Petition for Writ of Certiorari — Michigan v. Garcia

Supreme Court, U.S. ’

FILED

(\) 95+ 824 auc 2 51995)

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1994

State of Michigan,

Petitioner,

Frank Garcia,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF MICHIGAN

Randy O. Colbry (P-33053)

Prosecuting Attorney

Shiawassee County, Michigan

310 North Shiawassee

Corunna, Michiigan 48817

(517) 743-2373

seh

QUESTION PRESENTED

Should this Court grant certiorari

to clarify double jeopardy

jurisprudence where the decisions

throughout the country are in

disarray on the question of

whether the doctrine of “implied

acquittal" operates to preclude a

retrial of a lesser-included

"predicate" offense which operates

to aggravate a greater offense

(i.e., felony murder, and the

redicate felony), where jury

instructional error at defendant’s

first trial prevented the jury

from actually adjudicating the

merits of the less2r-included

offense sought to be stricken at

the retrial.

ii

Table of Contents

Index of authorities ... .- Pa

Petition for certiorari to the

Michigan Supreme Court. . .

Citations to opinions below... .

Jurisdiction. . . « «© « «© « « «

Constitutional provision involved

Statement of facts

Reasons for granting writ

Relief .

Appendix ....-. +++ +« « « »

{Index to appendix]

People v Garcia, 203 Mich sia 420,

513 NW2d 425 (1994). .

People v Garcia, 448 Mich 442,

531 NW2d 683 (1995).

People v Garcia, [order denying reh.,

May 30, 1995}.

Page

la-8a

9a-69a

70a

iv

Index to cases & authorities

Page

Cases

Addison v Parratt, 208 Neb 459,

303 NW2d 785 (1981) ae i-ele ~hS

Anderson v Green, 513 US ‘ 130 L Ed

2a 1050, 1053, S Ct €3995) . .12,193

Angstrohm Precision v~ v Vishay Inter-

technolgy, 567 F Supp 537 (ED NY,

Aneel se. * + * . tin ee wo: off

Ashe v Swenson, 397 US 436, "25 L Ed 2d

469, 90 S Ct 1189 (1970) ie Ne

- « 29,30,32,43,44,51,52 233,59

Ball v United States, 163 US 662,

41 L-Ed 300, 16 S Ct 1192 (1896) e «458

Benton v Maryland, 395 US 784, 23 L Ed

2d 707, 89 S Ct 2956 (1969) . ‘= « «8

Burks v United States, 437 US 1, 57 L

Ed 2d 1, 98 S Ct 2141 (1978) .. -16

Chicos v State, 246 Ind 680, 208 NE2d

685 (1965) Us es = eee 2» «26

Cichos v Indiana, 385 US 76, 17 Lh Ed

26 i175, 87 8 Ct 273 (1966) = + eff, 35

Commonwealth v Klobuchir, 486 Pa 241,

405 A2d 881 (1979) ... o ead

Commonwealth v Nardone, 406 Mass 123,

546 NE2d 359 (1989) . . . 33,34, 35 ee

Commonwealth v Tabb, 491 Pa a7,

421 A2d 183 (1980) ae — ae

Commonwealth v Ward, 493 Pa 115,

425 A2d 401 (1981) .* e « ea@sar

Dedrick v State, 623 SW2d 332. (Tex

Crim App, 1981) . « oe eof

Dowling v United States, 493 US 342,

110 S Ct 668,107 L Ed 2d 708

@\. ) Pee -44

Edmonds v United States, 106 US” App DC

373, 273 F2d 108 (1959) : « ebe pee ,19,22

Ex parte ene 872 SW2d 48 (Tex,

1994) .. e «58,59

Ex parte Lane, “806. sw2d 336 (Tex App

Fort Worth 1991) .. “ « «58

Ex Parte Traver, 725 SW2d_ 195

(Tex Crim Age, 1966) .....ce 8?

Fong Foo v United States, 369 US 141,

7 L Ed 2a 629, 82 S Ct 671 (1962).

Forsberg v United States, 351 F2d 242

(CA9 oe oe tak ee ee ee ee

Garcia v State, 768 SW2d 726

(Tex Crim App, 1987) . . o «2 096

Gikas v Zolin, 863 Cal Rptr 745 (1993)

Green v United States, 355 US 184,

2 L Ed 2d 199, 78 S Ct 221 (1957).

Harris v Oklahoma, 433 US 682, 53 L Ed

2d 1054, 97 S Ct 2912 (1977) « «40

Illinois v Vitale, 477 US 410, 65 L Ed

2d 228, 100 S Ct 2260 (1980) . .41

Johnson v Commonwealth of Virginia,

221 Va 736, 273 SE2d 784 (1981). .

. * « « eb@,i8

Kairys Vv INS, 981 F2d 937 (CA7 1992)

Kennedy v Washington, 986 F2d 1129

(CA7 1993) .. ee te

Lett v State, 727 SW 2a 367. (Tex App ~

yoru Wort 1987} . « -« :

Magee v Superior Court, 34 Cal App 3a

201, 109 Cal Rptr 758 (1973) . .46

Mauk v State, 91 Md App 456, 605 A2d

157 (Md 1992)... os ee

Montana v Hall, 481 US 400, "95 L Ed 2d

354, 107 S Ct 1825 (1982). . e

Montana v United States, 440 US 147,

59 L Ed 2d 210, 99 S Ct 970 (1979)

Munson v State, 758 P2d 324 — Crim

1988). . :

Neville v Butler, "867 “F24a 886

oY ee eee ae a ae

North Carolina v Pearce, 395 US pe B

23 & BG 26 686, 89 8 Ct 2072

(1960) 6. 6 7 ee ee eee

People v Anderson, 409 Mich 474,

295 NW2d 482 (1980)...

People v Crawford, 187 Mich App 344,

467 NW2d 818 (1991)...

People v Doolittle, 23 Cal App 3a 14,

99 Cal Rptr 810 (1972) ‘

People v Garcia, 203 Mich 7 420,

513 NW2d 425 (1994). . <

People v Garcia, 448 Mich 442,

531 NW2d 683 (1995)...

People v Garcia, CA 94233 (Jan 19,

1988). ; ; :

.44,45

21

207,58

~24

-9

,41,43

,42,43

,20,21

~44

144,45

-54

49,50

a & |

.16,37

,15,18

vi

People v Garcia, CA 117306 (May 15,

Bb s6 204) e! G oie & wos ete Gs

People v Gonzalez, 197 Mich App 385,

496 WW2d 321 (1992). . . . . s 0 « ei3

People v Griffin, 58 Cal Rptr 459

SEPOTE 0.5 2 0.4.0 ¢/¢: 9.418 83:4? ,08,80

People v Jenkins, 395 Mich 440,

. -6

236 NW2d 503 (1975). ........4

People v Langley, 187 Mich App 147,

466 NW2d 724 Ce ee ee eae eee

People v Wiley, 169 I11l App 3a 140,

523 NE2d 1344 (1988) ....... .25

Potts v State, 369 SE2d 746 (Ga 1988)

Rea SR ITE: CF MA ee ek 2

Richardson v United States, 468 US

317, 82 L Ed 2d 242, 104 S Ct 3081

Cawee) si vis se + + ©. 4 412 BES? , 38,39

Sanders v State, 429 So2d 245

i ff a rs es

Sekou v Blackburn, 796 F2d 108 (CAS

ae ee ey ee rca

Staael v State, 697 P2d 1050 (Alaska

ee Sees 6S had Sw ree Ce

State v Despenza, 38 Wash App 645,

See wee Or Ca0G6hs 2 6 «kh

State v Dykstra 33 Wash App 648,

wee wee sant C2009) 6 kee & oR

State v O’Kelley, 113 NM 25, 822 P2d

Oe SEOeR 8°64 2s fe Suds & bx? ae

State v Seagroves, 691 SW2d 537

Coe. Sees s wis ie 2 eek we 6 ee

Stone v Superior Court of San Diego

County, 31 Cal 2d 503, 646 P2d 809

EE 6) Oe ee -11,22,46 ,47,50

Tibbs v Florida, 457 US 31, 72 L Ed 2a

652, 102 S Ct 2211 (1982). .... -15,16

Todd v State, 884 P2d 668 (Alaska

. . .

