State v. Allen

BARBERA, J. A defendant in a criminal proceeding may invoke the doctrine of collateral estoppel to preclude the State from trying an ultimate fact found in favor of the defendant at a prior trial. Ashe v. Swenson, 397 U.S. 436, 445 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970). This defensive use of collateral estoppel derives from the protection provided a criminal defendant under the Double Jeopardy Clause of the Fifth Amendment. Id.

We are asked in the case at bar to consider whether collateral estoppel may be applied against a criminal defendant to foreclose the jury from finding for itself all of the ultimate facts that make out the charged crime. For the reasons that follow, we hold that offensive collateral estoppel at a criminal trial is inimical to the Sixth Amendment’s guarantee of a jury trial “[i]n all criminal prosecutions.” U.S. Const, amend. VI. ²¹¹ I. Respondent, Jeffrey Edward Allen, twice has been tried and convicted on charges related to the robbery and murder of John Butler. For purposes of this opinion, it is unnecessary to recite in full the facts underlying the crimes, as they are well detailed in the appeal from the first trial.

See State v. Allen, 387 Md. 389, 391-93, 875 A.2d 724, 725-26 (2005), aff'g Allen v. State, 158 Md.App. 194 , 857 A.2d 101 (2004) (herein “Allen I ”). In brief, the State’s evidence established that the crimes, which occurred in October 2001, followed a liaison between the two men at the home of Butler. Respondent demanded that Butler drive him home. Butler refused, so Respondent took hold of Butler’s car keys, jingled them, and threatened to drive himself home.

A scuffle ensued, during which Respondent repeatedly stabbed Butler with at least one kitchen knife. Respondent then freed himself from the scuffle, grabbed the car keys, and drove away. A few hours later, after crashing the vehicle, Respondent contacted police about the incident and was taken into custody. Respondent was indicted and later tried before a jury in the Circuit Court for Charles County on charges of first degree premeditated murder, first degree felony murder, second degree (specific-intent) murder, robbery with a deadly weapon and related offenses.

The jury found Respondent guilty of first degree felony murder, second degree murder, robbery with a deadly weapon, and lesser related charges. On appeal to the Court of Special Appeals Respondent argued, among other issues, that the trial court erred in instructing the jury that it could find him guilty of felony murder regardless of whether the intent to rob was formed before or after the murder. 1 Allen I, 158 Md.App. at 237 , 857 ²¹² A.2d at 126. The Court of Special Appeals held that “an ‘afterthought’ robbery cannot constitute an ‘aggravating circumstance’ for imposition of the death penalty,” and therefore “it [could not] support a conviction for felony murder.” Id. at 246 , 857 A.2d at 132 . Consequently, “the [trial court] erred by instructing the jury that appellant could be found guilty of felony murder ‘even if the intent to steal here was not formed until after the victim had died.’ ” Id. at 246 , 857 A.2d at 132 .

Respondent also raised before the Court of Special Appeals the legal sufficiency of the evidence supporting the robbery charge and, by implication, the felony murder charge. Respondent argued that “[t]here [was] absolutely no evidence on the record from which a rational trier of fact could have found ²¹³ that [Respondent] ever possessed the intent to deprive [the victim] of his property.” Id. at 248 , 857 A.2d at 133 . The Court of Special Appeals, concluding that “a rational jury could readily conclude that [the necessary] intent was formed before the murder,” id. at 249 , 857 A.2d at 134 , held that the evidence “was more than sufficient to support [Respondent’s conviction for first degree felony murder with robbery as the predicate felony,” id., 857 A.2d at 133 . The Court of Special Appeals consequently affirmed all but the felony murder conviction, which the court vacated because, given the trial court’s instruction to the jury, there was “no way of knowing whether the jury unanimously agreed that [Respondent] formed the intent to rob prior to or while in the commission of the murder[.]” Id. at 246 , 857 A.2d at 132 .

We granted the State’s petition for a writ of certiorari to review the judgment of the Court of Special Appeals that Respondent was entitled to a new trial based on the challenged jury instruction. We affirmed the holding of the Court of Special Appeals that the instruction was wrong as a matter of law, and we agreed with that court that Respondent was entitled to a new trial on the charge of felony murder. Allen I, 387 Md. at 405 , 875 A.2d at 734 . The retrial and present appeal Respondent’s three-day retrial on the felony murder charge commenced with jury selection on August 11, 2008.

