eyewitnesses noted that at the time of the robbery one of the robbers had been wearing glasses.

He stated that at or shortly after the time that the policemen had arrested the five men, both Sea Man Kim and Sung Ryum Kim had seen that Powers was the only one of the five arrested who was wearing glasses. He concluded that at trial they both identified Powers as the robber, solely because of their previous observations at the time of the robbery and at the time of the arrest. He argued that this conclusion was supported by the fact that Chond Ham Kim, who had not noted that one of the robbers was wearing glasses at the time of the robbery and had not seen Powers at the time of the arrest, could not identify him at trial. With respect to the circumstantial evidence, defense counsel maintained that the only evidence linking Powers to his alleged accomplices or to the apartment in which the incriminating evidence was recovered was Ms. Banks’s testimony that one of the four or five men on the fire escape had been wearing glasses.

He pointed out that her testimony was contradicted by two State’s witnesses. He asserted that there was no identifying evidence to prove that the gun found in the apartment was the weapon used in the commission of the crime, or that the money found in Powers’s pocket was the money stolen at the market, and that in any event, the total amount of money found in the apartment and in Powers’s pocket exceeded the total amount stolen. He concluded that the direct eyewitness testimony, even when bolstered by the circumstantial evidence, was insufficient to show beyond a reasonable doubt that Powers had been one of the robbers. In sum, defense counsel said: “This case for the State hangs on a pair of glasses.

That’s the basis for the identification____Nothing, nothing in front of you and yet the State has the ²⁷⁵ burden to prove its case beyond a reasonable doubt. What is proven is that a robber had glasses, that a man there arrested had glasses. Remember they arrested five people.” The trial court instructed the jury, among other things, that if Powers had participated in the armed robbery, he would have been guilty of robbing each of the three victims. It said: “A person who aids or abets the principal.

Defendant may be guilty of the principal offense even though he did not personally commit each of the acts constituting the offense and was not personally present at its commission.” Thereafter, it submitted the case to the jury. The jury found Powers not guilty under Indictment No. 57726524, which alleged the robbery of Chond Ham Kim, and not guilty under Indictment No. 57726529, which alleged the attempted robbery of Sung Ryum Kim. The jury was unable to agree upon a verdict in Indictment No. 57726534, which alleged the robbery of Sea Man Kim. Accordingly, the trial court declared a mistrial on that indictment. 4 Thus, in a single trial, the same jury which determined by its verdicts of acquittal on two counts of a multicount indictment that Powers had not been the person who had robbed two victims of a robbery was unable to determine a common issue of ultimate fact essential to conviction on a related count — whether Powers had been the person who had robbed the third victim of that robbery.

Powers filed a “Motion to Dismiss Indictment [No. 57726534] Based on Double Jeopardy, Collateral Estoppel, and Res Judicata.” After a hearing, the trial court dismissed the motion. Powers appealed to the Court of Special Appeals. We issued a writ of certiorari before consideration by that Court. ²⁷⁶ The Fifth Amendment to the United States Constitution provides a guarantee against double jeopardy. Cf.

Cousins v. State, 277 Md. 383, 388 , 354 A. 2d 825, 828 , cert. denied, 429 U. S. 1027 , 97 S. Ct. 652 (1976); State v. Barger, 242 Md. 616, 619 , 220 A. 2d 304, 306 (1966); State v. Shields, 49 Md. 301, 303-04 (1878); Hoffman v. State, 20 Md. 425, 432-34 (1863) (common law doctrine of double jeopardy in Maryland). This amendment establishes that no person shall be put in jeopardy twice for the same offense. In United States v. Oppenheimer, 242 U. S. 85 , 37 S. Ct. 68 (1916), the United States Supreme Court held that the common law doctrine of res judicata applies in federal criminal proceedings. This case established that once a person has been acquitted, the federal government cannot prosecute him a second time for the same offense.

