People v. Goss

521 N.W.2d 312, 446 Mich. 587

• Court: Michigan Supreme Court
• Decided: August 29, 1994
• Docket: 97021, (Calendar No. 10)
• Status: Published

Opinions

AFTER REMAND

Levin, J.

Darryl Steven Goss was convicted of armed robbery¹ and first-degree felony murder.² This Court aflirmed the armed-robbery conviction³ but reversed the felony-murder conviction on the ground that the instructions to the jury omitted the intent requirement for aiding and abetting, and remanded the case to the Detroit Recorder’s Court for a new trial on the felony-murder charge.⁴

The question presented is whether Goss is barred by the doctrines of res judicata and collateral estoppel from relitigating the issue whether he committed the armed robbery at a retrial for first-degree felony murder. We hold that he is not so barred, and that he may do so.

i

Before the new trial, the prosecutor moved for an order in limine barring relitigation of the underlying charge of armed robbery, and seeking an instruction of the jury that Goss had been found guilty of armed robbery and that the jury’s responsibility was only to determine whether he was also guilty of aiding and abetting the murder that occurred during the commission of the armed robbery.⁵

Following denial of the motion, the prosecutor was granted leave to appeal. The Court of Appeals affirmed, stating that it was persuaded that Goss’ "constitutional right to a trial by jury overrides the affirmative use of collateral estoppel to establish facts pertaining to an essential element of an offense in a subsequent criminal prosecution . . . ,”⁶ The Court said that, although all the elements of collateral estoppel were present, Goss’ right to trial by jury entitled him "at retrial to have the new jury decide the facts and determine his guilt or innocence regarding all the elements of felony murder.”⁷

The Court of Appeals adopted the reasoning of the Supreme Court of New Jersey in State v Ingenito, 87 NJ 204, 216-217; 432 A2d 912 (1981), and quoted the following statement of that court:

[CJollateral estoppel, applied affirmatively against a defendant in a criminal prosecution, violates the right to trial by jury in that not only does it seriously hobble the jury in its quest for truth by removing significant facts from the deliberative process, but it constitutes a strong, perhaps irresistible, gravitational pull towards a guilty verdict, which is utterly inconsistent with the requirement that a jury remain free and untrammeled in its deliberations. Hence, the collateral estoppel doctrine, which serves to establish virtually conclusive evidence of a critical element of criminal guilt, cripples the jury in the discharge of its essential responsibilities contrary to the constitutional guarantees of the jury right in a criminal trial.

The Court "explicitly rejected] the use of a balancing test under the rubric of due process in making this determination.”⁸ The dissenting Court of Appeals judge relied on People v Ford, 65 Cal 2d 41; 52 Cal Rptr 228; 416 P2d 132 (1966), in which the California Supreme Court held that it was not error at a retrial for first-degree felony murder, following reversal because of instructional error, to instruct the jury that the defendant had been convicted of robbery and other offenses.

n

Goss was tried in March, 1987, on charges of first-degree felony murder, assault with intent to commit murder, first-degree criminal sexual conduct, kidnapping, and armed robbery.

The prosecutor’s evidence tended to show that Goss, John Nelson, Angelica Markopoulos, and Jerry Aikens drove from the Detroit home of Ronald Sherman to the Redford home of Ronald Bonadeo to commit a robbery. When the four arrived at Bonadeo’s house, Goss began to work under the hood of the car, and Nelson entered the house. Nelson encountered Kristine Zambosco who was babysitting Bonadeo’s young child. Nelson asked Zambosco where Bonadeo kept his gun, and he then forced Zambosco upstairs and sexually assaulted her.

As Nelson was sexually assaulting Zambosco, Goss saw Bonadeo and two of his employees, Michael and Jeffrey Goers, arrive at the house in Michael Goers’ truck. The three men entered the house.

Upon entering the house, Bonadeo noticed that some of his possessions were out of place, and he did not see Zambosco. Bonadeo told the Goers brothers that they should all leave the house immediately.

Bonadeo testified that as they sought to leave Goss blocked the doorway. The prosecutor claimed that Goss had become concerned that the three men would interfere with the robbery, and followed them into the house. Goss held a knife in his hand and ordered the men to lie, face down, on the ground. Goss then ordered the men to give him their wallets and jewelry, and they complied.

