Opposition Brief — Plummer v. Pettaway

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QUESTION PRESENTED

Whether the collateral estoppel doctrine, a component of the Double Jeopardy

Clause, hitherto applied in criminal cases (as in civil cases) in retrials following a

successful appeal as well as in successive trials, should now be limited in criminal cases

only to successive tnals?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ill

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL PROVISION INVOLVED 2

STATEMENT OF THE CASE 2

A. The Offenses 2

B. The Trial 3

a The First State Appeal 4

D. The Hearing after Remand 5

E. The Second State Appeal. 6

A The District Court Proceedings 6

G. The Appeal to the Ninth Circuit 6

REASONS FOR DENYING THE WRIT 7

[. PETITIONER HAS WAIVED ANY CLAIM THAT ASHE V. SWENSON

DOES NOT APPLY TO RETRIALS BY BELATEDLY RAISING IT

FOR THE FIRST TIME IN HIS PETITION FOR REHEARING

BEFORE THE CIRCUIT COURT WHEN THE APPLICATION OF

ASHE HAS BEEN CENTRAL TO THIS LITIGATION SINCE ITS

INCEPTION 7

Lf. NO CONFLICT BETWEEN FEDERAL CIRCUIT COURTS EXISTS

ON THIS QUESTION ON THE QUESTION PRESENTED IN THE

PETITION i)

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ITT.

A

B The Circuit Court's Rationale Correctly Applies This Court's Precedent 14

ON THE FACTS OF THIS CASE THE CIRCUIT COURT

CORRECTLY DECIDED THAT THE JURY’S UNANIMOUS

DECISION THAT PETTAWAY DID NOT PERSONALLY USE A

FIREARM OR INFLICT GREAT BODILY INJURY ON TAYLOR

CONSTITUTIONALLY ESTOPS THE PROSECTION FROM

RETRYING PETTAWAY AS THE GUNMAN BUT NOT AS AN

AIDER AND ABETTOR. 12

Petitioner has Misstated the Circuit Court’s Holding 12

CONCLUSION

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:\pleas\00000701. ple) (' 8 18:03)

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iil

TABLE OF AUTHORITIES

FEDERAL CASES

Adickes v. Kress & Co.

aye US. 440197) ........

Aiello v. City of Wilmington

470 FSupp. 414 (D. Del. 1979)

Arizona v. Rumsey

yy eh Re a}

Ashe v. Swenson

397 U.S. 436 (1970) ........

Bivens v. Six Unknown Named Agents

403 US. 368 (1971) ...... ..

Pettaway v. Plummer

943 F.2d 1041 (9th Cir. 1991)

Berkemer v. McCarty

468 U.S. 420 (1984) ........

Bullington v. Missoun

451 U.S. 430 (1981) ........

Delap v. Dugger

890 F.2d 285 (11th Cir. 1989)

cert. denied, 496 U.S. 929 ngs?

Dowling v. United States

493 US. 342 (1990) ........

In re Falstaff Brewing Corporation AntiTrust

Litigation

441 FSupp. 62 (E.D. Mo. 1977)

(11 rt c:\pleas\00000701.ple)

(920708 18:

8,

10,

12,

16,

18,

14,

01)

14

18

10

Grady v. Corbin

495 U.S. 508

(1990)

Lockhart v. Nelson

488 U.S. 33 (1988)

North Carolina v. Pearce

395 U.S. 711 (1969)

Ohi Johnson

467 U.S. 493 (1984)

Pugliese v. Perrin

731 F.2d 85 (1st Cir. 1984)

Marshall

816 F.2d 1126 (6th Cir

Rice v

198 7

Segal

606 F.2d 842 (9th Cir. 1979)

Span-Deck, Inc. v. Fabcon,In«

570 FSupp. 81 (D. Minn. 1983

Swentek v. USAIR, In

830 F.2d 552 (4th Cir. 1987)

Tibbs v. Florida

457 U.S. 31 (1982)

United States V Citron

853 F.2d 1055 (2nd Cir. 1988)

United States Vv. Crooks

804 F.2d 1441 (9th Cir. 1986)

United States v. De La Torre

639 F.2d 245 (Sth Cir. 1981)

rt c:\pleas\00000701.pl

a)

American Telephone & Telegraph, Co., I:

Og

Oo CO

United States v. De Vincent

632 F.2d 155 (1st Cir. 1980) cert. denied, 450 U.S. 984

United States v. Dray

901 F.2d 1132, (1st Cir. 1990) cert. denied, 111 S.Ct. 245

United States v. Farmer

923 F2d 1557 (11th Cir. 1991)

United States v. Head

697 F.2d 1200, (4th Cir. 1982) cert. denied, 462 US. i

United States v. Larkin

605 F.2d 1360 (Sth Cir. 1979) modified, 611 F.2d 585 cert. den.

sub. nom, Larkin v. United States, 446 U.S. 939

United States v. Martin Linen Supply Co.

