        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 25, 2010 Session

            STATE OF TENNESSEE v. GUSSIE WILLIS VANN

           Interlocutory Appeal from the Circuit Court for McMinn County
             Nos. 93-687; 93-690; 93-691  Donald P. Harris, Senior Judge


                 No. E2009-01721-CCA-R9-CD - Filed March 11, 2011


Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the State appeals the trial
court’s order denying jury instructions on lesser included offenses at the Defendant Gussie
Willis Vann’s retrial for felony murder. See T.C.A. §39-13-202(a)(2) (1991). The
Defendant was originally convicted by a McMinn County jury of felony murder committed
in the perpetration of aggravated rape and two counts of incest. He was sentenced to death
plus six years’ incarceration. In affirming his convictions on direct appeal, this court, see
State v. Gussie Willis Vann, No. 03C01-9602-CC-00066, 1997 WL 309320 (Tenn. Crim.
App., at Knoxville, June 10, 1997), and the Tennessee Supreme Court, see State v. Vann, 976
S.W.2d 93 (Tenn. 1998), rejected the Defendant’s claim that the trial court erred by failing
to instruct the jury on the lesser included offenses of felony murder. The Defendant
subsequently filed a petition for post-conviction relief, and the post-conviction court ordered
a new trial on grounds unrelated to the issue presented in this appeal. Prior to retrial, the
Defendant moved to dismiss his indictment and bar instructions on the lesser included
offenses of felony murder arguing, among other things, (1) that principles of double
jeopardy, collateral estoppel, and judicial estoppel precluded the State from prosecuting the
Defendant on any lesser included offense of felony murder because the “explicit statements”
of both this court and the Tennessee Supreme Court “on direct appeal that the trial record
was ‘devoid of evidence’ of lesser included offenses were factual determinations, necessary
to valid final judgments, from which the government is prohibited from seeking an
inconsistent determination” and (2) that “the [original] trial judge’s refusal to instruct on such
lesser included offenses was a qualitative determination of the evidence, tantamount to an
acquittal and triggering traditional double jeopardy and res judicata [as] to those charges.”
Following a hearing, the trial court agreed in part with the Defendant and actually barred
retrial on any lesser included offenses of felony murder. The State sought and we granted
Rule 9 review to determine “whether constitutional double jeopardy protections bar at the
trial the inclusion of lesser included offenses of first degree felony murder.” Upon our
review, we reverse the decision of the trial court and remand for proceedings consistent with
this opinion.
             Tenn. R. App. P. 9; Judgment of the Circuit Court Reversed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Jerry Sloan, Assistant District
Attorney General, for the Appellant, State of Tennessee.

Benjamin L. McGowan, Chattanooga, Tennessee, for the Appellee, Gussie Willis Vann.

                                         OPINION

       On July 30, 1992, the Defendant’s daughter, the eight-year-old victim in this case, was
found in her bedroom with a rope around her neck; she was not breathing. Despite the
paramedics’ attempts to revive the victim, she was pronounced dead upon her arrival at the
hospital. In 1994, the Defendant was tried by a jury, and the pertinent facts, as outlined in
State v. Vann are detailed below:

       Dr. Robert L. Martin, the attending emergency room physician, . . . [found that
       the] victim’s panties were removed and [that] a broken gold necklace fell onto
       the examination table. [The doctor] observed bruises on the victim’s neck and
       a slight tear at the opening of her vagina . . . . Dr. Martin described the
       victim’s anus as extremely dilated, with no muscle tone, indicating multiple
       episodes of anal penetration over a prolonged period of time . . . . Dr. Martin
       testified that he did not discover a “hangman’s fracture” on the victim’s neck,
       indicating the victim had been strangled rather than hanged.

