                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan




Syllabus
                                                                Chief Justice:         Justices:
                                                                Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis

                                           PEOPLE v WILSON

              Docket No. 146480.          Argued December 10, 2013 (Calendar No. 8).                Decided
       June 18, 2014.

               Dwayne E. Wilson was charged in the Macomb Circuit Court, Matthew Switalski, J.,
       with first-degree premeditated murder, MCL 750.316(1)(a); first-degree felony murder, MCL
       750.316(1)(b); first-degree home invasion, MCL 750.110a(2); second-degree murder, MCL
       750.317; assault with intent to commit great bodily harm less than murder, MCL 750.84; felony-
       firearm, MCL 750.227b; and two counts of unlawful imprisonment, MCL 750.349b. The first-
       degree home invasion was the only predicate offense that supported the felony-murder charge.
       The jury found defendant guilty on all counts except the charges of first-degree premeditated
       murder and first-degree home invasion. Defendant appealed. The Court of Appeals, SAAD, P.J.,
       and JANSEN and K. F. KELLY, JJ., reversed his convictions in an unpublished opinion per curiam,
       issued May 10, 2011 (Docket No. 296693), holding that the trial court had committed error by
       denying defendant’s constitutional right to represent himself, and remanded the case for a new
       trial. The Supreme Court denied the prosecution’s application for leave to appeal. 490 Mich 861
       (2011). The prosecution subsequently filed an amended information that set forth as charges all
       the offenses that defendant had initially been convicted of. Defendant moved to dismiss the
       felony-murder charge, arguing that the Double Jeopardy Clause prevented a second prosecution
       on that charge because he had previously been acquitted of the only predicate felony for that
       crime, the predicate crime being one of the elements of felony murder. The trial court granted
       defendant’s motion to dismiss, agreeing that a second jury could not reconsider the home-
       invasion element of felony murder given the preclusive effect of defendant’s acquittal of first-
       degree home invasion. Following the granting of the prosecution’s interlocutory application for
       leave to appeal, the Court of Appeals, MURPHY, C.J., and O’CONNELL and WHITBECK, JJ.,
       reversed in an unpublished opinion per curiam, issued November 15, 2012 (Docket No. 311253),
       reinstated the felony-murder charge, and remanded the case. Citing United States v Powell, 469
       US 57 (1984), for the proposition that a jury has the prerogative to return inconsistent verdicts,
       the panel held that because the jury’s verdict had been inconsistent, the inconsistency negated the
       application of the collateral-estoppel doctrine to the second prosecution. The Supreme Court
       granted defendant leave to appeal. 494 Mich 853 (2013).

            In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices
       CAVANAGH and KELLY, the Supreme Court held:
         The collateral-estoppel strand of the Double Jeopardy Clause prevents the prosecution
from charging a defendant with felony murder a second time when the defendant was convicted
in the first trial of felony murder but was acquitted of the only predicate felony that supported the
felony-murder charge and the felony-murder conviction was subsequently vacated.

        1. The Double Jeopardy Clause of the Fifth Amendment protects defendants against the
threat of successive prosecutions for the same offense and multiple punishments for the same
offense. Collateral estoppel, also known as issue preclusion, is a common-law doctrine that
requires that once a court has decided an issue of fact or law necessary to its judgment, the
decision may preclude relitigation of the issue in a suit on a different cause of action involving a
party to the first case. Double jeopardy and collateral estoppel conceptually overlap, and in Ashe
v Swenson, 397 US 436 (1970), the United States Supreme Court constitutionalized collateral
estoppel within the Fifth Amendment’s guarantee against double jeopardy. Ashe involved a
defendant who had been tried and acquitted of robbing one member of a poker game and was
subsequently charged with and convicted of the robbing a different poker player. Considering
the question of whether a rational jury could have grounded its verdict on an issue other than that
which the defendant sought to foreclose from consideration, Ashe held that the single rationally
conceivable issue in dispute before the jury was whether the defendant had been one of the
robbers and that the second prosecution, which necessarily required relitigating this already
determined issue, violated the Fifth Amendment. Yeager v United States, 557 US 110 (2009),
involved a jury that acquitted the defendant of various fraud charges but could not reach a verdict
on insider-trading charges. The acquittals and hung counts were therefore logically inconsistent
because to have acquitted the defendant of the fraud counts, the jury would have had to decide
that he had not possessed insider information, which should have led a rational jury to also acquit
him of the insider-trading charges. Yeager held that this apparent inconsistency did not change
the preclusive force of the acquittal under the Double Jeopardy Clause in a second prosecution
because a hung count was not legally meaningful and could not defeat the preclusive force of the
acquittals.