.

N + ul

_ Nn

7 - -

N oe 84)

N W N

Sees 6) 6) ho) Cee ee ee

United States v Bizzard, 615 F2d 1080

ce ONOG) « «6 @ eeee crate he a cae

United States v Coward, 669 F2d 180

Ngati o) ) Per eee at ie TS

United States v DiFrancesco, 449 US

117, 66 L Ed 2a 328,101 S Ct 426

apd POM Te er ee eee

United States v DeVincent, 632 F2d 155

ee SON) 8 ele te wake eked ee

vii

United States v Dray, 901 F2d 1132

(CA1 1990) .. :

United States v Fitzpatrick, 581 F2d

3321 (CAS 1978)... . —

United States v Gooday, 714 "F2d 80

(CAS 1963) . . « « 032,18,19, 20,21

United States v Lagerquist, 758 F2d

1279 (1985)...

United States v Larkin, 605 “F2d_ 1360

(CAS 1979) ..

United States v Miller, "952 F2a- 866

«CAS 2992) . « .-«

United States v Porter, "807 “F2d_ 21

(CA2 1986) ...

United States v Scott, 437 US” 82,

57 L Ed 2d 65, 98 S Ct 2187 (1978)

United States v Stevens, 38 F3d 169

came « «© ¢

United States v Reed, "617 “F Supp 792

(Md, 1985) : ; ;

United States ex rel Jackson v

Follette, 462 F2d 1041 (CA1 1984).

Other authorities

a8 U.S.C. aao7(3)

MCL 750.317; MSA 28.549.

MCL 750.227b; MSA 28.424(2).

The Three Faces of Double Jeopardy:

Reflections on Government Appeals of

Criminal Sentences, Peter Weston,

78 Mich L Rev. 1001 (1980)

Twice in Jeopardy, 75 Yale L.J., 262,

265-266 (1965) a ee) oe

W.R. LaFave & F.H. Israel, Criminal

Procedure, sec. 24.4 er ee ae a

54,55

aa

~ 33,90

o

22

.37,39

.39

.24

.39

.25,26

.36

-14

-10

-10

-16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1994

No.

State of Michigan,

Petitioner

Frank Garcia,

Respondent.

Petition for a Writ of Certiorari

to the Supreme Court of the

State of Michigan

Now comes the State of Michigan, by

Randy 0. Colbry, Prosecuting Attorney in

and for the County of Shiawassee, and

prays that a writ of certiorari will issue

to review the judgment of the Supreme

Court of the State of Michigan filed on

April 18, 1995, rehearing denied, May 30,

1995, which upheld a Michigan Court of

Appeals decision reversing respondent’s

conviction for the crime of armed robbery

on double jeopardy grounds.

(Citations to opinions below]

The decision of the Michigan Supreme

Court was entered April 18, 1995 and is

reported as People v Garcia, 448 Mich 442;

531 NW2d 683 (1995). In an equal division

opinion, the Court affirmed the decision

of the Michigan Court of Appeals filed

February 7, 1994, in People v Garcia, 203

Mich App 420; 513 NW2d 425 (1994). Copies

of the opinions are included in the ap-

pendix to this petition. [App la-69a]

{Jurisdiction]

The decision of the Michigan Supreme

Court was filed April 18, 1995. {App

9a-69a] A petition for rehearing filed by

the people of the state of Michigan was

denied May 30, 1995. [App 70a} The

jurisdiction of this Honorable Court is

invoked under authority of 28 U.S.C. sec.

1257(3).

(Constitutional provision involved]

Constitution of the United States,

Amendment V:

“No person shall be held to an-

Swer for a capital, or otherwise

infamous crime unless on a pre-

sentment or indictment of a Grand

Jury, except in cases arising in

the land or naval forces, or in

the Militia, when in actual ser-

vice in time of War or public dan-

ger; nor shall any person be sub-

ject 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.

[Statement of facts]

The facts, as far as they are perti-

nent to this petition for certiorari, are

set forth by the Michigan Court of Appeals

in People v Garcia, 203 Mich App 420; 513

NW2d 424 (1994) as follows:

"This case has a long history. In

1985, while stealing a car, defendant,

Frank Garcia, and his codefendant, Ronald

Hammond, killed the owner. (Timothy Roger

Kiley} An information was filed charging

defendant with one count of felony murder,

an alternative count of open murder, and

one count of felony firearm. A jury trial

was held. The alternative count of open

murder was dismissed by the trial court

and the jury was instructed on two counts:

the first, felony murder, including lesser

included offenses of second-degree murder

pursuant to People v Jenkins, 395 Mich

440; 236 NW2d 503 (1975), reh den 396 Mich

977 (1976), and armed robbery, and a

second count of felony firearm. The jury

returned verdicts of guilty of second-

degree murder and felony firearm, and

defendant was sentenced to life imprison-

ment. Subsequently, this Court reversed

defendant’s convictions because the jury

instructions and verdict form did not

contain a general verdict of ‘not

guilty.’" People v Garcia, unpublished per

curiam opinion of the Court of Appeals

(Docket Nos. 94233 and 94822, released

01-19-88), [App 3a]

On remand, an information was filed

Charging defendant with three counts: 1)

second-degree murder, 2) armed robbery,

and 3) felony-firearn. Defendant moved

to quash the armed robbery count, arguing

that he was placed in jeopardy of an armed

robbery conviction by being tried for

felony murder and his implied acquittal

of felony murder served to bar retrial on

the armed robbery charge. The trial court

granted defendant’s motion to quash, but

an interlocutory appeal by the prosecutor

was granted. A panel of this Court re-

versed the order quashing the armed rob-

bery count, stating that its prior opinion

in this matter did "not preclude a new

trial on the added count of armed

robbery." People v Garcia, CA 117306 (May

15, 1989) [App lla}

Following a second jury trial on the

charges for second-degree murder, armed

robbery, and felony-firearm, the jury re-

turned verdicts of not guilty of

second-degree murder and felony-firearm,

and guilty of armed robbery. Defendant

was again sentenced to life imprisonment.

We vacate the conviction." [App 3a-4a]

The Michigan Court of Appeals reversed

by holding that the first jury’s failure

to convict of first degree felony murder,

together with the conviction of second-

degree murder, necessarily established

that the defendant was not guilty of the

lesser-included offense of armed robbery.

People v Garcia, 203 Mich App 420; 513

NW2d 425 (1994) [App 4a-8a}

Petitioner was granted leave to appeal

by the Michigan Supreme Court and argued

that respondent’s armed robbery conviction

was not barred by the double jeopardy

Clause. An equal division opinion by the

Michigan Supreme Court resulted in the af-

firmance of the Court of Appeals decision

vacating defendant’s armed robbery convic-

tion on double jeopardy grounds.

Justice Riley, joined by Justices

Boyle and Mallett, writing for reversal,

held that the defendant’s implicit acquit-

tal of first degree murder did not operate

as an implied acquittal of the predicate

offense of armed robbery. Accordingly de-

fendant was properly retried and convicted

of armed robbery. [App 11la-33a]

Justice Cavanagh, joined by Justice

Levin, writing for affirmance, stated that

the collateral estoppel doctrine and same-

transaction test barred defendant’s

retrial for armed robbery and affirmed the

result reached by the Court of Appeals.

[App 34a-63a] Chief Justice Brickley,

joined by Justices Cavanagh and Levin,

writing for affirmance, stated that the

doctrine of collateral estoppel is fully

applicable to this case and requires re-

versal of defendant’s armed robbery

conviction. [App 63a-69a]

i

:

4

:

2

i

{Reasons for granting the Writ]

The double jeopardy clause of the

Fifth Amendment is applied to the states

through the general provisions of the

Fourteenth Amendment. Benton v Maryland,

395 US 784, 794-796, 23 L Ed 2d 707, 89 S

Ct 2956 (1969). Accordingly, the minimum

standards of double jeopardy protection

for criminal defendants, as enunciated by

numerous United States Supreme Court

decisions, are binding on the Michigan

Supreme Court. The Michigan Supreme Court

of course is free to delineate a higher

level of protection under Michigan

Constitution 1963, art I, sec 15, but did

not do so in this case. Accordingly, the

question of whether a conviction should be

treated as an implied acquittal for

purposes of the double jeopardy clause of

the Fifth Amendment of the United States

Constitution is a question of federal, not

state law. Kennedy v Washington, 986 F2d

1129, 1134 (CA7 1993), cert den US -

127 L Ed 24d 73, Sct (1994).

Prior to and since the publication of

Anno: Conviction of Lesser Offense as Bar,

61 ALR 2d 1141 in 1958 and the decision in

Green v United States, 355 US 184, 2 L Ed

2a 199, 78 S Ct 221 (1957) numerous Courts

have decided the question of whether a

conviction of a lesser offense included in

the greater one charged against the

defendant bars prosecution for the greater

offense on a new trial obtained at the

defendant’s instance. The question to be

decided in the case sub judice, while

variously decided by some state and

federal courts, has not been directly

decided by the United States Supreme

Court.

