                 IN THE SUPREME COURT OF IOWA
                              No. 09–0647

                         Filed December 17, 2010


STATE OF IOWA,

      Appellee,

vs.

DAVID JOHN HALSTEAD,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, Gary E.

Wenell, Judge.



      Defendant, challenging the validity of inconsistent jury verdicts in

criminal cases, seeks further review of a decision by the court of appeals

affirming his conviction for assault while participating in a felony.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED IN PART, SENTENCE VACATED, AND

CASE REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, Stephan J. Japuntich,

Assistant State Appellate Defender, and Cory McAnelly, Student Legal

Intern, for appellant.
                                   2

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Patrick Jennings, County Attorney, and Drew H.

Bockenstedt, Assistant County Attorney, for appellee.
                                     3

APPEL, Justice.

      In this case, we confront the validity of inconsistent jury verdicts in

a criminal trial in which a single defendant is convicted on a compound

offense that requires, as an element, a finding of guilt on a predicate

offense, but is acquitted on the underlying predicate offense. The rule in

the majority of jurisdictions is to ignore the inconsistency and uphold the

jury verdicts. The majority rule, however, has been subject to criticism,

and a minority of courts has declined to follow it.

      The court of appeals applied the majority rule and upheld the

verdict.   We granted further review.       After review of the pertinent

precedents and authorities, we decline to adopt the majority rule.

Pursuant to our power to supervise Iowa courts, we hold that a criminal

conviction of a compound offense cannot stand when the defendant has

been acquitted of the underlying predicate offense.         As a result, the

defendant’s conviction for assault while participating in a felony is

reversed, and the case is remanded to the district court for resentencing

of the defendant based on his unappealed convictions.

      I. Factual and Procedural Background.

      Lester Recinos lived in a group home in Sioux City, Iowa, when he

became a crime victim. On August 1, 2008, Recinos failed to return to

the group home by curfew. At 2:30 a.m., a group-home employee saw

Recinos being pulled from a parked minivan.           As Recinos fell to the

ground, a man kicked and punched him. Passengers in the van ordered

the attacker to take jewelry and money from Recinos. The group-home

employee called the police. The ensuing investigation implicated David

Halstead, allegedly a passenger in the van, in the crime.

      The State charged Halstead with four criminal offenses:        assault

while participating in a felony; theft in the first degree, which served as
                                           4

the predicate felony for assault while participating in a felony; robbery in

the second degree; and conspiracy to commit a forcible felony (robbery in

the second degree).          A jury convicted Halstead of assault while

participating in a felony and robbery in the second degree.                  The jury

acquitted Halstead of theft in the first degree and instead found him

guilty of theft in the fifth degree, a misdemeanor lesser included offense

of theft in the first degree.

       Halstead filed a motion for a new trial. In the motion, Halstead

asserted that the jury’s verdict on assault while participating in a felony,

a compound felony, was inconsistent with his acquittal on the charge of

theft in the first degree, the only available predicate felony under the jury

instructions in the case. The trial court overruled the motion, and this

appeal followed.

       II. Standard of Review.

       The parties suggest that the proper standard of review in this case

is for substantial evidence.         The issue in this case, however, relates

primarily to a question of law regarding the consequence of a jury verdict

that convicts the defendant of a compound felony yet acquits the

defendant on the only predicate felony in the case as instructed by the

court. 1 See United States v. Hart, 963 F.2d 1278, 1280 (9th Cir. 1992).

To the extent constitutional issues are raised, review is de novo. State v.

Taeger, 781 N.W.2d 560, 564 (Iowa 2010).

       III. Discussion.

       A. Introduction.         The problem of inconsistent verdicts has

plagued courts for some time.           At common law, inconsistent verdicts


       1The   State concedes that the issue of whether an inconsistent verdict may stand
has been preserved. We therefore do not address the defendant’s alternate claims of
ineffective assistance of counsel.
                                           5

were invalid and set aside.          See Steven T. Wax, Inconsistent and

Repugnant Verdicts in Criminal Trials, 24 N.Y.L. Sch. L. Rev. 713, 732

(1979) [hereinafter Wax]. In the United States, however, the approach to

inconsistent verdicts has varied, depending on the nature of the alleged

inconsistency and the jurisdiction involved.

      At the outset, it is important to note that the term “inconsistent

verdicts” is often used in an imprecise manner and may include a wide

variety of related, but nonetheless distinct, problems. A jury verdict may

be deemed inconsistent based upon inconsistent application of facts or

inconsistent    application    of   law.       For   example,   in   a   vehicular

manslaughter case, the conviction of a defendant for the death of one

passenger in the car but acquittal on a charge related to another

passenger is “factually inconsistent.”         DeSacia v. State, 469 P.2d 369,

371, 377–78 (Alaska 1970). There is no legal flaw in the jury’s verdict,

but the verdicts seem inconsistent with the facts. On the other hand, the

conviction of a defendant of a compound crime when he or she is

acquitted on all predicate offenses is said to be “legally inconsistent.”