        2. Dunn v United States, 284 US 390 (1932), held that inconsistent verdicts within a
single jury trial are permissible because they might have been the result of compromise or a
mistake on the part of the jury, but verdicts cannot be upset by speculation or inquiry into those
matters. Inconsistent verdicts do not require reversal because juries are not held to any rules of
logic and are not required to explain their decisions. Powell reaffirmed this principle in the
situation of a defendant who had been acquitted of the predicate felony but convicted of the
compound felony and argued that the principles of collateral estoppel should be incorporated into
an inconsistent-verdict case.

       3. Because Powell involved an appeal from a single trial, no double jeopardy concerns
were present. While the verdict in Powell was inconsistent, the doctrine of collateral estoppel
was not relevant. Collateral estoppel, like double jeopardy more broadly, necessarily
presupposes some passage of time between a final adjudication of an issue at one time and the
threat of a subsequent adjudication of the same issue. The Court of Appeals apparently
extrapolated from Powell the proposition that application of collateral estoppel is only
appropriate when there was a prior consistent verdict. Since Powell did not concern a second
prosecution, however, and therefore no double jeopardy concerns were implicated, the Court of
Appeals’ reliance on Powell to authorize charging defendant with felony murder a second time
was misplaced given that his objection sounded in double jeopardy, not the inconsistency of his
initial verdict.

        4. Yeager embodied the proposition that if an issue has been finally resolved at one
moment in time, the same issue cannot be resolved differently at a subsequent time. Defendant
was acquitted of first-degree home invasion (the only predicate felony that could support a
conviction of felony murder and was therefore an element of felony murder), a charge that
defendant again faced. Convicting him of felony murder would require the same factual basis as
home invasion (of which he had been previously and finally acquitted), which Yeager prevents.
Given that defendant had been acquitted of home invasion, the prosecution was barred from
charging him with that crime again, even though a legal error at his first trial required vacating
his convictions. The inconsistency in defendant’s initial jury verdict did not alter this
fundamental principle given the subsequent appellate reversal of all his convictions. The initial
guilty verdicts were gone. Although defendant had been convicted of felony murder, that
conviction had since been vacated because it was constitutionally infirm and defendant no longer
stood convicted of that crime. The only final adjudication that would carry into his second trial
would be his acquittal of first-degree home invasion, which must be given effect in the retrial
under the collateral-estoppel prong of double jeopardy. Defendant’s reversed felony-murder
conviction here must be treated exactly as the hung counts were treated in Yeager. Neither a
hung count nor a count that is reversed on appeal can defeat the preclusive effect of an acquittal.
Like a hung count, a reversed count is not a final adjudication; by operation of law, the finality of
the conviction has been undone. When a legal error requires the reversal of a defendant’s
convictions, those convictions are no longer adjudications at all. Reversal for trial error, as
distinguished from evidentiary sufficiency, does not constitute a decision to the effect that the
prosecution failed to prove its case. It implies nothing with respect to the guilt or innocence of
the defendant. The same is not true of a defendant’s acquittal. An acquittal is never recast or
disturbed, no matter what error might have produced it. Defendant would begin his second trial
in this case with only one perfected adjudication: his acquittal of first-degree home invasion.
The prosecution would be free to retry defendant on all the other vacated convictions, but the
Double Jeopardy Clause collaterally estopped a new prosecution for felony murder.

       Reversed and remanded.

