Butler v. State

643 A.2d 389, 335 Md. 238, 1994 Md. LEXIS 85

• Court: Court of Appeals of Maryland
• Decided: June 27, 1994
• Docket: 75, September Term, 1992
• Status: Published

Opinions

CHASANOW, Judge.

We granted Michael Butler’s petition for a writ of certiorari to decide whether the doctrine of collateral estoppel bars the State from retrying Butler for various counts on which the jury deadlocked at his former trial. Butler contends that, by finding him guilty of being an accessory after the fact in that trial, the jury determined that he was not a principal in the offenses on which the jury was unable to reach a verdict. For the reasons discussed below, we hold that collateral estoppel does not preclude the retrial.

I.

On August 12,1989, the Howard County police responded to a call about a shooting in Columbia, Maryland. Upon arriving at the scene, the police found an automobile (a Buick “Riviera”) with its engine running and its turn signal activated. The driver, Sherman Chenault, was slumped behind the wheel of the vehicle with a gunshot wound to his neck and one to the back of his head. Another victim of the shooting, Sharrell Hudson, approached the police officers and informed them that she had been shot in the face.

Emergency medical personnel arrived at the scene, examined the driver, and confirmed that he was dead. Hudson, on the other hand, survived the shooting. She was admitted to the Shock Trauma Unit of the University of Maryland Medical System, where it was determined she had a bullet wound to the left side of her face and a fractured jaw.

By way of an eight-count indictment, Michael Butler was charged with having been one of two assailants who attacked Hudson and Chenault. The specific charges contained in that indictment were as follows:

1. Murder of Chenault;

2. Assault with intent to murder Hudson;

8. Use of a handgun in the murder of Chenault;

4. Use of a handgun in the commission of a felonious assault on Hudson;

5. Common law assault on Hudson;

6. Common law battery on Hudson;

7. Transportation of a handgun; and

8. Accessory after the fact to the murder of Chenault.

The indictment also named Kent Tilghman¹ as the other assailant.

Butler was tried by a jury in the Circuit Court for Howard County (Kane, J.). The evidence at trial disclosed that the attack on Chenault and Hudson occurred during what the victims were led to believe was the consummation of a drug deal. The State called Ms. Hudson and various other witnesses in support of its case. Hudson described the events leading up to, and including, the shooting in Columbia.

Hudson testified that in the late afternoon of August 11, 1989, Chenault came over to her house. Chenault then telephoned Tilghman and arranged to meet with him later that evening. After the phone call, Hudson saw Chenault take “a whole lot of money” out of a metal box and count it.² At approximately 10:00 p.m., Chenault left the house to meet Tilghman at a McDonald’s on Security Boulevard. Approximately thirty minutes later, however, Chenault returned to Hudson’s house, placed a gun and the metal box containing the money into a black vinyl bag, and asked Hudson to accompany him to meet Tilghman “because he was lost.”

Chenault, Hudson, and her five-year old daughter then drove in the Riviera to the McDonald’s to meet Tilghman. Tilghman, accompanied by Butler’s sister, arrived at the McDonald’s in a Toyota Célica. The group proceeded to Butler’s mother’s house, where Chenault took the money out of the metal box and handed it to Tilghman, who in turn placed it into a yellow trash bag. Although in Butler’s first statement to the police he said he only heard about but did not see any money, this claim was contradicted by Hudson. After Tilghman and Chenault finished putting the money in the yellow bag, the two of them went outside of the house. Tilghman had the yellow bag and his keys in his hand.

About twenty-five minutes later, Chenault and Tilghman came back inside the house without the yellow trash bag. Shortly thereafter, while Chenault was in the bathroom, Tilghman and Butler went upstairs for several minutes. When they came back downstairs, Tilghman called his brother’s beeper number and waited for his call to be returned. The phone rang shortly thereafter, Tilghman said a few words to the caller, and then informed everyone that it was time to leave. Hudson testified that just before they left Tilghman asked Butler to go upstairs and get the keys to the Célica. Butler, however, immediately pulled them out of his pocket.³

At approximately midnight, they departed. Chenault drove the Riviera. He was accompanied by Hudson, who sat in the front passenger seat, and Hudson’s daughter and Tilghman, who sat in the rear seat. Following Chenault, Butler drove alone in the Célica even though he had no driver’s license. The Toyota Célica that Butler drove to Columbia belonged to Tilghman’s girlfriend. During the drive, Butler was sometimes in front of the Riviera and sometimes behind it. Eventually both cars reached the village of Owen Brown, which is located in Columbia. Tilghman directed Chenault to the parking lot of an apartment complex. After Chenault pulled into a parking space, he asked Tilghman if Tilghman’s brother was there yet. Tilghman’s response was “no, not yet,” immediately followed by multiple gunshots.

Hudson testified that Tilghman “started shooting us inside of the car.” Hudson, however, was not looking at Chenault or Tilghman when the bullets began to fly. Rather, she was looking out the passenger side window and attempting to locate Butler. She did not see a gun. Hudson described feeling “a sharp pain on the left side of my head,” hearing “loud noises like the car was maybe blowing up or something,” and feeling Chenault fall over on top of her. Her daughter Monique started crying in the back seat. Hudson heard car doors shutting and a car driving away, and then noticed that the Célica was no longer in the parking lot. She exited the Riviera with her daughter, and asked the occupant of a nearby apartment to call the police and an ambulance.

During a subsequent search of the Riviera, the police discovered a black bag containing, inter alia, a nine millimeter handgun along with two clips. Tilghman’s fingerprints were lifted from the driver’s door. Butler’s fingerprints were not found on or in the Riviera, nor on any of its contents. The police did not find any money (except for 53 cents), nor the yellow trash bag.