The Michigan Court of Appeals and the

Michigan Supreme Court have both stated

that the issue presented in this case is

matter of first impression in Michigan.

[203 Mich App at p 423; App 4a 448 Mich at

p 466, App 33a].

In North Carolina v Pearce, 395 US

711, #717, 23 L Ed 2d 656, 89 S Ct 2072

(1969) the Court, relying on an analysis

10

Note, Twice in Jeopardy, 75 Yale L.J.,

262, 265-266 (1965) said:

(Tjhe Fifth Amendment guarantee

against double jeopardy ... has

been said to consist of three

separate constitutional

protections. {1} It protects

against a second prosecution for

the same offense after acquittal.

{2} It protects against a second

prosecution for the same offense

after conviction. {3} And it

protections against multiple

punishment for the same offense.

In The Three Faces of Double Jeopardy:

Reflections on Government Appeals of

Criminal Sentences, 78 Mich L Rev. 1001

(1980), author Peter Weston maintains that

the most serious problem is with the first

of the three rules--the prohibition on a

retrial foliowing an acquittal. He opines

that the Court experiences more "con-

fusion," overrules more prior decisions,

and faces more unresolved issues in the

field of acquittals than in any other area

of double jeopardy. [pp 1065, 1066)

The California Supreme Court has

stated that the decisions throughout the

country are in disarray on the issue of

a

11

giving effect to implied partial verdicts

of acquittal on a charged offense where

the jury is deadlocked as to an uncharged

lesser included offense. See Stone v

Superior Court of San Diego County, 31 Cal

2d 503, 646 P2d 809 (1982). In Mauk v

State, 91 Md App 456, 605 A2d 157, 168 (Md

1992) the Court, in attempting to concep-

tualize a retrial following certain legal

events, such as 1) appellate reversal of

an earlier conviction, 2) the granting of

a new trial by a trial judge following a

conviction, or 3) the declaration of a

mistrial, said the perplexing philo-

sophical problem has bedeviled the United

States Supreme Court for nearly seven

decades.

The Michigan Court of Appeals and the

Michigan Supreme Court equal division

opinion, per Justices Cavanagh and Levin,

JJ., and Brickley, CJ., for affirmance

have decided a federal question and

interpret the Fifth Amendment in a way

that is in conflict with decisions of

a, a ree er er |) eee a

state and federal courts of appeal and

12

this Court. [App 4a-7a; 34a-69a} See

e.g., Potts v State, 258 Ga 430, 369 SE2d

746 (1988); Johnson v Commonwealth, 221 Va

736, 273 SE2d 784 (1981); Edmonds v United

States, 106 US App DC 373, 273 F2d 108

(1959), cert den 362 US 977, 4 L Ed 2d

1012, 85 S Ct 1062 (1960); United States v

Gooday, 714 F2d 80 (CA9 1983), cert den

468 US 1217, 82 L Ed 2d 884, 104 S Ct 3587

(1984); Cichos v Indiana, 385 US 76, 17 L

Ed 2d 175, 87 S Ct 271 (1966).

Petitioner further maintains that the

respective opinions of the Michigan Court

of Appeals and Michigan Supreme Court [per

Cavanagh and Levin, JJ., and Brickley,

C.J., for affirmance of the Court of

Appeals reversal of respondent’s armed

robbery conviction, supra] have expanded

the double jeopardy clause of the Fifth

Amendment beyond any decision of the

United States Supreme Court.

Accordingly, petitioner maintains that

the issue is ripe for review, for as

recently stated by this Court in Anderson

v Green, 513 US__, 130 L Ed 2d 1050,

13

1053, ___S Ct___ (1995) “ripeness is

peculiarly a question of timing," and “it

is the situation now rather than the

Situation at the time of the {decision

under review) that must govern."

As stated above double jeopardy

engenders three basic protections: (1) it

protects against a second prosecution for

the same offense after acquittal; (2) it

protects against a second prosecution for

the same offense after conviction; and,

(3) it protects against multiple punish-

ments for the same offense. See People v

Gonzalez, 197 Mich App 385, 496 NW2d 321

(1992), lv den 442 Mich 920; People v

Crawford, 187 Mich App 344, 467 NW2d 818

(1991); People v Anderson, 409 Mich 474,

295 NW2d 482 (1980).

It is the scope of the first pro-

tection that is implicated in the case at

bench. The scope is said to be broad and

its proscription absolute. See generally

United States v DiFrancesco, 449 US 117,

66 L Ed 2d 326, 101 S Ct 426 (1980). The

reasons are stated thusly:

Spiele air

14

The underlying idea, one that is

deeply ingrained in at least the

Anglo American system of juris-

prudence, is that the 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. (Green v United

States, 355 US 184, 187-188

(1957) }

At his first trial which concluded on

April 7, 1986 respondent Garcia, although

charged with first-degree felony murder,

(murder committed during the perpetration

of an armed robbery] was jury-convicted of

second degree murder, MCL 750.317; MSA

28.549 and felony firearm, MCL 750.227b;

MSA 28.424(2). Respondent’s first appeal

of right to the Court of Appeals resulted

in reversal based on the procedural

failure of the trial court to permit the

jury to return a general verdict of not

guilty on Count I, felony murder. [People

v Garcia, 203 Mich App 420, 513 NW2d 425

(1994); App 3a}

15

Petitioner maintains that reversal of

respondent’s armed robbery conviction

obtained at the retrial is inconsistent

with the better reasoned cases holding

that implied acquittal does not necess-

arily preclude a retrial on a lesser

included offense where the jury was not

given a full opportunity to make that

decision.

In a long line of cases commencing

with Ball v United States, 163 US 662,

672, 41 L Ed 300, 16 S Ct 1192 (1896), the

United States Supreme Court has held that

the constitutional guarantee against

double jeopardy imposes no limitation

whatever upon the power of the court to

retry a defendant who has succeeded in

having his first conviction set aside.

The Supreme Court has adhered to this

doctrine in more recent cases. See e.g.,

Tibbs v Florida, 457 US 31, 40, 72 L Ed 2a

652, 102 S Ct 2211 (1982) quoting North

Carolina v Pearce, supra. See also

Addison v Parratt, 208 Neb 459, 303 NW2d

785, 787 (1981) and citations.

16

In Montana v Hall, 481 US 400, 403, 95

L Ed 2d 354, 107 S Ct 1825 (1982) the

Court in its per curiam opinion said:

It is a “venerable principl[e)

of double jeopardy jurisprudence "

that "(t)he successful appeal of a

judgment of conviction, on any

ground other than the insuffi-

ciency of the evidence to support

the verdict, [citation] poses no

bar to further prosecution on the

same charge." [(Citation} See

generally 3 W. LaFave & Isreal,,

Criminal Law Procedure sec. 24.4

(1984)...

Stated another way, the appellate

success of a defendant does not equal

acquittal, except where the evidence is

held legally insufficient to have

supported the conviction in the trial

court. See Burks v United States, 437 US

1, 57 L Ed 2a 1, 98 S Ct 2141 (1978);

People v Langley, 187 Mich App 147, 150,

466 NW2d 724 (1991).

Even this standard is less than clear:

double jeopardy does not bar a re-trial

where a guilty verdict is held, by a trial

judge or appellate court to be "against

the weight of the evidence." Tibbs v

Florida, supra 457 US at pp 42-44, 72 L Ed

2a 652, 102 S Ct 2211.