430 US. 564 (1977)

United States v. Mespoulede

597 F.2d 329 (2nd Cir. 1979)

United States v. Powell

632 F.2d 754 (9th Cir. 1980)

United States v. Price

750 F.2d 363, (Sth Cir.) cert. denied, 473 U.S. 904 (1985)

Weinberger v. Rossi

456 US. 25 (1982)

Youakim v. Mille

r

Cho G15. Oot CIOTO) we ice cn cwunws

Zdanok v. Glidden Co.

327 F.2d 944, (2nd Cir. 1964) tert. denied, 397 U.S. 934

t c:\p!eas\00000701. pile]

[920708 18:01]

vi

STATE CASES

People v. Pettaway

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People v. White

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FEDERAL STATUTES

28 U.S.C. section 1245 2

28 U.S.C. section 2101(c) ?

STATE STATUTES

Penal Code section 3]

Penal Code section 1&

Penal Code section 1385 6

Penal Code section 12022 5 : |

Penal Code section 12022.7 -_ ta l

SUPREME COURT RULES

Supreme Court Rule 13.1 ............ twee eeeeeues (abs acs 2

Supreme Court Rule 13.4 .. pe Ubwee ea yeeuaaee ess veaueans “a 2

1 rt c:\pleas\00000701.ple) (920708 18

No. 91-1785

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

CHARLES PLUMMER, SHERIFF OF ALAMEDA COUNTY, Petitioner,

Vv.

JAMES PETTAWAY, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit in Pettaway

v. Plummer is reported at 943 F.2d 1041 (9th Cir. 1991) [Petitioner's Appendix A at 1-19,

hereinafter App. A.]. The District Court's order denying respondent's petition for habeas

corpus was unreported [App. B at 20-28]. The December 29, 1988, opinion of the

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2

California Court of Appeal reversing the superior court's dismissal order is reported at

206 Cal.App.3d 1312, 254 Cal.Rptr. 436 (1988) [App. C at 29-94.] The May 16, 1985,

opinion of the California Court of Appeal reversing respondent's conviction for violation

of Penal Code section 187 [murder] was unreported [App. D at 95-106.]

JURISDICTION

The judgment of the Court of Appeals for the Ninth Circuit was entered on August

23, 1991. Rehearing and rehearing en banc were denied on March 24, 1992 [App. E at

107]. The petition for certiorari was timely filed. 28 U.S.C. § 2101(c); Supreme Court

Rules, 13.1, 13.4. This Court's jurisdiction is invoked under 28 U.S.C. § 1245.

CONSTITUTIONAL PROVISION INVOLVED

The Double Jeopardy Clause of the Fifth Amendment provides: “nor shall any

person be subject for the same offense to be twice put in jeopardy of life or limb.”

STATEMENT OF THE CASE

A. The Offenses

For the purposes of this brief, respondent incorporates by reference the Circuit

Court's rendition of the prosecution facts. See App. A. at 4. As that court did not recite

the defense facts, respondent incorporates the rendition of those facts in the California

Court of Appeal’s 1985 opinion. See App. D at 98-99. To summarize: On May 1, 1981,

Pettaway, his girlfriend Lowana Walker, and another man, Michael Seals, were at the

home of Karen Taylor. At some point, Lowana handed-Pettaway a gun and Pettaway

shot Seals in the back of the neck. Seals fainted. When he regained consciousness, he

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3

saw Pettaway and Lowana leave through the front door. Karen's dead body was later

found in the bathroom. She had been shot twice.

Pettaway denied any involvement in either shooting. According to him, in addition

to Walker, Seals, Taylor and himself, two other men were at Taylor's house. He heard a

shot, saw Seals fall, and fled the scene. Later, he saw Lowana leave the house with the

two men. After reentering the house with her and seeing Seals on the floor, bleeding, he

and Lowana left.

B. The Trial

The prosecutor's principal theory of the case, and the one he argued to the jury, was

that Pettaway had fired the fatal shots. The evidence and argument apparently did not

persuade the jury to accept the prosecutor's theory of the case. The jury, which had not

initially been instructed on aiding and abetting, made the following request during the

third full day of deliberations. "Please explain the law concerning complicity, for

example, in this case may the defendant be convicted of murder or attempted murder

without having personally fired the bullets?”

At this point, the prosecutor changed gears. Apologizing for his earlier inadvertent

failure to request aiding and abetting instructions, he urged the court to give them

because “the jury could still convict the defendant of murder, if they believed Lawana

Walker had in fact fired the fatal shots, because the only possible means of getting the

gun would be from the defendant.” App. C at 83-84. Over defense objection, the trial

court instructed on aiding and abetting.