In addition to Ms. Hudson, the State called Officer Michael McKnight. He testified that on September 12, 1989, nearly a month after the crime, he and another officer spotted Butler walking down the street. Because Butler matched the description of a suspect in a homicide, they attempted to stop him. Butler ran, a chase ensued, and eventually the officers found him hiding in a dumpster. Butler initially gave the officers a false name and told them he ran because he thought a warrant might be outstanding for his failure to appear in court that morning. A short time later at the police station, another officer warned Butler not to run because Officer McKnight was “a killer.” According to McKnight, Butler looked him in the eye and said, “so am I.” Officer McKnight further testified that Butler said, “they’re not going to pin anything on me. They think I’m an accomplice.”

Another witness, Anthony McGrath, testified to admissions made by Butler which strongly supported the State’s theory that Butler was an aider and abettor. McGrath, a correctional officer at the Howard County Detention Center where Butler was incarcerated while awaiting trial, testified that Butler “asked me do I know what he was in there for. I said ‘yes,’ and he said ‘I’m in here for murder.’ He says, “You know, McGrath, I did it.’ ” When asked if Butler said anything else, McGrath replied:

“[Butler] raise[d] his hand like he had a gun in his grasp, and said, ‘Boom, boom.’ He said, T watched the bullets enter the back of the head, come out of the front of the head, and hit the dashboard.’ He said, ‘And then I watched him bleed to death.’ He said, ‘I collected $25,000.00 and left.’ He also told me that his lawyer was going to get him off.”

These statements contradicted Butler’s trial testimony that he did not expect to receive nor did he obtain any money as a result of the shootings. Furthermore, these admissions were inconsistent with Butler’s statement that he was a distance away from the Riviera and seated in another car when the shots were fired.

The State also called Police Detective Patricia Full, the officer who interrogated Butler after his arrest. The State supplemented Detective Full’s testimony by playing a tape recording of the interrogation for the jury. During police interrogation, Butler maintained that he did not know where Chenault and Tilghman were going that evening, but that he thought they were engaged in a drug transaction; however, Butler did inform Detective Full that he had previously been to the Owen Brown community. Upon arriving at Owen Brown, Butler stated that he saw Tilghman getting out of the Riviera firing a gun. As for the number of gunshots he heard, Butler declared, “I know it was more than one shot____ [A]fter that one, if it was 4, 5, 6, 8, I can’t say how many.” Detective Full testified that Butler claimed he started to drive away when he heard the gunshots. He was stopped, however, by Tilghman who told him that he had shot Chenault and Hudson. Tilghman then got into the car and Butler drove them away from the scene of the crime. According to Full, Butler also stated that he pulled to the side of the highway and allowed Tilghman to take over the driving. Butler maintained that he feared for his life, and therefore, he slid across to the passenger seat because he believed that if he got out of the car Tilghman would shoot him.

The crux of Butler’s trial testimony was that he had no prior knowledge of Tilghman’s intention to kill Chenault and Hudson. He claimed that he had only agreed to drive the car to Columbia in exchange for a ride home. In accordance with his earlier statement to Detective Full, Butler asserted that when he heard the shots he threw the car in drive and attempted to leave. Butler surmised that Tilghman must have heard the “revving” of the engine when Butler hit the gas because Tilghman ran over in front of the car causing Butler to stop. Tilghman jumped in the car and ordered Butler to drive from the scene of the crime. Butler testified that he asked Tilghman, “Man, what ... you shoot them people for?” He testified that he remained in the car even after Tilghman took over the driving because he feared for his life. After the shootings, according to Butler, Tilghman picked up Butler’s wife and drove the couple to Butler’s uncle’s house where they were temporarily residing.

Two of the State’s witnesses who were residents of the Owen Brown community somewhat contradicted Butler’s testimony that, after he pressed on the gas pedal in an attempt to leave Tilghman at the scene, Tilghman jumped in front of the car and forced him to stop. On the night of the incident, one of the witnesses heard what he believed were firecrackers immediately followed by “a car moving away at a real rapid pace.” Explaining that he did not hear any break in the acceleration, the witness stated, “[fit’s not like it started up and it stopped, it just went.” Another State’s witness, although not asked directly whether there was a break in the acceleration, testified that he heard “three quick [gunjshots in a row and then two spaced a little further apart after it. Bang, Bang, Bang, bang, bang, along those lines.” Less than fifteen to twenty seconds after the shots, he heard a car engine “revving very high and it was obviously moving as quickly as it could.”

Based on the aforementioned testimony, the jury returned verdicts of not guilty of second degree murder of Chenault and guilty of accessory after the fact to the murder of Chenault.⁴ The jury, however, was deadlocked on the charges of first degree murder of Chenault and the use of a handgun in the murder of Chenault. The jury was also hung on all four of the charges that related to the attack on Hudson. Butler was sentenced to five years in prison for the accessory-after-the-fact conviction.

When the State indicated its intention to retry Butler on the six unresolved charges, Butler filed a motion to dismiss which maintained that double jeopardy and collateral estoppel principles precluded such a retrial. Arguments were heard on the motion at a January, 1991 hearing. Based on those arguments, the circuit court judge (Sybert, J.) ruled that all of the unresolved charges relating to Chenault were barred by double jeopardy. With respect to the charges concerning the assault on Hudson, however, the court ruled that the State could proceed to retrial. Although Butler appealed the ruling on the unresolved counts concerning Hudson, the State chose not to appeal the dismissal of the charges pertaining to Chenault. Writing for the Court of Special Appeals, Judge Moylan thoroughly analyzed both the doctrine of collateral estoppel and the facts in the instant case and affirmed the trial court. See Butler v. State, 91 Md.App. 515, 605 A.2d 186 (1992). Following this unfavorable judgment by the intermediate appellate court, Butler petitioned this Court for a writ of certiorari which we granted.

II.

In Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707, 711 (1969), the United States Supreme Court held that the double jeopardy prohibition of the Fifth Amendment is applicable to the states as part of the Due Process Clause of the Fourteenth Amendment. One year later in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court further concluded that the doctrine of collateral estoppel is embodied within the Fifth Amendment guarantee against double jeopardy. See also Turner v. Arkansas, 407 U.S. 366, 368, 92 S.Ct. 2096, 2098, 32 L.Ed.2d 798, 801 (1972) (“Collateral estoppel is part of the Fifth Amendment’s double jeopardy guarantee.... ”). Collateral estoppel is also an established component of Maryland’s common law. See Ford v. State, 330 Md. 682, 719, 625 A.2d 984, 1002 (1993); Gibson v. State, 328 Md. 687, 693, 616 A.2d 877, 880 (1992); Ferrell v. State, 318 Md. 235, 241, 567 A.2d 937, 940, cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990).

