# Petition — Maryland v. Powers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 937

## Text

AUG 28 1979

ee een IR., 6LERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

No. 49-323

STATE OF MARYLAND,

Petitioner,
Vv.

HERMAN ROOSEVELT POWERS,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND

STEPHEN H. SACHS,
Attorney General of Maryland,

DEBORAH K. HANDEL,
Assistant Attorney General,
Chief, Criminal Appeals

Division,

STEPHEN ROSENBAUM,

Assistant Attorney General,

One South Calvert Building,
Baltimore, Maryland 21202,
383-3737,

Attorneys for Petitioner.

BRESOLIN LR SS ARES ALLO ARE TE TET MERE ERE POOR SEES A
The Daily Record Co., Baltimore, Md. 21202 SF |

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TABLE OF CONTENTS

PAGE
I a a oc careanainduinbeees 1
IIE Aa hdhacdcliil.csetdint ccd esatoncsemavaneinnseceteane 1
QUESTION PRESENTED FOR REVIEW ..............c000008 2
CONSTITUTIONAL PROVISIONS INVOLVED .............. 2
STATEMENT OF THE CAGE. ......ccscscccccsosssescesscessscnseess 3
REASONS FOR GRANTING THE WRIT:
Guidance from this Court is necessary
to resolve the conflicting decisions as to
whether the doctrine of collateral estop-
pel applies after a jury at a single trial
of three consolidated indictments ac-
quits on two indictments and is unable
to reach a verdict on the third ............. 3
a csnsdidaweedinianebes 11
Sh SA A One ae eee la
TABLE OF CITATIONS
Cases
Ashe v. Swenson, 397 U.S. 4386 (1970) ...........0... 4,5,9
Benton v. Maryland, 395 U.S. 784 (1969) ........... 4
Cook v. State, 281 Md. 665, cert. denied,___. U.S.

a a ian ddan shipiatentpindenconess 5
Cosgrove v. United States, 224 F.2d 146 (9th Cir.

I Re eel caccsciesk ash ehaaeasenadsrerbcanedlscteanssenvcnte 4,5
Johnson v. Louisiana, 406 U.S. 356 (1972) ........ 6
Powers v. State, No. 99, Sept. Term, 1978 (Md.,

RT SEER A eo 1,3
Sealfon v. United States, 332 U.S. 575 (1948) ... 4,10
Selvester v. United States, 170 U.S. 262 (1898) 6

State v. Esposito, 371 A.2d 1273 (N.J. Super),
cert. denied, 377 A.2d 669 (N.J. 1977) .......... 10

li

United States ex rel. Rogers v. LaValle, 517 F.2a *“°"
1330 (2d Cir. 1975), cert. denied, 423 US.
ITED <csccttscnsvinsecehninioniiismamadiceniiiaibiiamailananics 4,5

United States v. Flowers, 255 F. Supp. 485 (E.D.
eT co Rep ree FeO ore NICO 10

United States v. McGowan, 385 F. Supp. 956 (D.

Be SIRE isch sccriosaltadiicideiaciteantiodecnnsentadediebisnmdgalcaiedusanss 7,9

United States v. Oregon, 366 U.S. 643 (1961) ... 11

United States v. Smith, 337 A.2d 499 (D.C. 1975) 5, 6, 10
United States v. Venable, 585 F.2d 71 (3d Cir.

PUTTY. ddcaaihatsiaecigusatnceitidchag ncemeiannpeeainerese venation 5
Rules
ee ie St nalirceh et eictaheiveneiteeatniinthoarisess 11
Statutes
BE 8 Ge , aucrtantunniahton etn nea OnE eer 2

Constitutional Provisions

Constitution of the United States, Amendment V

Constitution of the United States, Amendment
RE IE Fe ditlacdisctuceticeihaaeieeees ieee 2

CONTEXTS OF APPENDIX
Opinion of the Court of Appeals of Maryland ..la-2la

—

ee

wea

In THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.
STATE OF MARYLAND,
Petitioner,
Vv.
HERMAN ROOSEVELT POWERS,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND

The State of Maryland, Petitioner, respectfully prays
that a Writ of Certiorari be issued to review the
judgment of the Court of Appeals of Maryland, the
highest court of the State, entered in the above-entitled
case.

OPINION BELOW

The opinion of the Court of Appeals of Maryland,
Powers v. State, No. 99, Sept. Term, 1978 (Md., opinion
by Davidson, J., filed June 1, 1979), reported but not yet
printed, is included as an Appendix to this Petition.

JURISDICTION

The judgment of the Court of Appeals of Maryland,
which is sought to be reviewed, was filed on June 1,
1979. This Petition is filed within 90 days of that date.

2

The jurisdiction of this Court is invoked under 28
U.S.C. § 1257(8).

QUESTION PRESENTED FOR REVIEW

After a jury at a single trial of three consolidated
indictments arising out of the same incident acquits a
defendant on two indictments but is unable to agree
upon a verdict on the third indictment, does the
doctrine of collateral estoppel apply and thereby bar
retrial of the unresolved charge? —

CONSTITUTIONAL PROVISIONS INVOLVED
Constitution of the United States, Amendment V:

“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a Grand Jury, except in
cases arising in the land of naval forces, or in the
Militia, when in actual service in time of War or
public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.”