Goss next called for "Jack,” Nelson’s nickname. Nelson came down the stairs and assumed control of the three men. Goss left the house. Nelson then shot the three men in the head. Michael Goers died, and Jeffrey Goers suffered serious head injury and the loss of an eye. Bonadeo suffered only minor injury.

After the shooting, Goss, Nelson, Aikens, and Markopoulos left in Bonadeo’s pickup truck with Goss driving. They forced Zambosco to accompany them back to Sherman’s home in Detroit. When they arrived at Sherman’s home, according to Zambosco, Goss sexually assaulted her.

The police arrested Goss at Sherman’s house during the night the crimes were committed. They found Goss hiding under a basement stairwell near the wallets that had been stolen from Bonadeo and the Goers brothers.

Goss gave a different account. He testified that he was running a quick errand for his mother when he encountered his neighbor, Sherman. Sherman asked if Goss would accompany Markopoulos and Nelson to pick up a check in Redford. Goss had performed some mechanical work on Markopoulos’ automobile earlier in the week, and Sherman asked Goss to accompany Nelson and Markopoulos because the two were worried that the automobile might break down. Goss agreed to accompany Nelson and Markopoulos to Redford, and, as the three were leaving, Aikens joined them.

Goss testified that the automobile had not been running smoothly during the ride to Redford. When they arrived at Bonadeo’s Redford home, Goss began to work under the hood of the automobile. According to Goss, Nelson and Aikens entered the house, and, after awhile, Aikens returned and asked Goss to pop the trunk of the automobile.

Goss testified that Bonadeo and the Goers brothers arrived while he, Aikens, and Markopoulos were outside in the vicinity of the automobile. He said that Aikens, not he, followed the three men into the house. Later, Aikens left the house, gave Goss the keys to Bonadeo’s truck, and forced Zambosco into the truck. Aikens returned to the front door of the house. As Goss, Zambosco, and Markopoulos were waiting in the truck, they heard three gunshots. Nelson and Aikens then rejoined the three in the truck, and Goss drove the truck back to Sherman’s house.

Goss denied knowing that Nelson, Aikens, and Markopoulos planned to commit a robbery at the Bonadeo house. He insisted that he did not enter the Bonadeo house, and he denied sexually assaulting Zambosco.

Goss’ lawyer argued that the witnesses had misidentified Goss. He observed that, although Bonadeo claimed to be certain that Goss had forced him to the ground and robbed him, the clothes worn by Goss when he was arrested did not match the clothes that Bonadeo described his attacker as wearing.⁹ Similarly, the lawyer argued that Zambosco’s description of the clothes worn by the man who attacked her did not match the clothes worn by Goss.¹⁰ Goss’ lawyer also highlighted Zambosco’s statement that "the only two people she saw in the house were Mr. Aikens and Mr. Nelson,” and he noted that Goss’ fingerprints were not found on any of the property taken from the house.

The jury found Goss guilty of felony murder, armed robbery, two counts of criminal sexual conduct in the first degree, and kidnapping. He was sentenced to nonparolable life in prison for felony- ' murder and concurrent forty- to eighty-year terms for the other convictions.

hi

The rights of a person accused of a felony to trial by jury and to due process of law include the right to determination by the jury whether the prosecution has proven beyond a reasonable doubt every element of the charge.¹¹ The judge may not direct a verdict either in whole¹² or in part.¹³

The prosecutor insists that these commands would not be violated by applying the doctrines of res judicata or collateral estoppel against Goss because a jury has already found beyond a reasonable dpubt that Goss committed an armed robbery.

Whenever a defendant is charged with different crimes that have identical elements, the jury must make an independent evaluation of each element of each charge. A jury in a criminal case may reach different conclusions concerning an identical element of two different offenses. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982).

The defendants in Lewis were charged with committing a felony and with possession of a firearm during the commission of a felony. Although the jury was required to find beyond a reasonable doubt that the defendants had committed a felony before it could convict them of felony-firearm, the jury acquitted the defendants of the underlying felonies, but convicted them of felony-firearm. This Court affirmed the defendants’ convictions although the jury’s verdicts were inconsistent. We explained that a jury may reach inconsistent verdicts as a result of mistake, compromise, or leniency.¹⁴ We also ruled that a trial judge should not instruct the jury that it must acquit on a felony-firearm charge if it acquits on the underlying charge.¹⁵

The United States Supreme Court similarly rejected a defendant’s argument that because the jury had acquitted him of the predicate offenses this worked an estoppel precluding his conviction of the compound offense, an element of which was commission of the predicate felonies.¹⁶

We conclude that when an accused is charged with an offense that has as an element commission of a predicate offense the jury’s consideration of the charged predicate offense and its consideration of that offense again in the context of a compound offense are separate and distinct. The jury’s decision regarding the predicate offense does not preclude it from reaching a different conclusion in the context of the compound offense.