17

In United States v Bizzard, 615 F2d

1080 (CAS 1980), cert den 459 US 973, 74 L

Ed 2d 286, 103 S Ct 305 (1982), the

defendant could be retried without vio-

lation of the double jeopardy clause of

the Fifth Amendment where the appellate

court reversed on an issue of trial error.

In United States v Coward, 669 F2d 180

(CA4 1982), cert den 456 US 946, 72 L Ed

2d 470, 102 S ct 2014 (1982), the Court

held that the double jeopardy clause did

not preclude retrial of one defendant

where the prior reversal was due to the

trial judge’s failure to order a separate

trial for codefendants.

In United States v Fitzpatrick, 581

F2d 1221, 1224, n. 4 (CAS 1978), it was

said that where there is a reversal on an

issue of trial error, the defendant may be

retried without violation of the double

jeopardy clause.

In United States v DiFrancesco, 449 US

117, 131, 66 L Ed 2a 328, 101 S Ct 426, 66

L Ed 2d 328 (1980), this Court said:

18

Finally, if the first trial has

ended in a conviction, the double

jeopardy guarantee “imposes no

limitation whatever upon the

power to retry a defendant who has

succeeded in getting his first

conviction set aside." (emphasis

in criginal) North Carolina v

Pearce, 395 US, at 720, 23 L Ed

656, 89 S Ct 2072. “It would be a

high price indeed for society to

pay were every accused granted

immunity from punishment because

of any defect sufficient to

constitute reversible error in the

proceedings leading to con-

victions." (citation omitted)

"(T)o require a criminal defendant

to stand trial again after he has

successfully invoked a statutory

right of appeal to upset his first

convistion is not an act of

governmental oppression of the

sort against which the Double

Jeopardy Clause was intended to

protect." (Citation omitted)

In the case sub judice, the Justices

for reversal and reinstatement of

respondent’s conviction, [{Riley, Mallet

and Boyle, JJ.]}) rely on some very

formidable and well reasoned federal and

state court decisions, e.g., Edmonds v

United States, supra; United States v

Gooday, 714 F2d 80 (CA9 1983); Potts v

State, 369 SE2d 746 (1988); and Johnson v

Commonwealth of Virginia, 273 SE2da 784

(1981). [App 18a-23a, 33a]

19

In Edmonds v United States, supra, the

defendant had been found guilty of second

degree murder as a lesser included offense

under the indictment’s first degree murder

count. On appeal, the conviction was

reversed and defendant retried for second

degree murder under the first degree

count. On his second appeal, Edmonds

argued that the jury’s second degree

verdict was an implied acquittal on the

indictment’s first degree count under

Green v United States, which thus made him

immune from further prosecution for any

offense included under the indictment’s

first degree charge. The argument was

rejected on appeal where it was held that

Green did not bar, on double jeopardy

grounds, a new trial under the indictment

for second degree murder even though

Edmonds could not be retried on the

greater first degree count specified in

the indictment.

In United States v Gooday, supra, the

Court found that the Edmonds case

correctly interpreted Green as granting

20

independent force to lesser included

offenses on which a jury has been

instructed under one count of the

indictment. It was thus held that an

acquittal on the indictment’s first degree

murder count did not preclude retrial on

three lesser included offenses on which

the jury was deadlocked.

In Johnson v Commonwealth of Virginia,

supra, the defendant’s capital murder

conviction was reversed for instructional

error. Although he had been found not

guilty of robbery, the Court rejected his

double jeopardy argument. There it was

held that the jury did not resolve the

issue of the defendant’s guilt of armed

robbery. The Court said that it "would

stultify itself to hold that the jury in

this case made a factual finding that

Johnson was innocent of robbery. We would

have to find that it ignored the court’s

instruction and that its finding of not

guilty under Count I was completely

unrelated to the express direction it had

received from the court to return such a

21

verdict if it founda defendant guilty of

capital murder." See App 19a-20a, fn 16}

In Staael v State, 697 P2da 1050

(Alaska App 1985) the Court said that

while there is authority for the propo-

sition that one acquitted of a greater

offense cannot be separately tried for a

lesser-included offense, it is well

established that a defendant may be

retried when a hung jury results in a

mistrial, citing Richardson v United

States, 468 US 317, 82 L Ed 2a 242, 104 §S

Ct 3081 (1984). The Court further states

that whether acquittal of a greater

offense and a hung jury on a lesser-

included offense precludes retrial of the

lesser offense has led to a split of

authority, but concluded that the better

reasoned cases, which constitute the

majority of those considering the issue,

hold that retrial on a lesser offense is

not barred, citing United States vy Gooday,

supra; United States v DeVincent, 632 F2d

155 (CA1 1980); Forsberg v United States,

351 F2d 242 (CA9 1965), cert den 383 US

22

950, 16 L Ed 2d 212, 86 S Ct 1209 (1966);

Stone v Superior Court, supra; United

States v Larkin, 605 F2d 1360 (CA5 1979),

modified on reh, 611 F2d 585 (1980), cert

den 446 US 936, 64 L Ed 2d 793, 100 S Ct

2160 (1980); and Edmonds v United States.

{[Staael v State, 697 P2d at p 1055, fn 2.)

In State v Seagroves, 691 SW2d 537

(Tenn 1985) the Tennessee Supreme Court,

adopting the rationale of Gooday, supra,

held that the double jeopardy clause did

not preclude a retrial of defendant after

a mistrial was declared at an earlier

trial where the jury could not reach a

verdict on lesser offenses included in the

crime for which defendant was indicted.

See also State v Despenza, 38 Wash App

645, 689 P2d 87, 93 (1984) where the Court

said that it could not imply from the

failure to reach a verdict that the jury

acquitted the defendant of the greater

offense, citing People v Griffin, 58 Cal

Rptr 459 (1967); State v, Dykstra, 33 Wash

App 648, 656 P2d 1137 (1984).

23

In Potts v State, supra, 369 SE2d at

747, the defendant claimed that under the

Green-Price rule his jury impliedly

acquitted him of the greater crime of

kidnapping with bodily injury by convict-

ing him of the lesser offense of

kidnapping. The Court rejected the

argument on two grounds:

-*++ One reason is that an

unambiguous conviction of a

lesser-included offense is a

necessary predicate for appli-

cation of the Green-Price rule.

In Potts v Zant, supra, 734 F2d at

530 the Court of Appeals for the

Eleventh Circuit concluded that

the verdict on Count Three was

ambiguous. Our review of the

record of Pott’s trial likewise

leads us to conclude that the

verdict on Count Three was

ambiguous.

Our second reason is that the

Green-Price rule does not apply

unless the trial court gives the

jury a full opportunity to return

a verdict on the greater charge.

The record of Pott’s trial shows

that the court did not give the

jury a full opportunity to convict

Potts of kidnapping with bodily

injury.

cf., also United States v Lagerquist,

758 F2d 1279 (CA8 1985) where the Court

held that a prior appellate court reversal

of a conviction on a jurisdictional ground

Pe SA BURL Re ke OP EE PT Di

24

which did not reach the merits, and not in

the nature of an acquittal--held Double

Jeopardy inapplicable.

The term “acquitted" or an "acquittal"

is used in criminal law in contexts

indicating a decision on the merits by a

fact finder following the attachment of

jeopardy. Gikas v Zolin, 863 P2d 745 (Cal

1993). In United States v Scott, 437 US

82, 57 L Ed 2d 65, 98 S Ct 2187 (1978) it

was said:

"the term ‘acquittal,

generally refers to a Fiusenition

based upon a determination of the

merits. (Fn. omitted. } ‘(A)

defendant is acquitted only when

"the ruling of a judge, whatever

its label, actually represents a

resolution {in the defendant’s

favor], correct or not, of some or

all of the actual elements of the

offense charged. [Citation] ’

(defining the term in the context

of double jeopardy. }

With respect to the concept of

"implied acquittal" it is said that it

results from a ruling which resolves in

the defendant’s favor some or all of the

required elements of the offense

Moreover, an implied acquittal barring

re-prosecutjion must necessarily entail a

25

determination that one of the offenses

charged was the lesser included offense of

the other. And it is only where the jury

is given the full opportunity to return a

verdict either on the greater or, alter-

natively, on the lesser included offense

does the doctrine of implied acquittal

obtain. See United States v Reed, 617 F

Supp 792, 800 (Md 1985).