During voir dire, the trial court informed the venire of the following: Ladies and gentlemen, you — will hear evidence during the course — or the people who try the case will hear evidence that the [the Respondent] was previously convicted for the offense of Second Degree Murder and Robbery in connection with the incident — that is the subject of today’s trial. That in part is why or primarily is the reason why the only matter before the jury in this case — before the Court in today’s case or today’s trial, will be the First Degree Murder trial — charge related to the robbery incident. The jury is going to be instructed to — consider the evidence that pertains to the First Degree Felony Murder ²¹⁴ Charge only. Is there any potential juror who feels you will have difficulty — with the case because of the fact that you know in advance the [Respondent] has been previously convicted of offenses arising out of the incident?

One prospective juror responded that he was not sure he could be fair in deciding the case because he did not “believe that [the Respondent] should be recharged for something he already got sentence[d] for.” The court excused that prospective juror. During its case in chief, the State presented the testimony of a number of witnesses concerning the events underlying the robbery. The State also read into the record a transcript of Respondent’s oral and written statements to the police and his testimony from the first trial, in each of which Respondent gave essentially the same accounts of the acts in question. Respondent’s defense case consisted only of his offering into evidence a photograph of the two knives found in the immediate vicinity of the murder victim’s body.

The trial court and counsel discussed how the jury should be instructed on the felony murder charge. The court agreed to Respondent’s request that the jury be instructed that he had been convicted of second degree murder. The court added, though, that the jury should also be informed of the procedural history of the case, including that Respondent had been convicted of robbery. The court reasoned that, without the additional information about the robbery conviction and the procedural history that necessitated the retrial, the jury would wonder why the felony murder charge was being layered atop a second degree murder conviction.

Over Respondent’s objection, the trial court instructed the jury: The primary charge ... or, the charge that is before you ... the only charge that is before you, again, is this notion of felony murder ... first degree felony murder, to distinguish it from another kind of felony murder____In order to convict [the Respondent] of first degree felony murder, in the context of robbery or robbery with a deadly weapon, the State must prove, (1) that the [Respondent] committed a ²¹⁵ robbery; (2) that the [Respondent] killed [the victim]; (3) that he had the intent to commit the robbery before or at the time of committing the act that caused [the victim]’s death, and that the act which resulted in [the victim]’s death occurred during the course of and in furtherance of the objective of committing the robbery. Let’s talk about what robbery is and I’m going to tell you what second degree murder, for purposes of this case, is. I’m going to have a little more discussion about procedure. Robbery or robbery with a deadly weapon, if a deadly weapon is involved, is the taking and carrying away of property from another person by force or the threat of force with the intent to deprive the victim of the property.

To convict someone of robbery, in other words, the State would have to prove: (1) that the [Respondent] took property from [the victim]’s possession and control; (2) that he took the property by force or threat of force; and (3) that he intended to deprive [the victim] of that property. Okay. The elements of the offense of second degree murder, for which [Respondent] here stands convicted, are as follows: the second degree murder is the killing of another person with either the intent to kill, or the intent to inflict such serious bodily harm that death would be the likely result. Second degree murder does not require premeditation or deliberation.

In order to convict someone of second degree murder, the State would have to prove, (1) that the [Respondent’s conduct caused [the victim]’s death; that he engaged in deadly conduct either with intent to kill [the victim], or with intent to inflict such serious bodily harm that death would be likely to result; and lastly that there were no mitigating circumstances. ²¹⁶ I’m going to tell you also, over at least one party’s objection, the [Respondent] here stands convicted of the underlying robbery. The question of whether [Respondent] committed second degree murder is not before you. The question of whether he committed robbery or robbery with a deadly weapon is not before you. The only question before you is whether the sequence of events and the interrelationship of the events amounted to first degree felony murder as I just described it.