See Price v. State, 949 A.2d 619, 634–38 (Md. 2008) (Harrell, J.,

concurring); State v. Arroyo, 844 A.2d 163, 171 (R.I. 2004); 75B Am. Jur.

2d Trial § 1558, at 352–55 (2007); see also Gonzalez v. State, 440 So. 2d

514, 515 (Fla. Dist. Ct. App. 1983). In these cases, the jury verdict is

inconsistent as a matter of law because it is impossible to convict a

defendant of the compound crime without also convicting the defendant

of the predicate offense. 2




      2One    other category, mutually exclusive verdicts, occurs when a jury makes
positive findings of fact that are mutually inconsistent. See Hammonds v. State, 7
So. 3d 1055, 1060 (Ala. 2008).
                                       6

         Some allegedly inconsistent verdicts involve a defendant in a single

proceeding having multiple counts, such as a case involving compound

and predicate felonies or multiple deaths due to a single act or

occurrence.     See W. E. Shipley, Annotation, Inconsistency of Criminal

Verdict with Verdict on Another Indictment or Information Tried at Same

Time, 16 A.L.R.3d 866, 868 (1967). In other cases, jury verdicts may be

said to be inconsistent if multiple defendants are tried either together or

separately. For instance, it may be claimed that the conviction of one

defendant of conspiracy while all of the possible confederates are

acquitted produces an inconsistent verdict because it takes more than

one person to conspire.           See Michelle Migdal Gee, Annotation,

Prosecution or Conviction of One Conspirator as Affected by Disposition of

Case Against Coconspirators, 19 A.L.R.4th 192, 198–204 (1983); C. T.

Drechsler, Annotation, Inconsistency of Criminal Verdicts as Between Two

or More Defendants Tried Together, 22 A.L.R.3d 717, 720–21 (1968).

         This case involves a single defendant who is convicted of a

compound crime and acquitted of the predicate crime in a single

proceeding. Sometimes labeled in the cases as “true inconsistency” or

“repugnancy,” see, e.g., Brown v. State, 959 So. 2d 218, 220 (Fla. 2007);
People v. Bullis, 294 N.Y.S.2d 331, 332–33 (App. Div. 1968), a jury

verdict in a compound-conflict case, as will be seen below, has serious

flaws.     For purposes of clarity, in this opinion we will refer to the

inconsistency in this case as a compound inconsistency.

         Before addressing the narrow issue presented in this case, it is

important to note that the question of inconsistent verdicts has

sometimes been characterized as not involving constitutional issues. See

United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 477, 83

L. Ed. 2d 461, 469 (1984).      As will be seen below, the question of the
                                     7

validity of an inconsistent verdict, however, can be approached only with

due regard to important constitutional concepts including double

jeopardy, guilt beyond a reasonable doubt, and the right to a unanimous

jury verdict.   At a minimum, the outcome in this case is affected by

strong constitutional currents.

       B. Approach    of   the    United   States    Supreme     Court   to

Compound Inconsistency in Jury Verdicts in Criminal Cases.               In

Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932),

the United States Supreme Court considered the question of proper

disposition of a case when the jury convicted a defendant of a compound

offense but acquitted the defendant on all predicate offenses. Dunn, 284

U.S. at 391–92, 52 S. Ct. at 190, 76 L. Ed. at 358.          In Dunn, the

government charged Dunn with “maintaining a common nuisance by

keeping for sale at a specified place intoxicating liquor,” “unlawful

possession of intoxicating liquor,” and “unlawful sale of such liquor.” Id.

at 391, 52 S. Ct. at 190, 76 L. Ed. at 358.         The jury acquitted the

defendant of the possession and sale counts, but convicted him of

maintaining a nuisance. Id. at 391–92, 52 S. Ct. at 190, 76 L. Ed. at

359.     As is apparent, the case involved a claim of compound

inconsistency. See id. Nonetheless, the Supreme Court in Dunn upheld

the conviction on the compound felony. Id. at 394, 52 S. Ct. at 191, 76

L. Ed. at 359. The Supreme Court offered two rationales in support of its

decision.

       At the outset, the Dunn Court noted that if the case had been tried

in two separate trials, the first trial would have no res judicata effect in

the second proceeding. Id. at 393, 52 S. Ct. at 190, 76 L. Ed. at 358–59.

