State v. Allen

• Decision Date: 28 October 2011
• Docket Number: Sept. Term,No. 76,2010.,76
• Citation: 31 A.3d 476,423 Md. 208
• Parties: STATE of Maryland v. Jeffrey Edward ALLEN.
• Court: Maryland Court of Appeals

31 A.3d 476
423 Md. 208

STATE of Maryland
v.
Jeffrey Edward ALLEN.

No. 76

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 28, 2011.

[31 A.3d 478]

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner/cross–respondent.

Allison Pierce Brasseaux, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS, and BARBERA, JJ.BARBERA, J.

[423 Md. 210] A defendant in a criminal proceeding may invoke the doctrine of collateral estoppel to preclude the State from trying an ultimate fact found in favor of the defendant at a prior trial. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This defensive use of collateral estoppel derives from the protection provided a criminal defendant under the Double Jeopardy Clause of the Fifth Amendment. Id. We are asked in the case at bar to consider whether collateral estoppel may be applied against a criminal defendant to foreclose the jury from finding for itself all of the ultimate facts that make out the charged crime. For the reasons that follow, we hold that offensive collateral estoppel at a criminal trial is inimical to the Sixth Amendment's guarantee of a jury trial “[i]n all criminal prosecutions.” U.S. Const. amend. VI.

[423 Md. 211] I.

Respondent, Jeffrey Edward Allen, twice has been tried and convicted on charges related to the robbery and murder of John Butler. For purposes of this opinion, it is unnecessary to recite in full the facts underlying the crimes, as they are well detailed in the appeal from the first trial. See State v. Allen, 387 Md. 389, 391–93, 875 A.2d 724, 725–26 (2005), aff'g Allen v. State, 158 Md.App. 194, 857 A.2d 101 (2004) (herein “ Allen I ”). In brief, the State's evidence established that the crimes, which occurred in October 2001, followed a liaison between the two men at the home of Butler. Respondent demanded that Butler drive him home. Butler refused, so Respondent took hold of Butler's car keys, jingled them, and threatened to drive himself home. A scuffle ensued, during which Respondent repeatedly stabbed Butler with at least one kitchen knife. Respondent then freed himself from the scuffle, grabbed the car keys, and drove away. A few hours later, after crashing the vehicle, Respondent contacted police about the incident and was taken into custody.

Respondent was indicted and later tried before a jury in the Circuit Court for Charles County on charges of first degree premeditated murder, first degree felony murder, second degree (specific-intent) murder, robbery with a deadly weapon and related offenses. The jury found Respondent guilty of first degree felony murder, second degree murder, robbery with a deadly weapon, and lesser related charges.

On appeal to the Court of Special Appeals Respondent argued, among other issues, that the trial court erred in instructing the jury that it could find him guilty of felony murder regardless of whether the

[31 A.3d 479]

intent to rob was formed before or after the murder.¹ [423 Md. 212] Allen I, 158 Md.App. at 237, 857 A.2d at 126. The Court of Special Appeals held that “an ‘afterthought’ robbery cannot constitute an ‘aggravating circumstance’ for imposition of the death penalty,” and therefore “it [could not] support a conviction for felony murder.” Id. at 246, 857 A.2d at 132. Consequently, “the [trial court] erred by instructing the jury that appellant could be found guilty of felony murder ‘even if the intent to steal here was not formed until after the victim had died.’ ” Id. at 246, 857 A.2d at 132.

Respondent also raised before the Court of Special Appeals the legal sufficiency of the evidence supporting the robbery charge and, by implication, the felony murder charge. Respondent argued that “[t]here [was] absolutely no evidence on the record from which a rational trier of fact could have found [423 Md. 213] that [Respondent] ever possessed the intent to deprive [the victim] of his property.” Id. at 248, 857 A.2d at 133. The Court of Special Appeals, concluding that “a rational jury could readily conclude that [the necessary] intent was formed before the murder,” id. at 249, 857 A.2d at 134, held that the evidence “was more than sufficient to support [Respondent]'s conviction for first degree felony murder with robbery as the predicate felony,” id., 857 A.2d at 133. The Court of Special Appeals consequently affirmed all but the felony murder conviction, which the court vacated because, given the trial court's instruction to the jury, there was “no way of knowing whether the jury unanimously agreed that [Respondent] formed the intent to rob prior to or while in the commission of the murder[.]” Id. at 246, 857 A.2d at 132.