              Also admitted into evidence was a statement given by the [D]efendant
       to Tennessee Bureau of Investigation Agent Richard Brogan in which the
       [D]efendant said that from about 4:30 p.m. on the afternoon of July 30, he, his
       wife, and their four children (including the victim) had watched videotaped
       movies on their television. They had eaten popcorn as they watched the
       movies. Later in the evening the victim had gone into her bedroom. The
       [D]efendant had gone to a local convenience store and purchased cigarettes
       and two pieces of “Chico” candy. Upon returning home, he undressed to take
       a shower and then heard his wife screaming from the other room. He ran into
       the hallway and saw his wife carrying the victim in her arms. After taking the
       victim into his arms and determining that she was not breathing, the
       [D]efendant told his wife to go to a neighbor’s house to call 911. The

                                             -2-
[D]efendant began performing CPR on the victim. Shortly thereafter, Bernice
Vann returned to the residence, along with a neighbor. Bernice Vann obtained
a blanket for the [D]efendant since he had not been able to dress before
beginning CPR on the victim.

       ....

       Jerry Tate, a criminal investigator with the McMinn County Sheriff’s
Department, testified that he had been dispatched to the emergency room to
investigate the purported suicide of the eight-year-old victim in this case.
Upon viewing her body, Tate noticed red marks around her neck, her severely
enlarged anus, the tear at the opening of her vagina, and blood near the
victim’s vaginal opening. As a result of his observations, Tate asked Dr.
Martin to obtain rape kit samples from the victim’s body. Tate then obtained
verbal consent from Bernice Vann and the [D]efendant to visit their home and
investigate the victim’s death . . . . Approximately two weeks later, . . . Tate
obtained a warrant to search the Vann residence. During the ensuing search,
a pornographic videotape, various pornographic magazines, unopened
packages of condoms, a partially used jar of petroleum jelly, a rope tied into
a noose, and the victim’s dresser were seized. These items, along with the rape
kit samples from the victim, the items seized in the consent search, samples of
blood, saliva, pubic hair, head hair, and a penile swab obtained from the
[D]efendant’s person the morning after the victim’s death, and similar samples
obtained from Bernice Vann during the two weeks preceding the arrest, were
submitted to the Tennessee Bureau of Investigation (T.B.I.) for testing and
analysis.

       ....

       Raymond Depriest, a T.B.I. expert in serology, testified that his analysis
of a pair of jeans and a t-shirt believed to have been worn by the victim on the
day of the murder, a blue and white jumper, the victim’s underwear, two
packages of condoms taken from the [D]efendant’s home, and an anal swab
taken from the victim all proved negative for the presence of sperm, saliva, or
blood. However, his analysis of sheets taken from the victim’s bed revealed
the presence of semen stains which were consistent with the blood, saliva, and
semen samples taken from the [D]efendant.

       ....



                                       -3-
              John Mertens, an F[ederal] B[ureau of] I[nvestigation] agent
       specializing in DNA analysis[,] testified that the DNA profiles of the semen
       stains found on the victim’s bed sheet matched the DNA profile of the
       [D]efendant. The odds of finding another individual whose DNA profile
       matched that of the semen stains found on the sheet are one in ten thousand.

               The medical examiner for McMinn County, Dr. William Foree, Jr.,
       testified that he . . . observed blood both in the victim’s vaginal and anal areas.
       He also observed a laceration in the vaginal area, a contusion on her forehead,
       and abrasions on her lower extremities. He noted signs of asphyxiation, and
       based upon the angle of depression on the victim’s neck, concluded that the
       cause of death had been strangulation rather than hanging. Due to the
       markings on the victim’s neck, he further concluded that the strangulation had
       been accomplished from behind the victim.

               Dr. Ronald Toolsie, a pathologist at Bradley Medical Center, performed
       the autopsy and agreed with Dr. Foree that the cause of death had been
       strangulation. According to Dr. Toolsie, the quarter-inch depression in the
       victim’s neck indicated ligature strangulation consistent with the rope found
       in the defendant’s home. Torn muscles in the victim’s neck indicated that
       considerable force had been applied to strangle the victim. Dr. Toolsie also
       had found evidence of repeated sexual abuse. Based on his observation of a
       tear to the victim’s vaginal opening and fresh bruising on the inside of her
       vaginal wall, Dr. Toolsie concluded that the most recent abuse had occurred
       around the time of death. Dr. Toolsie said the victim’s anus had been dilated
       three or four times larger than normal, indicating she had suffered repeated
       anal penetration over some period of time . . . . Dr. Toolsie testified that he
       had found no material resembling popcorn in the victim’s stomach.