Constitution of the United States, Amendment XIV,
Section 1:

“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge ee or
immunities of citizens of the Uni States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.”

3

STATEMENT OF THE CASE

Herman Roosevelt Powers, Respondent, was charged
in three indictments as being one of three perpetrators
of two armed robberies and an attempted armed
robbery of three victims arising out of a single incident.
A fuller discussion of the facts may be found in Apx. la-
6a. The three indictments were joined for trial. After a
jury trial in the Criminal Court of Baltimore (Allen, J.),
Respondent was, on February 15, 1978, found not quilty
of one armed robbery and of the attempted armed
robbery, but the jury was unable to reach a verdict on
the second armed robbery charge. A mistrial was
declared as to the unresolved armed robbery charge. On
April 11, 1978, the Criminal Court of Baltimore (Allen,
J.) denied Respondent’s motion to dismiss the second
armed robbery indictment on grounds cf double
jeopardy, collateral estoppel, and res judicata.

Respondent filed a timely appeal to the Court of
Special Appeals of Maryland. Pursuant to certiorari to
the Court of Special Appeals of Maryland before that
court had rendered a decision, the Court of Appeals of
Maryland reversed the ruling of the Criminal Court of
Baltimore and, holding that collateral estoppel barred
the retrial, remanded the case to the Criminal Court of
Baltimore for dismissal of the second armed robbery
indictment. Powers v. State, No. 99, Sept. Term, 1978
(Md., opinion by Davidson, J., filed June 1, 1979). See
Appendix.

REASONS FOR GRANTING THE WRIT

GUIDANCE FROM THIS COURT IS NECESSARY TO RESOLVE
THE CONFLICTING DECISIONS AS TO WHETHER THE DOC-
TRINE OF COLLATERAL ESTOPPEL APPLIES AFTER A JURY
AT A SINGLE TRIAL OF THREE CONSOLIDATED INDICTMENTS
ACQUITS ON TWO INDICTMENTS AND IS UNABLE TO REACH A
VERDICT ON THE THIRD.

The issue of whether the doctrine of collateral
estoppel applies after a jury at a single trial of three

4

consolidated indictments acquits on two indictments
and is unable to reach a verdict on the third is one of
constitutional dimension, Ashe v. Swenson, 397 U.S.
436, 445 (1970), and one of first impression for this
Court. In holding that the doctrine applies, the Court of
Appeals of Maryland has relied primarily on two prior
decisions of this Court, i.e., Ashe and Sealfon v. United
States, 332 U.S. 575 (1948), and on two federal courts of
appeal cases, United States ex rel. Rogers v. LaVallee,
517 F.2d 1330 (2d Cir. 1975), cert. denied, 423 U.S. 1078
(1976), and Cosgrove v. United States, 224 F.2d 146 (9th
Cir. 1954).

In Ashe, this Court held that the principle of
collateral estoppel is embodied in the Fifth Amendment
guarantee against double jeopardy, applicable, by this
Court’s decision in Benton v. Maryland, 395 U.S. 784,
794 (1969), to the States through the Fourteenth
Amendment. 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

etween the same parties in any future lawsuit.”
Ashe, supra, 397 U.S. at 443.

A review of the evidence presented at trial in the
instant case would logically indicate that the only
factual issue to be determined by the jury was
Respondent’s participation in the crimes. The split
verdicts, however, indicate that there was some other
basis for the verdicts. If the jury necessarily decided the
agency question against the State, a verdict of not
guilty would have been returned on all indictments. It is
Petitioner’s position that where the State seeks to retry
a defendant, under the circumstances herein presented,
on the third, unresolved charge, it cannot ever be said
that the acquittals necessarily determined an issue of

5

ultimate fact in the defendant’s favor.! The Court of
Appeals of Maryland held to the contrary. While courts
have discussed the possible application of the doctrine
in single, multi-charge trials, the decisions are -not
uniform in result. Compare Cosgrove, supra, 224 F.2d
146, and United States v. Smith, 337 A.2d 499 (D.C.
1975). Guidance from this Court is necessary to resolve
the conflicting decisions.

The decision of the Court of Appeals of Maryland
rests on four grounds. Each will be set forth infra,
followed by the reasons for its inapplicability to the
circumstances presented.

1 This case does not present the situation, as did Rogers,
supra, 517 F.2d 1330, wherein the acquittal was on a charge
which is a lesser-included offense of the charge which the
government seeks to retry. The result in such cases can be
justified on grounds of direct, not collateral, estoppel. See
generally Cook v. State, 281 Md. 665, 668-69, cert. denied, ___
U.S. __—. (1978). In the instant case, although all charges
arose from a single transaction, each was an independent
offense.