         Justice MARKMAN, joined by Justices ZAHRA and VIVIANO, dissenting, would have
affirmed the judgment of the Court of Appeals and permitted the prosecution to retry defendant
for first-degree felony murder. Principles of collateral estoppel apply only when a defendant can
demonstrate that a rational jury resolved an issue of ultimate fact in the defendant’s favor. To
prevail on his collateral-estoppel argument, defendant had to demonstrate that the first jury
actually and necessarily determined that he had not engaged in conduct satisfying the elements of
the predicate offense of first-degree home invasion. When a jury has rendered an inconsistent
verdict, however, a defendant is unable to establish that the jury actually and necessarily
determined any issue of ultimate fact. Defendant’s jury rendered an inconsistent verdict in this
case by convicting him of the compound offense of first-degree felony murder while acquitting
him of the predicate offense of first-degree home invasion. Accordingly, defendant was unable
to satisfy his burden of establishing that the jury actually and necessarily determined an issue of
ultimate fact in his favor. That defendant’s conviction on the compound offense was
subsequently overturned does not alter what factual determinations the jury actually and
necessarily resolved in defendant’s favor. Despite the majority’s holding to the contrary, Yeager
was decided in accordance with the holdings of Powell and Dunn because Yeager merely held
that a verdict containing acquittals and hung counts is not a truly inconsistent verdict that
obviates the use of principles of collateral estoppel. Thus Yeager did not require the result that
the majority reached in this case. In addition, the majority’s conclusion stood apart from the
holdings of all other courts that had addressed the issue and was detached from 80 years of
federal caselaw concerning constitutional principles of collateral estoppel.




                                    ©2014 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan




Opinion
                                                        Chief Justice:          Justices:
                                                        Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Stephen J. Markman
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra
                                                                             Bridget M. McCormack
                                                                             David F. Viviano

                                                                         FILED June 18, 2014

                              STATE OF MICHIGAN

                                     SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

 v                                                               No. 146480

 DWAYNE WILSON,

               Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 MCCORMACK, J.
        As this case implicates more than one somewhat complex legal doctrine, it may be

 useful first to state the practical question we confront in as plain English as possible: Can

 a defendant whose conviction for felony murder has been reversed on appeal be retried

 for that charge when he was also acquitted of the only felony that supported it?

        As detailed below, this case turns on the protection afforded by the Double

 Jeopardy Clause of the United States Constitution. US Const, Am V. This clause

 protects a criminal defendant from multiple prosecutions and multiple punishments for

 the same offense. This case also implicates the doctrine of collateral estoppel, which in
general imports a final determination from one case into a subsequent case requiring a

determination on that same issue. Collateral estoppel and double jeopardy can overlap,

and do so here.

       We conclude that the collateral-estoppel strand of Double Jeopardy Clause

jurisprudence prevents the prosecution from re-charging the defendant with felony

murder.    Because the defendant’s acquittal of the only supporting felony triggers

collateral estoppel, the Double Jeopardy Clause precludes a second felony-murder

prosecution of the defendant.

                    I. FACTS AND PROCEDURAL BACKGROUND

       In December 2009, the defendant was convicted by a jury of first-degree felony

murder, MCL 750.316(1)(b), second-degree murder, MCL 750.317, assault with intent to

commit great bodily harm less than murder, MCL 750.84, carrying a firearm during the

commission of a felony, MCL 750.227b, and two counts of unlawful imprisonment, MCL

750.349b. The jury acquitted the defendant of first-degree premeditated murder, MCL

750.316(1)(a), and—importantly—first-degree home invasion, MCL 750.110a(2).

Because first-degree home invasion was the only felony that the defendant was charged

with that could have supported the conviction for first-degree felony murder, see MCL

750.316(1)(b), the initial jury verdict was, plainly, inconsistent.

       The Court of Appeals reversed the defendant’s convictions, holding that the trial

court had committed error by denying the defendant’s constitutional right to represent

himself. People v Wilson, unpublished opinion per curiam of the Court of Appeals,

issued May 10, 2011 (Docket No. 296693). The Court of Appeals remanded this case to




                                              2
the trial court for a new trial, and this Court denied the prosecution’s application for leave

to appeal. People v Wilson, 490 Mich 861 (2011).

       On April 6, 2012, the prosecution filed an amended information setting forth the

charges on retrial. The defendant was re-charged with each of the charges of which he

was initially convicted. The defendant moved to dismiss the first-degree felony-murder

charge, arguing that the Double Jeopardy Clause prevented a second prosecution on that

charge because he stood acquitted of the only predicate felony, which is one of the

elements of felony murder. On July 6, 2012, the trial court granted the defendant’s

motion to dismiss, agreeing that a second jury could not reconsider the home-invasion

element of felony murder given the preclusive effect of the defendant’s acquittal of home

invasion.

       The Court of Appeals granted the prosecution’s interlocutory application for leave

to appeal and reversed the trial court’s order in an unpublished opinion per curiam. The

Court of Appeals held that because the jury’s verdict was inconsistent, that inconsistency

negated the application of the collateral-estoppel doctrine in the second prosecution,

citing United States v Powell, 469 US 57, 68; 105 S Ct 471; 83 L Ed 2d 461 (1984), for

the proposition that the jury has the prerogative to return inconsistent verdicts. On May

24, 2013, this Court granted leave to appeal. People v Wilson, 494 Mich 853 (2013).