Simply stated, the doctrine of collateral estoppel is as follows: “[Wjhen a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. Applying Ashe in Wooten-Bey v. State, 308 Md. 534, 520 A.2d 1090, cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 853 (1987), this Court explained that, if the verdict “ ‘must have, by logical necessity, decided a particular fact in favor of a defendant, then the State will be barred by collateral estoppel principles from relitigating that fact....’” 308 Md. at 544, 520 A.2d at 1095 (quoting Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure § 37.8, at 450 (1983)).

Although collateral estoppel is usually invoked based upon a prior acquittal, see, e.g., Ashe, supra; Ferrell, supra; Powers v. State, 285 Md. 269, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979), the critical consideration is whether an issue of ultimate fact has been previously determined in favor of the defendant. See Grant v. State, 318 Md. 672, 569 A.2d 1237 (1990) (addressing a collateral estoppel claim based upon a prior conviction). As we stated in Ford v. State, collateral estoppel “analysis focuses on what the fact finder did find or must have found.” 330 Md. at , 625 A.2d at 1002. See also Burkett v. State, 98 Md.App. 459, 465, 633 A.2d 902, 905 (1993) (“Collateral estoppel is concerned ... not with the legal consequences of a judgment but only with the findings of ultimate fact, when they can be discovered, that necessarily lay behind that judgment.” (emphasis in original)); Butler, 91 Md.App. at 517, 605 A.2d at 187 (“Collateral estoppel ... is stubbornly factbound.”).

When addressing collateral estoppel challenges, we must always remember that the burden is on the party asserting estoppel to show that “the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 673, 107 L.Ed.2d 708, 719 (1990) (emphasis added). See also Butler, 91 Md.App. at 544, 605 A.2d at 200 (recognizing that the “moving party has the burden of proof’); Holloway v. State, 14 Md.App. 703, 711, 288 A.2d 652, 656 (1972) (Orth, J.) (noting that “it was incumbent upon [the defendant] to produce proper evidence sufficient for the court to rule” on whether collateral estoppel required dismissal of charges). Courts have maintained that this is a difficult burden to overcome. See, e.g., People v. Acevedo, 69 N.Y.2d 478, 487, 515 N.Y.S.2d 753, 759, 508 N.E.2d 665, 671 (1987) (“Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions.” (emphasis in original)); United States v. Clark, 613 F.2d 391, 400 (2d Cir.1979) (declaring that the defendant carries a heavy burden of proof), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); United States v. Seijo, 537 F.2d 694, 697 (2d Cir.1976) (asserting that the defendant’s burden of establishing that the issue he seeks to foreclose was necessarily resolved in his favor by the first verdict is a “heavy one”), cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977). See also Holloway, 14 Md.App. at 706, 288 A.2d at 653 (“It seems that collateral estoppel will not often be available to a criminal defendant [because] it is not often possible to determine with precision how the judge or jury has decided a particular issue.” (footnote omitted)).

With this background in mind, we now turn to Butler’s contention that collateral estoppel precludes the State from retrying him on the counts pertaining to the attack on Hudson. Butler maintains that his conviction for being an accessory after the fact to the shooting of Chenault means the jury found as an ultimate fact that he was not guilty of aiding and abetting the shooting of Sharrell Hudson. He bases this conclusion on the assertion that “the instructions made it clear to the jury that an accessory after the fact to murder cannot also be guilty of the murder.” We disagree.

First, we point out that Butler’s conviction of accessory after the fact to the murder of Chenault is not, as a matter of law, inconsistent with convictions for aiding and abetting in the shooting of Hudson. Although Butler’s case predates the abrogation of the common law rule that one could not legally be both an accessory after the fact and a principal to the same substantive felony, see State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992), Butler was not charged with being an accessory after the fact in any of the counts related to Hudson. Indeed, there could be no accessory after the fact to a majority of those counts because they were misdemeanors. Thus, Butler cannot avoid retrial based on the old common law rule that accessories after the fact cannot also be principals in the same crime because the murder of Chenault and the assault with intent to murder Hudson are different felonies.

As for the unresolved counts concerning the attack on Chenault, the State conceded that under double jeopardy principles Butler could not be retried for the first degree murder of Chenault because at the time of his conviction, prior to State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992), there was a legal (not factual) bar to being both a principal in the second degree and an accessory after the fact to the same substantive felony. Thus, double jeopardy, which is concerned with the legal implications of a verdict, barred retrial of the murder charge upon which the accessory-after-the-fact charge was predicated.

Recognizing that collateral estoppel deals with factual conclusions, Butler argues that an accessory-after-the-fact conviction is factually inconsistent with a finding that he aided and abetted the shooting of Hudson. We disagree. Where, as in the instant case, the jury is not clearly instructed to the contrary, a person could be factually guilty of being a principal in the second degree by aiding and abetting as well as guilty of being an accessory after the fact. We made this observation in Hawkins when discussing jury instructions similar to those given in the instant case. In Hawkins, Judge Orth first noted that, as in the instant case, there was no instruction that one cannot be both a principal and an accessory after the fact. Writing for the Court, Judge Orth then stated:

“If the jury applied this instruction as given, it could render a verdict of guilty on each of the murder charge and the accessory charge which would be factually correct. Such verdicts would be in accord with the instructions given and not contrary to the evidence.” (Emphasis added).

Hawkins, 326 Md. at 287-88, 604 A.2d at 498. That statement is equally applicable in the instant case. As Judge Moylan observed,

“[t]he jury, as a group of laymen, would have no independent knowledge that the Maryland common law at the time treated principalship and accessoryship after the fact as mutually exclusive. Common sense would dictate no such notion. To the laymen, a criminal might easily be guilty both of 1) participating in a crime and then 2) driving the getaway car. Each could well qualify as a separate crime.” (Emphasis added).

