State v. Mullin-Coston

• Decision Date: 15 July 2004
• Docket Number: No. 73765-7.,73765-7.
• Citation: 152 Wash.2d 107,95 P.3d 321
• Parties: STATE of Washington, Respondent, v. Thomas MULLIN-COSTON, Petitioner.
• Court: Washington Supreme Court

95 P.3d 321

152 Wash.2d 107

STATE of Washington, Respondent, v. Thomas MULLIN-COSTON, Petitioner.

No. 73765-7.

Supreme Court of Washington, En Banc.

Argued February 19, 2004.

Decided July 15, 2004.

Christopher Gibson, Seattle, for petitioner.

Lee Davis Yates, Seattle, for respondent.

William Berggren Collins, Olympia, for Amicus Curiae (Atty. Gen.).

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae (Wash. State Trial Lawyers Assoc. Foundation).

BRIDGE, J.

Thomas Mullin-Coston was convicted of premeditated first degree murder for his participation in the killing of 15-year-old Sarah Starling. In an earlier trial, Mullin-Coston's friend, Jason McDaniels, was convicted of second degree murder for his own role in Starling's death. Mullin-Coston argues that his jury inappropriately relied on McDaniels' premeditation to convict Mullin-Coston based on the law of complicity, even though McDaniels' jury concluded that McDaniels had not acted with premeditation. Mullin-Coston argues that as a result, the doctrine of nonmutual collateral estoppel requires reversal of his premeditated first degree murder conviction. This court must determine whether the doctrine of nonmutual collateral estoppel applies in criminal cases where the basis for asserting preclusion is a jury verdict in the case of another defendant. We decline to apply the doctrine in such cases and hold that issues decided by one defendant's jury are not binding on a jury in the later trial of a different defendant.

I Facts and Procedural History

Fifteen-year-old Sarah Starling dated Jason McDaniels in early 1999, but the couple broke up in early March of that year. On March 9, 1999, Starling made plans to talk with McDaniels in the hopes of bringing closure to their relationship. That evening, she picked up McDaniels and Thomas Mullin-Coston from Anne Marie Kalabany's apartment.

The next day, Starling's body was found in a wooded ravine in Kingsgate Park. The police also recovered a kitchen knife that had disappeared from Kalabany's apartment on the night that Starling was killed.¹ The medical examiner's autopsy revealed the primary cause of death was a stab wound to the neck, while strangulation and other blunt force injuries contributed. According to the State's medical expert, the strangulation alone would have been enough to cause Starling's death, but due to the stabbing, the strangulation was merely a contributing factor.

Both McDaniels and Mullin-Coston were charged with the premeditated first degree murder of Starling. The parties stipulated that the trials should be severed and McDaniels went to trial first. See State v. McDaniels, noted at 114 Wash.App. 1046, 2002 WL 31648777, at *1. At his trial, McDaniels claimed that Mullin-Coston choked Starling before they reached Kingsgate Park, and then Mullin-Coston forced him to stab Starling. The jury was instructed to convict McDaniels of first degree murder if it found that either McDaniels or an accomplice premeditated the killing of Starling but to convict of the lesser charge of second degree murder if it could not unanimously agree that the killing was premeditated. The jury convicted McDaniels of second degree murder but did not complete the general verdict form as to the first degree murder charge. Mullin-Coston then proceeded to trial. Mullin-Coston filed a motion to dismiss his first degree murder charge on the grounds of collateral estoppel, which the trial court denied.² At trial Mullin-Coston testified that while he and McDaniels were waiting for Starling to arrive at Kalabany's apartment, McDaniels claimed he was going to kill Starling and even produced the knife he obtained from Kalabany's kitchen. Mullin-Coston asserted that once they were in the car, McDaniels told Starling to pull over to the side of the road as they approached Kingsgate Park in Kirkland. He testified that McDaniels strangled Starling until she was unconscious, dragged her into a ravine, and stabbed her in the throat. Mullin-Coston said that he remained in the car but did not attempt to separate himself from McDaniels because he "was in shock." 11/06/01 Report of Proceedings (RP) at 49.

However, others testified that Mullin-Coston, not McDaniels, choked Starling in the car. Joe Eddie testified that on the evening of the murder Mullin-Coston admitted that he and McDaniels "just killed somebody," and that "he put a girl to sleep and... Jason stabbed her." 10/29/01 RP at 42-43, 54.³ Anne Marie Kalabany also testified that she told Mullin-Coston that McDaniels claimed Mullin-Coston choked Sarah. Mullin-Coston nodded to Kalabany and did not correct or contradict McDaniels' account at the time.