In People v Wiley, 169 Ill App 3d 140,

923 NE2d 1344, 1346 (1988) the Court said

that an erroneous ruling of law where the

trial court does not rule on the suffi-

ciency of the evidence does not constitute

an implied acquittal.

In State v O’Kelley, 113 NM 25, 822

P2d 122 (1991) the defendant claimed that

his conviction for DUIL constituted an

"implied acquittal" of vehicular homicide.

In rejecting the argument the court said

that an implied acquittal generally occurs

when the jury is instructed to choose

between a greater and a lesser offense,

and chooses the lesser. The Court

observed that in this situation the great

= i MR AAR tory,

26

majority of cases in this country have

regarded the jury’s verdict as an

"implicit acquittal" of the greater

offense citing Green v United States,

supra. The Court declared however, that it

is only where the jury is given the full

opportunity to return a verdict either on

the greater or alternatively on the lesser

offense that the doctrine of implied

acquittal has application, citing United

States v Reed, supra.

In Commonwealth v Tabb, 491 Pa 372,

421 A2d 183 (1980), cert den 450 US 1000,

GS & EG. 26 202, 1013 8 Ct 1708 and

Commonwealth v Klobuchir, 486 Pa 241, 405

A2d 881 (1979), cert den 445 US 352, 63 L

Ed 2d 787, 100 S Ct 1602 (1980) the

Pennsylvania Supreme Court said that "the

sine qua non for finding implicit

acquittal is a failure to convict in the

face of full opportunity for conviction."

[emphasis added] In Commonwealth v Ward,

493 Pa 115, 425 A2d 401 (1981), cert den

451 US 974, 68 L Ed 2d 354, 101 S Ct 2055,

the Court said this result is based on the

ee

27

unequivocal language in Green revealing

quite clearly why the United States

Supreme Court concluded that an implicit

acquittal had occurred:

Green was in direct peril of being

convicted and punished for first

degree murder at his first trial.

He was forced to run the gantlet

once on that charge and the jury

refused to convict him. When

given the choice between finding

him guilty of either first or

second degree murder, it chose the

latter. In this situation, the

great majority of cases in this

country have regarded the jury’s

verdict as an implicit acquittal

On the charge of first degree

murder...

(The jury) was given a full

opportunity to return a verdict

and no extraordinary circumstances

appeared which prevented it from

doing so. Therefore, it seems

Clear, under established prin-

Ciples of former jeopardy, that

Green’s jeopardy for first degree

murder came to an end when the

jury was discharged. (Emphasis

supplied).

Petitioner respectfully submits that

in the case sub judice, the Justices for

reversal and reinstatement of defendant’s

conviction (Riley, Mallett and Boyle,

JJ.], [App 1la-33a] were correct in their

analysis and conclusion that the implied

28

acquittal aspect of the double jeopardy

Clause did not prohibit the reprosecution

of defendant for the crime of armed

robbery. That is, the double jeopardy

clause is not implicated where, in a case

such as this, the jury was not afforded a

full opportunity to convict defendant of

armed robbery, and further, that the

jury’s verdict "is inherently ambiguous,

given the fact that it was allowed to

return only one verdict." [App 33a]

To this petitioner would add, that

where the trial court’s jury instructions

and the verdict form did not permit the

finding of a general not guilty verdict on

Court I, coupled with the written direc-

tive on the verdict form that they could

choose only one verdict, such limiting

instruction constitutes an “extraordinary

circumstance" contemplated by the Court

Green as preventing the jury from having a

full opportunity to render a verdict as to

each count.

Chief Justice Brickley, in his

concurring opinion to affirm the reversal

29

of respondent’s conviction, [App 63a-69a]

sets forth a scholarly discussion concern-

ing the applicability of collateral

estoppel. In particular the discussion

involves the presumption of a rational

jury. Petitioner maintains that the

discussion is too limited and that when

the rational jury concept is properly

considered and applied, it too is

Supportive of the position of the

petitioner.

In Ashe v Swenson, 397 US 436, 25 L Ed

2d 469, 90 S Ct 1189 (1970) the question

before the Court was "Whether, after a

jury determined by its verdict that the

petitioner was not one of the robbers, the

State could constitutionally hale him

before a new jury to litigate that issue

again." This Court held that it could

not. In explaining its decision and its

application of the double Jeopardy clause,

Ashe emphasized that the verdict at the

first trial should be viewed "with realism

and rationality". Ashe v Swenson, 397 US

at 444, 25 L Ed 2d 469, 90 S Ct 1189.

}

;

i

j

;

ad Naas

bE Rag ag Sin ei ei nlp a ae

Se aes

in 1 wie

a a eb wineAah is Lest

30

It is important to observe that in

Ashe, the jury at the first trial did not

render just a general verdict of not

guilty, but rather, although not required

to do so, returned a verdict of "not

guilty due to insufficient evidence." In

the case sub judice, by contrast, the jury

returned a verdict of second degree

murder. (emphasis added}

Ashe informs us that, by a study of

the issues presented to the jury at the

first trial, what was decided may

rationally be determined. Thus, the

"rational jury" test:

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. [397

US at 444, 25 L Ed 2d 469, 90 S Ct

1189]

Petitioner maintains that under the

rational jury approach the respondent’s

armed robbery conviction at the retrial

31

should have been reinstated by the

Michigan Supreme Court. As stated above,

what a rational jury could and could not

have decided is determined by an examina-

tion of what was presented to the jury,

what was argued to it. In order to do

justice in the case at bench it is

obligatory that the Court consider the

effect of the trial court’s limiting

instructions concerning possible verdicts.

Petitioner, for its part, maintains that

an intellectually honest appraisal thereof

should compel a finding that the only

rational explanation for the second degree

murder verdict at respondent’s first trial

is that the jury, on due consideration of

the evidence, the defensive posture

assumed by respondent, [i.e., defendant

was tried on an aiding and abetting

theory, using duress as his defense (see

App 19a)]) and adherence to the

instructions of the trial court, entered

only one verdict. In this case the jury

was specifically instructed "lst Degree

Felony Murder, Possible Verdicts, You may

32

return only one verdict on this charge.

Mark only one box for this count." [App

12a, 34a] [Emphasis added)

Presuming that the Shiawassee County

jury in this case was a rational jury,

then it is said that the usual assumption

is that the jury follows the instructions

of the court. Kennedy v Washington, supra

986 F2d at 1132. Accordingly, it must be

presumed that the jury in the case sub

judice rendered its verdict of second

degree murder in accord with the trial

court’s specific and limiting instruc-

tions. The jury, in accord with these

instructions, as with the voting process

in our election culture, did not want to

spoil its ballot. For example, in the

election process, voters are often

instructed on the ballot that they are to

vote for one candidate or one proposal

only, lest their ballot be spoiled and not

counted. Thus, the verdict of second

degree murder in the case sub judice,

answers the question posed in Ashe.

Petitioner submits that since Ashe

33

mandates that the Court consider only what

the jury may have rationally done, it may

be fairly concluded that no determination

was made as to the charge of armed robbery

at respondent’s first trial. Thus respon-

dent was not impliedly acquitted of armed

robbery.

No one should gainsay that the

Justices for affirmance [Cavanagh and

Levin, JJ., and Brickley, C.J.] set forth

very compelling arguments for their

respective positions. (App 34a-69a]}

Petitioner maintains however, that when

contrasted with the better reasoned

decisions on the subject, this Court

should be persuaded to find that respon-

dent Garcia’s retrial and armed robbery

conviction is not barred on double

jeopardy grounds.

Petitioner’s position finds further

support in other cases not cited in the

Michigan Court of AppeaIs or Michigan

Supreme Court opinions. For example, in

Commonwealth v Nardone, 406 Mass 123, 546

NE2d 359 (1989) the Court rejected the

34

defendant’s double jeopardy argument. The

Court points out that normally, the law

treats a jury’s decision to convict of a

lesser-included offense as an implied

acquittal on the offense charged.