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Shortly thereafter, the jury returned guilty verdicts on both counts. The jury also

returned “not true” findings on the allegations that Pettaway had personally used a

firearm and inflicted great bodily injury on Taylor in the commission of the murder.

(Cal. Pen. Code §§ 12022.5, 12022.7.)' “True” findings were returned on those same

allegations with respect to the attempted murder of Seals.

C. The First State Appeal

Pettaway appealed both convictions, arguing that the aiding and abetting instructions

were prejudicially defective. Agreeing, the California Court of Appeal reversed

Pettaway'’s murder conviction because “in making express findings that appellant did not

personally use a firearm and did not inflict great bodily injury on Karen, the jury clearly

convicted appellant of murder on an aiding and abetting theory. The aiding and abetting

instructions given allowed the jury to find [Pettaway] guilty of first degree murder

without considering the first degree murder instructions on intent. [fn omitted].

Consequently, the jury did not necessarily resolve the issue of appellant's intent under

other, proper instructions.” (emphasis in original). App. D. at 102-103. The state

appellate court affirmed Pettaway’s attempted murder conviction, however, because the

jury's affirmative findings on the enhancement allegations with respect to that count

! Under California law, liability for firearm use and great bodily injury infuction requires personal

culpability. In contrast, liability for murder can be based on either personal or derivative culpability.

2 The State had argued that Pettaway’s intent was established by the facts as a matter of law “because

‘no other scenario except one involving appellant's intentional participation . . . is imaginable.” The court

specifically rejected that argument finding, to the contrary, that “it is entirely possible that [Pettaway] aided

Lawana -- assuming she was the perpetrator -- by giving her the gun, knowing of her intent to kill Karen,

without himself harboring the requisite intent.” App. D. at 103, fn. 5 (emphasis in the original).

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: 5

demonstrated that the attempted murder conviction was not premised on aiding and

abetting.

D. The Hearing after Remand

On remand after reversal of the murder conviction, Pettaway successfully argued

that double jeopardy and collateral estoppel limited the prosecution at the second trial to

the aiding and abetting thecry, based on the jury's unanimous findings that he did not

personally use the firearm to kill Karen Taylor and did not personally inflict great bodily

injury on her during the commission of the homicide. After the court's ruling, the

prosecutor represented that he intended to “call the exact same witnesses and proceed in

the exact same fashion” as at the first trial, except that he now intended to call Walker to

testify against respondent.’ The trial court indicated that all of the evidence admitted at

the first trial would be admissible on retrial. Walker's testimony, however, would be

irrelevant "because it is being offered to prove not that he aided and abetted her or

anybody else but that he actually did the killing.” The prosecutor was unwilling to try the

3at the preliminary hearing held on October 9, 1981, the defense called Walker as a witness. She

asserted her privilege against self-incrimination and refused to answer any questions, including the question

whether she shot and killed Taylor. After the preliminary hearing she was also charged with murder and was

held to answer to the same on December 8, 1981. At Pettaway’s trial, which commenced on December 16,

1981, she was again subpoenaed by the defense and again asserted her privilege. The prosecutor chose not

to give her immunity to testify.

At the time she asserted her privilege, Walker had given a statement to police in which she claimed that

after Pettaway shot Seals he chased Taylor into a back room. She heard four shots, waited ten to fifteen

minutes, and then went to investigate. She then saw Pettaway standing over Taylor’s body with the gun.

RT 14. At trial, however, Pettaway testified that Walker at one point confessed to him that she shot Taylor

and then later recanted her confession.

In March 1983, Walker entered a plea of guilty to the reduced charge of accessory after the fact. Cal.

Pen. Code § 3L

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6

case with this limitation and announced himself unable to proceed. The court thereupon

dismissed 'the case in the interests of justice under California Penal Code section 1385.

E. The Second State Appeal.

The State appealed, and on December 29, 1988 a divided panel of the California

Court of Appeal reversed the dismissal in a published opinion. The majority held that

double jeopardy was not implicated by negative jury findings on enhancement allegations

and, in any event, the requirements of collateral estoppel were not met. Pettaway’s

petition for review in the California Supreme Court was denied on April 20, 1989.

F. The District Court Proceedings

Pettaway petitioned the District Court for the Northern District of California for a

writ of habeas corpus. The petition was denied on January 2, 1990. The District Court

held, in an unpublished opinion, that the jury's Seitings did not necessarily demonstrate

that the jury had decided Pettaway was not the shooter.

G. The Appeal to the Ninth Circuit

Pettaway timely appealed to the Ninth Circuit Court of Appeals and, in a published

opinion filed on August 23,1991, that court reversed the district court's order and

directed issuance of the writ. The Ninth Circuit found that Ashe v. Swenson, 397 U.S.