                               II. LEGAL BACKGROUND

                                A. DOUBLE JEOPARDY

       The Double Jeopardy Clause of the United States Constitution protects defendants

against the threat of successive prosecutions for the same offense and multiple




                                              3
punishments for the same offense. US Const, Am V (“No person shall . . . be subject for

the same offence to be twice put in jeopardy of life or limb . . . .”).

       A double-jeopardy challenge presents a question of law that this Court reviews de

novo. People v Herron, 464 Mich 593, 599; 628 NW 2d 528 (2001).

                              B. COLLATERAL ESTOPPEL

       Collateral estoppel, also known as issue preclusion, is a common-law doctrine that

gives finality to litigants. In essence, collateral estoppel requires that “once a court has

decided an issue of fact or law necessary to its judgment, that decision may preclude

relitigation of the issue in a suit on a different cause of action involving a party to the first

case.” Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). See also

Montana v United States, 440 US 147, 153; 99 S Ct 970; 59 L Ed 2d 210 (1979), citing

Southern Pacific R Co v United States, 168 US 1, 48-49; 18 S Ct 18; 42 L Ed 355 (1897)

(“A fundamental precept of common-law adjudication, embodied in the related doctrines

of collateral estoppel and res judicata, is that a ‘right, question or fact distinctly put in

issue and directly determined by a court of competent jurisdiction . . . cannot be disputed

in a subsequent suit between the same parties or their privies . . . .’ ”). The doctrine of

collateral estoppel serves many purposes: it “relieve[s] parties of the cost and vexation of

multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent

decisions, encourage[s] reliance on adjudication.” Allen, 449 US at 94.

       In 1970, the United States Supreme Court explicitly recognized the conceptual

overlap between double jeopardy and collateral estoppel, and officially linked them by

constitutionalizing collateral estoppel within the Fifth Amendment’s guarantee against




                                               4
double jeopardy. Ashe v Swenson, 397 US 436, 445; 90 S Ct 1189; 25 L Ed 2d 469

(1970). The Ashe Court noted, however, that “collateral estoppel has been an established

rule of federal criminal law at least since this Court’s decision more than 50 years ago in

United States v. Oppenheimer [242 US 85; 37 S Ct 68; 61 L Ed 161 (1916)].” Ashe, 397

US at 443.1

       The defendant in Ashe had been tried and acquitted of the robbery of one member

of a poker game. Following the defendant’s acquittal, the prosecution charged him with

the robbery of a different poker player, and he was convicted. The Court explained that

collateral estoppel “means simply 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.” Id. The question is “whether a rational jury could

have grounded its verdict upon an issue other than that which the defendant seeks to

foreclose from consideration.” Id. at 444. Because the “single rationally conceivable

issue in dispute before the jury was whether the petitioner had been one of the robbers,”

this second prosecution, which necessarily would have required the relitigation of this

already determined issue, violated the Fifth Amendment. Id. at 445.

       The Supreme Court applied collateral estoppel in the context of a double-jeopardy

analysis again in Yeager v United States, 557 US 110; 129 S Ct 2360; 174 L Ed 2d 78

(2009). In Yeager, a jury acquitted the defendant of certain fraud charges, but could not

reach a verdict on the insider-trading charges. The acquittals and hung counts were

1
  The defendant has not argued that the “same offense” rationale of double jeopardy is
implicated. Thus we address only whether the collateral-estoppel strand of double
jeopardy is implicated.



                                            5
logically inconsistent with one another; in order to acquit the defendant of the fraud

counts, the jury would have had to decide that the defendant had not possessed insider

information, which should have led a rational jury to also acquit him of the insider-

trading charges. The Court held that this apparent inconsistency did not change the

preclusive force of the acquittal in a second prosecution under the Double Jeopardy

Clause. “A hung count is not a relevant part of the record of the prior proceeding,” and

therefore has no place in the collateral-estoppel analysis. Yeager, 557 US at 121. In

other words, the Court held that the hung counts were not legally meaningful and could

not defeat the preclusive force of the acquittals.