Butler, 91 Md.App. at 551, 605 A.2d at 204. See also Eiland v. State, 92 Md.App. 56, 100, 607 A.2d 42, 64 (1992) (“[Tjhere would be nothing logically inconsistent in convicting [Eiland] of both offenses. In aiding and abetting Tyler in the course of the murder, he was a principal in the second degree as to the murder. In subsequently driving Tyler away from the scene, he, quite independently, was an accessory after the fact to [the murder committed by Tyler].” (emphasis in original)), rev’d on other grounds, Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993). Based on the evidence, a jury reasonably could have found that Butler drove Tilghman away from the crime scene as well as plotted with Tilghman to commit the crime. Thus, the conviction for being an accessory after the fact to the murder of Chenault is neither legally, nor necessarily factually, inconsistent with a finding that Butler aided and abetted in the attack against Hudson.

Butler cites Grant v. State, 318 Md. 672, 569 A.2d 1237 (1990), in support of his collateral estoppel challenge based upon a prior conviction rather than an acquittal. In Grant, the defendant was found in Baltimore City in possession of goods stolen during a Baltimore County storehouse breaking. He entered a plea of guilty in Baltimore City to theft. Although there were no factual findings made during the plea, “ ‘it was apparently understood that the basis of the State’s case was that the [Petitioner] was the receiver of the stolen property.’ ” 318 Md. at 677, 569 A.2d at 1239 (quoting Grant v. State, 76 Md.App. 165, 169, 543 A.2d 897, 899 (1988)). Following the plea of guilty, Grant was charged with and convicted of storehouse breaking with intent to steal the same goods found in his possession in Baltimore City. This Court reversed his Baltimore County storehouse breaking conviction.

We first pointed out that being a receiver precluded any later finding that the defendant was the person who stole the same goods; however, that would not foreclose a subsequent prosecution for breaking with intent to steal since receiving stolen goods and breaking with intent to steal are not legally inconsistent. Thus, the prosecution for the separate crime was not barred. What collateral estoppel did bar was drawing two separate inconsistent factual inferences from Grant’s possession of stolen goods. In Baltimore City, the State used Grant’s possession to draw the inference he was a receiver of the goods but not the thief, and in Baltimore County, the State used Grant’s possession to draw an inconsistent inference that he was the thief and not the receiver.

Judge Blackwell summed up the Court’s limited holding as follows:

“There were no witnesses who placed Grant at the scene of the breaking, or who involved him in the breaking in any way. The State proved that a breaking occurred, and that property had been stolen as a result of the breaking. From this the jury could have found the corpus delicti—that the crime of breaking a storehouse with the intent to steal had been committed by someone. There remained to be proven the criminal agency of the defendant. This the State sought to prove solely by evidence that Grant had been found in exclusive possession of the recently stolen property.

In the absence of the previous adjudication in Baltimore City, the State’s evidence in the Baltimore County case would have been sufficient to allow the jury to find Grant guilty of the breaking, through the use of the inferences. Because the State had previously participated in the adjudication that Grant was the receiver of the stolen goods, however, and because a receiver cannot also be the thief, the State was precluded from relying on the otherwise permissible inference that Grant was the thief. Without the finding, by inference or otherwise, that Grant was the thief, the subsequent inference that Grant participated in the breaking was also unavailable.

In short, although the State might have convicted Grant of storehouse breaking if it had produced independent evidence of his involvement in the breaking, the State was in this instance precluded from relying on inferences flowing from his unexplained possession of recently stolen property to establish that fact. Because a review of the record shows that the State’s proof of breaking depended entirely upon the precluded inference, the conviction must be reversed.”

Grant, 318 Md. at 680-81, 569 A.2d at 1241. Thus, Grant does not preclude prosecution for storehouse breaking after conviction of the rather inconsistent crime of being a receiver of property stolen in the storehouse breaking. Grant only preeludes the State from drawing two totally inconsistent factual inferences from the same item of evidence, i.e., being found in possession of stolen goods. Grant’s holding precluded the State from convicting Butler as an accessory after the fact to Sherman Chenault’s murder and the then legally inconsistent crime of being an aider and abettor to that same murder. On the other hand, just as Grant could be tried for the “legally consistent” crime of storehouse breaking, Butler can be retried for the “legally consistent” crime of aiding and abetting in the shooting of Hudson.

Retrial should be barred only if the jury, by convicting Butler of being an accessory after the fact to the attack on Chenault, made a factual determination that Butler did not aid and abet Tilghman during the commission of the offenses against Hudson. We must therefore determine whether this particular jury understood that an accessory after the fact was not also an aider and abettor to the other offenses.

In order to decide whether a factual determination was made which would bar retrial of the unresolved counts, we shall employ the Supreme Court’s method of analyzing collateral estoppel claims. In Ashe, the Supreme Court stated the following: “[Decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. The Supreme Court further explained that, in determining whether collateral estoppel is applicable, a reviewing court is to “ ‘examine the record of [the] 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.’ ” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39 (1960) (emphasis added)). See Dowling, 493 U.S. at 350-51, 110 S.Ct. at 673-74, 107 L.Ed.2d at 719-20 (applying Ashe’s rational approach to collateral estoppel challenges); Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180, 184 (1948) (noting that the inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings”). See also Turner, 407 U.S. at 368, 92 S.Ct. at 2098, 32 L.Ed.2d at 801; Simpson v. Florida, 403 U.S. 384, 385, 91 S.Ct. 1801, 1802, 29 L.Ed.2d 549, 552 (1971). This Court has also declared that a court “ ‘should not strain to dream up hypertechnical and unrealistic grounds on which the previous verdict might conceivably have rested.’” Ferrell, 318 Md. at 245, 567 A.2d at 942 (quoting United States v. Jacobson, 547 F.2d 21, 23 (2d Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1581, 51 L.Ed.2d 793 (1977)).