436 (1970), governed the case, and that Grady v. Corbin, 495 U.S. 508, (1990) provided

an apt analogy. Concluding that all of the requirements of collateral estoppel were met,

the Court found that the first jury’s unanimous findings beyond a reasonable doubt

established that Pettaway did not fire the fatal shots. Thus, double jeopardy principles

would be offended if the State were permitted a second attempt to prove to a second

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-

jury that Pettaway had fired the shots. The Court found that neither Double Jeopardy

nor collateral estoppel, however, prevented Pettaway’s reprosecution for murder on the

theory that he was an aider and abettor. Nevertheless, si:ce the prosecutor expressly

eschewed any intention of prosecuting Pettaway on that theory, the Court was

constrained to hold that the prosecution could not proceed at all.” App. A. at 19.

REASON R_DENYIN E WRIT

There are at least three good reasons why this Court should deny the writ.

First, petitioner has waived the question he seeks to present to this Court; second,

petitioner has not demonstrated a split in the Circuits on the question presented because

none exists; and finally, the Circuit Court correctly decided that principles of collateral

estoppel and Double Jeopardy preclude the prosecution from retrying Pettaway as the

direct perpetrator, but do not preclude them from retrying him as an aider an abettor.

I.

PETITIONER HAS WAIVED ANY CLAIM THAT ASHE V. SWENSON DOES

NOT APPLY TO RETRIALS BY BELATEDLY RAISING IT FOR THE FIRST

TIME IN HIS PETITION FOR REHEARING BEFORE THE CIRCUIT

COURT WHEN THE APPLICATION OF ASHE HAS BEEN CENTRAL TO

THIS LITIGATION SINCE ITS INCEPTION

As petitioner partially acknowledges in a footnote (See Petition, at 11, fn.2), until

his petition for rehearing and rehearing en banc in the Circuit Court, he never argued

that collateral estoppel principles do not apply on retrial of the same case. Up until that

time, throughout both the state court and federal court proceedings, petitioner has

implicitly accepted that Ashe v. Swenson, 397 U.S. 436 (1970) applies with as much force

in the retrial of a single case as in the successive trial of a different case. Far from

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8

disputing that proposition, petitioner has argued from that premise that collateral

estoppel dignity should not be accorded the jury’s special findings in this case for a

variety of other, more case-specific reasons.

It is no excuse that petitioner did not think of this argument until the Circuit Court

incorporated a discussion of Grady v. Corbin, 495 U.S. 508 (1990) in its opinion.

Contrary to petitioner's suggestion, both sides had cited Grady in their briefs. More to

the point, significant portions of Pettaway’s opening brief and of petitioner's reply brief

were devoted to arguments about why Ashe v. Swenson should or should not govern this

case.

Under the Ninth Circuit's rules, arguments not timely presented are deemed

waived, and this waiver doctrine applies to arguments raised for the first time in a

petition for rehearing. United States v. Lewis, 798 F.2d 1250, 1259 (9th Cir. 1986) [order

amending opn. and denying petn. for reh. & reh. en banc at 787 F.2d 1318 (9th Cir.

1986).] Since petitioner deprived the Circuit Court of any opportunity to address his

contention in its opinion, and since not a single judge of the Circuit voted to rehear the

case, this question has never been passed upon by the Circuit Court. "Ordinarily, this

Court does not decide questions not raised or- resolved in the lower court. [citations

omitted]... . It is only in exceptional cases coming here from the federal courts that

questions not pressed or passed upon below are reviewed.’ [cit. omit.].” Youakim v.

Miller 425 U.S. 231, 234 (1976). See also Berkemer v. McCarty, 468 U.S. 420, 443

(1984); Weinberger v. Rossi, 456 U.S. 25, 36, fn. 18 (1982); Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 397-398 (1971); Adickes v. Kress & Co., 398 US. 144, 147,

{11 rt c:\pleas\00900701. ple) (920708 17:34}

‘

9

n.2 (1970); Lawn v. United States, 355 US. 339, 362-363, n.16 (1958). For the reasons

set forth below, this is not the exceptional case for which this Court should abandon the

general rule.

Il.

NO CONFLICT BETWEEN FEDERAL CIRCUIT COURTS EXISTS ON THIS

QUESTION ON THE QUESTION PRESENTED IN THE PETITION

Petitioner alleges that a conflict between the circuits exists on the question whether

Ashe v. Swenson applies to retrials, but demonstrates no such conflict. In fact, he

concedes that "numerous federal circuit courts” have applied the collateral estoppel

doctrine of Ashe to retrials, and cites some of them: United States v. Dray, 901 F.2d

1132 (1st Cir. 1990), cert. denied, 111 S.Ct. 245 (1990); United States v. DeVincent, 632

F.2d 155, (1st Cir. 1980), cert. denied, 450 U.S. 984 (1981); United States v. Citron, 853

F2d 1055 (2nd Cir. 1988); United States v. Head, 697 F.2d 1200 (4th Cir. 1982), cert.

denied, 462 U.S. 1132; United States v. Crooks, 804 F.2d 1441 (9th Cir. 1986); United

States v. Powell, 632 F.2d 754 (9th Cir. 1980). Petitioner's list is, in fact, incomplete.