The jury in Goss’ first trial, thus, could have found that the prosecutor did not establish Goss’ guilt of the armed-robbery element of the felony-murder charge and at the same time have found Goss guilty of armed robbery.

Because the first jury’s verdict on the armed-robbery charge would not have precluded the jury from considering afresh the armed-robbery element of the felony-murder charge, the first jury’s verdict on the armed-robbery charge does not es-top Goss from relitigation, or preclude the second jury from considering afresh, the armed-robbery element of the felony-murder charge. Estopping Goss from contesting the armed-robbery charge would prevent the second jury from making its own independent evaluation of the armed-robbery element of felony murder, and, therefore, would be the equivalent of partially directing a verdict against him.

IV

Our conclusion that the doctrines of res judicata and collateral estoppel cannot be invoked to preclude a defendant in a criminal case from contesting an essential element of a charge finds support not only in the decision of the New Jersey Supreme Court in State v Ingenito, relied on by the Court of Appeals, but also in a recent decision of the United. States Court of Appeals for the Third Circuit, United States v Pelullo, 14 F3d 881 (CA 3, 1994).

In Ingénito, supra, pp 215-217, the New Jersey Supreme Court held that estopping a defendant from challenging an essential element of a charge would infringe on his right to trial by jury and violate his right to be presumed innocent.¹⁷ The court said:¹⁸

The application of collateral estoppel against a defendant constitutes an invasion of the fact-finding and ultimate decisional functions of the jury. If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably . compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged. [Ingénito, supra, p 213.]

In Pelullo, the United States Court of Appeals for the Third Circuit adopted the Ingénito analysis and held that the doctrines of res judicata and collateral estoppel do not bar a defendant in a criminal case from contesting an essential element of the charge. The defendant had been convicted of forty-nine counts of wire fraud and one count of racketeering under the federal Racketeer Influenced and Corrupt Organization Act.¹⁹ The defendant’s convictions on all the counts except one of the wire fraud counts had been reversed. On remand, the defendant was retried on forty-eight counts of wire fraud and one count of rico, and was convicted on all the counts.

The jury on remand was instructed that, "as a matter of law, the defendant has committed the wire fraud offense described in Racketeering Act 60 [the one count affirmed by the Third Circuit]. That means you don’t have to consider whether the government has proved this offense.” Pelullo, supra, p 887. Wire fraud was the predicate offense, an element of the Rico charge, just as armed robbery is the predicate offense and an element of the felony-murder charge against Goss.

The court in Pelullo held that precluding a defendant from contesting an essential element of a charge in this manner violated the defendant’s Sixth Amendment right to trial by jury. The court explained that "one acceptable method of interpreting the Sixth Amendment right to a jury trial is to examine the historical practice of the United States and England at the time the Bill of Rights was ratified.” The court attached significance to the government’s inability to "point to any case on or before 1791 in which collateral estoppel was applied against an accused in a criminal case.” Id., p 893.

The court explained that its holding, grounded in the Sixth Amendment,

[c]omports with and is supported by the uniformly accepted notion that in criminal cases there is no mechanism available to the government comparable to making a motion for directed verdict or summary judgment in civil cases. Indeed, no matter how strong and even overwhelming the evidence is, and although a judge can grant a judgment of acquittal in favor of the defendant before or even after the jury renders its verdict, see Fed.R.Crim.P 29, a criminal defendant in federal courts can be convicted only by the verdict of the jury. [Id., p 895.]