Ashe and its progeny make clear that our task is to view the entire record reasonably and rationally rather than hypertechnically. We should bar retrial only if the jury necessarily made an express factual finding that Butler did not aid and abet Tilghman in Hudson’s shooting. Thus, if a necessary element of any one of the unresolved offenses has already been adjudicated against the State, retrial on that offense is improper.

In his attempt to demonstrate that, by convicting him of being an accessory after the fact, the jury found he was not an aider or abettor in the attack on Hudson, Butler relies heavily on the following portion of the trial judge’s instructions to the jury:

“Now, the defendant is also charged with being an accessory after the fact to the murder of Sherman Joseph Chenault. In this case, an accessory after the fact is a person with knowledge that a crime has been committed [who] assists the offender by transporting him from the scene of the crime. In order to be guilty of this crime: One, the defendant must have become associated with the felony after its commission; Two, the defendant must have provided assistance with knowledge that the felony had been completed; Three, the assistance must have been given to one known to be the felon; And, four the assistance must have been given in order to hinder the felon’s apprehension by transporting him from the scene.

The term ‘knowledge’ means that at that time the relief or assistance was given the defendant must have had actual knowledge that the person assisted was the one who committed the felony. An act is done knowingly if it’s done purposefully and not because of some mistake, or accident, or inadvertence, or for some innocent reason. Knowledge can be inferred from all the surrounding facts and circumstances in the case.

The term ‘assistance’ means that there must be a positive, affirmative act to help or aid someone to escape arrest or capture. The mere failure to disclose the commission of the felony or to apprehend the felon or the mere approval of the felony is not sufficient to constitute accessory after the fact.

In order for the defendant to be convicted as an accessory after the fact, the State must prove beyond a reasonable doubt each of the elements of the underlying crime including that the crime was committed by someone other than the defendant.” (Emphasis supplied by Butler in his brief).

Although this portion of the instructions arguably intimates that an accessory after the fact is not a principal, it does not clearly convey that the crimes are mutually exclusive. Moreover, jury instructions should be considered as a whole without undue emphasis on minor ambiguities or minor inconsistencies.

There was an additional jury instruction which directly contradicts Butler’s contention. The trial court instructed the jury that each count should be considered separately and that they were not mutually exclusive. The judge stated as follows:

“I instruct you to consider each count separately and to weigh the evidence relevant to each count as if it were the only count with which the defendant is charged. Each defendant is entitled to have his guilt or innocence determined as to each count from the evidence which applies to that count. And you’re instructed to avoid any position of prejudice as to any count based upon some conclusion which you may have reached concerning some other count. The guilt or innocence of a defendant as to each individual count should not control or influence your finding of guilt or innocence on some other count. You may find the defendant guilty or not guilty as to one or more of the counts but your verdict must be reached on the basis of the evidence as it applies separately to each individual count.

Now those counts are simply stated on this verdict sheet, and this verdict sheet I’ll give to your forelady and she can take it with her into the jury room. It may assist you in the course of your deliberations. It obviously is going to assist us in understanding your verdict when you return it.

The counts are murder in the first degree of Sherman Joseph Chenault; murder in the second degree of Sherman Joseph Chenault; assault with intent to murder Sharrell Hudson; use of a handgun in the murder of Sherman Joseph Chenault; use of a handgun in the assault of Sharrell Hudson; assault upon Sharrell Hudson; battery upon Sharrell Hudson; and accessory after the fact to the murder of Sherman Joseph Chenault. And you’ll be asked to list your verdict—not guilty or guilty—on each one of these that will accompany, go with you to the jury room.” (Emphasis added).

Considering this instruction along with the instructions on the substantive crimes, it is highly unlikely that the jury believed a verdict on the accessoryship count would preclude a guilty verdict on any other count. Immediately after informing the jurors that “[t]he guilt or innocence [on] each individual count should not control or influence your finding of guilt or innocence on some other count,” the judge listed accessory after the fact as one of the counts to which this instruction would apply. This instruction clearly informed the jurors they could find Butler guilty of aiding and abetting in the assaults and also guilty of being an accessory after the fact to the murder. It unquestionably established that a conviction on the accessoryship count would not necessarily preclude a guilty verdict on the other counts or bar Butler’s conviction on the other counts.⁵

From the total package of instructions, we believe the jury could have decided that Butler was an aider and abettor in the assaults, and also became associated with the felony after its commission by driving Tilghman from the scene. The instructions taken as a whole simply did not foreclose dual culpability by being an aider and abettor during the offenses as well as becoming an accessory after the fact by driving the principal offender from the scene.

Butler also points to the closing arguments of counsel, and maintains that “it is clear from their comments that counsel agreed that [Butler] was either a principal or an accessory after the fact.” (Emphasis in original). Like the jury instructions, however, these arguments did not clearly advise the jury that the crime of accessory after the fact was mutually exclusive to the other crimes charged. Defense counsel, in his closing argument, maintained that Butler was not an aider and abettor. His argument concerning the accessory-after-the-fact charge failed to indicate that one could not be both an aider and abettor as well as an accessory after the fact. Butler’s counsel stated that the charge of accessory after the fact is based on transporting Tilghman from the scene:

“He’s charged with accessory after the fact. The accessory after the fact being the specific act of transporting Kent Tilghman from the scene not, not, and let’s make this very very clear because this is very important—not, not calling the police, not, not turning Kent Tilghman in later, not none of that. That is not what the charge is, and frankly, again, I don’t know why that charge wasn’t brought either____ They brought a specific charge of accessory after the fact, transporting Kent Tilghman from the scene.”

Defense counsel’s argument seemed .to recognize that the accessory-after-the-fact charge was a separate but not mutually exclusive offense.