Also, the Court of Appeals of Maryland, in support of its
holding, correctly cited Cosgrove, supra, 224 F.2d 146, in
which collateral estoppel was applied. Cosgrove, however, is
a pre-Ashe decision which this Court was not asked to
review. With regard to the effect to be accorded to pre-Ashe
cases, it was noted in United States v. Venable, 585 F.2d 71,
78 (3d Cir. 1978), that

“they speak not to constitutional prohibitions, but rather
to res judicata as a defense in a second criminal trial. In
this respect, they are clearly superceded by Ashe insofar
as Ashe would entirely bar a retrial, when collateral
estoppel effect is given to facts established in favor of
the defendant which are necessary to sustain a convic-
tion in a second prosecution. They retain their vitality,
however, to the extent that they would allow the defense
of collateral estoppel to be raised in a second proceeding
as to facts previously established but not necessary to
sustain the conviction sought at retrial.” (Emphasis in
original.)

Petitioner ho for the reasons stated infra, that the
rationale underlying Rogers is inapplicable to the situation
herein and that Cosgrove is incorrectly decided and should
not compel the result reached in the instant case.

6

1. To allow another trial on the indictment on which
the jury was unable to reach a verdict would acknowl-
edge the existence of inconsistent findings of fact where
none exists because a mistrial “cannot establish facts
inconsistent with those established by its verdicts of
acquittal.” Apx. at 16a.

While it may be true that a mistrial does not establish
any facts, this statement is not the equivalent of
holding that no inferences can be gleaned from the
cause of the mistrial in the instant case, the inability of
the jury to reach a verdict.

Certainly the absence of unanimity is not tantamount
to an acquittal:

“That want of jury unanimity is not to be equated
with the existence of a reasonable doubt emerges
even more clearly from the fact that when a jury in
a federal court, which operates under the unanim-
ity rule and is instructed to acquit a defendant if it
has a reasonable doubt about his guilt, . . . cannot
agree unanimously upon a verdict, the defendant is
not acquitted, but is merely given a new trial... .
If the doubt of a minority of jurors indicates the
existence of a reasonable doubt, it would appear
that a defendant should receive a directed verdict
of acquittal rather than a retrial.” Johnson uv.
Louisiana, 406 U.S. 356, 363 (1972) (citations
omitted).

See also Selvester v. United States, 170 U.S. 262, 269
(1898).

In United States v. Smith, supra, 337 A.2d 499, Smith
was charged with obstruction of justice, threat to do
bodily harm, and bribery; after a single trial, he was
acquitted of the charges of threat to do bodily harm and
bribery, but the jury was unable to reach a verdict as to
obstruction of justice. It was held that the doctrine of
collateral estoppel did not apply so as to preclude a
retrial on the obstruction charge, for, in view of the
jury’s being unable to reach a verdict on obstruction of

re

a remeerassrts

7

justice, the acquittal of threat to do bodily harm did not
necessarily determine the issue with respect to identical
threats alleged in the obstruction charge:

“Here, there was not only a multiple count
indictment but the jury ‘hung’ on the identical
charge which the government sought to retry and,
consequently, even though appellant was acquitted
of the ‘threats’ charge, one is unable to demon-
strate that the jury must have found in his favor
the ultimate facts underlying the obstruction of
justice charge.

To illustrate, if one concludes the jury had
necessarily found there were no threats made, this
conclusion is undercut by the jury’s failure also to
acquit on the obstruction by threats charge. It did
not do so. This demonstrates there is not present
here the required showing that the jury must have
determined there were no threats. ‘Unless the
record of the prior proceeding affirmatively demon-
strates that an issue involved in the second trial
was definitely determined in the former trial, the
possibility that it may have been does not prevent
the relitigation of that issue.’

If in a situation such as this, one were to view the
acquittal on the ‘threats’ charge in a vacuum this
approach might lead eventually to the point where
in some multiple charge trials jurors would be
instructed to render ‘an all-or-nothing verdict’, and
in our view this could have consequences undesira-
ble to the administration of criminal justice.” 337
A.2d at 502-03 (footnotes omitted) (emphasis in
original) (citation omitted).

Similarly, in United States v. McGowan, 385 F. Supp.
956 (D.N.J. 1974), McGowan, after a single trial, was
found not guilty of conspiracy to import marijuana, but
the jury was unable to reach a verdict on the charge of
conspiracy to distribute marijuana and to possess it
with intent to distribute. In holding that the acquittal

8

did not “necessarily determine” that McGowan did not

join the conspiracy, the Court commented:
“More precisely, since the bases for jury determina-
tions are a matter of speculation in most criminal
cases, the abuse lies in compelling a relitigation of
the question of innocence even though it appears
substantially certain that the first jury decided
that matter in the accused’s favor.

But this analysis of Ashe hardly compels the
conclusion that the jury’s inconsistency in this
case should be ignored. Ashe of course did not
consider the question whether a jury should be
conclusively presumed rational in rendering an
acquittal. But an affirmative answer to that
question would contradict the Court’s own direc-
tives to consider ‘all the circumstances of the
proceedings,’ 397 U.S. at 444, 90 S. Ct. at 1194, and
to apply collateral estoppel with ‘realism and
rationality.’ Id. Moreover, defendant cannot be
treated unfairly merely because the Court recog-
nizes, rather than presumes, that the jury acted
irrationally. Indeed, ignoring the jury’s inconsist-
ency would treat the government unfairly. All
relevant data simply fail to indicate that the jury
must have found McGowan innocent of all conspi-
ratorial involvement. Rather, they reveal substan-
tial uncertainty whether the acquittal verdict
determined anything at all about his identity as a
conspirator. The Court cannot conclude that Ashe
sought to resolve such a ~— degree of uncertainty
conclusively in the accused’s favor.” 385 F. Supp.
at 961.