Vann, 976 S.W.2d at 97-99.

        Based on the above proof, the Defendant was convicted of felony murder and two
counts of incest. Id. at 99. Following the penalty phase, the jury imposed a sentence of death
for felony murder. Id. at 100.

       Following his unsuccessful direct appeal, the Defendant petitioned the trial court for
post-conviction relief. The post-conviction court granted a new trial based upon its
determination that the Defendant had been deprived of the effective assistance of trial
counsel. Prior to his retrial, the Defendant moved the trial court to dismiss his indictment for
felony murder, to bar the State from retrying him on any of the lesser included offenses of

                                               -4-
felony murder, and to preclude jury instructions on the lesser included offenses of felony
murder based on the language in the Tennessee Supreme Court’s opinion on direct appeal.
Following a hearing, the trial court agreed with the Defendant in part. In its written order,
the trial court concluded that the rulings of the trial and appellate courts during the
Defendant’s first trial and direct appeal “amount[ed] to an acquittal of any lesser included
offense of felony murder and the [D]efendant cannot be retried for these lesser offenses.” 1

       On appeal, the State claims that the trial court erred by “preclud[ing] the trial court
from instructing the jury at the retrial on any applicable lesser included offenses” of felony
murder. In response, the Defendant contends that his “retrial on any lesser included offense
of felony murder implicates and offends [principles of double jeopardy].” In support of his
double jeopardy claims, he presents two arguments. First, the Defendant contends that

        this [c]ourt’s and the Tennessee Supreme Court’s explicit statements on direct
        appeal that the trial record was ‘devoid of evidence’ of lesser included
        offenses were factual determinations, necessary to valid final judgments, from
        which the government is prohibited from seeking an inconsistent determination
        under the collateral estoppel extension of double jeopardy jurisprudence.

Secondly, the Defendant claims that “the trial judge’s refusal to instruct on such lesser
included offenses was a qualitative determination of the evidence, tantamount to an acquittal
and triggering traditional double jeopardy and res judicata [as] to those charges.”

        Our approach to the issues raised in this case will be to first determine the lesser
included offenses of felony murder as they existed at the time of the offense. Next, we must
separate the Defendant’s claim that principles of double jeopardy bar his retrial for any of
said lesser included offenses from his claim that the trial court should not instruct the jury
on retrial on any lesser included offenses. These are separate issues. Regarding the claim
of a double jeopardy bar, we have determined that principles of double jeopardy do not bar
retrial on the lesser included offenses. Accordingly, our next task will be to determine
whether jury instructions on applicable lesser included offenses are impermissible. This last
inquiry includes an examination of the doctrines of res judicata, collateral estoppel, and law




        1
          Although the court referred to “the ruling of the trial court,” it is unclear whether there was a request
to the original trial court to instruct the jury on lesser included offenses of felony murder. The State, in its
brief, states that neither party at the original trial requested instruction on the lesser included offenses of
felony murder. Defense counsel maintained to the trial court during the motion hearing, however, that “there
was a request from the defense at [the original] trial that lesser included offenses be charged on felony
murder. There was a refusal from the [original trial] [c]ourt to do that.”

                                                       -5-
of the case. Our final conclusion is that instructions at retrial on any applicable lesser
included offenses are not precluded by any previous action in the case.

                      I. Lesser Included Offenses of Felony Murder

       The crime in this case was committed in 1992. At that time, felony murder was
defined as a “reckless killing of another committed in the perpetration of, or attempt to
perpetrate” an enumerated felony. T.C.A. § 39-13-202(a)(2) (1991) (emphasis added). Thus,
the indictment charged that offense as well as all lesser included offenses. See Strader v.
State, 362 S.W.2d 224, 227 (Tenn. 1962) (“So now when one is put on trial on a single
charge of felony, he is also on trial for all its lesser included offenses, as the facts may be.”).
The trial judge was constrained to “charge all the law as to each [of the lesser included]
offenses” when the evidence, “upon any view the jury may take of it, permit[ted] an
inference of guilt as to such lesser included offenses.” Id. at 228; see also T.C.A. § 40-18-
110(a) (1991).