Furthermore, in her closing argument the prosecutor described an accessory after the fact as “someone who after the felony crimes are committed knowing the felony crimes are committed helps the person who committed the crime get out of there to avoid detection.” This statement also does not imply mutual exclusivity between the crime of accessory after the fact and aiding and abetting in the attack on Hudson. Although the jury may have been somewhat confused by the prosecutor’s remarks that accessory after the fact is “sort of an alternative crime” and that a “getaway driver is not an accessory after the fact,” these comments fail to establish that the jury necessarily found as a fact that Butler did not aid and abet Tilghman in the offenses against Hudson.⁶

Moreover, in considering counsel’s arguments, the jury certainly would have given more credence to the judge’s instruction that “[t]he guilt or innocence of a defendant as to each individual count should not control or influence your finding of guilt or innocence on some other count.” We ought not assume that the jury is guided on the law by each word spoken by counsel, especially if there is a discrepancy between the judge’s instructions and counsel’s arguments. See, e.g., Davis v. State, 333 Md. 27, 52, 633 A.2d 867, 879 (1993) (presuming that a judge’s instruction to the jury on a permissible inference will be weighed more heavily than counsel’s reference to that inference in closing arguments); Lattisaw v. State, 329 Md. 339, 347, 619 A.2d 548, 552 (1993) (“ ‘ “[T]he influence of the trial judge on the jury is necessarily and properly of great weight,” and jurors are ever watchful of the words that fall from him.’ ” (quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350, 354 (1946), in turn quoting Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841, 846 (1894))). In fact, the judge in this case specifically instructed the jury that, “it is my instructions to you concerning the law that are binding and not the comments that counsel for either side might want to make concerning the law.”

We reiterate that Butler bears the burden of proving that the jury made a clear factual finding that he was not an aider or abettor to the shooting of Hudson. See Dowling, 493 , 110 S.Ct. at 673, 107 L.Ed.2d at 719. If the court is uncertain as to what unstated, implied factual findings the jury made, the defendant has not met the burden of proof. As Judge Moylan so aptly stated,

“[w]hen, therefore, the circumstances themselves are too ambiguous or the record itself too inadequate to permit an accurate assessment of what factual findings the jury must have made, it is the defendant, as [the] moving party, who necessarily loses.”

Butler, 91 Md.App. at 545, 605 A.2d at 200. This is one of those relatively rare instances where a tie goes to the State.

A defendant does not meet the burden of proof by assuming that the jury made an irrational finding. We should assume that the jurors acted rationally and were logical in their decision. See Ferrell, 318 Md. at 251, 567 A.2d at 945 (noting the “assumption of jury rationality”). Therefore, the fact that the jury specifically told the judge it was deadlocked on all charges involving the attack on Hudson, although not dispositive, should be considered as at least some indication that it did not acquit Butler of being an aider and abettor in that attack.

Butler suggests that this Court’s prior decisions preclude our giving any weight at all to the jury’s failure to agree on a verdict on the hung counts. In Powers, we stated the following:

“In Maryland, a mistrial is equivalent to no trial at all. It is not a final determination and decides no question of fact. Accordingly, a jury’s failure to agree, which results in a mistrial, does not establish any facts, and thus cannot establish facts inconsistent with those established by its verdicts of acquittal.” (Citation omitted).

285 Md. at 285, 401 A.2d at 1040. More recently in Ferrell, we expressed a similar belief and acknowledged that “it is logical to focus upon the counts where the jury reached verdicts rather than upon counts representing no decision and establishing nothing.” 318 Md. at 255, 567 A.2d at 947. In both cases, we recognized that some courts have held that collateral estoppel is inapplicable when the jury reaches a verdict on one count of a multi-count indictment and is unable to agree on another count having a common issue of ultimate fact. See Ferrell, 318 Md. at 256 n. 9, 567 A.2d at 948 n. 9; Powers, 285 Md. at 284-85, 401 A.2d at 1040. Declining to follow those courts, we held collateral estoppel should still apply notwithstanding that the jury’s findings of fact might appear inconsistent.

Butler reads these cases too broadly. Powers and Ferrell emphasized that a court’s focus must be on what factual determinations necessarily resulted from the counts on which the jury acquitted. If an acquittal on a particular count necessarily decided an issue of ultimate fact in the defendant’s favor, then that finding is controlling notwithstanding any unresolved counts which also involved that same fact. Ferrell, 318 Md. at 254-55, 567 A.2d at 947; Powers, 285 Md. at 285-88, 401 A.2d at 1040-42. Powers and Ferrell did not, however, preclude a court from ever giving any consideration to a jury’s failure to agree on counts when a court has to determine whether those counts were factually resolved by the jury’s acquittal or conviction on other counts.

In cases such as the instant one, where there are no clear common issues of ultimate fact between the resolved and unresolved counts and where a court must attempt to ascertain what factual findings the jury made by using factors like ambiguous jury instructions and possibly confusing arguments of counsel, a court ought to consider all relevant aspects of the trial and not totally ignore the jury’s indication that they were unable to resolve the disputed counts.

In Ashe v. Swenson, supra, the Supreme Court indicated the approach a court should take to collateral estoppel issues:

“[T]his 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.’” (Emphasis added).

397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.Rev. 1, 38-39 (1960) (emphasis added)). Where it is clear what facts a jury resolved by its verdict of not guilty, then the jury’s inability to agree on another count with common issues has no significance when balanced against the facts found by the jury based on its acquittal. As we said in Powers v. State:

“In our view, there can be no inconsistency in a jury’s findings of fact when it acquits on one count and is unable to agree on another count having a common issue of ultimate fact, which if found in favor of an accused would establish his innocence on both counts. In Maryland, a mistrial is equivalent to no trial at all. Cook v. State, 281 Md. 665, 671, 381 A.2d 671, 674 (1978). It is not a final determination and decides no question of fact. Accordingly, a jury’s failure to agree, which results in a mistrial, does not establish any facts, and thus cannot establish facts inconsistent with those established by its verdicts of acquittal. United States v. Smith, 337 A.2d [499,] 503-04 [ (D.C.1975) ] (Kern, J., concurring).”