Like the instruction used in McDaniels' trial, the "to convict" instruction in Mullin-Coston's case permitted the jury to convict Mullin-Coston of premeditated first degree murder if it found that either he or an accomplice acted with premeditated intent and killed Starling. During deliberations the jury inquired, "[i]f the murder was premeditated does the accomplice have to be in on the premeditation?" Clerk's Papers (CP) at 263. In response, the trial court told the jury to rely on the jury instructions. Mullin-Coston was convicted of premeditated first degree murder and was sentenced to 371 months in prison.

Mullin-Coston appealed, asserting in part that under the doctrine of nonmutual collateral estoppel, the State was precluded from relitigating whether McDaniels acted with premeditation. State v. Mullin-Coston, 115 Wash.App. 679, 680, 64 P.3d 40 (2003). The Court of Appeals rejected that argument and affirmed the conviction. This court granted review to resolve the issue of whether the doctrine of nonmutual collateral estoppel can apply in cases like this one, where preclusion would be based on a prior jury verdict from the trial of a separate defendant.

II Analysis

In Washington, a person is guilty of first degree murder when, "[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person." RCW 9A.32.030(1)(a). In contrast, a person is guilty of second degree murder when, "[w]ith intent to cause the death of another person but without premeditation, he causes the death of such person." RCW 9A.32.050(1)(a). A person is guilty of a crime, even if it is committed by the conduct of another person, if he acts as an accomplice by encouraging or aiding in the planning or commission of the crime with the knowledge that his actions will promote or facilitate the crime. See RCW 9A.08.020(1)-(3).

Mullin-Coston argues he is entitled to a new trial because his "to convict" instruction permitted the jury to return a guilty verdict on the first degree murder charge upon finding that Mullin-Coston "or an accomplice" acted with premeditated intent to kill. CP at 256. He contends that at McDaniels' trial, the State failed to prove that McDaniels acted with premeditated intent; thus, the State should not be allowed to relitigate the issue of McDaniels' premeditation in Mullin-Coston's prosecution. Without McDaniels' premeditation, the State would have been required to prove that Mullin-Coston premeditated the murder. Ultimately, Mullin-Coston asserts that because the State was erroneously allowed to rely on McDaniels' premeditation, it was relieved of proving an essential element of his crime, namely that Mullin-Coston himself acted with premeditated intent. See RCW 9A.32.030(1)(a).

Generally, collateral estoppel establishes that "when an 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 v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Despite its civil origin, the doctrine of collateral estoppel applies in criminal law through the concept of the Fifth Amendment guaranty against double jeopardy. State v. Williams, 132 Wash.2d 248, 253-54, 937 P.2d 1052 (1997). This case, however, does not implicate either pure collateral estoppel or double jeopardy because Mullin-Coston relies on the jury verdict of another defendant; he never faced jeopardy during McDaniels' trial.

At one time Washington required mutuality, meaning there had to be identity or privity of parties in the same antagonistic relationship in both proceedings, before collateral estoppel could be asserted in the subsequent litigation. See, e.g., Owens v. Kuro, 56 Wash.2d 564, 568, 354 P.2d 696 (1960)

. Washington courts have since retreated from that traditional rule in the context of civil cases and now apply nonmutual collateral estoppel so long as the party against whom preclusion is sought was a party or in privity with a party to the prior litigation and had a full and fair opportunity to litigate the issue in question. See Kyreacos v. Smith, 89 Wash.2d 425, 428-30, 572 P.2d 723 (1977); see also Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wash.2d 255, 258, 269, 956 P.2d 312 (1998). The party seeking to enforce the rule must show that:

"(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of [the] doctrine must not work an injustice."

State v. Bryant, 146 Wash.2d 90, 98-99, 42 P.3d 1278 (2002) (emphasis added) (quoting Williams, 132 Wash.2d at 254, 937 P.2d 1052). In this case, Mullin-Coston asks us to apply the doctrine of nonmutual collateral estoppel by making a prior jury verdict in a case involving a separate defendant binding against the State in his criminal case. This argument presents an issue of first impression in this court and involves a question of law, subject to de novo review. State v. Vasquez, 109 Wash.App. 310, 314, 34 P.3d 1255...