Further, even though retrial of a defend-

ant whose conviction is reversed is not

barred, (citing J.R. Nolan, Criminal Law,

sec. 692) a defendant convicted of a

lesser-included offense normally cannot be

retried on the greater offense initially

charged. The Court said in particular:

ei. Where a defendant attacks

the very error that resulted in

his conviction on the lesser

offense rather than the main

offense, we hold that retrial on

the main offense is not barred.

In this respect, this case is the

same as the situation in which a

conviction is reversed because of

an improper jury instruction on

the elements of an offense but

retrial on that offense is

nevertheless permitted.

[Commonwealth v Nardone, 546 NE2d

at p 366]

The Court explains that this Court’s

holding in United States v Green is not to

the contrary.

- e« 6 In Green, where the

defendant had been charged with

first degree murder and convicted

of second degree murder (with the

35

jury remaining silent on first

degree murder), the Court held

that retrial for first degree

murder was barred by double

eopardy. This ruling was based

n part, however, on the rationale

that a conviction on a lesser

offense necessarily implies

acquittal on the main offense

Charged. id. at 190, 78 78 S Ct at

2258. For the reasons stated

above, we find this reasoning

inapplicable on the present facts.

(Commonwealth v Nardone, 546 NE2d

at p 366)

The Court in Nardone also found that

decisions subsequent to Green establish

that failure by a jury to return a verdict

on an offense charged does not invariably

bar retrial for that offense, citing

Cichos v Indiana, supra. In Cichos the

defendant was charged with both invol-

untary manslaughter and reckless homicide,

two offenses having essentially the same

elements, but substantially differing

penalties under state law. The defendant

was initially convicted of the less

serious crime of reckless homicide, [with

the jury remaining silent on involuntary

manslaughter], but his conviction was

reversed on appeal and he was retried on

both of the original charges. In that

36

setting the Supreme Court agreed with the

Supreme Court of Indiana that the defend-

ant’s retrial had not been barred by

double jeopardy because "a verdict of

guilty of reckless homicide [did] not

logically exclude the possibility of such

a verdict on the charge of involuntary

manslaughter, quoting Chicos v State, 246

Ind 680, 208 NE2d 685, 688 (1965) and

United States ex rel Jackson v Follette,

462 F2d 1041 (CA2) and W.R. LaFave & F.H.

Israel, Criminal Procedure, sec. 24.4

(1984) (stating that the Green rule is not

applicable in all instances in which a

jury does not return a verdict on some

count.) {Commonwealth v Nardone, 546 NE2d

at p 366]

In fn 7 the Court is careful to

explain that technically the result in

Cichos was the dismissal of the writ of

certiorari as improvidently granted.

Apparently, the Court granted certiorari

to consider whether the double jeopardy

clause should be incorporated through the

Fourteenth Amendment against the States.

37

Since the Court concluded that retrial did

not violate Green, the case did not raise

the issue of incorporation of the double

jeopardy clause.

In United States v Miller, 952 F2d 866

(CAS 1992), cert den, US __, 120 L Ed 2d

900, 112 S Ct 3029 (1992) it was said that

where the Court does not make findings as

to the Sufficiency of evidence, its

decision does not raise a double jeopardy

bar to a retrial:

--- AS this Court foreshadowed in

the first appeal, both of these

grounds for reversal are mere

trial errors for which double

jeopardy principles do not pre-

Clude retrial: "Since reversal is

based on defects in the indictment

and jury instructions rather than

on insufficiency of the evidence,

there is no apparent obstacle to

retrial should the government seek

a new indictment." 841 F2d at 112.

The Supreme Court has so held

Specifically with respect to

defects in the charging instru-

ment in Montana v Hall (cit. om.]

and United States vy Ball, {[cit.

om.) and with respect to jury

instructions in Forman v United

States, [cit. om) cited in Tateo,

84 S Ct at 1589.

The Court also discusses Richardson v

United States, 468 US 317, 82 L Ed 2a 242,

104 S Ct 317 (1984) where the Supreme

38

Court held that "the protection of the

Double Jeopardy Clause by its terms

applies only if there has been some event,

such as an acquittal, which terminates the

original jeopardy, [citations omitted. ]

The Court further explains:

... We recognized that Richardson

was an appeal asserting a double

jeopardy claim which followed a

mistrial, but its holding is

clearly not limited to such cases.

It refuses to extend Burks beyond

instances in which the appellate

court in fact reversed for

insufficient evidence. As the

Court explained: "Our holding in

Burks established only that an

appellate court’s finding of

insufficient evidence to convict

on appeal from a judgment of

conviction is for double jeopardy

purposes, the equivalent of an

acquittal ...." [cit. om.] The

central concept of Richardson is

that there is no double jeopardy

unless the original jeopardy has

terminated; and it is abundantly

clear that a reversal for

instructional error is no more

than a termination of jeopardy

than a mistrial where the jury is

unable to agree. And it is

evident that the implications of

Richardson for a case such as this

one did not escape the attention

of the Richardson court. Indeed,

Justice Brennan in dissent

complained of the Court’s narrow

reading of Burks: "Apparently,

under the Court’s approach, only

an actual judgment of acquittal,

or an unreversed conviction, would

‘terminate’ jeopardy and thereby

bar retrial. (Brennan, J.,

dissenting). He further

complained that the Court’s

holding in Burks could be

undermined by appellate court

refusals to rule on insufficiency

of the evidence claims and instead

reversing on other grounds. Id.,

at 3089. [United States v Miller,

952 F2d at pp 870-872]

Following Richardson, the Court held

that double jeopardy did not bar the

retrial, and because under Richardson

jeopardy has not terminated, double

jeopardy will not be available as a ground

for challenging any subsequent conviction

that may result. The Court also noted

that its holding in this respect is

supported by United States v Porter, 807

F2d 21 (CA1l i986). [United States v

Miller, 952 F2d at p 874}

cf., also United States v Stevens, 38

F3d 167, 170 (CA5 1994) where the Court

said that because we make no finding as to

the sufficiency of the evidence, our

decision does not raise a double jeopardy

bar to defendant’s retrial, citing United

States v Miller, supra.

Petitioner maintains that where the

respondent’s conviction is reversed

ee eT en

40

because of instructional error the prin-

ciples of double jeopardy do not bar his

reprosecution at a duly granted retrial

for the offense of armed robbery.

The Michigan Supreme Court correctly

observes that the charges in the instant

case were based on a 1985 carjacking and

fatal shooting and the the prosecution’s

theory was that during the carjacking the

two defendants abducted victim Kiley.

When Kiley refused to get into the trunk

Hammond shot and killed him. [App 12a,

35a]

Justice Cavanagh, as alternative

grounds for upholding the Court of Appeals

reversal of the armed robbery conviction,

discusses the doctrine of collateral

estoppel and the multiple punishment

strand of double jeopardy, relying on

Harris v Oklahoma, 433 US 682, 53 L Ed 2d

1054, 97 S Ct 2912 (1977) and other cases.

He argues that respondent’s conviction

for robbery at the second trial was based

on essentially the same facts as presented

at the first trial. [App 53a-5a]

41

In response thereto, petitioner

submits that the Court erroneously

construes Harris (a successive prosecution

case) to flatly prohibit cummulative

punishment for both felony murder and the

underlying felony, even when the con-

victions and sentences arise from a single

trial. See Todd v State, 884 Pp2d 668,

678. fn 8 (Alaska App 1994) discussing

Munson v State, 758 P2d 324, 332 (Okl Crim

1988), cert den 488 US 1019, 102 L Ed 2d

809, 109 S Ct 820 (1989).

While it appears that the rule

emerging from Harris and its progeny is

that the double jeopardy clause bars

prosecution for both felony murder and the

underlying felony, this Court in Illinois

v Vitale, 477 US 410, 65 L Ed 2d 228, 100

S Ct 2260 (1980) elaborated on its holding

in Harris stating that "for the purposes

of the Double Jeopardy Clause, we did not

consider the crime generally described as

felony murder as a separate offense

distinct from its various elements.