Therefore, the Court reasoned, there should be no res judicata effect
                                        8

when the counts just happen to be part of a single indictment considered

by a jury in a single proceeding. Id.

       Next, the Dunn Court justified the result on another ground.

According to the Court, the acquittal on the possession charge should be

interpreted merely as the assumption of a power that the jury had no

right to exercise, but was disposed to do so through lenity. Id. While

recognizing that an inconsistent verdict could be based upon motivation

other than lenity—for instance, as a result of compromise or of a mistake

on the part of the jury—the Court reasoned that it could not speculate

regarding these matters. Id. at 393–94, 52 S. Ct. at 190–91, 76 L. Ed. at

359.    As a result, the Dunn Court adopted what amounted to an

irrebuttable presumption that the jury was engaged in an act of lenity

when it acquitted the defendant of the possession charge, even though

the Court recognized that the jury verdict could have been based on

other factors. See id.

       Justice Butler dissented in Dunn. According to Justice Butler, the

jury’s determination of not guilty on the possession charge amounted to

a final determination of the possession element in all charges.     Id. at

406–07, 52 S. Ct. at 195–96, 76 L. Ed. at 365–66 (Butler, J., dissenting).

Justice Butler thought the inference that the jury made a mistake was

preferred over the notion that the jury assumed a power that it could not

lawfully assert, namely, lenity. Id.

       Subsequent to Dunn, the Supreme Court revised its res judicata

doctrine. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d

469 (1970), and Sealfron v. United States, 332 U.S. 575, 68 S. Ct. 237,

92 L. Ed. 180 (1948), the Supreme Court concluded that a finding of fact

in a prior judicial proceeding was binding in a subsequent criminal trial.

Ashe, 397 U.S. at 443–44, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475–76;
                                     9

Sealfron, 332 U.S. at 578, 68 S. Ct. at 239, 92 L. Ed. at 184. Because

the res judicata rationale in Dunn was undermined by subsequent legal

developments, a number of lower federal courts began to drift away from

strict adherence to Dunn. See, e.g., United States v. Brooks, 703 F.2d

1273, 1278–79 (11th Cir. 1983); United States v. Bailey, 607 F.2d 237,

245 (9th Cir. 1979); United States v. Hannah, 584 F.2d 27, 28–30 (3d Cir.

1978). It seemed that the law of inconsistent verdicts might be evolving

away from the unqualified Dunn rule.

       The prospect of a modification of the Dunn approach was put to

rest in Powell. Powell, 469 U.S. at 69, 105 S. Ct. at 479, 83 L. Ed. 2d at

471.   In Powell, the defendant was charged with fifteen violations of

federal law, including “conspiring . . . ‘to knowingly and intentionally

possess with intent to distribute cocaine,’ ” “possession of a specific

quantity of cocaine with intent to distribute,” and “using the telephone in

‘committing and in causing and facilitating’ certain felonies—‘conspiracy

to possess with intent to distribute and possession with intent to

distribute cocaine.’ ” Id. at 59–60, 105 S. Ct. at 474, 83 L. Ed. 2d at 465

(quoting federal indictment). The jury acquitted Powell on the first two

counts of conspiracy to distribute and possession with intent to

distribute, but convicted her of using the telephone in connection with

these felonies. Id. at 60, 105 S. Ct. at 474, 83 L. Ed. 2d at 465.

       The Supreme Court reaffirmed the approach in Dunn and upheld

the verdict. Id. at 69, 105 S. Ct. at 479, 83 L. Ed. 2d at 471. The Powell

Court recognized that the res judicata rationale of Dunn was no longer

applicable.   Id. at 64, 105 S. Ct. at 476, 83 L. Ed. 2d at 468.

Nonetheless, the Powell Court concluded that the approach in Dunn

remained good law. Id.
                                           10

        The first reason offered by the Powell Court for the continued

application of the Dunn rule was that it was “unclear” whether the

defendant was in fact harmed by the inconsistent verdict. Id. at 65, 105

S. Ct. at 476–77, 83 L. Ed. 2d at 468–69. While the Powell Court noted it

was possible that the jury made an error in convicting the defendant, it

was “equally possible that the jury, convinced of guilt, properly reached

its conclusion on the compound offense, and then through mistake,

compromise, or lenity, arrived at an inconsistent conclusion on the lesser

offense.”     Id.   Because it was “unclear whose ox has been gored,” the

Powell Court found no basis for providing the defendant with relief on

appeal. Id. at 65, 69, 105 S. Ct. at 477, 479, 83 L. Ed. 2d at 469, 471.