                             C. INCONSISTENT VERDICTS

       As with collateral estoppel, the Supreme Court authority concerning the validity of

inconsistent jury verdicts is well developed. In Dunn v United States, 284 US 390, 393-

394; 52 S Ct 189; 76 L Ed 356 (1932), the Court held that inconsistent verdicts within a

single jury trial are permissible, explaining “[t]hat the verdict may have been the result of

compromise, or of a mistake on the part of the jury . . . . But verdicts cannot be upset by

speculation or inquiry into such matters.” This Court has similarly held that inconsistent

verdicts do not require reversal, because “[j]uries are not held to any rules of logic nor are

they required to explain their decisions.” People v Vaughn, 409 Mich 463, 466; 295

NW 2d 354 (1980).

       The Supreme Court reaffirmed this principle in Powell, 469 US 57, rejecting the

defendant’s argument that the principles of collateral estoppel should require a different

result. The defendant, who had been acquitted of the predicate felony but convicted of




                                              6
the compound felony, argued that principles of collateral estoppel should be incorporated

into the inconsistent verdict case and should require the reversal of the compound-felony

conviction. Id. at 64 (“[I]ndeed, [the defendant] urges that principles of res judicata or

collateral estoppel should apply to verdicts rendered by a single jury, to preclude

acceptance of a guilty verdict on a [compound felony] where the jury acquits the

defendant of the predicate felony.”) (emphasis added). The Court disagreed with the

defendant, noting that in the case of an inconsistent verdict, “it is unclear whose ox has

been gored.” Id. at 65. The defendant’s conviction stood.

                                  III. APPLICATION

       Our decision in this case hinges on whether, as the Court of Appeals held, the

inconsistent-verdict reasoning of Dunn and Powell is relevant to the defendant’s

collateral-estoppel claim such that the rule from Ashe and Yeager does not apply. As an

initial matter, we note that the inconsistent-verdict cases, Dunn and Powell, feature only

direct appeals from a single jury verdict. By definition, collateral estoppel and double

jeopardy are simply not applicable to a single verdict, even when that verdict is

inconsistent. Ashe and Yeager, in contrast, each concerned the propriety of a second

prosecution. The very application of the Double Jeopardy Clause necessarily requires

more than one trial: Again, double jeopardy is irrelevant within the scope of a single

prosecution and the resulting verdict because the defendant is in continuing jeopardy in

any single trial.   Yeager, 557 US at 117; id. at 130 (Scalia, J., dissenting) (“As a

conceptual matter, it makes no sense to say that events occurring within a single

prosecution can cause an accused to be twice put in jeopardy.”) (citation and quotation




                                            7
marks omitted).2 See also Boston Muni Court Justices v Lydon, 466 US 294, 308-309;

104 S Ct 1805; 80 L Ed 2d 311 (1984).3 Relatedly, if a defendant’s conviction is

reversed on direct appeal, a second prosecution does not implicate double-jeopardy

concerns, because in that instance too the defendant is still in continuing jeopardy. In a

second prosecution following an appellate reversal, only “[a]cquittals, [not] convictions,

terminate the initial jeopardy.” Lydon, 466 US at 308.

       Because Powell involved an appeal from a single trial, no double-jeopardy

concerns were present, despite the defendant’s attempt to make them relevant. Powell,

469 US at 64. While the verdict in Powell was inconsistent, the doctrine of collateral

estoppel was not relevant. Dunn, 284 US at 393. Collateral estoppel, like double

jeopardy more broadly, necessarily presupposes some passage of time between a final

adjudication of an issue at one time, and the threat of a subsequent adjudication of the

same issue. In this case, the Court of Appeals apparently extrapolated from Powell the

2
  The dissent is correct that Justice Scalia relied on Dunn and Powell “to support his
position that the inconsistent nature of the verdict in Yeager nullified Yeager’s reliance
on the valid and final acquittal for collateral estoppel purposes.” Justice Scalia’s view,
however reasonable, is not the rule of law we must apply here as he, of course, dissented
in Yeager. We cite Justice Scalia’s dissent for the unremarkable proposition that double-
jeopardy concerns are only implicated when there is a second trial.
3
  There is one exception: in two cases the Supreme Court has applied the Double
Jeopardy Clause to midtrial acquittals. In both instances, the Court held that the midtrial
acquittals were final and that the Double Jeopardy Clause barred their reconsideration.
Smith v Massachusetts, 543 US 462, 473; 125 S Ct 1129; 160 L Ed 2d 914 (2005); Smalis
v Pennsylvania, 476 US 140, 145-146; 106 S Ct 1745; 90 L Ed 2d 116 (1986). These
exceptions are, of course, inapplicable to this case in which there was no mid-trial
acquittal. Indeed, Smith and Smalis support the more important proposition for the
defendant, that acquittals are final and unassailable in the application of the Double
Jeopardy Clause.