        The only lesser included offenses of felony murder recognized in Tennessee in 1992
were criminally negligent homicide and facilitation of felony murder. See T.C.A. §§
39-13-212(a) (1991) (defining criminally negligent homicide); 39-11-403 (defining
facilitation of a felony). At that time, the prevailing approach to determining lesser included
offenses was outlined in Howard v. State, 578 S.W.2d 83 (Tenn. 1979). In Howard, our
supreme court reasoned that “an offense is necessarily included in another if the elements of
the greater offense, as those elements are set forth in the indictment, include, but are not
congruent with, all the elements of the lesser.” Howard, 578 S.W.2d at 85. The Howard
approach was essentially an elements analysis.

        Accordingly, in State v. Gilliam, 901 S.W.2d 385 (Tenn. Crim. App. 1995), this court,
utilizing an elements analysis, held that second degree murder, which is and was then a
“knowing” killing, see T.C.A. § 39-13-210, was not a lesser included offense of felony
murder as it was proscribed at the time of the offense in the present case:

       “Reckless” is a lesser included mental state of “knowing”. When acting
       recklessly establishes an element, that element is also established if the
       defendant acted knowingly. Conversely, when acting knowingly establishes
       an element, that element is not established if the defendant acted only
       recklessly. Therefore, in order to find a defendant guilty of second-degree
       murder, an element not contained in first-degree felony murder (the mental
       element of “knowing”) must be established.




                                                -6-
Gilliam, 901 S.W.2d at 390-91(internal citations omitted). Gilliam also stated, essentially,
that voluntary manslaughter was not a lesser included offense of felony murder in 1990, the
time of Gilliam’s offense. Id. at 391.

        Reckless homicide, currently codified in Tennessee Code Annotated section 39-13-
215, was not proscribed until 1993, contrary to the notation in Gilliam. See 1993 Tenn. Pub.
Acts 306, § 2. But see Gilliam, 901 S.W.2d at 391. Accordingly, reckless homicide was not
an offense in 1992 when the offense in the present case was committed. For that reason, it
is not a lesser included offense in the present case. We note in passing that the offense of
involuntary manslaughter, once codified in Tennessee Code Annotated sections 39-2-221,
-222 (1982), was repealed in 1989, before the commission of the offense now before us.
1989 Tenn. Pub. Acts 591, §1.

       Pursuant to the felony murder statute in force in 1992, attempt to commit felony
murder was not a viable offense. State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996)
(“[T]he offense of attempted felony-murder does not exist in Tennessee.”).

        In conclusion, we determine that the legal lesser included offenses of felony murder
in l992 were criminally negligent homicide, see Gilliam, 901 S.W.2d at 390-91, and
facilitation of felony murder, see State v. Lewis, 919 S.W.2d 62, 67 (Tenn. Crim. App. 1995)
(noting that “virtually every time one is charged with a felony by way of criminal
responsibility for the conduct of another, facilitation of the felony would be a lesser included
offense”), overruled on other grounds by State v. Williams, 977 S.W.2d 101, 108 n.7 (Tenn.
1998).

                     II. Application of Principles of Double Jeopardy

       The double jeopardy clause of United States Constitution 2 and Article I, Section 10
of the Tennessee Constitution prohibit placing a person in jeopardy twice for the same
offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10.

       Three fundamental protections are encompassed in the principle of double
       jeopardy: (1) protection against a second prosecution after an acquittal; (2)
       protection against a second prosecution after conviction; and (3) protection
       against multiple punishments for the same offense. The policy underlying
       double jeopardy is that the State, with all of its resources, should not be able
       to make repeated attempts to convict an individual for an alleged offense,

       2
         The Double Jeopardy Clause was made applicable to the States through the Due Process Clause of
the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).

                                                 -7-
       thereby subjecting him to embarrassment, expense and ordeal and compelling
       him to live in a continuing state of anxiety and insecurity, as well as enhancing
       the possibility that even [when] innocent he may be found guilty.