Thus, the fact that the jury failed to acquit Respond-
ent of the second armed robbery charge indicates that

the issue of the identity of the perpetrator was not
necessarily decided in Respondent’s favor.

2. To allow another trial on the indictment on which
the jury was unable to reach a verdict “does nothing to
encourage careful preparation and presentation by the
prosecutor.” Apx. at 19a.

9

In fact, the combination in a single trial of all
charges arising out of the same incident sought to avoid
one of the dangers addressed in Ashe, supra, 397 U.S. at
445 n.10, i.e., “the potential for unfair and abusive
reprosecutions.” Moreover, because there is no sugges-
tion that the preparation by the prosecution in the
instant case was less than careful, the prosecution
cannot be held responsible for the inconsistent verdicts.

3. By allowing another trial on the indictment on
which the jury was unable to reach a verdict, “effect is
given to the jury’s failure to agree, which is a nullity
establishing nothing, while a valid and final judgment
of acquittal, which determined facts in favor of the
accused, is deprived of any and all effect in a successive
proceeding.” Apx. at 19a.

As discussed supra in responding to the first ground
underlying the decision of the Court of Appeals of
Maryland, the acquittals did not necessarily determine
the issue of criminal agency in Respondent’s favor, but
the acquittals are not deprived of effect. See, e.g.,
McGowan, supra, 385 F. Supp. at 961:

“Since the nature of the jury’s deliberations is
not known, it cannot be determined whether the
error or inconsistency prejudiced defendant or the
government. Either proposition is equally plausi-
ble. But the government cannot, . . . and does not
attempt to, deprive defendant of the benefit of the
acquittal on count 2. In fairness, he ought not be
permitted to rest on that verdict to collaterally
estop a retrial on count 1.” (Citation omitted.)

4. To allow another trial on the indictment on which
the jury was unable to reach a verdict would give rise to
the possibility that “{i]f the jury in the second trial were
to convict on the related offense, inconsistent verdicts
in successive trials would result — an acquittal on one
. . . [indictment] in the first trial and, in the second
trial, a conviction on the related .. . [indictment]
having a common issue of ultimate fact essential to

10

conviction,” Apx. at 20a, an impermissible result under
Sealfon.?

First of all, in the instant case, the acquittals, as
explained supra, did not necessarily decide in Respond-
ent’s favor an issue of ultimate fact cornmmon to the
indictment on which the jury was unable to reach a
verdict.

Sealfon indeed stands for the propositions noted by
the Court of Appeals of Maryland, i.e., “that inconsist-
ent verdicts, when reached in successive trials, are not
permissible ... [and] 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.” Apx. at
8A. Unlike the instant case, however, Sealfon involved
a first trial at which Sealfon was charged only with and
acquitted only of conspiracy to defraud while the
precluded second prosecution was for the substantive
offense. Where, as in the instant case, indictments are
consolidated for trial, the rule in Sealfon is inapplica-
ble, United States v. Smith, supra, 337 A.2d at 502, for
the process involves not the institution of a second
prosecution but merely a retrial after mistrial. By way
of comparison, the Smith court commented, id. at 503:

“If appellant had been first tried on one charge
(threats), with a general verdict being returned, as
in Ashe v. Swenson ... and Sealfon v. United
States, ... one might well be in a position to
ascertain what the jury must have determined
factually.” (Emphasis in original.)

In this regard, see State v. Esposito, 371 A.2d 1273, 1275
(N.J. Super.), cert. denied, 377 A.2d 669 (N.J. 1977),
involving a single trial at which Esposito was acquitted

2 This is the only basis for the application of the doctrine
in United States v. Flowers, 255 F. Supp. 485, 487-89 (E.D.

N.C. 1966), a case appropriately cited by the Court of Appeals
of Maryland as having applied the doctrine. Apx. at 15a.

11

of bribery but at which the jury was unable to reach
verdicts on the charges of conspiracy to commit
misconduct in office and the substantive offense:

“The impanelling of the second jury is but part of a
single trial in order to seek a determination on
unresolved issues.”

CONCLUSION

The decision of the Court of Appeals of Maryland
reflects a view which is not universally accepted by all
courts, including the District of Columbia Court of
Appeals, and presents a constitutional issue of first
impression for this Court. These two grounds are
sufficient to generate review by this Court. United
States v. Oregon, 366 U.S. 648, 645 (1961); Sup. Ct. R.
19(a). Petitioner respectfully urges that a Writ of
Certiorari be issued to review the decision of the Court
of Appeals of Maryland.

Respectfully submitted,

STEPHEN H. SACus,
Attorney General of Maryland,
DEBORAH K. HANDEL,
Assistant Attorney General,
Chief, Criminal Appeals
Division,
STEPHEN ROSENBAUM,
Assistant Attorney General,
One South Calvert Building,
Baltimore, Maryland 21202,
383-3737,
Attorneys for Petitioner.

la

APPENDIX

In The
Court of Appeals of Maryland

No. 99

September Teri, 1978

Herman Roosevelt Powers
v.