Rather, we treated a killing in the course

42

of a robbery as itself a separate

statutory offense, and the robbery as a

species of lesser-included offense." Id.

at 420

Cases decided subsequent to Vitale

have held that convictions of both felony

murder and a felony arising out of the

same occurrence need not be invalidated

where it is shown that another- separate

felony could have served as the predicate

offense underlying the felony murder

charge. For example in Sekou v Blackburn,

796 F2d 108 (CA5 1986) it was held that

there would be no double jeopardy viola-

tion where the defendant was found guilty

of armed robbery at trial and later

pleaded guilty to felony murder "if the

state could have proved felony-murder

without also proving armed robbery." [p

111} It was apparent from the facts in

Sekou that the state could have proved

kidnapping as an alternative underlying

felony. ié. ne. 3. See also Neville v

Butler, 867 F2d 886 (CA5 1989).

43

In the case sub judice, although not

charged, it appears from the record and

the discussion of the Michigan Supreme

Court that the prosecution could have

proved kidnapping [i.e., the abduction of

victim Kiley, (App 35a)} as an alternative

underlying felony as in the Sekou

decision. Petitioner submits that in

light of Vitale and Sekou the Court’s

reliance on Harris v Oklahoma as an alter-

native ground for affirmance of the rever-

sal respondent’s robbery conviction is

substantially undermined. Accordingly

such argument is not an acceptable basis

for the vacatur of respondent’s

comviction.

While the Justices for affirmance have

presented scholarly discussions concerning

the applicability of collateral estoppel

to the case sub judice, (App 34a-69a)}

petitioner respectfully submits that

further consideration of this concept is

necessary.

Ashe v Swenson, Supra, holds

explicitly that collateral estoppel is a

44

part of the constitutional protection

against double jeopardy--an unsurprising

conclusion since double jeopardy is the

criminal counterpart of the civil doctrine

of res judicata, of which the _ principle

of collateral estoppel is a part. See

Kennedy vy Washington, supra; Dowling v

United States, 493 US 342, 347, 107 L Ed

2a 708, 110 S Ct 668 (1990).

In Kennedy, supra, the Court informs

us that "Collateral estoppel (issue

preclusion) has never been as rigid as res

judicata is in its sense as claim

preclusion. A finding is entitled to

collateral estoppel effect only if it is

the product of a fair hearing." citing

Montana v United States, 440 US 147, 164,

nii, 59 L Ed 2d 210, 99 S Ct 970 (1979);

Kairys v INS, 981 F2d 937, 939-40 (CA7

1992), cert den US , 123 L Ed 2d 460,

113 S§ Ct 1832 (1993). The Court also

points out that an acquittal bars

reprosecution, however deficient the

procedure that resulted in the acquittal,

citing Fong Foo v United States, 369 US

141,

45

7 L Ed 2d 629, 82 S Ct 671 (1962)

(per curiam). The Court then states:

retrial of the defendant for murder after

the

“murder and voluntary manslaughter had been

reversed on appeal was not precluded by

the

double jeopardy,

implicit finding that the defendant had

been acting in sudden and intense passion

as required for voluntary manslaughter

But that illustrates the res

udicata component of double

jeopardy, not the collateral

estoppel component--and

acquittals, as we have pointed

out, have no collateral estoppel

effect. Implied acquittals can

have such an effect, but only

because an implied acquittal is an

express conviction, anda

conviction implies the jury found

certain facts to have been proved

beyond a reasonable doubt.

[Kennedy v Washington, 986 F2d at

p 1135)

In Kennedy, surpa, the Court held that

jury verdict convicting him of both

collateral estoppel component of

under Illinois law.

discussion of Justice Cavanagh in the case

at bar, [App 34a-54a] while undoubtedly

persuasive,

The scholarly collateral estoppel

absent an express or

should not be dispositive of

46

the double jeopardy issue in this case.

Justice Cavanagh’s collateral estoppel

argument sets forth various theories to

support his conclusion that respondent’s

retrial for armed robbery was improper.

He says that the jury either found that

“at least one of the elements of armed

robbery was not proven beyond a reasonable

doubt" [App 52a], or, the first jury

determined that all the elements of murder

had been proven beyond a reasonable doubt

when it convicted defendant of second

degree murder and that "If the jury had

also determined that the prosecutor had

proven beyond a reasonable doubt that the

defendant was guilty of armed robbery, it

was obligated by the jury instructions to

return a verdict of guilty of first degree

murder. [52a]

The problem with Justice Cavanagh’s

argument is that there is no reliable

basis in fact for his conclusion.

In Stone v Superior Court of San Diego

Co., 646 P2d 809 (1982) the Court cites

three cases [{Griffin, Doolittle and Magee)

47

where the trial court was not given any

indication of how the jurors stood until

after the declaration of a mistrial and

the jury discharged. In People v Griffin,

66 Cal 2d, 58 Cal Rptr 107, 426 P2d 507

(1967) the defendant was tried a second

time on a charge of first degree murder,

the first conviction of that charge having

been reversed on appeal. When the jury at

the second trial could not reach a

verdict, the judge discharged them and

declared a mistrial. The jury foreman

then stated in open court that the jury

had stood ten for acquittal and two for

conviction of second degree murder. At

the third trial, the defendant was

convicted of first degree murder. On

appeal from that conviction he claimed

that the jury at the second trial had

impliedly acquitted him of first degree

murder. The California Court of Appeal

rejected the claim of former acquittal

reasoning that "We may not infer from the

foreman’s statement that the jury had

unanimously agreed to acquit of first

48

degree murder. There is no reliable basis

in fact for such an implication, for the

jurors had not completed their deliber-

ations and those voting for second degree

murder may have been temporarily

compromising in an effort to reach

unanimity."

In People v Doolittle, 23 Cal App 3d

14, 99 Cal Rptr 810 (1972) the defendant

was on trial for murder. The jury was

given the option of convicting him of the

charged offense or one of the necessarily

included offense or of acquitting him of

all offenses. When the jury informed the

Court that they could not reach a verdict

within those options, the court declared a

mistrial and set the case for retrial.

Defendant thereafter filed a pretrial

motion to enter a plea of once in jeopardy

or former acquittal. In that case the

jury foreman testified that on the jury’s

final vote, no juror had voted to convict

of first degree murder. The Court of

Appeals nevertheless held that no verdict

had been reach in the first trial relying

49

on the Griffin case: "The significant

holding in Griffin is that the jury, as in

the case here, had not completed its

deliberations. In the instant case, as in

Griffin, the ballots taken and voted upon

may well have been the result of temporary

compromises in an effort to reach

unanimity."

In Magee v Superior Court, 34 Cal App

3d 201, 109 Cal Rptr 758 (1973) the jury

at the defendant’s first trial was given

the options of acquitting him or of

finding him guilty of either the charged

offense of kidnapping for the purpose of

extortion or of the uncharged lesser

included offense of simple kidnapping.

The jury was unable to reach a verdict

within those options, and a mistrial

declared. At the second trial the

defendant asserted that the jury had

functionally acquitted him of the greater

charge. In support of the claim he

offered an affidavit of the jury foreman

to the effect that the jury had

unanimously agreed that he was not guilty

50

of violating sec. 209, yet was deadlocked

on the lesser offense. The affidavit of

another juror, however, stated that the

jurors never voted or otherwise agreed

that defendant should be found not guilty

of the greater charge.

The Court in Stone points out that the

primary concern of the Griffin court was

to insure that a verdict represents the

definite and final expression of the

jury’s intent with respect to the dispo-

sition of the factual issues presented by

a particular case. The members of the

jury in Griffin never gave any indication

of a final intent to acquit the defendant

of the murder charge, and the facts in

Doolittle and Magee were similarly

equivocal.

In Griffin, Doolittle, and Magee the

respective double jeopardy contentions

were rejected, notwithstanding the

proffered defense affidavits cited above.

The petitioner submits where proffered

affidavits concerning jury deliberations

are found to be an unreliable basis for

51

determining the legitimacy of a double

jeopardy claim, it necessarily follows

that a strained theoretical basis for

application of the collateral estoppel

doctrine as urged by Justice Cavanagh

should likewise be rejected as a basis for

prohibiting respondent Garcia’s retrial.

The interpretive decisions indicate

that there are other factors that must be

considered before a court can prohibit a

reprosecution based on collateral

estoppel.