State v. Thompson, 285 S.W.3d 840, 847-48 (Tenn. 2009) (citations and internal quotation
marks omitted). Here, the Defendant contends that the trial court acquitted him at his first
trial of any applicable lesser included offenses by failing or refusing to provide jury
instructions on these offenses. Consequently, he claims the instant case qualifies as a
“second prosecution after acquittal.” Therefore, this appeal concerns only the first principle
of double jeopardy.

        “The Double Jeopardy Clause is not an absolute bar to successive trials.” Justices of
Boston Mun. Ct. v. Lydon, 466 U.S. 294, 308 (1984). As a general rule, the Double Jeopardy
Clause does not preclude “the government from retrying a defendant who succeeds in getting
his first conviction set aside, through direct appeal or collateral attack, because of some error
in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (citing
United States v. Ball, 163 U.S. 662, 672 (1896) (permitting retrial following reversal of
conviction on direct appeal); United States v. Tateo, 377 U.S. 463, 464-66 (1964) (holding
retrial permissible when conviction declared invalid on collateral attack)); see State v. Harris,
919 S.W.2d 323, 328 (Tenn. 1996) (recognizing that “no constitutional provision prevents
retrial after a reversal for legal error” and discussing the “clean slate rule” in the context of
bifurcated capital prosecution and sentencing proceedings); State v. Campbell, 641 S.W.2d
890, 893 (Tenn. 1982) (“[W]here the defendant seeks and obtains the invalidation of the
judgment and dismissal is based on technical or procedural grounds, there is no former
jeopardy problem in retrial.”). Implicit within this general rule “is the concept of ‘continuing
jeopardy,’” a principle that applies “‘where criminal proceedings against an accused have not
run their full course.’” Lydon, 466 U.S. at 308 (quoting Price v. Georgia, 398 U.S. 323, 326-
29 (1970)). Finally, “the protection of the Double Jeopardy Clause by its terms applies only
if there has been some event, such as an acquittal, which terminates the original jeopardy.”
Richardson v. United States, 468 U.S. 317, 325 (1984) (citing Lydon, 466 U.S. at 308-10;
Price, 398 U.S. at 329).

       As previously explained, in the Defendant’s direct appeal, the Tennessee Supreme
Court concluded that the trial court’s failure to instruct on lesser included offenses was not
error because the record lacked evidence supporting those offenses. After the award of post-
conviction relief, the trial court, relying on that conclusion in the direct appeal, precluded
jury instructions on lesser included offenses at the Defendant’s retrial. Citing the United
States Supreme Court’s holding in Burks v. United States, 437 U.S. 1 (1978), the Defendant
claims that “an appellate court’s finding of insufficient evidence to convict on appeal from
a judgment of conviction is for double jeopardy purposes, the equivalent of an acquittal”and

                                               -8-
contends that the trial court’s submission of the case to the jury without instructions on lesser
included offenses equated to an implied acquittal of those offenses. The State argues,
without addressing Burks, that the Defendant “presented no authority on point in the trial
court in order to support his [double jeopardy] argument relative to lesser-included offenses.”

       In the Defendant’s direct appeal, our supreme court said:

                Reviewing the evidence in this record, we agree with the Court of
       Criminal Appeals that the trial court did not err in failing to give a jury
       instruction on second degree murder and facilitation of a felony. The evidence
       in this record establishes that the victim had been killed during the perpetration
       of a rape, or that the victim had died from an accidental choking on popcorn,
       or that the victim had committed suicide. The record in this case is devoid of
       evidence to support a jury charge on the offenses of second degree murder and
       facilitation of a felony. State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990);
       State v. King, 718 S.W.2d 241, 245 (Tenn. 1986). Therefore, failure to
       instruct the jury on these offenses was not error.

Vann, 976 S.W.2d at 100-01.