        Next, the Powell Court reasoned that individualized challenges to

jury verdicts designed to ferret out the basis of the inconsistency would

be “imprudent” and “unworkable.”                Id. at 66, 105 S. Ct. at 477, 83

L. Ed. 2d at 469. The Powell Court reasoned that any attempt to divine

the reason for the inconsistent verdict would “be based either on pure

speculation, or would require inquiries into the jury’s deliberations that

courts generally will not undertake.” Id.

        Finally, the Powell Court concluded that the remedial scheme

afforded to defendants following a guilty verdict was sufficient protection

to guard against juries that would convict out of passion or prejudice. Id.

at 67, 105 S. Ct. at 478, 83 L. Ed. at 470. The Powell Court reasoned

that by requiring the government to convince jurors at trial and judges

on appeal of the defendant’s guilt and the sufficiency of the evidence to

support the verdict, a convicted defendant was sufficiently protected

against juror abuse. Id.

        The Powell Court emphasized, however, that its decision was not

based    on     federal   constitutional    considerations,   but   only   on   its
                                    11

“supervisory powers over the federal criminal process.”     Id. at 65, 105

S. Ct. at 477, 83 L. Ed. 2d at 469. Consequently, we are free to accept or

reject the Powell approach in state criminal proceedings.

      Powell and Dunn, of course, involve criminal proceedings.        It is

interesting to note, however, that the approach of the United States

Supreme Court to inconsistent verdicts in criminal cases differs from its

approach in civil cases. While the law is not entirely clear in the civil

context, see, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 804–06,

106 S. Ct. 1571, 1576–77, 89 L. Ed. 2d 806, 814–15 (1986) (Stevens, J.,

dissenting), it appears that the United States Supreme Court is more

likely to intervene to prevent jury inconsistency in civil cases than in the

criminal context.   See generally Alexander M. Bickel, Comment, Judge

and Jury—Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev.

649, 654 (1950) (stating there is no civil equivalent to Dunn to prevent

upsetting inconsistent civil verdicts) [hereinafter Bickel]; Shaun P.

Martin, Rationalizing the Irrational: The Treatment of Untenable Federal

Civil Jury Verdicts, 28 Creighton L. Rev. 683, 694–98 (1995) (discussing

various measures federal courts take to cure inconsistencies).

      C. Approach of State Courts to Compound Inconsistency in

Jury Verdicts in Criminal Cases.

      1. Majority state court view regarding compound inconsistency.

The substantial majority of state courts that have considered the

question of inconsistent jury verdicts in criminal cases involving

compound inconsistencies have followed the approach of the United

States Supreme Court in Powell and Dunn. See, e.g., People v. Frye, 898

P.2d 559, 569–70 (Colo. 1995); People v. Jones, 797 N.E.2d 640, 644–47

(Ill. 2003); Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010); State v.

Brown, 565 A.2d 1035, 1039–40 (N.H. 1989).             These state courts
                                     12

generally break no new ground but restate the rule and reasoning in

Dunn and Powell. The fact that a marked majority of state court cases

adopt Dunn and Powell, of course, is not determinative on the Iowa law

question presented in this case as the persuasiveness of authority is not

determined by the pound, but by the quality of the analysis.

      2. Minority state court view regarding compound inconsistency.

Several state courts have elected not to follow the approach of the United

States Supreme Court in Dunn and Powell.        A review of cases in the

minority state court jurisdictions is helpful in identifying some of the

considerations that may have a bearing on the outcome in this case.

      More than a decade prior to Powell, the Alaska Supreme Court

decided DeSacia. DeSacia, 469 P.2d at 381. Unlike this case, DeSacia

involved a factual inconsistency in which a defendant charged with two

counts of manslaughter—one count for each of two victims killed in a car

accident—was convicted on one count but acquitted on another. See id.

at 370. The DeSacia court recognized that the res judicata rationale of

Dunn was no longer good law.          Id. at 375.   With respect to the

presumption of lenity, the DeSacia court emphasized:

      [T]he truth is simply that we do not know, nor do we have
      any way of telling, how many inconsistent verdicts are
      attributable to feelings of leniency, to compromise, or, for
      that matter, to outright confusion on the part of the jury.

Id. at 377.   Rejecting the presumption of lenity in Dunn, the DeSacia

court held that an inconsistent verdict was infected with legal error and

could not be affirmed. Id. at 378.

      With respect to remedy, however, the DeSacia court did not provide

the defendant with an unqualified victory. The DeSacia court recognized

that under double-jeopardy principles, the defendant could not be retried

on the charge for which he was acquitted.      Id. at 379.     The DeSacia
                                      13

court, however, held that the defendant could be retried on the charge

that resulted in a conviction. Id. at 381. The DeSacia court reasoned

that double jeopardy did not apply and that principles of collateral

estoppel did not bar retrial on the ground that such a result would be

unfair to the state. Id. at 379–81.