The court summed up its holding:

The right to a jury trial applies in every and all criminal prosecutions. We hold that such a right to a jury trial necessitates that every jury empaneled for a prosecution considers evidence of guilt afresh and without the judicial direction attending collateral estoppel. ... As the New Jersey Supreme Court articulated, applying collateral estoppel against the defendant in a criminal case interferes with the power of the jury to determine every element of the crime, impinging upon the accused’s right to a jury trial. Such an application is constitutionally invalid. [Id., p 896.][²⁰]

While the United States Supreme Court has not squarely addressed the question whether a criminal defendant may be estopped from contesting an essential element of a charged offense, there is reason to believe that the Court would not allow this use of collateral estoppel.²¹ In Simpson v Florida, 403 US 384, 386; 91 S Ct 1801; 29 L Ed 2d 549 (1971), the Court held that where a defendant had been acquitted of robbing one person on the ground that the prosecution failed to produce sufficient identity evidence, the defendant could assert collateral estoppel in a trial for the robbery of a second person claimed to have occurred during the same transaction as the first robbery. The Court observed:

And, had the second trial never occurred [i.e., had the prosecutor obtained a conviction for the robbery of the first person and then proceeded to try the defendant for the robbery of the second person that arose out of the same transaction], the prosecutor could not, while trying the case under review, have laid the first jury verdict before the trial judge and demanded an instruction to the jury that, as a matter of law, petitioner was one of the armed robbers in the store that night. [Emphasis added.]

More recently, in United States v Dixon, 509 US _, _, n 15; 113 S Ct 2849; 125 L Ed 2d 556, 577, n 15 (1993),²² Justice Scalia, writing for four justices, observed that "[u]nder Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970), an acquittal in the first prosecution might well bar litigation of certain facts essential to a second one —though a conviction in the first prosecution would not excuse the Government from proving the same facts the second time.” (Emphasis added.)

While the New Hampshire Supreme Court in State v Johnson, 134 NH 498, 500-502; 594 A2d 1288 (1991), did not completely bar the application of collateral estoppel against a criminal defendant, it recognized the dangers of applying issue preclusion against a criminal defendant. The court noted "the inherent difficulty involved in applying a tool which originated in the civil law to the criminal setting.” Id., p 501. It held that a court must balance the state’s interest in precluding a defendant from litigating an essential element of a charge against the defendant’s interests in having a jury consider all the elements of a charge.

The New Hampshire balancing test, it should be noted, seems clearly to accord more weight to a defendant’s interests than to the state’s interests in invoking estoppel. The court aligned itself with the "[m]any courts” that have "found that policy considerations generally weigh in the defendant’s favor.”²³ Id., p 503.

v

The prosecutor relies on federal cases in which the defendant was charged with illegally entering the country. The courts held that the defendants were estopped from contesting their alienage where that issue had previously been decided adversely to them.²⁴

In the alienage cases, the conduct that led to the second or subsequent prosecution occurred after the judicial determination that was held to have barred relitigation. In the instant case, as in Ingénito, Pelullo, and Johnson, the conduct preceded the judicial determination sought to be raised as a bar.

Federal courts invoked collateral estoppel in the alienage cases to deter reentry into this country. In United States v Rangel-Perez, 179 F Supp 619, 626 (SD Cal, 1959), the court said:

If the issue of alienage were to be tried each time a defendant makes an entry into the United States, after once having been found by judicial determination to be an alien, there would be less to deter future entries than at the present. Even though the present risk of prosecution for illegal entry would remain under 8 USC 1326, a defendant would have an added incentive to enter again and again, knowing that a trial de novo on the issue of alienage would be forthcoming and that such trial might, on one occasion, result in a favorable verdict. The Government would be es-topped by any unfavorable verdict, and accomplishment of the objectives of the immigration laws to discourage and effectively control the already difficult problem of illegal entries into this country would thus be weakened. The Government should not be put to the expense and burden of proving the issue of alienage after one judicial determination has been made, each time an alien decides to reenter this country illegally.

In the instant case, in contrast, there is no danger that the failure to apply estoppel against Goss would result in great expense. Goss is not charged with the type of recurring violation that was at issue in the alienage cases. Thus, the principal rationale of the alienage cases does not apply in the instant case.²⁵

The United States Court of Appeals for the Third Circuit in Pelullo, supra, pp 892-893, criticized the alienage cases as lacking constitutional or historical analysis of the application of collateral estoppel against criminal defendants, and said:

We do not accept the position of the Court of Appeals for the Ninth Circuit that "wise public policy , and common sense judicial administration,” . . . are good and sufficient reasons to apply collateral estoppel against the defendant, thereby taking away a fact issue from the jury in a subsequent criminal case. . . . The Court of Appeals for the Ninth Circuit’s application of this civil case rationale in criminal cases presumably rests on the major premise that public policy and judicial efficiency have the same weight and value in criminal cases as in civil cases. Such an implicit premise does not hold.