        In Burks, the Court held that, if upon appellate review it is determined that there was
insufficient evidence to convict, then the defendant must be acquitted, and the Double
Jeopardy Clause precludes a second trial. Burks, 437 U.S. at 18; see also State v. Maupin,
859 S.W.2d 313, 316 (Tenn. 1993); State v. Anderson, 985 S.W.2d 9, 17 (Tenn. Crim. App.
1997). The language from Vann relied upon by the Defendant was not speaking, however,
to the sufficiency of the convicting evidence. In Vann, the high court was merely applying
the rule for determining the factual justification for jury instructions on lesser included
offenses. See, e.g., Strader, 362 S.W.2d at 228-29. This judicial undertaking does not lead
to an adjudication on the legal sufficiency of the convicting evidence; neither Burks nor any
other case we have seen says otherwise. In other words, the ruling on lesser included
offenses in Vann does not equate to either an acquittal or conviction of such lesser offenses,
and accordingly, no “second” prosecution following an acquittal or conviction of such
offenses will occur via retrial; neither will the retrial implicate multiple punishments for the
same offense. Hence, principles of double jeopardy do not bar the inclusion of applicable
lesser offenses of felony murder.

       Integral to this determination, we have concluded that the trial court’s failure or
refusal to instruct the jury on lesser included offenses did not equate to an acquittal of such
offenses. In resolving whether a trial court’s action constitutes an acquittal, a reviewing
court “must determine whether the ruling of the judge, whatever its label, actually represents

                                               -9-
a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements
of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571
(1977). Obviously, the Defendant was not expressly acquitted of the lesser included offenses
by the jury or the trial court. Therefore, we are left to determine whether the trial court’s
refusal or failure to instruct on lesser included offenses of felony murder amounted to an
implied acquittal of those offenses upon retrial.

        As it is traditionally applied, the doctrine of implied acquittal bars retrial under the
Double Jeopardy Clause “when the first jury ‘was given a full opportunity to return a verdict’
on [the greater] charge and instead reached a verdict on the lesser charge.” Price, 398 U.S.
at 329 (quoting Green v. United States, 355 U.S. 184, 191 (1957)). “Only where the jury is
given the full opportunity to return a verdict either on the greater or, alternatively, on the
lesser included offense does the doctrine of implied acquittal obtain.” United States v. Reed,
617 F. Supp. 792, 800 (D.C. Md. 1985). “If no instructions are given on lesser included
offenses, the jury’s verdict is limited to whether the defendant committed the crime explicitly
charged in the indictment.” United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983).

        We do not view the trial court’s failure or refusal to instruct on lesser included
offenses as an acquittal by that court as to those offenses for the same reasons we expressed
above when concluding that our supreme court did not rule upon the legal sufficiency of the
convicting evidence. The issue was the propriety of jury instructions. So far as we can tell,
the trial court was neither asked to rule nor did it rule upon a motion of acquittal of lesser
included offenses. Furthermore, we see no basis for concluding that the jury acquitted the
Defendant of lesser included offenses. Nothing in the record suggests that it did. We note
that sequential or “acquittal first” jury instructions are and have been “the prevailing
practice” in Tennessee. State v. Hanson, 279 S.W.3d 265, 279 (Tenn. 2009). Under such
instructions, the jury would not have deliberated as to lesser included offenses because it
convicted the Defendant of the charged offense of felony murder.

          III. Application of Principles of Res Judicata, Collateral Estoppel,
                                  and Law of the Case

       Having determined that the State is not barred on retrial from pursuing a conviction
on any applicable lesser included offenses of felony murder, we now consider whether jury
instructions on lesser included offenses are otherwise foreclosed by the previous actions of
the courts in the Defendant’s case. The nature of this issue implicates the doctrines of res
judicata, collateral estoppel, and law of the case.

       In Massengill v. Scott, our supreme court summarized the related doctrines of res
judicata and collateral estoppel:

                                              -10-
              The doctrine of collateral estoppel or estoppel by judgment is an
       extension of the principle of res judicata, and is generally held to be applicable
       only when it affirmatively appears that the issue involved in the case under
       consideration has already been litigated in a prior suit between the same
       parties, even though based upon a different cause of action, if the
       determination of such issue in the former action was necessary to the judgment

....

                Res judicata bars a second suit between the same parties and their
       privies on the same cause of action as to all issues which were or could have
       been litigated in the former suit. Collateral estoppel operates to bar a second
       suit between the same parties and their privies on a different cause of action
       only as to issues which were actually litigated and determined in the former
       suit. . . . To sustain a plea of collateral estoppel it must be shown, inter alia,
       that the issue sought to be concluded not only was litigated in the prior suit but
       was necessary to the judgment in that suit.”

