Opinion
No. 332385
02-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. FERONDA MONTRE SMITH, Defendant-Appellee.
UNPUBLISHED Genesee Circuit Court
LC No. 08-023581-FC Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ. PER CURIAM.
A jury convicted defendant of armed robbery and first-degree felony murder, but acquitted him of carrying a concealed weapon and two other firearm possession charges. The Supreme Court reversed defendant's convictions due to prosecutorial misconduct. On remand, defendant asserted that a retrial would violate the Double Jeopardy Clause of the Fifth Amendment and, alternatively, that evidence of his gun use or possession must be excluded because he was acquitted of the three weapon-related crimes.
Relying on People v Wilson, 496 Mich 91; 852 NW2d 134 (2014), the trial court precluded the prosecution from introducing any evidence regarding defendant's use or possession of a firearm, but otherwise allowed the prosecution to proceed. A few months later, the United States Supreme Court abrogated Wilson in Bravo-Fernandez v United States, ___ US ___; 137 S Ct 352; 196 L Ed 2d 242 (2016). We granted the prosecution's subsequent application for leave to appeal. People v Smith, unpublished order of the Court of Appeals, entered May 20, 2016 (Docket No. 332385). Because the acquittals on the weapons-possession charges have no collateral estoppel effect on the remaining charges, we now reverse and remand for further proceedings.
I
We described the facts at length in our original opinion, People v Smith, unpublished opinion per curiam of the Court of Appeals, issued October 29, 2013 (Docket No. 304935) (Smith I), as did the Supreme Court in People v Smith, 498 Mich 466; 870 NW2d 299 (2015) (Smith II). In summary, the prosecutor charged that defendant shot and killed Larry Pass and stole Pass's cocaine. Two prosecution witnesses were present in Pass's home when the shooting occurred. They claimed that defendant shot Pass in the kitchen while they remained in other areas of the home. Both denied having ever possessed the murder weapon.
The prosecutor argued that defendant brought a handgun to Pass's apartment and that defendant alone shot Pass. Defense counsel's closing argument implicated the two trial witnesses and the people who found Pass's body. Over defendant's objection on notice grounds, the judge instructed the jury that it could find defendant guilty of murder and robbery either as a principal or as an aider and abettor. Nevertheless, the prosecutor never advanced an aiding and abetting theory.
The jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), and armed robbery, MCL 750.529, and acquitted him of carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.227f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. This Court affirmed defendant's convictions in Smith I. The Supreme Court reversed in part, holding that prosecutorial misconduct tainted the convictions, and remanded for a new trial. Smith II, 498 Mich 466.
On remand, the prosecutor recharged defendant with felony murder and armed robbery. Defendant maintained that his acquittal on the weapons charges meant that the jury had conclusively determined that he was unarmed when Pass was shot. Invoking the Double Jeopardy Clause, he filed a motion to dismiss the charges or to exclude evidence that he possessed the gun used to kill Pass. The trial court denied the motion to dismiss, but granted the motion to exclude evidence of defendant's possession of a gun either "directly or by implication." In its written opinion, the trial court reasoned that "it was the People's theory that only Smith had a gun" and that the circumstantial evidence "established Smith as the shooter." By acquitting defendant on the firearm charges, the court reasoned, "the jury must have necessarily found that Smith was not in possession of the gun in question." (Emphasis in original.) "Obligated to follow Wilson," the court concluded that it was "compelled to give this finding by the jury preclusive effect on retrial." The prosecution appeals this ruling.
II
The Double Jeopardy Clause of the Fifth Amendment provides, "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." US Const Amend V. This Clause affords an accused three safeguards: " 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' " United States v DiFrancesco, 449 US 117, 129; 101 S Ct 426; 66 L Ed 2d 328 (1980), quoting North Carolina v Pearce, 395 US. 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The first of these safeguards, barring prosecution for the same crime after a not guilty verdict, is implicated here. More specifically, this case turns on whether the "allied doctrine" of collateral estoppel, which "ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment," either precludes a renewed prosecution for felony murder and armed robbery or requires the exclusion of any evidence regarding defendant's possession of a firearm. Bravo-Fernandez, 137 S Ct at 358.
The United States Supreme Court uses the term issue-preclusion rather than collateral estoppel. Id. at 356. --------
"A double-jeopardy challenge presents a question of law that this Court reviews de novo." Wilson, 496 Mich at 98, overruled on other grounds in Bravo-Fernandez, 137 S Ct 352. "A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). When a trial court excludes evidence based on an erroneous interpretation or application of law, it necessarily abuses its discretion. Kidder v Ptacin, 284 Mich App 166, 170; 771 NW2d 806 (2009).
III
The parties agree that defendant cannot be retried on any of the original firearm charges. And defendant has never contended that a second prosecution would require proof of the same element as the acquitted charges, running afoul of the test set out in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). Instead, defendant posits that the acquittals necessarily determined an ultimate fact—that he was not the shooter. The collateral estoppel principles incorporated in the Double Jeopardy Clause, defendant urges, collaterally estop the prosecution from retrying him for felony murder or armed robbery or from presenting any evidence that he pulled the trigger on the gun that killed Pass. This argument hinges on whether the issue of defendant's gun possession was necessarily decided by the jury in the first trial.