The court noted that the United States Supreme Court has consistently held that a defendant’s interest in vindicating himself in a criminal case, an "interest of transcendent value,” prevails over other policy considerations,²⁶ and the court concluded that "the liberty interest of a criminal defendant takes priority over the usual concerns for efficient judicial administration so often found in civil proceedings.” Id., p 893. We agree with the Third Circuit’s view that "[t]he language of the Sixth Amendment does not admit any indication that the absolute right to a jury trial in criminal cases can be modified by reasons of efficiency or public policy arguments.” Id., p 895.

VI

The prosecutor relies heavily on People v Ford, supra. On facts similar to those in the instant case, the California Supreme Court held that, on retrial for felony murder, it was permissible to instruct the jury that the defendant had been convicted of robbery, kidnapping, and possession of a concealed weapon.

The California Court of Appeals recently distinguished Ford from cases like the instant one in Gutierrez v Superior Court, 24 Cal App 4th 153, 166-168; 29 Cal Rptr 2d 376 (1994). In Gutierrez, the defendant was convicted of attempted murder for his role in a shooting. The victim of the shooting later died, and the prosecutor charged Gutierrez with murder. The prosecutor moved to estop Gutierrez from contesting the issues of identity and intent on the ground that those issues had been conclusively decided against him in his first trial.

The court said that Ford was not controlling because, in Ford, the application of collateral estoppel did not prevent the defendant from presenting his diminished capacity defense to the felony-murder charge. Gutierrez, however, would have been precluded from presenting his main defense —mistaken identity — if he had been estopped from contesting the identity issue. Here, as in Gutierrez, and in contrast with Ford, the application of collateral estoppel would prevent Goss from presenting his primary defense to the charges.

The court in Gutierrez noted that the defendant in Ford did not raise a constitutional claim. The court said that Ford therefore does not stand for the proposition that applying collateral estoppel against a defendant is constitutionally permissible.²⁷ The court added that ”[i]t must also be remembered that Ford was decided before Ashe and Simpson questioned the ability of the prosecution to invoke collateral estoppel against a criminal defendant.” 24 Cal App 4th 168.

VII

The prosecutor stated that the motion in limine for an order estopping Goss from contesting the armed-robbery element seeks to protect the victims of the crime from being required to again testify about the armed robbery.

Estopping Goss from contesting the armed-robbery charge would not spare the victims of these crimes appreciable additional inconvenience or discomfort. The prosecutor’s felony-murder case against Goss is closely intertwined with, and indeed inseparable from, Goss’ asserted involvement in the armed robbery. The prosecutor’s felony-murder theory is that Goss forced Bonadeo and the Goers brothers to lie down on the floor at knife-point and then summoned Nelson so that Nelson could kill them.

Bonadeo is essentially the only witness who can testify about these events. Thus, it is inescapable that Bonadeo will be required to testify concerning the trauma of being held down at knifepoint and shot in the head. Having Bonadeo give additional testimony concerning the theft of his wallet and jewelry while Goss had him on the ground would not appreciably increase the strain on Bonadeo when he testifies at a retrial.

If Goss were to be precluded from contesting the armed-robbery element of the felony-murder charge, he would be effectively precluded from presenting his primary defense of mistaken identity. In Ashe v Swenson, supra, pp 464-465, Chief Justice Burger observed:²⁸

Very properly, in criminal cases, finality and conservation of private, public, and judicial resources are lesser values than in civil litigation. Also, courts that have applied the collateralestoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identiñcation issue at the second trial. [Emphasis in original.]

The prosecutor’s theory of felony murder, once again, is that Goss forced Bonadeo and the Goers brothers to lie down on the ground and then summoned Nelson to kill them. Goss does not deny that someone forced the three men to the ground and held them there until Nelson arrived. Goss argues rather that the witnesses who identified him as the assailant are mistaken.

Affirmed and remanded to the Recorder’s Court.

Cavanagh, C.J., concurred with Levin, J.

1 MCL 750.529; MSA 28.797.

2 MCL 750.316; MSA 28.548.

3 This Court also affirmed Goss’ convictions of two counts of assault with intent to commit murder (MCL 750.83; MSA 28.278), kidnapping (MCL 750.349; MSA 28.581), and two counts of first-degree criminal sexual conduct (MCL 750.520b[1]; MSA 28.788[2][1]).