      A decade after DeSacia, the New York Court of Appeals decided

People v. Tucker, 431 N.E.2d 617 (N.Y. 1981).          In Tucker, the court

considered a case in which a jury convicted the defendant on two counts

of robbery and one count of possession of a loaded gun, but acquitted

him on two other counts of robbery. Tucker, 431 N.E.2d at 617. The

Tucker court affirmed the convictions on the ground that the verdicts

were not legally inconsistent. Id. at 620–21. That court observed that

reversal on grounds of inconsistent verdicts is appropriate only if

“acquittal on one crime as charged to the jury is conclusive as to a

necessary element of the other crime, as charged, for which the guilty

verdict was rendered.” Id. at 619. The Tucker court emphasized that the

inquiry   necessary    to   determine      whether   verdicts   were   legally

inconsistent, and therefore flawed, did not require inquiry into the jury

process but only an objective analysis of the jury charge to ascertain if

there was an irreconcilable conflict. Id.

      In Brown, the Florida Supreme Court followed the approach

outlined in Tucker in considering whether a conviction of felony murder

could stand when the defendant was acquitted of the felonies upon

which the felony murder was based. Brown, 959 So. 2d at 219–20. The

court concluded that the felony-murder conviction could not stand. Id.

at 221, 223. The court explained that verdicts “ ‘in which an acquittal on

one count negates a necessary element for conviction on another count’ ”

were not tolerated in Florida courts. Id. at 220 (quoting Gonzalez, 440
                                       14

So. 2d at 515). The Brown majority also reasoned that the State, not the

defendant, bears the burden “of ensuring parallel verdict forms for legally

interlocking counts.” Id. at 223.

      Most recently, the Supreme Court of Maryland has considered the

problems posed by inconsistent verdicts. In Price v. State, 949 A.2d 619

(Md. 2008), a jury found the defendant not guilty on all drug-trafficking

charges, but found him guilty of possessing a firearm “during and in

relation to a drug-trafficking crime.”        Price, 949 A.2d at 622.    The

Maryland Supreme Court, finding the verdicts inconsistent, concluded

that the guilty verdict was infected with legal error and could not be

sustained. Id. at 630.

      In reaching its conclusion, the court in Price noted that in civil

cases, Maryland law did not tolerate inconsistent verdicts. Id. at 628–29.

If inconsistent verdicts were not tolerated in the civil context, the Price

court observed, the case was even stronger in the context of criminal law

in which the law affords greater procedural protections for a defendant

than is given to either side of a civil trial. Id. at 630.

      In sum, the majority of state cases simply adopt the approach of

Dunn and Powell, but a significant minority distinguishes between

factual and legal inconsistency and regard inconsistencies resulting from

conviction of a compound felony and acquittal on the underlying

predicate felony as fatally flawed.

      D. Iowa     Case    Law    Related    to   the   Issue   of   Compound

Inconsistency in Jury Verdicts in Criminal Cases. This court has had

only one occasion to consider a question involving a claim of compound

inconsistency in a jury verdict in a criminal case. In State v. Fintel, 689

N.W.2d 95 (Iowa 2004), the defendant was charged with conspiracy to

manufacture a controlled substance and manufacturing a controlled
                                          15

substance. Fintel, 689 N.W.2d at 100. The jury acquitted the defendant

on the manufacturing charge, but convicted him on the conspiracy

charge.       Id. at 100.      The defendant appealed, claiming that the

inconsistent jury verdict required reversal. Id.

       We affirmed the conspiracy conviction. Id. at 101. We noted that

the case did not involve a true inconsistency as one could conspire to

manufacture a controlled substance without completing the offense of

manufacturing. Id. at 97, 101. In its analysis, however, the court did

not rely upon Powell or Dunn, but instead referred to Hoffman v. National

Medical Enterprises, Inc., 442 N.W.2d 123, 126–27 (Iowa 1989), a civil

matter often cited for the proposition that jury consistency is required.

See id. at 101. The Fintel court noted that the test for inconsistency in

civil cases asks whether the verdict is “so logically and legally

inconsistent as to be irreconcilable within the context of the case.” Id.

       Fintel does not control the outcome here. While Fintel suggestively

employed the standard used in civil cases for determining inconsistency,

no inconsistency was found under the civil standard. See id. It was,

therefore, not necessary to determine whether a defendant in a criminal

case faced a higher hurdle to obtain relief on inconsistency grounds than

in a civil case. See id. Further, even if a verdict in a criminal case was

found to be inconsistent, the issue of appropriate remedy was not

addressed in Fintel and remains an open question. 3 See id.