In both civil and criminal cases, the collateral estoppel doctrine holds that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated by the same parties in any future lawsuit." Ashe v Swenson, 397 US 436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970). Was the issue of defendant's possession of a gun determined in the first trial? Bravo-Fernandez compels us to answer that question in the negative.
The Supreme Court's analysis in Bravo-Fernandez drew heavily on the logic expressed in an earlier opinion, United States v Powell, 469 US 57, 59-60; 105 S Ct 471; 83 L Ed 2d 461 (1984). In Powell, a jury acquitted the defendant of drug charges, but convicted her of using a telephone in "causing and facilitating" those same drug offenses. Id. at 60. The defendant appealed her convictions, arguing that the verdicts were inconsistent. She claimed that the guilty verdicts could not stand because the jury had acquitted her of the predicate felonies. Id. at 64. The Supreme Court explained that issue preclusion rests "on the assumption that the jury acted rationally." Id. at 68. But when a verdict is inconsistent, it is impossible to discern which verdict the jurors arrived at rationally. The Supreme Court noted that it was likely that "the jury, convinced of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [related] offense." Id. at 65. In such cases, the prosecution
could just as easily—and erroneously—argue that since the jury convicted on the compound offense the evidence on the predicate offense must have been sufficient. The problem is that the same jury reached inconsistent results; once that is established principles of collateral estoppel—which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict—are no longer useful. [Id. at 68.]
The United States Supreme Court revisited this aspect of Powell in Bravo-Fernandez, 137 S Ct at 362, framing the question presented in that case as whether "the issue-preclusion component of the Double Jeopardy Clause bar[s] the Government from retrying defendants . . . after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency?" The Supreme Court began its answer by observing that the Double Jeopardy Clause generally does not bar reprosecution after a conviction is overturned on appeal. Id. at 363. "The ordinary consequence" of this event is simply "a new trial shorn of the error that infected the first trial." Id. Defendants seeking to preclude an issue from being retried bear "the burden of demonstrating that the jury necessarily resolved in their favor" the fact claimed to have been established by final judgment of acquittal. Id. The Supreme Court reasoned that "a defendant cannot meet that burden where the trial yielded incompatible jury verdicts on the issue the defendant seeks to insulate from relitigation." Id.
Here, there are two ways to view defendant's two convictions and three acquittals. The prosecution contends that the verdict is internally inconsistent, as the evidence presented at defendant's trial supported only one factual finding: that defendant was the shooter. Alternatively, the jury may have concluded that defendant aided and abetted Pass's murder, potentially eliminating any inconsistency. From either perspective, the collateral estoppel doctrine does not bar or limit a second prosecution for felony murder or armed robbery.
Assuming that the prosecutor is correct and the verdicts are inconsistent, Bravo-Fernandez controls the outcome. That case instructs that we focus on defendant's convictions rather than his acquittals. The trial evidence supported that defendant killed Pass; defendant has never argued otherwise. Did the jurors truly believe that defendant possessed a gun but decided to acquit him of those charges for some reason, such as lenity or confusion? Or did they believe that he never touched the murder weapon yet participated in Pass's killing? We will never know the answer, but ultimately it does not matter. As the Supreme Court explained in Dunn v United States, 284 US 390, 393; 52 S Ct 189; 76 L Ed 356 (1932):
The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. [Quotation marks and citation omitted.]Defendant cannot establish whether the jury actually decided that he did not possess a firearm or pull the trigger, because the jury's conclusion in that regard is simply unknowable. Accordingly, collateral estoppel does not apply.
Moreover, even were we to harmonize the seemingly inconsistent verdicts, as defendant insists we do, we land in the same place. Assume that the verdicts represent a determination that defendant aided and abetted in Pass's murder rather than acting as the killer. Given that defendant pointed an accusing finger at the two men who were present at the time of Pass's killing, perhaps a juror concluded that defendant aided and abetted the murder and robbery (hence the guilty verdicts on these counts). That the prosecutor argued to the contrary is of no moment. Neither the prosecutor nor her witnesses need be believed, particularly an accomplice. M Crim JI 5.6. And the jury need not have unanimously found defendant to be an aider and abettor rather than a principal; jury unanimity on this score is simply not required. People v Smielewski, 235 Mich App 196, 203-204; 596 NW2d 636 (1999).
Construing the convictions as predicated on a nonunanimous aiding and abetting theory means that the jury may never have conclusively decided whether or not defendant possessed a gun. But the murder conviction is only one of two, which brings us back to where we started: the verdict is inconsistent. Despite having acquitted defendant of the firearm-related charges, the jury convicted him of armed robbery. We may not simply ignore this conviction or remove it from the collateral estoppel equation. Once again, we are stymied by the unknowable, the jury's rationale for finding that defendant robbed Pass while armed, yet found him not guilty of the gun charges. This means that defendant cannot establish that the jury necessarily resolved in his favor the fact he seeks to remove from contention—that he never possessed a gun.
We reverse and remand for further proceedings. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood