                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                         January 7, 2009

          STATE OF TENNESSEE v. JOEY DEWAYNE THOMPSON

                  Appeal by Permission from the Court of Criminal Appeals
                              Criminal Court for Knox County
                             No. 73384 Ray L. Jenkins, Judge


                       No. E2006-02093-SC-R11-CD - Filed May 6, 2009



WILLIAM C. KOCH , JR., J.,concurring.

        I concur with the Court’s decision to affirm Mr. Thompson’s conviction and sentence for
voluntary manslaughter and to reverse his conviction for second degree murder. I write separately
to emphasize my conclusion that it is the doctrine of direct estoppel, not the doctrine of collateral
estoppel, that prevents the State from proceeding against Mr. Thompson on the felony murder
charge.

        The difference between the doctrine of direct estoppel and the doctrine of collateral estoppel
is more than semantic. The doctrine of direct estoppel “prevents a party from relitigating a fact
which was already determined against it in ‘a decision that finally disposes of a part of a claim on
the merits but does not preclude all further action on the remainder of the claim; issues common to
both parts of the claim are precluded, even though new issues remain to be decided.’” State v.
Huskey, 66 S.W.3d 905, 928 (Tenn. Crim. App. 2001) (quoting United States v. Bailin, 977 F.2d
270, 276 (7th Cir. 1992)). On the other hand, the doctrine of collateral estoppel prevents a party
from relitigating in a subsequent action issues that were actually raised and determined in an earlier
action. State v. Scarbrough, 181 S.W.3d 650, 654-55 (Tenn. 2005).

        Both the doctrine of direct estoppel and the doctrine of collateral estoppel can be applied in
criminal proceedings. Ascertaining which doctrine should be applied depends on the facts. When
separate proceedings are involved, as they were in Ashe v. Swenson, 397 U.S. 436 (1970) and State
v. Vickers, 985 S.W.2d 1 (Tenn. Crim. App. 1997), applying the doctrine of collateral estoppel is
proper. However, in cases like this one which involve a retrial, the doctrine of collateral estoppel
should not be applied for the simple reason that a retrial cannot be “collateral” because it is a
continuation of the first trial. In the context of a retrial, the doctrine of direct estoppel more
appropriately characterizes the estoppel principles that should be brought to bear. United States v.
Shenberg, 89 F.3d 1461, 1478 (11th Cir. 1996); United States v. Bailin, 977 F.2d at 276-77;
Commonwealth v. Williams, 725 N.E.2d 217, 220 n.4 (Mass. 2000) (citing Restatement (Second) of
Judgments § 17 cmt. c, at 149-50); see also Peter J. Henning, Precedents in a Vacuum: The Supreme
Court Continues to Tinker with Double Jeopardy, 31 Am. Crim. L. Rev. 1, 13 n.66 (1993); James
P. Fleissner, Constitutional Criminal Procedure, 48 Mercer L. Rev. 1485, 1507 (1997).

        The law delights in accuracy and precision. The fact that a number of United States Courts
of Appeals have blurred the distinction between the doctrine of direct estoppel and the doctrine of
collateral estoppel in criminal cases provides little justification for us to ignore our own decisions
that have recognized and preserved this distinction. Accordingly, I would hold that the doctrine of
direct estoppel prevents the State from retrying Mr. Thompson on the felony murder charge because
he was acquitted of the predicate offense in the first trial.



                                                       ______________________________
                                                       WILLIAM C. KOCH, JR., JUSTICE




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