738 S.W.2d 629, 631-32 (Tenn. 1987) (citation omitted). “‘Once an issue has been actually
or necessarily determined by a court of competent jurisdiction, the doctrine of collateral
estoppel renders that determination conclusive on the parties and their privies in subsequent
litigation, even when the claims or causes of action are different.’” Gibson v. Trant, 58
S.W.3d 103, 113 (Tenn. 2001) (quoting State ex rel. Cihlar v. Crawford, 39 S.W.3d 172,
178-79 (Tenn. Ct. App. 2000)).

        The principle of collateral estoppel, when used defensively by a criminal defendant,
see State v. Scarbrough, 181 S.W.3d 650, 659 (Tenn. 2005) (stating that the prosecution may
not use collateral estoppel offensively), may have constitutional double jeopardy
implications. The Court added that “a defendant in a criminal case may assert collateral
estoppel by relying on an acquittal in a first prosecution to bar the litigation of those facts in
a later prosecution for a different offense.” Id. at 655 (citing Ashe v. Swenson, 397 U.S. 436,
443-47 (1970)). The Court concluded that “a defendant’s reliance on the collateral estoppel
doctrine in such circumstances ‘is embodied in the Fifth Amendment guarantee against
double jeopardy.’” Id. (quoting Ashe, 397 U.S. at 445).

       In the present case, the Tennessee Supreme Court reviewed the evidence for the
purpose of determining whether the trial court erred in failing or refusing to instruct on the
lesser offenses. Following the post-conviction court’s ordering a new trial, the original
lawsuit in this case is still ongoing, with retrial pending. No court adjudicated an
insufficiency of evidence for the purpose of foreclosing further proceedings on any charges.

                                              -11-
No second suit has been initiated. In the continuing process of this case, the evidence
admitted upon retrial may vary from the evidence admitted in the first trial. Generally, the
State is “‘not limited at a new trial to evidence presented at the first trial[] but is free to
strengthen its case in any way it can by the introduction of new evidence.’” Harris, 919
S.W.2d at 328 (quoting Pickens v. State, 730 S.W.2d 230, 235 (Ark. 1987)). Variations
could emanate from either the State’s proof or that of the Defendant. However unlikely it
may be in the present case, a variation in the proof may result in a different view of the
necessity of instructing the jury on some lesser included offenses. For these reasons, we hold
that principles of res judicata or collateral estoppel do not preclude the use of lesser included
offense instructions on retrial. Whether such instructions may be warranted under the
applicable rules will depend upon the status of the evidence at the conclusion of that trial.

       Next, we have considered whether the law of the case doctrine precludes lesser
included offense instructions on retrial. Our supreme court addressed the law of the case
doctrine in great detail in Memphis Publ’g Co. v. Tenn. Petrol. Underground Storage Tank
Bd.:

              The phrase “law of the case” refers to a legal doctrine which generally
       prohibits reconsideration of issues that have already been decided in a prior
       appeal of the same case. In other words, under the law of the case doctrine, an
       appellate court’s decision on an issue of law is binding in later trials and
       appeals of the same case if the facts on the second trial or appeal are
       substantially the same as the facts in the first trial or appeal. The doctrine
       applies to issues that were actually before the appellate court in the first appeal
       and to issues that were necessarily decided by implication. The doctrine does
       not apply to dicta.

               The law of the case doctrine is not a constitutional mandate nor a
       limitation on the power of a court. Rather, it is a longstanding discretionary
       rule of judicial practice which is based on the common sense recognition that
       issues previously litigated and decided by a court of competent jurisdiction
       ordinarily need not be revisited. This rule promotes the finality and efficiency
       of the judicial process, avoids indefinite relitigation of the same issue, fosters
       consistent results in the same litigation, and assures the obedience of lower
       courts to the decisions of appellate courts.