In Sealfon v. United States, 332 U. S. 575 , 68 S. Ct. 237 (1948), the Supreme Court held that the common law doctrine of collateral estoppel applies in federal criminal proceedings. There, an accused was separately indicted for conspiracy to defraud the United States and for commission of the substantive offense. In an initial jury trial, the accused was tried and acquitted on the conspiracy charge. Subsequently, in a second jury trial, he was tried and convicted of the substantive offense.

The Supreme Court was required to determine the legal effect of inconsistent verdicts which occur because a jury in an initial trial acquits an accused of an offense and another jury in a second trial convicts him of a related offense having a common issue of ultimate fact essential to conviction, which the previous acquittal had determined in his favor. In Dunn v. United States, 284 U. S. 390 , 52 S. Ct. 189 (1932), the Supreme Court previously had considered the legal effect of inconsistent verdicts which occur when, in a single trial, the same jury acquits an accused on one count of a multicount indictment and simultaneously convicts him on a related count of the same indictment involving a common issue of ultimate fact, which if found in his favor would establish his innocence on both counts. It had held that' under such circumstances the inconsistent verdicts could stand. Accord, ²⁷⁷ Ford v. State, 274 Md. 546, 552-53 , 337 A. 2d 81, 86 (1975); Ledbetter v. State, 224 Md. 271, 273 , 167 A. 2d 596, 597 (1961); Leet v. State, 203 Md. 285, 294 , 100 A. 2d 789, 793-94 (1953).

In Sealfon , however, the Supreme Court concluded that inconsistent verdicts, when reached in successive trials, could not stand. It recognized that the first jury’s verdict of acquittal determined an ultimate fact in favor of the accused while the second jury’s verdict of conviction subsequently determined the same ultimate fact against the accused. It concluded that because the first jury’s verdict of acquittal was a “determination favorable to [the accused] of the facts essential to conviction,” the second jury’s subsequent inconsistent verdict of conviction must fall. This case established not only that inconsistent verdicts, when reached in successive trials, are not permissible, but also that once a person has been acquitted, the federal government cannot prosecute him a second time for a related offense having a common issue of ultimate fact essential to conviction, which the previous acquittal had determined in his favor.

In Benton v. Maryland, 395 U. S. 784 , 89 S. Ct. 2056 (1969), the Supreme Court held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. In Ashe v. Swenson, 397 U. S. 436 , 90 S. Ct. 1189 (1970), that Court considered whether the doctrine of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. There, three or four armed men broke into a basement where six other men were playing poker and robbed each of them of money and personal property. Ashe was charged on a single count information and tried in a Missouri State court for robbing Donald Knight, one of the poker players.

The only issue in the case was whether Ashe had been one of the robbers. After considering all of the evidence produced by the State, a jury found him “not guilty due to insufficient evidence.” Six weeks later Ashe was brought to trial again, this time for the robbery of another poker player, a man named Roberts. He filed a motion to dismiss asserting that because of his previous acquittal, a second trial would impermissibly ²⁷⁸ subject him to double jeopardy. The motion was overruled.

He was tried and the jury found him guilty. On appeal, the Supreme Court of Missouri denied his “plea of former jeopardy” and affirmed the conviction. State v. Ashe, 350 S.W.2d 768 (Mo. 1961), rev’d sub nom, Ashe v. Swenson, 397 U. S. 436 , 90 S. Ct. 1189 (1970). The United States Supreme Court reversed.

It held that the doctrine of collateral estoppel is embodied in the Fifth Amendment. 397 U. S. at 446 , 90 S. Ct. at 1195 . With respect to that doctrine, it said: “ ‘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 future lawsuit. “The federal decisions have made clear 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. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a 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.’ The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’... Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where .the first judgment was based upon a general verdict of acquittal.” 397 U. S. at 443-45 , 90 S. Ct. at 1194 (citation and footnotes omitted).

It decided that after a jury had determined by its verdict of acquittal that Ashe had not been one of the robbers, the State ²⁷⁹ could not prosecute him for the robbery of another victim of that same crime. This case established that once a person has been acquitted, a state cannot prosecute him a second time for a related offense having a common issue of ultimate fact essential to conviction, which the previous acquittal had determined in his favor. Accord, Cousins v. State, 277 Md. at 398 , 354 A. 2d at 834 ; State v. Coblentz, 169 Md. 159, 164-66 , 180 A. 266, 268-69 (1935); Bell v. State, 57 Md. 108, 118-19 (1881). See Hinton v. State, 36 Md. App. 52, 57-58 , 373 A. 2d 39, 42 (1977).