(Emphasis added.) Both the State and Respondent excepted to the instruction, as both were concerned that the jury would wonder why it was called to judge a crime that, seemingly, had been judged by a prior jury. In an attempt to clarify this potential confusion, the trial court delivered an extra word of caution to the jury, to which Respondent’s counsel excepted: Ladies and gentlemen, I give you this admonition in an abundance of caution. You know that there had been prior proceedings in connection with this ease. There’s an exhibit in here, the one that was read this morning, from a prior proceeding.

You’re ... you are cautioned to consider the evidence that has been presented to you. And, you are asked and you are instructed not to speculate as to how the case' got here today, what its procedural history is. We have told you that the question of whether a robbery occurred is not before you. The question of whether murder in the second degree variety occurred is not before you.

The only question is whether the circumstances and the proof or the circumstances as proven amounted to first degree felony murder as we have defined that. The jury retired to its deliberations, which concluded with its returning a verdict finding Respondent guilty of first degree felony murder. Respondent argued on appeal to the Court of Special Appeals that the trial court erred when it informed the prospec ²¹⁷ tive jurors about the prior murder and robbery convictions and, in its final instructions, told the jury not to consider those two convictions and the “only question before you [the jury] is whether the sequence of events and the interrelationship of the events amounted to first degree felony murder as I just described it.” Respondent contended that the court’s instructions amounted to the use of collateral estoppel against him. He specified that the instructions directed the jury to assume, rather than decide for itself, the existence of the ultimate facts that made out the actus reus of the crime of felony murder, and thereby deprived him of his Sixth Amendment right to a jury trial.

Allen v. State, 192 Md.App. 625, 638 , 995 A.2d 1013, 1021 (2010) (herein “Allen II ”). The Court of Special Appeals agreed with Respondent and reversed the felony murder conviction, with the direction that the case be remanded for a new trial. Id. at 638 , 995 A.2d at 1021 . The State filed a petition for writ of certiorari, which we granted to answer a single question that we have recast, as follows: 2 May the doctrine of collateral estoppel be employed at a criminal trial by instructing the jury at a retrial on a charge of felony murder that the defendant has been convicted of murdering and robbing the victim, and the jury need only decide when the defendant formed the intent to rob the victim?

For the following reasons, we answer “no” to that question. II. “ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It 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.” Ashe v. Swenson, 397 ²¹⁸ U.S. at 443, 90 S.Ct. 1189 . The question before the Court in Ashe was whether the doctrine of collateral estoppel, born in civil litigation 3 yet also a long-established rule of federal criminal law, see id., is also “a part of the Fifth Amendment’s guarantee against double jeopardy,” id. at 442 , 90 S.Ct. 1189 .

The Court, reasoning that defensive collateral estoppel and the Double Jeopardy Clause had the same purpose, “protecting] a man who has been acquitted from having to ‘run the gantlet’ a second time,” id. at 446 , 90 S.Ct. 1189 (citation omitted), held that the defensive use of collateral estoppel is a constitutional requirement of the Double Jeopardy Clause, id. at 445-46 , 90 S.Ct. 1189 . “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.” Odum v. State, 412 Md. 593, 606 , 989 A.2d 232, 240 (2010); accord Butler v. State, 335 Md. 238, 253 , 643 A.2d 389, 396 (1994) (stating that, “[although collateral estoppel is usually invoked based upon a prior acquittal, the critical consideration is whether an issue of ultimate fact has been previously determined in favor of the defendant” (internal citations omitted)). The question we must answer here is whether the collateral estoppel doctrine can be employed in a criminal case not just as a shield that protects the defendant from having litigated against him an ultimate fact found in his favor, but also as a sword that relieves the State of the burden to re-prove an ultimate fact previously found against the defendant. The State asserts that collateral estoppel can be invoked against the defendant, much as in civil law, see supra note 3. The State reasons that there is no constitutional or common law ²¹⁹ bar to application of collateral estoppel to foreclose re-litigation of ultimate facts previously found against a criminal defendant.

The State adds that the same policy reasons that underlay the doctrine in the civil arena apply in criminal cases: judicial economy, and more importantly, finality of judgments. Respondent counters that application of collateral estoppel against a defendant in a criminal case interferes with the responsibility of the jury to determine every element of the crime, thereby impinging upon the defendant’s constitutional right to a jury trial. Although we have not yet had occasion to address this question, we are not without guidance on the subject from our sister federal and state appellate courts. We begin our analysis with a discussion of those cases.