See also United States v. Larkin, 605 F.2d 1360 (Sth Cir. 1979) modified 611 F.2d 585

(1980) cert. den. sub. nom Larkin v. United States, 446 U.S. 939 (1980); Rice v.

Marshall, 816 F.2d 1126 (6th Cir. 1987); Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989),

cert. denied, 496 U.S. 929 (1990); United States v. Mespoulede, 597 F.2d 329 (2nd Cir.

1979) and Pugliese v. Perrin, 731 F.2d 85 (Ast Cir. 1984).

As petitioner further concedes, except for a passing query in a footnote in United

States v. Farmer, 923 F.2d 1557, 1563, fn. 12 (11th Cir. 1991) (which nonetheless

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- 10

conducted a collateral estoppel analysis in the context of a retrial), none of the federal

courts applying Ashe in any context have even suggested that the doctrine of collateral

estoppel is limited to successive prosecutions.

There is a good reason for that. Ashe v. Swenson did not invent “collateral

estoppel;” it explicitly borrowed the concept from civil litigation. Ashe, supra, 397 U.S. at

443. In the context of civil litigation it is well understood that “issue preclusion” (as the

doctrines of direct and collateral estoppel have come to be known) applies in the retrial

of the same case. "Issue preclusion may arise not only as between separate claims or

causes of action but also within the confines of a single claim or cause of action. In the

terminology that had become traditional by the advent of current efforts to refer to both

types as issue preclusion, the first type is collateral estoppel and the second is direct

estoppel. [fn. omit.] Direct estoppel questions ordinarily arise . . . [when] there is a

decision that finally disposes of a part of a claim on the merits but does not preclude all

further action on the remainder of the claim; issues common to both parts of the claim

are precluded, even though new issues remain to be decided.” * Examples abound of

applications of the doctrine in retrials of the same civil case. See, for example, Zdanok v.

Glidden Co., 327 F.2d 944, 955 (2nd Cir. 1964), cert. denied 397 U.S. 934 (1964);

Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir. 1987); In re Falstaff Brewing

Corporation AntiTrust Litigation, 441 FSupp. 62, 66 (E.D. Mo. 1977) Span-Deck, Inc. v.

Fabcon,Inc., 570 F.Supp. 81, 90 (D. Minn. 1983); Aiello v. City of Wilmington, 470

FSupp. 414, 423 (D. Del. 1979), aff'd 623 F.2d 845 (3rd Cir. 1980).

4 Wright, Miller and Cooper, Federal Practice and Procedure, Vol. 18, § 4418, pp. 169-170.

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OE ——————

11

Even United States v. Price, 750 F2d 363 (Sth Cir.), cert. denied 473 U.S. 904

(1985) does not provide the conflict in the circuits which petitioner alleges exists”, since

it is readily distinguishable from the Circuit's opinion below. In Price, supra, the Fifth

Circuit found after reviewing the evidence and the split verdicts at the first trial of a

multi-count trial that the acquittals on certain counts were simply inconsistent verdicts

and therefore were not entitled to Double Jeopardy or collateral estoppel effect. Id., at

366. Here, by contrast, the Circuit Court explicitly found that this was not a case of

inconsistent verdicts but rather one where "there is a rational explanation that takes into

account the whole of the jury’s verdict.” App. A., at 13. Equally important, this is not a

case where the federal court is alone in finding verdicts rational and consistent. The

California Court of Appeal which reversed Pettaway’s conviction in the first place did so

because it found that the verdicts, as whole, demonstrated that "the jury clearly convicted

[Pettaway] of murder on an aiding and abetting theory.” App. D., at 102.°

> Contrary to petitioner's assertion, Price did not establish a hard and fast rule that collateral estoppel

principles never bar introduction of evidence on retrial. On the contrary, the Court preliminarily observed:

“{e]ven though the doctrine affects the introduction of evidentiary facts necessarily determined in a prior

lawsuit, United States v. De La Torre, 639 F.2d 245 (Sth Cir. 1981), it does not prevent re-examination of an

issue that is not necessarily determined in the former trial.” Id., at 365. In De La Torre, supra and Larkin,

supra, the Fifth Circuit had performed collateral estoppel analyses under the aegis of Ashe v. Swenson in

retrials and had accepted as a matter of course that application of the doctrine in a particular case might

limit pleading, evidence or argument. See De La Torre, supra, 639 F.2d at 248; Larkin, supra, 605 F.2d at

1371. Manifestly, there is no conflict between the Ninth and Fifth Circuits on the question whether Ashe v.

Swenson can limit prosecution theories on retrial.