285 Md. at 285, 401 A.2d at 1040.

Similar language was used in Ferrell v. State, 318 Md. at 254-55, 567 A.2d at 947. Both of these cases involved factual findings where juries acquitted on one or more counts of multi-count indictments, and were unable to agree on disputed counts. Obviously, there were clear factual findings established by the acquittals which were not undermined by the jurors’ inability to agree on counts with common factual issues. Here, however, we are attempting to ascertain whether the jurors, by convicting the defendant on one count, in effect made a factual finding that the defendant was not guilty of counts that they told the court they were unable to agree upon. In determining what factual findings the jury made by its conviction of being an accessory after the fact, we should look at all aspects of the trial including such things as the testimony and evidence in the trial, the instructions of the court, the arguments of counsel, and we should not totally ignore the jurors’ communication that they were unable to agree on the disputed counts. See Butler, 91 Md.App. at 548, 605 A.2d at 202 (expressing the belief that, notwithstanding Powers and Ferrell, hung counts may lend “substantial circumstantial insight into what [the] jury probably did and probably did not decide”); see also Clark, 613 F.2d at 402 (recognizing that the jury’s failure to agree may “enlighten[ ]” the court in its examination of a collateral estoppel challenge).

Butler may have proven that the instructions and arguments were rather confusing, perhaps even contradictory. He failed, however, to prove his assertion that, based on the facts, the instructions, and the arguments of counsel, the jury found as a fact that he was not guilty of being an aider and abettor in the shooting of Sharrell Hudson merely because they convicted him of being an accessory after the fact in the murder of Sherman Chenault.

Finally, Butler contends that, even if the accessory-after-the-fact conviction does not preclude a retrial, the State is at least prohibited from retrying him on some of the counts pertaining to the attack on Hudson because of the impact of his second degree murder acquittal. At the hearing on his motion to dismiss and in the Court of Special Appeals, Butler focused almost exclusively on the collateral estoppel effect of his accessory-after-the-fact conviction. At oral argument before this Court, the acquittal of the second degree murder of Chenault was never even mentioned. In fact, Butler’s only references to the acquittal were in a footnote in his brief and a footnote in his petition for certiorari. In those footnotes, Butler contended that, by acquitting him of the second degree murder of Chenault, the jury implicitly determined that he “did not intend to kill Chenault or Hudson.” Therefore, Butler submits, a second prosecution is precluded on the counts charging assault with intent to murder Hudson and use of a handgun in that felonious assault. Perhaps the limited amount of time and space devoted to this contention by-counsel is an implicit recognition of its merit.

The trial judge’s initial instructions on the crimes charged did not include any instruction on second degree murder. Upon notification by counsel of his failure to give such an instruction, the trial judge explained to the jury that “[m]urder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.(Emphasis added). In its closing argument, the State contended that “everyone -will submit in this case that what we truly have here is not the impulse murder that would be second degree murder but both theories of first degree premeditated murder.” (Emphasis added). The State continued to argue about the premeditated and deliberate nature of the shooting, and maintained that “[tjhere’s no evidence that this was anything other than complete assassination.” The State further contended, “there was no anger [and] no heat of passion----” Moreover, defense counsel submitted that “Hudson was the victim of an assault with the intent to murder, no question, no question,” that “Chenault was murdered, first degree murder, willful, deliberate, premeditated, no question about that,” and that this case involved a “drug assassination.” The defense, of course, attributed these crimes solely to Kent Tilghman.

The State made various points in its closing argument to support its theory that Butler was a part of the “assassination” plan,' including, inter alia, the following: (1) Hudson’s testimony that Butler and Tilghman spent time alone together when Chenault was in the bathroom; (2) Hudson’s testimony that Butler already had Tilghman’s car keys in his pocket when Tilghman asked Butler to retrieve them from upstairs; (3) the inference that the yellow bag containing the money was in the Célica being driven by Butler, and that only a trusted accomplice would be permitted to drive that car; (4) the only definite connection to Owen Brown in the case was the fact that Butler had been there at one time;⁷ (5) testimony by two Owen Brown residents who heard a car speed off immediately after the shots were fired, which supported the State’s theory that Butler was willingly waiting to whisk Tilghman away from the scene of the incident; and (6) McGrath’s testimony that Butler admitted to being a murderer. The State submitted to the jury that “Butler was very much a part of the plan.... ” Furthermore, defense counsel conceded that Tilghman “had a plan. He knew exactly what he was going to do.” Defense counsel, however, contended that Butler was not a part of Tilghman’s plan, but that Butler was merely an innocent participant who drove Tilghman away from the scene of the crime under duress.

Thus, a realistic review of the record indicates that, by acquitting Butler of second degree murder, the jury did not necessarily find that Butler had no intent to kill Hudson. It is possible that the jury found that Tilghman’s shooting of Chenault was clearly first degree premeditated murder, not second degree murder, and hung on whether Butler aided and abetted that first degree premeditated murder. The judge’s instructions and the parties’ closing arguments appeared to rule out a second degree murder conviction. The prosecution and the defense agreed that this case had nothing to do with second degree murder. In light of the judge’s instruction that second degree murder does not involve premeditation or deliberation and the instruction that each count must be weighed separately, the acquittal of the second degree murder of Chenault is not inconsistent with a finding that there was a premeditated and deliberate plan to kill Hudson and Chenault to obtain the large sum of money. Whether Butler knowingly participated in that plan as contended by the State, or whether he was an innocent participant as argued by Butler, was not necessarily determined. Thus, the acquittal of the second degree murder of Chenault does not prohibit the State from retrying Butler on any of the counts pertaining to Hudson.

To apply collateral estoppel, we must analyze what the jury actually found based on the jury instructions that were actually given even if those instructions may have been inaccurate. We do not draw conclusions about what the jury found based upon a hypothetical set of instructions that the judge should have, but did not give to the jury. Although most forms of double jeopardy are concerned with the legal effect of the jury verdict, collateral estoppel is concerned with the precise factual findings made by the jury. In determining the jury’s factual findings, we must look at how the trial judge instructed the jury. In the instant case, the jury was told specifically that a finding on any one count has no effect on any other count. The jurors were specifically told that second degree murder is a killing without premeditation and deliberation. Based on these instructions, the jurors could have drawn the erroneous conclusion that Butler was not guilty of second degree murder because the murder was committed with premeditation and deliberation although they were unable to resolve whether Butler aided and abetted that first degree murder. Although the legal double jeopardy effect of the acquittal of second degree murder was to bar prosecution for the first degree murder of Chenault, in applying collateral estoppel to the assault counts on Hudson, we are only concerned with the factual findings the jury actually made.