                                            8
proposition that application of collateral estoppel is only appropriate when there was a

prior consistent verdict.     Since Powell did not concern a second prosecution, and

therefore no double-jeopardy concerns were implicated, the inconsistent-verdict analysis

that Powell provides does not address the important issue presented in the case at hand.4

The Court of Appeals’ reliance on Powell to authorize re-charging the defendant with

felony murder was misplaced, given that his objection sounded in double jeopardy, not

the inconsistency of his initial verdict.

       It is instead the Yeager holding that demonstrates why the prosecution cannot re-

try the defendant for felony murder. Yeager embodies the unremarkable but fundamental

proposition that if an issue has been finally resolved at one moment in time, the same

issue cannot be resolved differently at a subsequent time. The defendant in this case

finds himself facing exactly this problem; he stands acquitted of first-degree home

invasion, the only predicate felony that could support a conviction for felony murder and

which is thus an element of felony murder, a charge he is facing again. Convicting him

of felony murder would, therefore, require the same factual basis as home invasion, for

which he was previously and finally acquitted. This is what Yeager prevents.




4
  We agree with the dissent that the Supreme Court squarely and thoroughly addressed
whether collateral-estoppel principles are relevant to inconsistent verdicts in Powell, but
we are not similarly troubled by why the Court did so given that double-jeopardy
concerns are simply not applicable within the scope of a single trial. The defendant made
the argument that collateral estoppel should bar his inconsistent verdict and managed to
convince the United States Court of Appeals for the Ninth Circuit of his view. The
Supreme Court disagreed, and naturally explained its reasoning.



                                            9
       The importance of an acquittal in the context of the Double Jeopardy Clause is

well established. It is of course long settled that, given his acquittal of home invasion,

the prosecution is barred from re-charging the defendant again with home invasion, even

though the legal error at trial required vacating his convictions. That error does not

permit him to be retried for home invasion, even had the error contributed to his acquittal

of that charge just as it contributed to his convictions (which does not seem to be the case

here). An acquittal is final and unassailable; double jeopardy is a one-way ratchet. Ball v

United States, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 (1896) (“The verdict of

acquittal was final, and could not be reviewed, on error or otherwise, without putting him

twice in jeopardy, and thereby violating the constitution. However it may be in England,

in this country a verdict of acquittal, although not followed by any judgment, is a bar to a

subsequent prosecution for the same offense.”). See also Fong Foo v United States, 369

US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962) (finding an acquittal to be an absolute

bar to a subsequent prosecution even when the acquittal was “based upon an egregiously

erroneous foundation”); United States v DiFrancesco, 449 US 117, 129; 101 S Ct 426; 66

L Ed 2d 328 (1980) (“The law attaches particular significance to an acquittal.”); Yeager,

557 US at 119 (“[T]he jury’s acquittals unquestionably terminated petitioner’s jeopardy

with respect to the issues finally decided in those counts.”).

       The inconsistency in the defendant’s initial jury verdict here—though distracting

and confounding as illogical verdicts are—does not alter this fundamental principle,

given the subsequent appellate reversal of his convictions. Notwithstanding the dissent’s

lengthy protest to the contrary, the initial guilty verdicts are no more. Although the

defendant was convicted of felony murder, that conviction has since been vacated


                                             10
because it was constitutionally infirm; the defendant no longer stands convicted, not of

anything, not at all. The only final adjudication the defendant carries into his second

trial, then, is his acquittal of first-degree home invasion, which must be given effect

pursuant to the collateral-estoppel prong of double jeopardy in the retrial. Lydon, 466 US

at 308.

          Yeager thus controls: The defendant’s reversed felony-murder conviction here

must be treated exactly as the hung counts were treated in Yeager. Neither a hung count

nor a count that is reversed on appeal can defeat the preclusive effect of an acquittal.