III

The overwhelming majority of federal and state courts that have addressed the question have held that collateral estoppel may not be used against a criminal defendant. Two of those cases are particularly worthy of extended discussion, United States v. Pelullo, 14 F.3d 881 (3rd Cir.1994), and State v. Ingenito, 87 N.J. 204 , 432 A.2d 912 (1981). Both are grounded on the Sixth Amendment guarantee of a trial by an impartial jury, and one or the other is often cited with approval by other courts. 4 It is appropriate to begin with Ingénito, upon which ²²⁰ the Pelullo court places much reliance in its own analysis of the constitutional issue. The defendant, Ingénito, was charged with, inter alia, the unlicensed transfer of weapons and possession of a firearm by a convicted felon. 432 A.2d at 913 .

Ingenito was tried separately on the two charges. Id. At the first trial, the jury convicted him of the unlicensed transfer of weapons and related offenses. Id.

At the second trial, for possession of a firearm by a convicted felon, Ingénito stipulated to the fact that he was a convicted felon, leaving only the element of possession for the prosecution to prove. Id. The prosecution met that burden by introducing, over Ingenito’s objection, “the county clerk’s testimony of the record of [the] defendant’s recent conviction for the unlicensed transfer of the weapons.” Id. at 913-14. In its ruling permitting the State to rely on the record of conviction, the trial court pointed out that Ingénito “had ample opportunity to present his case at the earlier trial and that, therefore, concerns of judicial and prosecutorial economy permitted the use of this technique.” Id. at 914.

Ingénito was convicted of possession of a firearm by a convicted felon and appealed, first to the Appellate Division, which affirmed the conviction, and then to the Supreme Court of New Jersey, which reversed the judgment of the Appellate Division. Id. The Supreme Court of New Jersey held that the offensive use of collateral estoppel against a defendant “impinged upon [the] constitutional right of trial by jury.” Id. at 915. ²²¹ The Ingénito court identified several constitutionally-based functions of the jury that would be undermined by allowing the prosecution to invoke collateral estoppel against a criminal defendant. Prime among them is “the nondelegable and nonremovable responsibility of the jury to decide the facts.” Id. at 915.

The court pointed out that it is the jury alone who discharges the entirety of this duty, including evaluation of the credibility of witnesses and the weight to accord evidence. Id. (citing, e.g., Baltimore & C. Line v. Redman, 295 U.S. 654, 657 , 55 S.Ct. 890 , 79 L.Ed. 1636 (1935); Mattox v. United States, 156 U.S. 237, 242-43 , 15 S.Ct. 337 , 39 L.Ed. 409 (1895)). Furthermore, the jury in a criminal trial is vested with answering the ultimate question of guilt or innocence and can only arrive at that truth by “ consider[ing] solely the evidence adduced in the case before it.” Ingenito, 432 A.2d at 916 (citing Taylor v. Kentucky, 436 U.S. 478, 485 , 98 S.Ct. 1930 , 56 L.Ed.2d 468 (1978)).

The court also recognized that “[a] jury failing in an essential duty cannot fulfill the constitutional right to a trial by jury which is guaranteed a criminal defendant.” Id. (citing Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979)). Consequently, [i]f an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged.

Id. The Ingénito court further determined that offensive collateral estoppel impermissibly relieves the State of its burden of proof. The court noted that the Supreme Court “has stated on numerous occasions that ‘[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.’ ” Id. at 917 (alteration in original) (quoting Estelle v. Williams, 425 U.S. 501, 503 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (1976)). That presumption, in turn, is a key component of the requirement ²²² that the prosecution prove every element of a crime beyond a reasonable doubt and is therefore “intertwined” with the Sixth Amendment right to a jury trial.

Id.; see also Sandstrom, 442 U.S. at 523 , 99 S.Ct. 2450 (“a conclusive presumption in this case would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, and would invade [the] factfinding function which in a criminal case the law assigns solely to the jury.” (internal quotation marks omitted) (alteration in original)). The