       While the standards in a civil case for dealing with inconsistent

verdicts are not necessarily determinative in this criminal case, they may

       3The   Iowa Court of Appeals has, on at least two occasions, considered the
question of the remedy for inconsistent jury verdicts in a criminal case. In State v.
Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App. 1996), the court said that an
inconsistency does not require reversal if the inconsistency resulted from the jury’s
exercise of lenity. In State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct. App. 1995), the
court adopted the approach of Dunn and Powell.
                                      16

nonetheless be instructive. See State v. Mumford, 338 N.W.2d 366, 370–

71 (Iowa 1983). Iowa Rule of Civil Procedure 1.934 governs treatment of

inconsistent verdicts in civil cases. Of particular relevance is a provision

precluding the court from ordering judgment when special interrogatories

are inconsistent with each other and at least one special interrogatory is

inconsistent with the general verdict. See Iowa R. Civ. P. 1.934. When

this occurs, the court may send the jury back for further deliberation or

order a new trial. Id. Thus, in a civil case, a legally inconsistent jury

verdict in a multiple-count case cannot establish the basis of a civil

judgment. See Clinton Physical Therapy Servs., P.C. v. John Deere Health

Care, Inc., 714 N.W.2d 603, 609, 614 (Iowa 2006) (concluding that, once

the jury is discharged, inconsistent verdicts in a civil case lead to

reversal of judgment and remand for a new trial).

      E. Academic Commentary on Compound Inconsistent Jury

Verdicts in Criminal Cases. There is a body of academic commentary

on the question of proper treatment of inconsistent verdicts in criminal

cases generally. There have been a number of somewhat dated pieces

that tend to support the Supreme Court’s approach. See, e.g., Bickel, 63

Harv. L. Rev. at 651–52 (1950); Chad W. Coulter, Comment, The

Unnecessary Rule of Consistency in Conspiracy Trials, 135 U. Pa. L. Rev.

223, 225–26 (1986) [hereinafter Coulter]. These commentators tend to

emphasize the sanctity of juries in our system of criminal justice and the

undesirability   of   seeking   to   determine   the   underlying   cause   of

inconsistency in jury verdicts.        Bickel, 63 Harv. L. Rev. at 651

(characterizing the review of a jury verdict as a radical encroachment on

the province of the jury); Coulter, 135 U. Pa. L. Rev. at 236–37 (“The

Dunn case represents a practical and just compromise between the

‘jury’s role in seeing that the individual gets justice with mercy’ and ‘the
                                    17

important federal interest in the enforcement of the criminal law.’ ”

(quoting Bickel, 63 Harv. L. Rev. at 655 (first quote); Standefer v. United

States, 447 U.S. 10, 24, 100 S. Ct. 1999, 2008, 64 L. Ed. 2d 689, 700

(1980) (second quote)).

      More recent commentary, however, has been more critical.         The

leading commentator has characterized the Supreme Court’s approach to

inconsistent verdicts as “distressing.” See Eric L. Muller, The Hobgoblin

of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.

Rev. 771, 834 (1998) [hereinafter Muller]. According to this authority,

while we cannot do the equivalent of throwing open the hood and looking

at the engine of jury deliberations, we should nonetheless not tolerate

obvious jury error. Id. The commentator proposes a number of possible

solutions to the general problem of inconsistent jury verdicts, including

harmless error analysis, refusal to accept an inconsistent verdict, and

retrial at the option of the defendant. Id. at 821–34.

      Another prominent academic has observed that the message in

Dunn is, it is “[b]etter that ten innocent defendants be convicted than

that ten guilty defendants be denied the boon of unlawful jury

nullification.” Albert W. Alschuler, The Supreme Court and the Jury: Voir

Dire Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi.

L. Rev. 153, 213 (1989) [hereinafter Alschuler].         The commentary

questions a rationale in Powell—namely, that the government would have

no recourse under double-jeopardy principles if the inconsistent guilty

verdict were vacated—as imposing an improper penalty for application of

double-jeopardy principles. Id. at 213. Further, it is suggested that it

makes no sense to impose extensive and cumbersome front-end controls

on the trial process and then have no controls on the back end when the

jury produces an inconsistent verdict. Id. at 154–55, 229.
                                            18

      A third academic critic characterizes as “surprising” the notion in

Dunn that a government-sanctioned decision maker is entitled to

“ ‘indulge’ in ‘carelessness’ and other ‘vagaries.’ ”             Andrew D. Leipold,

Rethinking Jury Nullification, 82 Va. L. Rev. 253, 280 (1996) (quoting

United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 135, 88

L. Ed. 48, 50–51 (1943)). The critic also observes that the approach in

Dunn deprives the defendant of valuable evidence “that the jury failed to

find proof of each element of the crime beyond a reasonable doubt,

thereby increasing the risk of an erroneous conviction,” and that the

potential   for   a     compromise     verdict      under    Dunn      is   “particularly

troublesome.” Id. at 279 n.99, 280.

