Burkett v. State

• Decision Date: 01 September 1993
• Docket Number: No. 271,271
• Parties: Robert Dean BURKETT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 459

98 Md.App. 459

633 A.2d 902

Robert Dean BURKETT v. STATE of Maryland.

No. 271, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Dec. 6, 1993.

Certiorari Denied March 23, 1994.

Victoria S. Lansburgh, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.

Argued before MOYLAN, FISCHER and HARRELL, JJ.

MOYLAN, Judge.

In their criminal manifestations, both res judicata (former jeopardy) and collateral estoppel (since Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)), are two of the individual members of a larger doctrinal family, known collectively as the law of double jeopardy. Cook v State, 281 Md. 665, 668, 381 A.2d 671 (1978); Rouse v. State, 202 Md. 481, 486, 97 A.2d 285 (1953). They are, however, by no means the same. MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486 (1977); Cook v. State, 281 Md. 665, 668-669, 381 A.2d 671 (1978); Klein v. Whitehead, 40 Md.App. 1, 13-15, 389 A.2d 374, cert. denied, 283 Md. 734 (1978).

Res judicata looks to a final judgment on the merits earlier entered in the same case or same cause and to the necessary legal consequences of that judgment. In its criminal manifestation as former jeopardy, it looks to a final judgment on the merits of guilt or innocence in a trial by the same parties of the "same offense." State v. Coblentz, 169 Md. 159, 164-165, 180 A. 266 (1935) ("In criminal cases the difference[s] between a plea of former jeopardy and res judicata are so slight as to be hardly distinguishable, and in many criminal cases, where the plea of former jeopardy was made, the courts in discussing the question applied the principles of res judicata.") Its effect, when applicable, is one of claim preclusion. MPC, Inc. v. Kenny, 279 Md. 29, 32-34, 367 A.2d 486 (1977). A claim that has once been litigated, or that could have been litigated, in the same case by the same parties or their privies, cannot, in the interests of finality and repose, be re-litigated. Sterling v. Liberty Assn. of Steam & Power Pipe Fitters, 207 Md. 132, 140, 113 A.2d 389 (1955); Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92 (1961). In its criminal/constitutional manifestation as former jeopardy, res judicata dictates that, when an individual has once been acquitted (autrefois acquit ) or once been convicted (autrefois convict ) of an offense, the State may not thereafter reprosecute that individual for "the same offense." Like res judicata generally, it is a plea in bar, which is interposed in advance of trial so as to bar the defendant even from being brought to trial in a subsequent and sequential effort to relitigate a matter already legally settled.

Collateral estoppel shares with res judicata the requirement that the earlier litigation and the later litigation be between the same parties or their privies. Klein v. Whitehead 40 Md.App. 1, 15, 389 A.2d 374, cert. denied, 283 Md. 734 (1978). And see Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 238 A.2d 100 (1968), for a limited relaxation, not here pertinent, of the mutuality-of-parties requirement. In their double jeopardy manifestations, both collateral estoppel and former jeopardy require that the earlier prosecution have been of the same defendant by the same sovereign.

At that point, however, the two related legal doctrines part company. Collateral estoppel is concerned with the factual implications of an earlier litigation of a different case (criminally, the trial of a different offense ), whereas res judicata or former jeopardy is concerned with the legal consequences of a judgment entered earlier in the same case (criminally, in the trial of the same offense ). Collateral estoppel is concerned, therefore, 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. Res judicata or former jeopardy, by contrast, is concerned with the legal consequences of a judgment regardless of whether the judgment was based on the ultimate factual merits or, as in this case, on the basis of a legal ruling having nothing to do with the ultimate factual merits. Collateral estoppel is concerned only coincidentally with what happened legally; its special concern is with why it happened in terms of fact finding. Res judicata or former jeopardy, by contrast, is concerned with what happened legally--with the entering of a final judgment and with the legal consequences of that judgment. It does not matter why the judgment was entered in terms of antecedent fact finding. Its claim-preclusive or reprosecution-preclusive effect arises out of its very existence, and there is no necessity to probe for its probable fact-finding basis.