State of Maryland

Murphy, C.J., Smith, Digges, Eldridge,
Cole, Davidson, Judges.

Filed: June 1, 1979

OPINION
DAVIDSON, Judge:

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! 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

1 For purposes of this opinion, we treat separate indict-
ments consolidated for trial as the equivalent of a multicount
indictment.

2a

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 case 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 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

3a

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 ar-
rested. 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 juy 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.? 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.*

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 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 Kin, testified that there had
been three robbers but did not identify Powers or either
of his codefendants. The remaining three eyewitnesses

2 Barksdale, Turner, McLeod, and Wells were similarly
indicted.

3 In that proceeding, McLeod and Wells were tried as
Powers’s efendants. Barksdale and Turner were never
tried. Their indictments were nol prossed on the day that
Powers’s trial concluded.

4a

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 characteris-
tics 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]Jhe 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 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

5a

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 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.”

6a

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 Defend-
ant may be guilty of the principal offense even
though he did not personally commit each of the
acts constituting the offense and was not person-
ally 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.‘ 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 Estop-
pel, 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.

‘ The trial court acquitted codefendant McLeod on all
counts of all of the indictments against him on the ground
that the evidence was insufficient to sustain a conviction.
The jury found codefendant Wells guilty of receiving goods
stolen from Chond Ham Kim, and not guilty on all of the
other coufits of the indictments against him.

Ta

The Fifth Amendment to the United States Constitu-
tion 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 kaw doctrine of
double jeopardy in Maryland). This amendment estab-
lishes 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 govern-
ment 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 crimi-
nal 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 simultane-
ously convicts him on a related count of the same

8a

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, 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 subse-
quently 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 convic-
tion 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 prose-
cute 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 Amend-
ment 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 guaran-
tee 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

AR et iw —

9a

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 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 a 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.
* * * * o* *

“The federal decisions have made clear that the
rule of collateral estoppel in criminal cases is not to ©
to be applied with the hypertechnical and archaic
approach of a 19th century pleading book, but with
realism and rationality. Where a previous judg-
ment 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
whaihian 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 restric-
tive would, of course, simply amount to a rejection
of the rule of collateral estoppel in criminal

10a

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 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 consi-
dered 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 uv. 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 neg-
lected 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 uv. State, 237 So. 2d 341, cert. denied, 240 So. 2d
raed or 1970), vacated, 403 U.S. 384, 91 S. Ct. 1801

ate

lla

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
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.

12a

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),
reu 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 faith of the State in bringing
successive prosecutions.” 404 U.S. at 56-57, 92S. 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 where
the validity of the jury’s findings is questionable
because it was not permitted to consider all of the
relevant evidence.

In Turner v. Arkansas, 407 U.S. 366, 92 S. Ct. 2096
(1972) (per curiam), the Supreme Court considered
whether the doctrine of coliateral estoppel applies when
state law prohibits the prosecution from joining in a
multicount indictment all of its charges and proceeding
against an accused in a single trial. There, Turner,
Larry Yates, and another person were playing poker
late at night. After Yates left the game he was robbed
and murdered. Turner was charged with the murder. A
jury acquitted him. Thereafter, he was indicted for the
robbery of Yates.

Turner filed motions to dismiss the indictment on
double jeopardy and res judicata grounds which the
trial court denied. The Arkansas Supreme Court
reasoned that because State statutes prevented charges
of murder and robbery from being joined in one
indictment, the question whether the accused was
guilty of robbery could not have been adjudicated in the
first case, and affirmed. Turner v. State, 248 Ark. 367,
372, 452 S.W.2d 317, 320 (1970); Turner v. State, 251
Ark. 499, 473 S.W.2d 904 (1971), rev’d, 407 U.S. 366, 92
S. Ct. 2096 (1972).

13a

The United States Supreme Court reversed. It noted
that “[t]his case is . . . squarely controlled by Ashe v.
Swenson,” and said that “the rejection of petitioner’s
claim by the Arkansas Supreme Court on procedural
grounds does not foreclose our inquiry on this issue.”
407 U.S. at 368-70, 92 S. Ct. at 2098-99. It decided that
after a jury had determined that Turner was not present
at the scene of the robbery and murder of Yates, the
State could not prosecute him for the robbery of Yates.
This case established that the doctrine of collateral
estoppel applies even when a state is precluded by law
from joining all of its charges in a multicount
indictment and proceeding against the accused in a
single trial.

The Supreme Court has not considered the precise
problem presented here. The cases involving the
application of the doctrine of collateral estoppel
previously decided by that Court all involved single
count indictments in which the jury initially acquitted
and the accused was subsequently tried for a related
offense, having a common issue of ultimate fact
essential to conviction, which the previous acquittal
had determined in his favor. In each of those cases, the
jury’s general verdict of acquittal was considered
sufficiently certain to constitute a valid determination
of fact. In those cases, the doctrine of collateral estoppel
was applied to prevent inconsistent verdicts in succes-

sive trials.