The Court in Sanders v State, 429 So2d

245 (Miss, 1983) points out that to some,

collateral estoppel means issue preclu-

sion: where an issue has been litigated in

one trial, the losing party is precluded

from relitigation. The Court states that

if this were all collateral estoppel

means, there would be no problem with the

application of the doctrine in criminal

cases. The Court explains that it may

well be useful in analyzing some double

jeopardy cases but that:

Ashe v Swenson and progeny,

however, construe collateral

Ee ee

52

estoppel to mean much more. Ashe

roceeds on the theory that the

ury in the first trial had

affirmatively found that Ashe had

not been one of the robbers. [cit.

om.) Seen in this light, there is

a logical infirmity in application

of the doctrine of collateral

estoppel in criminal cases. That

infirmity emerges when one takes

seriously the beyond-a-reasonable

doubt burden of proof imposed upon

the prosecution.

The Court contrasts the collateral

estoppel doctrine in the civil case

setting stating that the notion works

reasonably well where facts are

established by a preponderance of the

evidence, because their existence is by a

factor of 51 to 49 more probable than not.

The Court concludes however, that it

doesn’t work at all in criminal cases

because by no stretch of the imagination

can a not guilty verdict be said to

establish affirmatively that the defendant

was innocent of the crime. [429 So2d at

pp 251-252)

As stated above, Ashe proceeds on the

theory that the jury in the first trial

had affirmatively found that he had not

been one of the robbers. In Ashe the

citi

53

defendant’s guilt turned on the issue of

identity. The defense offered no

testimony and waived final argument. The

Court also points that "The jury--though

not instructed to elaborate upon its

verdict--found the petitioner ‘not guilty

due to insufficient evidence.’" [Emphasis

added} [See also App 23a]

In the case sub judice respondent

Garcia, as noted above, was tried on the

theory of aiding and abetting, using

duress as his defense. [App 19a] Justice

Cavanagh does not discuss this feature of

the trial in his collateral estoppel

analysis, [App 44a-54a] whereas, the

Justices for reversal point out that the

defensive posture of the respondent may

have analytical significance to the

extent that the jury verdict may be

explained in terms of the exercise of

lentity. Justice Cavanagh criticizes the

discussion as "surmise", [App 61a] but

ignores the fact that the Justices for a

reversal said that possible explanations

for the jury verdict of second degree

54

murder, renders the verdict as being

ambiguous. [App 19a}

In Lett v State, 727 SW 2d 367 (Tex

App -- Fort Worth 1987) the Court said

that collateral estoppel only arises when

a prior judgment has resulted in an actual

acquittal of the defendant.

In United States v Dray, 901 F2d 1132

(CA 1, 1990) the Court said collateral

estoppel is applicable only as to those

issues actually decided in the earlier

case that are foreclosed from relitigation

in a later case. The Court also said that

"Where it is impossible to discern whether

a particular issue was previously resolved

in a defendant’s favor, the preclusive

effect must be denied." (citation omitted)

(p 1136}.

Based on the record in the instant

case of respondent Garcia, your

petitioner submits that, as powerful as

the arguments of the affirming Michigan

Supreme Court Justices may appear, they

merely present the Court with a variety of

plausible theories as to what ultimate

en

55

factual issues were actually decided by

the jury in the first trial. {App

34a-54a) The Court in Dray, supra, 901 F

2d at p 1140 in considering various

plausible theories where collateral

estoppel was sought to be invoked said:

-+*+-+ Gossamer strands of

possibility and surmise are not

the stuff of which the preclusory

bar of criminal collateral

estoppel may be fashioned.

Sturdier threads are needed. On

this gauzy record, Dray cannot

meet his burden of demonstrating

"that the issue whose relitigation

he seeks to foreclose was actually

decided in the first proceeding."

(Court’s emphasis) (citations

omitted)

Justice Cavanagh in his opinion goes

to great lengths to advance his collateral

estoppel argument. (App 34a-54a]} The

problem with his argument, in light of

Dray, is that he does not, and indeed

cannot, demonstrate that the jury actually

decided respondent’s criminality on the

lesser-included predicate armed robbery

charge at the first trial. Accordingly,

Petitioner would urge that this Court will

determine that the preclusive effect of

collateral estoppel should not apply.

56

This Honorable Court should also be

aware of the jurisprudence holding that a

general verdict does not provide a review-

ing court with a basis for determining the

findings of a jury. In Angstrohm

Precision v Vishay Intertechnolgy, 567 F

Supp 537, 543 (ED NY, 1982) the Court

states that where:

[a] judgment might have been based

upon one or more of several

grounds, but does not expressly

rely upon any one of them, then

none of them is conclusively

established under the doctrine of

collateral estoppel, since it is

impossible for another court to

tell which issue or issues were

adjudged by the rendering court.

Petitioner would urge under the

above-referenced juris- prudence that this

Court find that collateral estoppel is not

applicable since it is impossible to

determine the actual basis upon which the

jury rendered its verdict of second degree

murder in respondent’s first trial.

In Garcia v State, 768 SW2d 726 (Tex

Crim App, 1987), the Court held that the

fact that the defendant’s voluntary

manslaughter conviction was overturned on

57

appeal adversely affected his claim of

collateral estoppel. The Court explains:

The doctrine of collateral

estoppel was explained in Ashe v

Swenson, 397 U.S. 436, 90 S Ct

1189, 25 L Ed 2d 469 (1970). The

Court stated, "When an 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,

Supra, 90 S Ct at 1194. This

Court has adopted this language

that there must be a final and

valid judgment to support a claim

of collateral estoppel. Dedrick v

State, 623 SW2d 332 (Tex Crim App,

1981); Ex Parte Traver, 725 SW2d

195 (Tex Crim App, 1986).

{emphasis added]

(Garcia v State, 768 SW2d at p

728-729)

The Court found that since the pending

nature of an appeal can render a judgment

"not final" for purposes of a double

jeopardy claim, the reversal of a judgment

on appeal should eliminate its status as

being final and valid for purposes of

collateral estoppel. The Court then

states:

An early writer on collateral

estoppel discussed this issue. He

wrote, "If the unsuccessful party

appeals and the judgment is

reversed, the original judgment

is, of course, no longer

conclusive; and if a new judgment

is entered for the other party by

58

the appellate court or at its

direction by the trial court, that

judgment is conclusive." Scott,

"Collateral Estoppel by Judgment",

56 Harv. L. Rev. 1 (1942)

In the instant case the Court of

Appeals reversed the judgment and

remanded the case to the trial

court for a new trial. Using this

analysis, not only is the convic-

tion of voluntary manslaughter no

longer valid and final, there

will be no conclusive judgment on

that matter until the appellant

receives his new trial. A claim

of collateral estoppel cannot flow

from an invalid judgment of

conviction which is not final.

We hold that the Court of

Appeals’ reversal of appellant’s

voluntary manslaughter conviction

bars the appellant’s claim of

collateral estoppel against his

trial for attempted capital

murder. The indictment for

attempted capital murder is not to

be dismissed. We reverse the

judgment of the Court of Appeals

and remand to the trial court.

[Garcia v State, 768 SW2d at p

729)

In Ex parte Campbell, 872 SW2d 48

(Tex, 1994) the Court relying on Garcia,

supra, and Ex parte Lane, 806 SW2d 336,

338 (Tex App --Fort Worth 1991, no pet.)

reached the same result stating:

This Court reversed the

judgment of the trial court and

remanded the case for a new trial.

There is no final and valid

judgment of conviction. The

59

reversal of a judgment on appeal

eliminates its status as being

final and valid for purposes of

collateral estoppel...

In the case sub judice, while Justice

Cavanagh and Chief Justice Brickley base

their respective collateral estoppel

arguments on the Ashe case, they overlook

the fact that collateral estoppel, as

witnessed by the above referenced

decisions does not apply because the

reversal by the Court of Appeals in

defendant’s first appeal [App 3a]

eliminates its status as being final and

valid for purposes of collateral estoppel.

Petitioner respectfully urges that

this Court will determine that collateral

estoppel does not have legal application

to this case, and that defendant’s armed

robbery conviction should be reinstated

and thus affirmed.

60

[Conclusion]

Wherefore, petitioner respectfully

requests that this Honorable Court will

grant this petition for a writ of

certiorari to review the judgment of the

Supreme Court of the State of Michigan.

Dated: August 9, 1995

Respectfully submitted:

Randy 0. Colbry (P-33053)

Prosecuting Attorney

Shiawassee County, Michigan