[31 A.3d 480]

We granted the State's petition for a writ of certiorari to review the judgment of the Court of Special Appeals that Respondent was entitled to a new trial based on the challenged jury instruction. We affirmed the holding of the Court of Special Appeals that the instruction was wrong as a matter of law, and we agreed with that court that Respondent was entitled to a new trial on the charge of felony murder. Allen I, 387 Md. at 405, 875 A.2d at 734.

The retrial and present appeal

Respondent's three-day retrial on the felony murder charge commenced with jury selection on August 11, 2008. During voir dire, the trial court informed the venire of the following:

Ladies and gentlemen, you—will hear evidence during the course—or the people who try the case will hear evidence that the [the Respondent] was previously convicted for the offense of Second Degree Murder and Robbery in connection with the incident—that is the subject of today's trial.

That in part is why or primarily is the reason why the only matter before the jury in this case—before the Court in today's case or today's trial, will be the First Degree Murder trial—charge related to the robbery incident.

The jury is going to be instructed to—consider the evidence that pertains to the First Degree Felony Murder [423 Md. 214] Charge only. Is there any potential juror who feels you will have difficulty—with the case because of the fact that you know in advance the [Respondent] has been previously convicted of offenses arising out of the incident?

One prospective juror responded that he was not sure he could be fair in deciding the case because he did not “believe that [the Respondent] should be recharged for something he already got sentence[d] for.” The court excused that prospective juror.

During its case in chief, the State presented the testimony of a number of witnesses concerning the events underlying the robbery. The State also read into the record a transcript of Respondent's oral and written statements to the police and his testimony from the first trial, in each of which Respondent gave essentially the same accounts of the acts in question. Respondent's defense case consisted only of his offering into evidence a photograph of the two knives found in the immediate vicinity of the murder victim's body.

The trial court and counsel discussed how the jury should be instructed on the felony murder charge. The court agreed to Respondent's request that the jury be instructed that he had been convicted of second degree murder. The court added, though, that the jury should also be informed of the procedural history of the case, including that Respondent had been convicted of robbery. The court reasoned that, without the additional information about the robbery conviction and the procedural history that necessitated the retrial, the jury would wonder why the felony murder charge was being layered atop a second degree murder conviction. Over Respondent's objection, the trial court instructed the jury:

The primary charge ... or, the charge that is before you ... the only charge that is before you, again, is this notion of felony murder ... first degree felony murder, to distinguish it from another kind of felony murder.... In order to convict [the Respondent] of first degree felony murder, in the context of robbery or robbery with a deadly weapon, the State must prove, (1) that the [Respondent] committed a [423 Md. 215] robbery; (2) that the [Respondent] killed [the victim]; (3) that he had the intent to commit

[31 A.3d 481]

the robbery before or at the time of committing the act that caused [the victim]'s death, and that the act which resulted in [the victim]'s death occurred during the course of and in furtherance of the objective of committing the robbery.

* * *

Let's talk about what robbery is and I'm going to tell you what second degree murder, for purposes of this case, is. I'm going to have a little more discussion about procedure.

* * *

Robbery or robbery with a deadly weapon, if a deadly weapon is involved, is the taking and carrying away of property from another person by force or the threat of force with the intent to deprive the victim of the property. To convict someone of robbery, in other words, the State would have to prove: (1) that the [Respondent] took property from [the victim]'s possession and control; (2) that he took the property by force or threat of force; and (3) that he intended to deprive [the victim] of that property.

Okay. The elements of the offense of second degree murder, for which [Respondent] here stands convicted, are as follows: the second degree murder is the killing of another person with either the intent to kill, or the intent to inflict such serious bodily harm that death would be the likely result. Second degree murder does not require premeditation or deliberation. In order to convict someone of second degree murder, the State would have to prove, (1) that the [Respondent]'s conduct caused [the victim]'s death; that he engaged in deadly conduct either with intent to kill [the victim], or with intent to inflict such serious bodily harm that death...