Like a hung count, a reversed count is not a final adjudication; by operation of law the

finality of the conviction has been undone. By holding that a legal error required the

reversal of a defendant’s convictions, we have legally proclaimed that those convictions

are no longer adjudications at all.5 Indeed, the legal meaning of a reversed conviction is

settled. As the Supreme Court has said:

                 [R]eversal for trial error, as distinguished from evidentiary
          sufficiency, does not constitute a decision to the effect that the government
          has failed to prove its case. As such, it implies nothing with respect to the
          guilt or innocence of the defendant. Rather, it is a determination that a
          defendant has been convicted through a judicial process which is defective
          in some fundamental respect . . . . [Burks v United States, 437 US 1, 15; 98
          S Ct 2141; 57 L Ed 2d 1 (1978) (emphasis added).][6]

5
  We know of no other situation in a criminal prosecution in which we permit a
defendant’s vacated conviction to be used to the defendant’s detriment and see no reason
why we should create an exception. See, e.g., People v Holt, 54 Mich App 60, 63-64;
220 NW2d 205 (1974) (stating that a vacated conviction cannot be used for sentencing
purposes); People v Crable, 33 Mich App 254, 257; 189 NW2d 740 (1971) (stating that a
vacated conviction cannot be used to impeach a defendant).
6
  We disagree with the dissent’s understanding of Burks: Burks stands for the proposition
that a reversed conviction is legally meaningless, which is what matters for our purposes.


                                               11
       The same is not true of the defendant’s acquittal. An acquittal is never recast or

disturbed, no matter what error might have produced it. Ball, 163 US at 671. The

defendant begins his second trial with only one perfected adjudication—his acquittal of

first-degree home invasion. Just as in Yeager, the acquittal must be given preclusive

effect.7 Our disagreement with the dissent boils down to exactly this point: The dissent

believes that a legally vacated conviction is still meaningful for the purposes of




Of course it is always the case that “society maintains a valid concern for insuring that
the guilty are punished,” Burks, 437 US at 15, and that concern animates the authority
that permits the prosecution to retry the defendant for all of the offenses that were
vacated but for which there is no double-jeopardy constraint. In this case it is only the
felony-murder charge that is barred on retrial, not second-degree murder, assault with
intent to commit great bodily harm less than murder, carrying a firearm during the
commission of a felony, and two counts of unlawful imprisonment. The defendant
remains in continuing jeopardy on these vacated convictions, and would so remain with
respect to his felony-murder conviction but for the preclusive force of his home-invasion
acquittal.
7
  The Yeager Court’s discussion of the rationality of verdicts in determining whether
collateral estoppel applies is not particularly relevant here, where there is only one verdict
to consider. It is noteworthy, however, that the jury verdict in Yeager was not obviously
rational or consistent. The Supreme Court instead rationalized the verdict by treating the
hung counts, which were inconsistent with the acquittals, as legal “nonevents,” given that
they were not final adjudications. The Court of Appeals’ reversal of the defendant’s
felony-murder conviction in this case renders that conviction a “nonevent” as well. A
reversed conviction is of even less legal consequence than a hung count. Although it is
understandable that the Supreme Court would need to dedicate some time to analyzing
the proper weight to give a hung count—an undisturbed jury “determination” of a sort—
at the time of the defendant’s second trial when analyzing how to give meaning to a
jury’s findings, it is much easier to determine what weight should be given a reversed
conviction—none. Burks, 437 US at 15. A reversed conviction, like a hung count,
cannot be considered a relevant part of the record of the prior proceeding. See Yeager,
557 US at 121.



                                             12
collateral-estoppel analysis.8 We see no available way to bring that legally vacated

conviction back to life.9

       The prosecution is free to retry the defendant on all the other vacated convictions.

But the Double Jeopardy Clause collaterally estops a new prosecution for felony murder.

                                   IV. CONCLUSION

       We conclude that the Double Jeopardy Clause prevents the prosecution from re-

charging the defendant with felony murder when the only verdict that remains is the