The effect of collateral estoppel, when that doctrine is applicable, is that of issue preclusion (meaning an issue of ultimate fact). A finding of ultimate fact that has once been made in favor of a party cannot later be relitigated adversely to that party, even in the trial of a different case (or different offense). Cook v. State, 281 Md. 665, 669, 381 A.2d 671 (1978) ("[O]nce an issue of ultimate fact has been determined by a final and valid judgment, that issue cannot again be litigated between the same parties in any future lawsuit.") See also Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Cousins v. State, 277 Md. 383, 398, 354 A.2d 825 (1976). For purposes of collateral estoppel, the probable fact finding that undergirds a verdict or a judgment must be further scrutinized. The basis for a decision articulated by a judge must be parsed for express fact finding or the trial transcript antecedent to a jury's deliberations must be analyzed for necessarily implied fact finding. As Judge (now Chief Judge) Wilner explained for this Court in Klein v. Whitehead, 40 Md.App. 1, 19, 389 A.2d 374, cert. denied, 283 Md. 734 (1978):

For that doctrine to apply, we must conclude that the issues raised in this proceeding were actually litigated in the earlier actions (or that the facts necessary to resolve these issues were adjudicated in those actions).

When such issue preclusion operates in the context of the same case or trial of the same offense, coincidentally, it should technically not even be referred to as collateral estoppel. The adjective "collateral" denotes that the estopping influence came into the case in issue from some other outside case, to wit, collaterally. In the context of a single case, the issue-preclusive operation should actually be called "direct estoppel" rather than collateral estoppel as an aspect of true res judicata, which is frequently labeled "direct estoppel." For the sake of uniformity, however, we shall follow the almost universal, albeit imprecise, linguistic habit of using the term "collateral estoppel" to embrace the phenomenon of issue preclusion both in its directly estopping and in its truly collaterally estopping contexts.

The present appeal requires us to distinguish meticulously between res judicata (in its manifestation as the former acquittal subspecies of former jeopardy), with its exclusive focus on the legal effect of the judgment of acquittal for the sexual attack in the first degree, and collateral estoppel, with its very different focus on actual or necessarily implied findings of ultimate fact made in support of that judgment of acquittal.

The appellant, Robert Dean Burkett, was convicted by a Prince George's County jury of a first-degree sexual offense, a second-degree sexual offense, a third-degree sexual offense, assault with intent to disable, and carrying a dangerous weapon openly with the intent to injure. For sentencing purposes, the convictions for the second-degree sexual offense and the third-degree sexual offense were merged into the conviction for the first-degree sexual offense. On this appeal, the appellant raises the two contentions:

1. that the trial judge erroneously allowed the charges of both first-degree sexual offense and second-degree sexual offense to go to the jury after having granted the appellant's Motion for Judgment of Acquittal as to the first-degree sexual offense; and

2. that the trial judge erred in imposing punishment for the weapon-carrying conviction in addition to the other punishments imposed.

The Facts

The victim of the appellant's attacks was his one-time girlfriend, Cindy Lee Edelen. On August 11, 1992, he was extremely angry at her because he thought she had stolen $100 from his wallet. The ongoing course of first verbal and then physical abuse directed by the appellant at Ms. Edelen began when the two of them were parked at Piscataway Park. Initially, he "smacked her around" and punched her. At one point, he ripped off her clothing and threw it out the car window. Shortly thereafter, the two of them left Piscataway Park and drove to a house on Holly Lane.

After the two arrived at the house on Holly Lane, the appellant preliminarily "punched" Ms. Edelen a number of times and then walked to the kitchen and got a knife. He started swinging the knife at her and threatened to kill her that night if she did not produce the money. She received one cut above her eye and was also stabbed in the arm. She was sufficiently bloody that she went to the bathroom and got into the bathtub in an effort to clean herself. The appellant then got into the bathtub with her and "proceeded to put the knife up inside [her] vagina." He again admonished Ms. Edelen to produce the money or he would "cut her insides out." After "a couple of minutes of him playing with the knife down there," he "pulled it out" and stabbed Ms. Edelen in the hand. He then left the bathroom. After she left the bathroom, the beating resumed with more punches, kicks, and "stomps."

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