      These more recent critics find a foundation in an older article

written by a prosecutor, Steven Wax. Wax, 24 N.Y.L. Sch. L. Rev. at 738.

In the article, Wax asserts that a strong argument can be made that

inconsistent verdicts are incompatible with the notion of guilt beyond a

reasonable doubt. Id. Like the minority of state courts, Wax notes that

“[t]he assumption by the proponents of the Dunn position that most

inconsistent verdicts are benign acts on the jury’s part is just that—an

assumption.” Id. at 739. What also may be at work, according to Wax,

includes    confusion,        compromise,         enforcement     of    public     safety,

misunderstanding         of   a   charge,    or    what     Wax   calls     “the   gestalt

perspective.”     Id.   Wax thus suggests that, when an acquittal of one

charge is conclusive as to an element which is necessary to conviction on

another charge, the conviction should be reversed. Id. at 740.

      In sum, while the academic literature on inconsistent verdicts is

not extensive and is mixed in its conclusions, a number of observers

regard Dunn and Powell as flawed, particularly in the context of legal
                                     19

inconsistency caused by conviction of a compound felony and acquittal of

the potential underlying predicate felony.

      F. Determination       of    Proper    Approach      to    Compound

Inconsistent Jury Verdicts Under Iowa Law.

      1. Validity of jury verdict involving compound inconsistency. After

review of the applicable precedents and authorities, we decline to follow

the approach of Dunn and Powell and conclude that, in a case involving

conviction of a compound felony when the defendant is acquitted of the

underlying predicate crime, the conviction cannot stand. We reach our

conclusion for several reasons.

      If all inconsistent verdicts were the result of lenity with respect to

the acquittals, and rationality with respect to the convictions, the

approach in Dunn and Powell would make sense.             But, we think it

obvious that this is not the case. At the outset, it is equally possible that

an inconsistent verdict is the product of animus toward the defendant

rather than lenity.   See Muller, 111 Harv. L. Rev. at 798, 834.         The

presumption of lenity seems particularly doubtful if the jury convicts a

defendant of the more serious component offense but acquits the

defendant on predicate felonies. Further, aside from the animus-lenity

coin, the inconsistent verdict may be a result of mistake, confusion, or

compromise. See DeSacia, 469 P.2d at 377.

      Because we do not accept the presumption of lenity in cases

involving inconsistent verdicts, we place greater weight than Powell and

Dunn on the lack of reliability of jury verdicts when compound

inconsistency is present. The purpose of our criminal justice system is

to find the truth.    When a jury convicts a defendant of a compound

offense, but acquits the defendant on a predicate offense, our confidence

in the outcome of the trial is undermined.
                                      20

      In constitutional terms, a jury verdict involving compound

inconsistency insults the basic due process requirement that guilt must

be proved beyond a reasonable doubt. See In re Winship, 397 U.S. 358,

364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970). When a jury

returns a compound inconsistency, a legal error has occurred. There is a

substantial possibility that the jury has simply made an error, engaged

in compromise, or engaged in some other process that is inconsistent

with the notion of guilt beyond a reasonable doubt.

      Finally, we are concerned about the perceptions of the criminal

justice system when inconsistent verdicts are allowed to stand. We are

concerned that allowing a potentially long prison term arising from a

compound felony to stand when a defendant has been found not guilty of

predicate offenses will have a corrosive effect on confidence in the

criminal justice system.     When liberty is at stake, we do not think a

shrug of the judicial shoulders is a sufficient response to an irrational

conclusion. We are not playing legal horseshoes where close enough is

sufficient.   It is difficult to understand why we have a detailed trial

procedure, where the forum is elaborate and carefully regulated, and

then simply give up when the jury confounds us. See Alschuler, 56 U.

Chi. L. Rev. at 154, 229–33; cf. Richard L. Lippke, The Case for Reasoned

Criminal Trial Verdicts, 22 Can. J. L. & Jurisprudence 313, 318–19

(2009). It is also difficult to justify that we would afford less protection in

a criminal matter than in a civil matter involving money damages. See

Price, 949 A.2d at 626–30.