Thereafter, in three cases, the Supreme Court considered whether the doctrine of collateral estoppel applies under varying circumstances in which the validity of a jury’s findings of fact in favor of an accused is questionable. In Simpson v. Florida, 403 U. S. 384 , 91 S. Ct. 1801 (1971) (per curiam), the Supreme Court considered whether the doctrine of collateral estoppel applies after a jury acquits an accused whose previous conviction for the same offense had been reversed. There, in 1966, two armed men entered a store and robbed the manager and a customer. In 1967, Simpson was tried and convicted by a jury of the armed robbery of the manager.

That same year his conviction was reversed on appeal because the trial judge had neglected to instruct the jury on the lesser included offense of larceny. Thereafter, in July 1968, Simpson was retried on the same charge and acquitted by a jury. Subsequently, he was charged with robbing the customer. His motion to quash the information on double jeopardy grounds was overruled.

A jury found him guilty of the armed robbery of the customer. On appeal, the District Court of Appeal of Florida affirmed. Simpson v. State, 237 So. 2d 341 , cert. denied, 240 So. 2d 645 (Fla. 1970), vacated, 403 U. S. 384 , 91 S. Ct. 1801 (1971). The United States Supreme Court vacated and remanded.

It decided that if a jury by its verdict of acquittal had determined that Simpson was not a robber of the manager, the State could not prosecute him for the robbery of the customer, notwithstanding the fact that a different jury at an earlier trial had determined by its verdict of conviction that he was a robber of the manager. This case established that ²⁸⁰ collateral estoppel applies not only where there is no reason to question the validity of a jury’s findings of fact in favor of an accused, but also where the validity of those findings is questionable because a different jury at an earlier trial had resolved the same questions of fact against the accused. In Harris v. Washington, 404 U. S. 55 , 92 S. Ct. 183 (1971) (per curiam), the Supreme Court considered whether the doctrine of collateral estoppel applies when a jury which acquits an accused was precluded, solely on the ground of privilege, from considering otherwise relevant, material, and competent evidence. There the State of Washington in a single count information charged that Harris mailed a bomb which exploded in the home of Ralph Burdick, killing Burdick and Harris’s infant son and injuring Harris’s estranged wife.

Harris was charged and tried solely for the murder of Burdick. At trial the only issue was whether Harris had mailed the bomb. The State presented a typewritten letter, allegedly written by Harris, which threatened the lives of Burdick and Mrs. Harris. The trial court, however, would not admit the letter into evidence, ruling that to do so, under the circumstances there present, would violate Harris’s privilege of confidential marital communications.

The jury acquitted Harris. Immediately thereafter, the State charged Harris with the murder of his son and the assault upon his wife. At a trial on these charges the previously excluded threatening letter would have been clearly admissible because, under State law, the defense of privilege would not have been available. Harris filed a motion to dismiss, asserting the defenses of double jeopardy and collateral estoppel.

The trial court overruled the motion. The Court of Appeals of Washington reversed, but the Supreme Court of Washington affirmed the trial court. State v. Harris, 2 Wash. App. 272 , 469 P. 2d 937 (1970), rev’d, 78 Wash. 2d 894 , 480 P. 2d 484 , rev’d, 404 U. S. 55 , 92 S. Ct. 183 (1971).

The United States Supreme Court reversed. It noted that “Ashe v. Swenson squarely controls this case,” and said that collateral estoppel “applies irrespective of whether the jury considered all relevant evidence and irrespective of the good ²⁸¹ faith of the State in bringing successive prosecutions.” 404 U. S. at 56-57 , 92 S. Ct. at 184 . This case established that collateral estoppel applies, not only where there is no reason to question the validity of a jury’s findings of fact, but also