In light of the potentially misleading jury instructions, Judge Sybert did not err in concluding Butler failed to prove that the jury unanimously found he had no intent to kill Hudson. The legal effect of acquitting Butler of the second degree murder of Chenault was to acquit him of the first degree murder of Chenault, but that was not necessarily the factual finding made by the jury. When the jurors told the judge they were unable to decide whether Butler was guilty of the first degree murder of Chenault, they meant what they said. They made no finding that Butler was not an aider and abettor in a premeditated and deliberate killing.⁸

III.

Rephrasing the issue in the instant case, did Butler prove that the jury made a factual finding that he was not guilty of being an aider and abettor in the assault on Hudson? A realistic, rational, and nonhypertechnical reading of the record fails to establish that the jury made any such finding. Therefore, retrial may proceed on the unresolved counts concerning the attack on Sharrell Hudson.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

ELDRIDGE and BELL, JJ., dissent.

1 . There are conflicting spellings of Tilghman’s last name in the record. For purposes of clarification, we shall use the spelling "Tilghman,” which was used by the Court of Special Appeals in its opinion. See Butler v. State, 91 Md.App. 515, 605 A.2d 186 (1992).

2 . Hudson estimated that Chenault counted out about $17,000. According to Anthony McGrath, a correctional officer where Butler was incarcerated while awaiting trial, Butler admitted to obtaining $25,000 from the attack.

3 . Butler contradicted Hudson and claimed that he received the keys to the Célica from Tilghman only after they had exited the house.

4 . The judge previously granted Butler’s motion for judgment of acquittal on the count charging transportation of a handgun.

5 . Judge Eldridge’s dissenting opinion downplays the effect of these instructions on the jury by explaining that trial judges routinely instruct juries to "consider each count separately” when defendants are charged with multiple counts. Butler v. State, 335 Md. 238, 255, 643 A.2d 389, 397 (1994) (Eldridge, J., dissenting). The instructions in the instant case went beyond merely informing the jurors to consider the counts separately, but explicitly told them that "[t]he guilt or innocence [on] each individual count should not control or influence your finding of guilt or innocence on some other count.” The instructions should have better explained the relationship between verdicts on the accessory-after-the-l’act count and the other counts. See State v. Hawkins, 326 Md. 270, 289, 604 A.2d 489, 499 (1992) (concluding that the trial judge should have clarified that accessory after the fact and the predicate felony are mutually exclusive). Even Maryland Criminal Pattern Jury Instruction 6:02, which defines an accessory after the fact in language similar to that used by the trial judge in the instant case, recognizes the need to clarify that accessory after the fact and principalship are legally inconsistent under pre-Hawkins law. See State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992). In the “Notes on Use” for that instruction, the authors stress that “[t]he court should also instruct the jury that being a principal and being an accessory after the fact are inconsistent charges and that the jury may not find guilt on both.” Maryland Criminal Pattern Jury Instructions (MPJI-Cr) 6:02, at 496 (1991). Because the instructions given in the instant case failed to explain this inconsistency adequately, the jury could have believed that a guilty verdict on the accessory-after-the-fact count was not inconsistent with a guilty verdict on any other count.

6 . The prosecutor’s opening statement also failed to apprise the jury that an accessory-after-the-fact conviction precluded any additional criminal complicity. The Assistant State’s Attorney said the following:

"Michael Butler was there when Kent Tilghman fired the shots. Michael Butler took Kent Tilghman as quickly away from the scene as he possibly could. * * * The defendant [in a taped statement] basically admits to being an accessory after the fact to the crime. He admits in this tape to being there. To seeing the shooting. To seeing the handgun in Kent Tilghman’s hand. To taking Tilghman away from the scene. Not turning Kent Tilghman in and not turning himself in.... [B]ut Michael Butler is guilty of a lot more than simply being an accessory after the fact to the murder and assault with intent to murder.... As an accomplice he is just as guilty of premeditated first degree murder as Kent Tilghman would be.” (Emphasis added).

The implication from this statement is that Butler is guilty of being an accessory after the fact, and he is also guilty of the other offenses.

7 . Although Chenault and Hudson were told that Milton Tilghman, Kent’s brother and the apparent drug source, lived in Columbia, "[e]xtensive records checks by the Howard County police ... turned up no connection of any sort between anyone named Milton Tilghman and the town of Columbia or any other location in its vicinity. There was a Milton Tilghman, on the other hand, living in Baltimore.” Butler, 91 Md.App. at 521-22, 605 A.2d at 189.

8 . In his dissent, Judge Eldridge asserts that, "[c]onsistent with the second degree murder acquittal, the jury likely determined that Butler did not aid or abet Tilghman in premeditated murder. The inability of the jury to agree on first degree murder, therefore, probably reflected the jury's difficulty with the State's alternate felony murder theory.” Butler v. State, 335 Md. 238, 251, 643 A.2d 389, 395 (1994) (Eldridge, J., dissenting). He then acknowledges that in a series of written questions the jury tried to understand whether a guilty verdict for felony murder was possible. These questions culminated with the jury submitting, in writing, the following proposition to the judge:

"To make sure we understand you, the exchange of money from Sherman [ChenaultJ to Kent [Tilghman] with no force at the Butler’s home, constitutes a theft and not a robbery and therefore, there could not be a felony murder conviction for Michael Butler.”

Responding affirmatively, the judge wrote on the jury’s note, “Yes—you are correct.” Thus, based on the jurors’ understanding that the evidence precluded a felony murder conviction, their inability to reach a verdict on first degree murder apparently reflected a failure to agree on whether Butler aided and abetted a premeditated first degree murder, rather than any "difficulty with the State’s alternate felony murder theory.”