Here, in a single trial, a jury determined by its
verdicts of acquittal on two counts of a multicount
indictment that an accused had not been the person
who had robbed two victims of a robbery. In the same
trial, the same jury, however, was unable to determine
whether the..accused had been the person who had
robbed the third victim of that robbery. Because the
jury’s findings of ultimate facts common to all three
counts appear to be inconsistent, the validity of those
findings is questionable. We must, therefore, determine
whether, despite the jury’s apparently inconsistent
findings on the common issues of ultimate fact
essential to conviction, the doctrine of collateral
estoppel applies.

l4a

In deciding this question, we rely heavily on the
policies underlying the cognate doctrines of double
jeopardy, res judicata, and collateral estoppel. In
describing the purpose of the doctrine of double
jeopardy, Justice Black, in Green v. United States, 355
U.S. 184, 78 S. Ct. 221 (1957), said for the majority:

“(T]he State with all its resources and power
should not be allowed to make repeated attempts to
convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well
as enhancing the possibility that even though
innocent he may be found guilty.

“In accordance with this philosophy it has long
been settled under the Fifth Amendment that a
verdict of acquittal is final, ending a defendant’s
jeopardy, and even when ‘not followed by any
judgment, is a bar to a subsequent prosecution for
the same offense.’ ... Thus it is one of the
elemental principles of our criminal law that the
Government cannot secure a new trial by means of
an appeal even though an acquittal may appear to
be erroneous.” 355 U.S. at 187-88, 78 S. Ct. at 223-24
(citation omitted) (emphasis added).

In describing the purpose of the doctrine of collateral
estoppel as it applies in criminal law, Judge Friendly,
in United States v. Kramer, 289 F.2d 909 (2d Cir. 1961),
said for the majority:

“(T]o permit the Government to force a defendant
who has won an acquittal to relitigate the identical
question on a further charge arising out of the
same course of conduct, selected by the Govern-
ment from the extensive catalogue of crimes
furnished it in the Criminal Code, would permit the
very abuses that led English judges to develop the
rule against double jeopardy long before it was
enshrined in the Fifth Amendment... and still
longer before the proliferation of statutory offenses
deprived it of so much of its effect. .. . The very
nub of collateral estoppel is to extend res judicata
beyond those cases where the prior judgment is a

a

15a

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.” 289 F.2d at 916
(citations and footnote omitted) (emphasis added).

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.

Many of those courts which have considered ques-
tions similar to that now presented have applied the
doctrine of collateral estoppel. United States ex rel
Rogers v. LaVallee, 517 F.2d 1330, 1334 (2d Cir. 1975),
cert. denied, 423 U.S. 1078, 96 S. Ct. 866 (1976);
Cosgrove v. United States, 224 F.2d 146, 150 (9th Cir.
1954). See United States v. Davis, 369 F.2d 775, 777 (4th
Cir. 1966), cert. denied, 386 U.S. 909, 87 S. Ct. 858 (1967);
United States v. Kenny, 236 F.2d 128, 130 (3d Cir.), cert.
denied, 352 U.S. 894, 77 S. Ct. 133 (1956); United States
ex rel Triano v. Superior Court of New Jersey, 393 F.
Supp. 1061, 1067 (D. N.J.), aff'd, 523 F.2d 1052 (3d Cir.
1975), cert. denied, 423 U.S. 1056, 96 S. Ct. 787 (1976);
United States v. Flowers, 255 F. Supp. 485, 487-89 (E.D.
N.C. 1966); United States v. Perrone, 161 F. Supp. 252,
257-59 (S.D. N.Y. 1958); United States v. Smith, 337
A.2d 499, 503-04 (D.C. 1975) (Kern, J., concurring);
People v. Chang, 382 N.Y.S.2d 611, 614, 86 Misc.2d 272,
275 (1976). Cf. United States v. Venable, 585 F.2d 71, 75-
77 (3d Cir. 1978); United States v. Nelson, 574 F.2d 277,
283 (5th Cir. 1978); Travers v. United States, 335 F.2d
698, 703 (D.C. Cir. 1964); People v. Pearson, 16 Ill. App.
3d 543, 549, 306 N.E.2d 539, 543 (1973) (in a single trial
on a multicount indictment accused acquitted and
convicted and conviction subsequently reversed). Other
courts, however, have held that the doctrine of collat-
eral estoppel is inapplicable when a jury acquits on one
count of a multicount indictment and is unable to agree

l6a

on another count having a common issue of ultimate
fact, which if found in favor of an accused would
establish his innocence on both counts. United States v.
McGowan, 385 F. Supp. 956, 961 (D. N.J. 1974); United
States v. Smith, 337 A.2d 499, 501-03 (D.C. 1975); State
v. Roller, 29 N.J. 339, 350, 149 A.2d 238, 243-44 (1959);
State v. Esposito, 148 N.J. Super. 102, 105-08, 371 A.2d
1273, 1275-76 (1977); State v. Triano, 147 N.J. Super.
474, 475-76, 371 A.2d 734, 734-35, certif. denied, 65 N.J.
280, 321 A.2d 241, cert. denied, 419 U.S. 883, 95 S.Ct. 148
(1974). Cf. United States v. Maybury, 274 F.2d 899, 905
(2d Cir. 1960); DeSacia v. State, 469 P.2d 369, 379-81
(Alaska 1970) (in a single trial on a multicount
indictment accused acquitted and convicted and convic-
tion subsequently reversed). Some of those courts
reason that the jury’s findings of fact are inconsistent,
and that consequently, the jury acted irrationally.
United States v. McGowan, 385 F. Supp. at 960-61;
DeSacia v. State, 469 P.2d at 380; United States v.
Smith, 337 A.2d at 502-03. They assert that this
circumstance creates such a high degree of uncertainty
with respect to the validity of the jury’s action that
confidence that the jury’s acquittal constituted a
determination of issues of ultimate fact is undermined.
They conclude that because, under such circumstances,
it is impossible to discern what facts were determined
by the jury’s acquittal, the doctrine of collateral
estoppel does not apply. We do not agree.

In our view, there can be no inconsistency in a jury’s
findings of fact when it acquits on one count and is
unable to agree on another count having a common
issue of ultimate fact, which if found in favor of an
accused would establish his innocence on both counts.
In Maryland, a mistrial is equivalent to no trial at all.
Cook v. State, 281 Md. 665, 671, 381 A.2d 671, 674 (1978).
It is not a final determination and decides no question
of fact. Accordingly, a jury’s failure to agree, which
results in a mistrial, does not establish any facts, and
thus cannot establish facts inconsistent with those
established by its verdicts of acquittal. United States v.
Smith, 337 A.2d at 503-04 (Kern, J., concurring).

Slates ty et ee awe SE ee A Se

Aa CCS ——

17a

Ashe requires the doctrine of collateral estoppel to be
applied whenever an issue of ultimate fact has once
been determined by a valid and final judgment of
acquittal. 397 U.S. at 443, 90 S. Ct. at 1194. Here, the
only valid and final judgments before us are the jury’s
verdicts of acquittal. There is no question that those
verdicts do constitute a valid determination of issues of
ultimate fact. Because the jury’s failure to agree did not
decide any facts, it did not make the validity of that
determination questionable. Accordingly, the doctrine
of collateral estoppel applies.

Even if the jury had made inconsistent findings of
fact, thus undermining confidence that its acquittal
constituted a valid determination of ultimate issues of
fact, we would reach the same result. Simpson estab-
lished that collateral estoppel applies where the validity
of a jury’s findings of fact in favor of an accused was
questionable because a different jury in an earlier trial
had resolved the same questions of fact against the
accused. Harris established that collateral estoppel
applies where the validity of a jury’s findings was
questionable because it was not permitted to consider
all the relevant evidence. Those decisions were consist-
ent with the policies expressed in Green and Kramer —
that the government cannot secure a new trial by
means of an appeal even though an acquittal may
appear to be erroneous — and that the government may
not prove a charge by asserting facts necessarily
determined against it by a previous acquittal, no matter
how unreasonable that determination may appear to
be. Because the primary purpose of the doctrine of
collateral estoppel is to protect the accused, we would
also apply it here where the validity of the jury’s
findings is questionable because it made inconsistent
findings of fact. Because there was a previous acquittal,
the State may not proceed with a second prosecution,
even though the previous jury’s determination of fact
may appear to be questionable.

Other courts rely on different reasoning to conclude
that the doctrine of collateral estoppel does not apply

18a

when a jury acquits on one count of a multicount
indictment and is unable to agree on another count
involving a common issue of ultimate fact, which if
found in favor of an accused would establish his
innocence on both counts. United States v. McGowan,
385 F. Supp. at 961; State v. Roller, 29 N.J. at 350, 149
A.2d at 243-44; State v. Esposito, 148 N.J. Super. at 105-
08, 371 A.2d at 1275-76; State v. Triano, 147 N.J. Super.
at 475-76, 371 A.2d at 734-35. They say that a primary
purpose of barring a trial after an accused has been
acquitted on a single count indictment is to encourage
prosecutors to bring multicount indictments in order to
prevent them from exercising their virtually unbridled
discretion to sever related offenses in order to maintain
the option of proceeding in multiple prosecutions.
United States v. McGowan, 385 F. Supp. at 960. They
assert that this deterrent purpose is substantially
achieved when the prosecution joins in a multicount
indictment all offenses having a common issue of
ultimate fact. Additionally, these courts reason that
after a jury has failed to agree on one count of a
multicount indictment, further prosecution on that
count is part of a single trial. State v. Roller, 29 N.J. at
350, 149 A.2d at 243-44; State v. Esposito, 148 N.J.
Super. at 107-08, 371 A.2d at 1276; State v. Triano, 147
N.J. Super. at 475, 371 A.2d at 734. They conclude that
since there was only a single trial, the proceeding
necessitated by the mistrial does not involve the
harrassment and oppression incident to multiple
prosecutions for the same wrongdoing. Again, we do

not agree.