6 It is true that the Circuit's opinion is at odds with the opinion of two justices of Division Two of the

California Court of Appeal for the First Appellate District. See People v. Pettaway, supra [maj.opn.]. That

opinion, in turn, refused to follow the earlier unanimous opinion of Division Five of the same court, on

identical facts, in People v. White, 185 Cal App.3d 822, 231 Cal.Rptr. 569 (1985). More importantly, the

same “conflict” can be shown in every case where the federal court, on habeas corpus review, differs in

outcome from the state court. Respondent submits that this Court's power to grant certiorari to settle

important disputes between state and federal courts should not be engaged when even the state court has not

; (continued...)

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12

No conflict exists on the question presented between the Federal Courts or the

State and Federal Courts. Certiorari should be denied for this reason alone.

III.

ON THE FACTS OF THIS CASE THE CIRCUIT COURT CORRECTLY ‘

DECIDED THAT THE JURY’S UNANIMOUS DECISION THAT PETTAWAY

DID NOT PERSONALLY USE A FIREARM OR INFLICT GREAT BODILY

INJURY ON TAYLOR CONSTITUTIONALLY ESTOPS THE PROSECTION

FROM RETRYING PETTAWAY AS THE GUNMAN BUT NOT AS AN AIDER

AND ABETTOR.

A. Petitioner bas Misstated the Circuit Court’s Holding.

Before turning to the ments, it is necessary to dispel certain inaccuracies in

petitioner's characterizations of the Circuit's opinion. For example, petitioner asserts

that the Circuit "has ordered a murder charge against respondent dismissed. . . .”

(emphasis added) The Circuit has done no such thing. In fact, the Court's very narrowly

drafted opinion makes it clear that if there is to be no retrial at all, that result is product

of prosecutorial choice, not collateral estoppel principles. "[W]e hold only that it would

violate double jeopardy principles if, on retrial of the second offense, the prosecution

attempted to prove that Pettaway did personally use the gun. . . . Of course, the

prosecution could still seek to prove Pettaway guilty of first degree murder under an

any intention to do so. Thus, because this prosecution must be based upon personal use

6(__ continued)

settled its internecine differences. This seems especially true when none of the opinions involved turned on

the question presented in this petition --ewhether -she v. Swenson applies only when distinct prosecutions

aiding and abetting theory, but as we have pointed out, the prosecutor expressly eschews

|

are involved -- because petitioner never raised it.

|

|

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ee

13

of a firearm or nothing we are constrained to hold that it cannot proceed at all.” App. A.

at 19 (emphasis added).

The aiding and abetting theory which the prosecution professes to eschew is

precisely the theory on which it won conviction at the first trial, albeit on defective jury

instructions. Nothing in the Circuit's opinion prevents the prosecution even now from

changing its mind, once this case is finally remanded to the trial court for further

proceedings not inconsistent with the Circuit Court's opinion. In short, the silsiain does

not by any means bar retrial of respondent for Taylor's murder. It only precludes the

state from retrying him on the personal gun use theory of which the jury acquitted him.

Petitioner also alleges that the Circuit has “created an exclusionary rule barring

relevant evidence on retrial” (Pet. at 7, 9, 12) that will result in “evidence remaining

[which] is insufficient to warrant conviction.” Pet. at 14. Again, this is not true. The

Circuit Court’s opinion did not rule any evidence inadmissible. Indeed, it expressly

declined to rule on the correctness of any evidentiary rulings. App. A. at 16, fn. 5. And,

in fact, the state trial court's pretrial ruling did not exclude any evidence introduced by

the prosecution at the first trial. The only evidence which the trial court provision< lly

barred was the testimony of Walker who, by prosecutorial choice, had not testified at the

first trial. Whether the evidence which persuaded a first jury to convict under defective

instructions will prove "insufficient to warrant conviction” under proper ones, remains to

be seen.

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14

B. The Circuit Court’s Rationale Correctly Applies This Court’s Precedents.

Petitioner argues that neither Double Jeopardy nor its incorporated doctrine of

collateral estoppel protect a defendant from having to relitigate an ultimate fact found in

his favor by a first jury if the prosecution seeks to reprove that fact to the new jury sworn

to retry the defendant for the original offense. Such protection only applies where the

prosecution seeks to try the defendant for a different offense. For this proposition

petitioner cites the well-established rule that "the Double Jeopardy Clause’s general

prohibition against successive prosecutions does not prevent the government from

retrying a defendant who succeeds in getting his first conviction set aside, through direct

appeal or collateral attack, because of some error in the proceedings leading to the

conviction.” Lockhart v. Nelson 488 U.S. 33, 38 (1988). See Pet. at 8-9. The rationale

for that rule, of course, is that "the original conviction has, at the defendant's behest,

been wholly nullified and the slate wiped clean.” North Carolina v. Pearce, 395 U.S. 711,

721 (1969). But as the Eleventh Circuit cogently observed in Delap.v Dugger, 890 F.2d

285, 312-313 (1989):

Firmly established double jeopardy principles hold that a finding of

insufficiency of the evidence renders the "clean slate” argument

inapplicable. As the Court emphasized in Bullington v. Missouri, 451

US. 430 (1981)], “the ‘clean slate’ rationale recognized in Pearce is

inapplicable whenever a jury agrees or an appellate court decides that

the prosecution has not proved its case.” 451 U.S. at 443 [parallel

citation omit.].