               Therefore, when an initial appeal results in a remand to the trial court,
       the decision of the appellate court establishes the law of the case which
       generally must be followed upon remand by the trial court, and by an appellate
       court if a second appeal is taken from the judgment of the trial court entered

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       after remand.      There are limited circumstances which may justify
       reconsideration of an issue which was issue decided in a prior appeal: (1) the
       evidence offered at a trial or hearing after remand was substantially different
       from the evidence in the initial proceeding; (2) the prior ruling was clearly
       erroneous and would result in a manifest injustice if allowed to stand; or (3)
       the prior decision is contrary to a change in the controlling law which has
       occurred between the first and second appeal.

975 S.W.2d 303, 306 (Tenn. 1998) (internal citations omitted).

       In the present case, the point of law decided by the supreme court – the propriety or
necessity of lesser-included-offense instructions – was based upon the facts placed into
evidence in the first trial. As noted above, the law of the case doctrine does not control
when, upon retrial, the evidence may vary from that used in the first trial. If, of course, the
evidence upon retrial is the same, such that no instructions on lesser included offenses are
warranted, the law of the case doctrine would oblige the trial court to refrain from giving the
instructions. At this interlocutory juncture, however, the law of the case doctrine does not
apply on this point.

                   IV. Application of Principle of Equitable Estoppel

       In his final issue, the Defendant cites Cracker Barrel Old Country Store, Inc. v.
Epperson, 284 S.W.2d 303, 315 (2009), and further asserts the principle of “equitable
estoppel” as a bar to the inclusion of the lesser included offenses upon retrial. Here, the
Defendant argues that equitable estoppel “should preclude an appeal where the State seeks
to argue, on retrial and on interlocutory review, that it may prosecute lesser included offenses
of felony murder when, on a prior appeal to the same appellate court, it had successfully
argued that the trial court was correct in refusing to instruct on lesser offenses of felony
murder because there was insufficient evidence of such lesser offenses.” Other than
proclaiming that the State has taken a “diametrically opposite position” than in the first
appeal, the Defendant does not explain how the elements of equitable estoppel as enunciated
in Cracker Barrel Old Country Store, Inc. apply to the instant case.

       We have found no authority extending traditional notions of the principle of equitable
estoppel to constitutional principles of double jeopardy. See Applying Estoppel Principles
in Criminal Cases, 78 Y ALE L.J. 1046, 1046 n.1 (1969) (describing the “judicial principle that
the government cannot be estopped in criminal actions” as “solidly entrenched” and
advocating for a “full-blown defense of criminal estoppel”). Therefore, we are inclined to
consider this issue beyond the scope of the question presented for interlocutory review. To
the extent that courts have recognized this concept in the criminal context, they have relied

                                              -13-
upon other due process grounds including (1) recognizing a defense of entrapment, see Raley
v. Ohio, 360 U.S. 423, 426 (1959); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347
(1963) (“[E]vidence of guilt induced from a person under a governmental promise of
immunity . . . must be excluded under the Self-Incrimination Clause of the Fifth
Amendment.”); (2) barring convictions where defendant relied upon or was misled by official
interpretations of the law, see Cox v. Louisiana, 379 U.S. 559, 571 (1965) (holding that due
process barred conviction under a statute prohibiting demonstrations “near” a courthouse,
when the defendants had relied on town officials’ “on-the-spot” interpretations of the
statute); and (3) recognizing that the Fourth Amendment exclusionary rules operate as a form
of estoppel to uphold constitutional rights that have been infringed by illegal methods of
obtaining evidence, see United States v. Davis, 272 F.2d 149, 153 (7th Cir. 1959). We have
fully addressed the propriety of the constitutional issues presented for interlocutory review
in this case. Nothing in this record supports Defendant’s claim that the State is barred by
equitable estoppel from proceeding with the prosecution in this case.

                                       V. Conclusion

        We reject the claims of the Defendant that the State upon retrial is barred from
seeking convictions on the lesser included offenses of criminally negligent homicide and
facilitation of felony murder. We also reject the Defendant’s claims that the trial court upon
retrial is precluded from instructing the jury on applicable lesser included offenses.
Accordingly, we reverse the order of the trial court and remand the case for retrial.




                                                    _________________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




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