      In departing from Dunn and Powell in this case, we do not open a

Pandora’s box by probing into the sanctity of jury deliberations.         Our

analysis focuses solely on the legal impossibility of convicting a

defendant of a compound crime while at the same time acquitting the
                                           21

defendant of predicate crimes. Making such a legal determination does

not require the court to engage in highly speculative inquiry into the

nature of the jury deliberations.            See Tucker, 431 N.E.2d at 619–21

(refusing to speculate about jury motivation, but looking to objective

facts to assess whether the jury verdict is self-contradictory). We focus

solely on the elements of the crime, the jury verdicts, and the

instructions in the case.

       We also accept the notion that any potential remedy should be

available only when the jury verdicts are truly inconsistent or

irreconcilable. A reviewing court must carefully examine the pleadings

and the instructions to ensure that the jury verdicts are so inconsistent

that they must be set aside. See, e.g., Cochran v. State, 220 S.E.2d 477,

478 (Ga. Ct. App. 1975) (emphasizing the need to carefully examine

crimes to determine whether they contain different elements, thereby

showing whether the verdicts are truly inconsistent or repugnant);

Commonwealth v. Austin, 906 A.2d 1213, 1219–21 (Pa. Super. Ct. 2006)

(discussing how apparently inconsistent verdicts may not be legally

inconsistent).

       Applying these principles to the case at hand, we find that the jury

verdicts in this case are truly inconsistent.              A jury simply could not

convict Halstead of the compound crime of assault while participating in

a felony without finding him also guilty of the predicate felony offense of

theft in the first degree. 4       There is simply no exit from this air-tight

conundrum. As a result, Halstead’s conviction of the compound felony

in this case must be reversed.

       4The jury instructions at Halstead’s trial provided that only theft in the first

degree could serve as the predicate offense for the assault while participating in a felony
count. Due to this, the State conceded at oral argument that Halstead’s conviction for
second-degree robbery could not serve as the predicate offense for the compound felony.
                                            22

       2. Application of double jeopardy/collateral estoppel to potential

retrial.   Having determined that the compound conviction in this case

cannot stand, we next confront whether the defendant may be retried on

remand. 5 It is clear under double-jeopardy principles that the defendant

may not be tried on the offenses for which he was acquitted.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23

L. Ed. 2d 656, 664–65 (1969).            The question arises, however, whether

Halstead may nonetheless be subject to retrial on the charge for which

he was found guilty, namely, the compound felony of assault while

participating in a felony. Compare DeSacia, 469 P.2d at 379–81 (allowing

retrial on offense when conviction was obtained in a prior trial), with

Smith v. State, 985 A.2d 1204, 1215 n.10 (Md. 2009) (citing Ferrell v.

State, 567 A.2d 937, 940 (Md. 1990)) (refusing to allow retrial on double-

jeopardy grounds).

       We conclude that the defendant may not be retried on the

underlying felony.        The Supreme Court has made it clear that the

doctrine of collateral estoppel applies against the government as part of

double jeopardy. Ashe, 397 U.S. at 442–46, 90 S. Ct. at 1193–95, 25

L. Ed. 2d at 474–76.         Double-jeopardy doctrine prohibits postacquittal

appeal by the government that, if successful, would result in a second

trial or would necessitate further proceedings “ ‘ “devoted to the

resolution of factual issues going to the elements of the offense

charged” ’ ” before a second trier of fact.            Smalis v. Pennsylvania, 476

U.S. 140, 145–46, 106 S. Ct. 1745, 1749, 90 L. Ed. 2d 116, 122 (1986)


       5At  the trial in this case, there was no effort to resolve the inconsistent verdict.
We therefore have no occasion to consider whether the trial court may ask a jury to
reconsider an inconsistent verdict before the jury is discharged. See Mumford, 338
N.W.2d at 369–72; State v. Peters, 855 S.W.2d 345, 349–50 (Mo. 1993); see also Heinze
v. State, 42 A.2d 128, 130 (Md. 1945).
                                   23

(quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 570, 97

S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 650 (1977)). As is apparent from

Ashe and Smalis, the doctrine of collateral estoppel is part of double-

jeopardy doctrine. Under collateral estoppel, a conclusive determination

of a jury cannot be retried in a separate successive proceeding. Here, it

is clear that the jury has acquitted the defendant of the underlying

predicate offenses. We find that collateral estoppel bars any subsequent

retrial on the compound felony charge because the factual issues of guilt

on the predicate felonies have been authoritatively determined.

      IV. Conclusion.

      For the above reasons, Halstead’s conviction of assault while

participating in a felony is reversed, and his sentence is vacated. The

matter is remanded to the district court for entry of a judgment of

acquittal on the compound felony and for resentencing as a result of

Halstead’s unchallenged convictions on theft in the fifth degree and

robbery in the second degree.

      DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED IN PART, SENTENCE VACATED, AND

CASE REMANDED FOR RESENTENCING.