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15

Thus, it is clear that Double Jeopardy’s bar against "successive prosecutions” has

always applied to retrials of cases where the trier of fact or appellate court has

determined that some critical evidence is insufficient.’

Petitioner acknowledges this point in a footnote, but asserts that "[nJeither exception

applies here.” Pet. at 8, fn. 1. Despite his protestations, insufficiency of the evidence is

exactly what is at issue in this case. The jury, by returning unanimous findings that the

personal gun use and great bodily injury allegations vis a vis Karen Taylor were not true,

unequivocally declared that the prosecution had not proved beyond a reasonable doubt

that Pettaway had personally fired the fatal shots. These “separate verdicts” (Cal. Pen.

Code, §1158a, subd.(b)) "actually represent{ed] a resolution, correct or not, of some of

the factual elements of the offense charged.” United States v. Martin Linen Su Q.,

430 U.S. 564, 571 (1977) quoted in Delap, supra, 890 F.2d at 312.

Petitioner is just as wrong in his assertion that collateral estoppel principles do no

apply in retrials of the same case. As noted earlier, in Ashe this Court applied a concept

it had borrowed from civil litigation. It would be nonsense to say that collateral estoppel

principles do not apply in subsequent civil trials of the same case. “Issue preclusion,

unlike bar, hse litigation only of those issues of fact or law that were actually

litigated and necessarily decided by a valid and final judgement between the parties,

whether on the same or a different claim.” Segal v. American Telephone & Telegraph,

7 In Bullington v. Missouri, supra, for example, the state sought the death penalty anew after the trial

court granted the defendant a retrial, even though the jury at the first trial had fixed the penalty at life

imprisonment. Similarly, in Arizona v. Rumsey 467 US. 203 (1984), the state soughi the death penalty after

the state supreme court set aside the previously imposed life sentence and remanded the case for a new

sentencing hearing. In both instances, double jeopardy principles were applied to retrials of the same case.

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16

Co., Inc., 606 F.2d 842, 845 (9th Cir. 1979) (emphasis added.); see also cases ante. Nor

has petitioner demonstrated any compelling reason for following a different rule in

criminal cases.

Nothing in Ashe, supra or Ohio v. Johnson, 467 U.S. 493, 500, fn. 9 (1984) suggests

that issue preclusion in the criminal law has a different meaning from issue preclusion in

the civil law. In fact in Ashe, supra, the Court took great pains to show that applying the

doctrine of collateral estoppel to a different second prosecution was analytically the same

as applying it to the attempted retrial of the same case:

After the first jury had acquitted the petitioner of robbing Knight, Missouri

could certainly not have brought him to trial again upon that charge. Once a

jury had determined upon conflicting testimony that there was at least a

reasonable doubt that the petitioner was one of the robbers, the State could not

present the same or different identification evidence in a second prosecution

for the robbery of Knight in the hope that a different jury might find that

evidence more convincing. The situation is constitutionally no different here,

even though the second trial related to another victim in the same robbery.”

(Id., at 446)

Indeed, as the foregoing analogy makes clear, the application of issue preclusion in

this case not an “extension” of Ashe at all. It is, rather, a more conservative application

of Double Jeopardy principles than Ashe itself. If application of Double Jeopardy in its

purest form prevents a new prosecution of the same charge on which there has been a

previous acquittal, then Ashe is at the opposite end of the spectrum, for it prevents a

new prosecution of an entirely different charge, because of a previous acquittal on a

related charge. This case presents only an intermediate step between “pure” Double

Jeopardy and Ashe: here the previous acquittal by special verdict on a discrete factual

element of a charge prevents relitigation of that fact in a renewed prosecution of the

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17

same charge. This case does not take Double Jeopardy protection half as far as Ashe

did.

The dictum in Qhio v. Johnson, supra on which petitioner relies (Pet. at 10) also

does not support his claim that collateral estoppel is inapplicable on retrial after reversal

on appeal. In Johnson, the defendant was charged in a single indictment with murder,

involuntary manslaughter, aggravated robbery and grand theft. At his arraignment, over

the State's objection, the trial court accepted his guilty pleas to involuntary manslaughter

and grand theft, and then dismissed the murder and robbery charges on the ground that

his + secution for those counts would subject him to double jeopardy. It was in this

factual context that the Supreme Court observed:

[Defendant] also argues that prosecution on the remaining charges is barred by

the principles of collateral estoppel enunciated by this Court in Ashe v.