4 437 Mich 1021 (1991).

5 The prosecutor argued at the hearing on the motion for an order in limine that under the doctrines of res judicata and collateral estoppel the judge should instruct the jury that the element of armed robbery has "already [been] proven.” The prosecutor explained that once the jury was "advised that that element has been proven,” the jurors "would focus simply on the remaining issue, which would be whether or not the Defendant aided or assisted in the commission of a murder during that armed robbery for which he already stands convicted.”

6 200 Mich App 9, 20; 503 NW2d 682 (1993). One judge dissented.

The Court of Appeals discussed this Court’s decision in People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990), in which this Court held that the people were not precluded from prosecuting the defendant for second-degree criminal sexual conduct although there had been a jury finding of no jurisdiction in probate court child protection proceedings.

7 Id., p 21.

8 The Court referenced the decision of the New Hampshire Supreme Court in State v Johnson, 134 NH 498, 503; 594 A2d 1288 (1991), and the decision of the New York Court of Appeals in State v Plevy, 52 NY2d 58, 64-66; 436 NYS2d 224; 417 NE2d 518 (1980), and said:

It is inappropriate to determine the applicability of collateral estoppel case by case in terms of a balancing test weighing competing policy considerations because more is at stake than just a defendant’s right to due process requiring the state to prove, beyond a reasonable doubt, every element of the charge against him. Accordingly, in the clash between the principle of collateral estoppel and the constitutional right to trial by jury, collateral estoppel must give way to permit a defendant’s unfettered exercise of the constitutional right to trial by jury. [200 Mich App 20.]

9 The lawyer stressed in his closing argument that Bonadeo described the man who forced him to the ground as wearing all dark clothes. The lawyer said that Goss was wearing a pair of "light green pants or medium green pants” on the night of the robbery.

10 Zambosco des4cribed her attacker as wearing a black jacket, Levis jeans, and tennis shoes. When Goss was arrested he was wearing green corduroys and work shoes.

11 The United States Supreme Court said:

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. [In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970).]

12 The United States Supreme Court recently said that "although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” Sullivan v Louisiana, 508 US _, _; 113 S Ct 2078; 124 L Ed 2d 182, 188 (1993).

13 The United States Court of Appeals for the Eleventh Circuit said:

The rule is firmly established that the trial judge cannot direct a verdict in favor of the government for all or even one element of a crime. The former Fifth Circuit emphatically stated this principle:

"[N]o fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truth. In our federal system, the Trial Court may never direct a verdict either in whole or in part.” [United States v Goetz, 746 F2d 705, 708 (CA 11, 1984).]

Similarly, see, United States v Piche, 981 F2d 706, 716 (CA 4, 1992) ("a judge in a criminal case may not direct a verdict, even a partial verdict, for the government even though the evidence is overwhelming or even undisputed on the point”); United States v Kerley, 838 F2d 932, 938 (CA 7, 1988) (recognizing the rule "against directing a verdict in whole or in part against a criminal defendant”).

See also People v Deneweth, 14 Mich App 604; 165 NW2d 910 (1968) (Levin, J., concurring).

14 The Court built on its earlier decision in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980), where the Court held that a jury could return inconsistent verdicts on charges of assault with a dangerous weapon and felony-firearm. The Court said:

Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and a conviction on another would serve as the reason for defendant’s release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility.

15 The Court said:

The judge may and should instruct the jury that a person cannot be convicted of felony-firearm unless the jury finds that "he committed] or attempted] to commit a felony.” Because conviction of a felony or of an attempt to commit a felony is not an element of the offense, the jury may not be instructed that it must convict of an underlying felony in order to convict of felony-firearm. [People v Lewis, supra, p 455.]

16 In United States v Powell, 469 US 57, 68; 105 S Ct 471; 83 L Ed 2d 461 (1984), the Court held that a defendant who was acquitted of the predicate felonies of conspiracy to possess cocaine and possession of cocaine was not entitled to reversal of her conviction of the compound offense of facilitating commission of narcotics offenses by telephone. Before the jury could find that the defendant facilitated the commission of narcotics offenses by telephone, it would have to find that the defendant committed one of the predicate offenses. The jury had acquitted on those predicate offenses.

The Court rejected the defendant’s argument that the jury’s verdict on the predicate offenses worked an estoppel vis-á-vis the compound offense. The Court said:

[Rjespondent’s argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper — the one the jury "really meant.” This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government 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. [Emphasis added.]