‘One of the purposes of the doctrine of collateral
estoppel is to prevent prosecutors from purposefully
using their powers to provide plural opportunities to
convict an accused. Ashe v. Swenson, 397 U.S. at 445 n.
10, 90 S. Ct. at 1195 n. 10. Another is to encourage care
in the preparation and presentation of the prosecutor’s
initial case in order to prevent relitigation which
overburdens already crowded dockets and wastes public
funds. Mayers & Yarbrough, Bis Vexari: New Trials

19a

and Successive Prosecutions, 74 Harv. L. Rev. 1, 32
(1960). The primary purpose of the doctrine of collateral
estoppel however, 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.

Although the filing of a multicount indictment does
achieve the purpose of preventing purposeful prosecu-
torial maneuvering, it does nothing to encourage
careful preparation and presentation by the prosecutor.
Moreover, the fact that a successive prosecution was
brought in good faith is of no significance. In Harris,
the Supreme Court said that the State’s motivation in
bringing successive prosecutions is immaterial. 404
U.S. at 56-57, 92 S. Ct. at 184. In Turner, the Supreme
Court established that collateral estoppel applies even
when a prosecutor is required to bring two separate
proceedings because state law prohibits all of the
charges against an accused from being joined in a
single indictment. 407 U.S. at 369-70, 92 S. Ct. at 2099.

In addition, to say that after a jury has failed to agree
on one count of a multicount indictment, further
prosecution on that count is part of a single trial is to
view the application of collateral estoppel “with the
hypertechnical and archaic approach of a 19th century
pleading book” rather than “with realism and rational-
ity,” as required by the Supreme Court. Ashe uv.
Swenson, 397 U.S. at 444, 90 S. Ct. at 1194. Such a view
totally ignores the fact that on a related count in the
same trial there has been a valid and final judgment of
acquittal which did determine common issues of
ultimate fact essential to conviction. As a result, effect
is given to the jury’s failure to agree, which is a nullity
establishing nothing, while a valid and final judgment
of acquittal, which determined facts in favor of the
accused, is deprived of any and all effect in a successive
proceeding. ,

20a

As a practical matter, under the present circumstan-
ces, an accused having once been acquitted by a jury in
an initial trial is compelled again to prove his
innocence before a second jury in a second trial, solely
because in the first trial the State failed to prove his
guilt. 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.
Sealfon v. United States, 332 U.S. at 578-80, 68 S. Ct. at
239-40.

We now hold that the doctrine of collateral estoppel
applies after a jury, at a single trial, acquits on one
count of a multicount indictment 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. We must now determine
whether, under the facts of this case, the accused is
precluded from being tried a second time on the related
count.°

The record is devoid of any indication that the jury
could rationally have found that an armed robbery had
not occurred or that the Kims had not been victims of
that robbery. In closing argument, both the State and
the defense asserted that the only question in dispute

5 For similar cases in which the doctrine of collateral
estoppel was held applicable and, based upon the facts,
retrial on the related count was precluded, see United States
ex rel Rogers v. LaVallee, 517 F.2d at 1334; Cosgrove v.
United States, 224 F.2d at 150. For similar cases in which the
doctrine of collateral estoppel was held applicable but, based
upon the facts, retrial on the related count was not precluded,
see United States v. Davis, 369 F.2d at 780, United States v.
Kenny, 236 F.2d at 131; United States ex rel Triano v.
Superior Court of New Jersey, 393 F. Supp. at 1071; United
States v. Flowers, 255 F. Supp. at 494-95; United States v.
Perrone, 161 F. Supp. at 260-61; United States v. Smith, 337
ve — People v. Chang, 382 N.Y.S.2d at 614, 86 Misc.

at .

os all

2la

before the jury was whether Powers was one of the
robbers. The trial court instructed the jury that if it
found that Powers was one of the robbers, he would be
guilty of robbing Chond Ham Kim, robbing Sea Man
Kim, and attempting to rob Sung Ryum Kim.

The State’s contention that the jury may have
believed that Powers did not personally take or attempt
to take property from Chond Ham Kim and Sung Ryum
Kim, but may have personally taken property from Sea
Man Kim is without merit. In Ashe, a similar conten-
tion, State v. Ashe, 350 S.W.2d at 770, was rejected by
the United States Supreme Court which noted:

“Tf a later court is permitted to state that the
jury may have disbelieved substantial and uncon-
tradicted evidence of the prosecution on a point the
defendant did not contest, the possible multiplicity
of prosecutions is staggering. * * In fact, such a
restrictive definition of “determined” amounts
simply to a rejection of collateral estoppel, since it
is impossible to imagine a statutory offense in
which the government has to prove only one
element or issue to sustain a conviction.’ ” 397 U.S.
at 445 n. 9, 90 S. Ct. at 1194 n.9 (quoting Mayers &
Yarbrough, 74 Harv. L. Rev. at 38).

On the record before us, we conclude that a rational
jury could not have grounded its verdict upon an issue
other than that of Powers’s criminal agency. The single
rationally conceivable issue before the jury was
whether Powers had been one of the robbers. The jury
by its verdicts of acquittal found that he had not. The
doctrine of collateral estoppel, therefore, precludes a
second prosecution for the robbery of Sea Man Kim.

Order Reversed.

Case Remanded for Dismissal of
the Indictment.

Costs to be Paid by the Mayor
and City Council of Baltimore.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0813%3A1. Public record. Not legal advice.