Swenson, 397 U.S. 436 [par. cit. omit.] (1970). ... [T]he taking of a guilty plea

is not the same as an adjudication on the merits after a full trial, such as took

place in Ashe v. Swenson. Moreover, in a case such as this, where the State

has made no effort to prosecute the charges seriatim, the considerations of a

double jeopardy protection implicit in the application of collateral estoppel are

inapplicable.

Qhio v. Johnson, supra 467 U.S. at 500, n. 9.

In speaking of seriatim prosecution in Johnson, supra, this Court was clearly

differentiating the practice of filing successive indictments charging different offenses

with the single indictment before the Court in Johnson. That factual distinction hardly

supports the massive change in the doctrine of collateral estoppel that petitioner would

have this Court adopt.

The Circuit's opinion properly placed primary reliance on this Court's opinion in

Ashe which, since it factually involved successive prosecutions, did not discuss its

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18

.

application in situations involving retrnals. It also properly relied on this Court's opinion

in Dowling v. United States, 493 U.S. 342 (1990), which explicated Ashe, for the

proposition that the Double Jeopardy Clause will not tolerate reprosecution when, in

order to convict, a second jury will have to reach a conclusion directly contrary to that of

the first jury. The Circuit Court's opinion is a sound application of this Court's

controlling precedents.

‘

The Circuit's supplementary discussion of this Court's then most recent opinion on

Double Jeopardy jurisprudence in Grady v. Corbin, supra, does not change that fact.

The Circuit Court's observations about Grady were not only proper but hardly unique.

As both the Ninth Circu:t and the Eleventh Circuit in United States v. Farmer, supra

have recogmized, Grady does have soivie illustrative value for collateral estoppel cases.

For as the Farmer Court observed, “the Grady rationale applies with equal force to the

instant case because collateral estoppel, like the type of ‘same offense’ test outlined in

jrady, focuses on the issues actually litigated.” Farmer, supra, 923 F.2d at 1564, fn. 16.

\ £

As the Circuit Court opinion recognized, Grady is also relevant to collateral

estoppel cases because it illustrates that the policies served by the Double Jeopardy

Clause in general and the collateral estoppel doctrine in particular are much broader

than petitioner admits in his petition at page 11. The evil of successive prosecutions,

“whether following acquittals or convictions,” is not only that they subject the defendant

“to embarrassment, expense and ordeal and compel[] him to live in a continuous state of

anxiety and insecurity.” Grady, supra, 495 U.S. at 518. "Multiple prosecutions also give

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19

the State an opportunity to rehearse its presentation of proof, thus increasing the risk of

an erroneous conviction for one or more the offenses charged.” Id., at 518.)

Grady also demonstrates that this latter concern is implicated even when the first is

not, fully. Grady held that "the Double Jeopardy Clause bars any subsequent

prosecution in which the government, to establish an essential element of an offense

charged in that prosecution, will prove conduct that constitutes an offense for which the

defendant has already been prosecuted.” Grady, supra, 495 U.S. at 521. On the facts

before it, that meant that the State could not seek to "prove the entirety of the conduct

for which Corbin was convicted --driving while intoxicated and failing to keep right of the

median -- to establish essential elements of the homicide and assault offenses.”

However, this Court frankly acknowledged that its holding did not bar prosecution for

homicide and assault if the State could prove those charges without relying on the

conduct to which Corbin had pleaded guilty, but instead relied on other conduct, such

driving too fast for the weather conditions. Thus, even if the Double Jeopardy Clause

did not completely protect Corbin from reprosecution, it still “prevent[ed] the State from

honing its trial strategies and perfecting its evidence through successive attempts at

conviction.” Tibbs v. Florida 457 U.S. 31, 41 (1982) quoted in Grady, supra, 495 U'S. at

518.

The Circuit Court correctly saw a parallel between this case and Grady. Grady

reiterated that the Double Jeopardy Clause will not permit the prosecutor to "refine[] his

presentation in light of the turn of events at the first trial." Grady, supra, 495 US. at

518 quoting Ashe v. Swenson, supra, 397 US. at 447. Thus, while Grady is not about

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20

“collateral estoppel,” it nevertheless provides a compelling analogue because it is

animated by the same concerns, and much of the same analysis, as a collateral estoppel

case. The Circuit Court's observations were not misplaced

CONCLUSION

For the foregoing reasons, respondent Pettaway respectfully submits that the

Petition for Writ of Certiorari to the Court of Appeals for the Ninth Circuit should be

Dated: July 7, 1992 Respectfully submitted

DAVID Y. STANLEY

Executive Director

First District Appellate Project

; f yY } ; 7

x

RENEE E. TORRES

Counsel of Record for Respondent

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