17 Ingenito was charged with possession of a firearm by a convicted felon. He had previously been convicted of unlicensed transfer of weapons on the basis of conduct that arose out of the same transaction as the felon in possession charge. Instead of moving to estop Ingénito from litigating the possession issue, the prosecution moved to admit evidence of Ingenito’s conviction for illegal transfer of the weapons. Ingénito argued that if this evidence were to be admitted, as a practical matter, it would work an estoppel on the possession issue. The New Jersey Supreme Court agreed, and its analysis proceeded on the assumption that admission of this evidence would operate as a collateral estoppel.

18 See also text accompanying n 8.

19 18 USC 1962.

20 The Florida Court of Appeals reached a similar conclusion, albeit in dicta, in State v Stiefel, 256 So 2d 581, 585 (Fla App, 1972). The court explained that while a defendant could invoke collateral estoppel against the prosecution, the reverse would not be permitted. The court stated:

The doctrine [collateral estoppel] cannot apply, however, when as here the issue has been resolved against the accused [in a prior proceeding]. This is so because if it were to be given any effect at all in such case the trial court in the subsequent prosecution could charge the jury, or consider as a matter of law, that such issue had been resolved as a true fact to the detriment of the accused. This would be impermissible, of course, under due process considerations which assure an accused a jury trial on all issues relating to each element of a given criminal charge. [Id. Emphasis in original.]

21 As the excerpt from United States v Powell, n 16 supra, illustrates, the Supreme Court has not permitted a criminal defendant to assert collateral estoppel against the government where the jury acquits on a predicate offense and convicts on a compound offense of which the predicate offense is an element. If the Court will not allow a defendant to estop the jury from considering anew an element of one offense when it has not found that identical element in. the context of another offense, it seems unlikely that the Court would allow the government to estop the jury from considering anew an element of one offense when it has found that element in the context of another offense.

22 In Dixon, the defendant had been released on bond on conditions that he not commit any criminal offense and that, if he committed a criminal offense, he would be subject to prosecution for contempt of court. While out on bond, the defendant committed a narcotics offense, and the judge that had granted the defendant bond found him in contempt of court. The defendant was then charged with the narcotics violation as a separate offense. He claimed that a trial on the narcotics charge violated the double jeopardy provision of the Fifth Amendment. The Court held that prosecution on the narcotics offense was not barred.

23 In Johnson, the court held that the state could not preclude the defendant from contesting an essential element of the charge of operating a motor vehicle after his license had been revoked. The defendant testified that he had not operated the vehicle. The judge instructed the jury that to convict the defendant, it had to find that he operated the vehicle. The jury convicted the defendant, and the prosecutor charged the defendant with perjury. Before the perjury trial, the prosecutor asked the judge to instruct the jury that the prior conviction conclusively establishes that the defendant operated the vehicle. The trial court refused the request, and, on interlocutory appeal, the New Hampshire Supreme Court affirmed.

24 E.g., United States v Rangel-Perez, 179 F Supp 619, 625 (SD Cal, 1959), Pena-Cabanillas v United States, 394 F2d 785, 786 (CA 9, 1968), United States v Bejar-Matrecios, 618 F2d 81 (CA 9, 1980), and Hernandez-Uribe v United States, 515 F2d 20, 21 (CA 8, 1975).

25 Courts have declined to read the alienage cases sis authority for applying collateral estoppel against a criminal defendant where there is no risk of costly repeated trials. See, e.g., State v Johnson, n 8 supra, pp 500-502; State v Ingenito, supra, p 218, n 7; Gutierrez v Superior Court, 24 Cal App 4th 153, 169-170; 29 Cal Rptr 2d 376 (1994).

26 The court observed that an accused’s interest in vindicating himself in a criminal trial has been held to transcend "the President of the United States’ general claim of absolute presidential privilege . . .; a state’s important interest in preserving the anonymity of juvenile offenders . . .; and a patient’s privacy interest in the confidentiality of medical records and the societal interest in encouraging the free flow of information between patient and psychotherapist. . . .” Id., p 893.

27 Gutierrez cited the dissenting opinion in the Court of Appeals in the instant case and indicated that the reliance there on People v Ford was misplaced.

28 The Chief Justice wrote in dissent in Ashe v Swenson, but his observations, nevertheless, are pertinent to the issue here presented.