8
   The Yeager and Ashe Courts were not considering vacated convictions in their
collateral-estoppel analyses, of course, but undisturbed jury findings. Those undisturbed
findings, therefore, were still available for discernment. In cases, like Yeager and Ashe,
in which there is an undisturbed jury verdict to examine at the time of retrial, a reviewing
court must delve into the facts and circumstances of the jury’s findings in order to
understand the verdict’s specific meaning. When, as here, there simply is no conviction
to be so analyzed, as it was previously vacated by the Court of Appeals, we are bound by
that legal finding. We cannot undo the reversal and delve back into a jury finding that
has been held to be invalid. The dissent jumps over this critical step. Because a reversal
renders a conviction meaningless, there is nothing left for a reviewing court to examine
or decipher.
9
  Neither State v Kelly, 201 NJ 471; 992 A2d 776 (2010), nor Evans v United States, 987
A2d 1138 (DC, 2010), are helpful to our analysis. Although the dissent is correct that
these cases involve similar facts, neither engages the argument that a vacated conviction
functions as a proclamation that a jury determination is a legal nullity. It is difficult to
understand whether United States v Bruno, 531 Fed Appx 47, 49 (CA 2 2013), has any
persuasive force, given that it is an unpublished order devoid of any specific factual
background as to the nature of the convicted and acquitted counts. But from the cursory
facts that are presented, it does not appear that the charges decided differently involved
the same conduct or subject matter, which would alone foreclose a collateral-estoppel
claim. Of course we are not bound by any opinion from a sister jurisdiction reaching the
opposite conclusion that we reach here, especially when none addresses the issue we find
decisive.



                                            13
defendant’s acquittal of the predicate felony. Therefore, we reverse the judgment of the

Court of Appeals and remand this case to the trial court for further proceedings.


                                                        Bridget M. McCormack
                                                        Robert P. Young, Jr.
                                                        Michael F. Cavanagh
                                                        Mary Beth Kelly




                                            14
                            STATE OF MICHIGAN

                                   SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellee,

v                                                             No. 146480

DWAYNE WILSON,

             Defendant-Appellant.


MARKMAN, J. (dissenting).
      Defendant, armed with a handgun, entered his ex-girlfriend’s apartment while she

was out with another man, Kenyetta Williams. Defendant lay in wait for his ex-girlfriend

to return, and when she did so with Williams, he fired his handgun three times, killing

Williams. Defendant’s charges included first-degree premeditated murder, first-degree

felony murder predicated on first-degree home invasion, second-degree murder, and first-

degree home invasion.

      Defendant sought to represent himself at his first trial, but the trial court denied his

motion to do so. Defendant’s first trial resulted in the jury’s convicting him of first-

degree felony murder and second-degree murder, but acquitting him of first-degree

premeditated murder and first-degree home invasion. Because the offense of first-degree

felony murder was predicated on the first-degree home invasion charge, and the jury

could only rationally convict defendant of first-degree felony murder if it also convicted

defendant of first-degree home invasion, the verdict rendered by the jury was inconsistent

and irrational. Defendant appealed his convictions for first-degree felony murder and
second-degree murder, contending that he was denied his right to represent himself as

guaranteed by the Sixth Amendment.         The Court of Appeals reversed defendant’s

convictions and remanded for a new trial on the first-degree felony murder charge and the

second-degree murder charge.1 People v Wilson, unpublished opinion per curiam of the

Court of Appeals, issued May 10, 2011 (Docket No. 296693).

      Back before the trial court, defendant moved to dismiss the first-degree felony

murder charge on the theory that retrial was barred by the Double Jeopardy Clause of the

Fifth Amendment of the United States Constitution because defendant’s first jury had

acquitted him of the felony of first-degree home invasion on which the first-degree felony

murder charge was predicated.      The trial court granted defendant’s motion, but the

prosecutor filed an interlocutory appeal and the Court of Appeals reversed. People v

Wilson, unpublished opinion per curiam of the Court of Appeals, issued November 15,

2012 (Docket No. 311253). This Court then granted leave to appeal on the question

whether the protection against double jeopardy found in the Fifth Amendment prevents

retrial of a compound offense when the first trial resulted in the jury’s convicting

defendant of such offense but acquitting defendant of the predicate offense and the

conviction on the compound offense was subsequently overturned.2 People v Wilson,

1
  As defendant’s first jury acquitted him of first-degree premeditated murder and first-
degree home invasion, retrial on those offenses was barred by the Double Jeopardy
Clause of the Fifth Amendment. Retrial on those charges is not at issue in this appeal,
and the jury’s verdicts of acquittal of first-degree premeditated murder and first-degree
home invasion have been given full effect.
2
  A “compound offense” is one that has as an element the commission of some other
enumerated offense. People v Robideau, 419 Mich 458, 508 n 7; 355 NW2d 592 (1984)
(CAVANAGH, J., dissenting). The enumerated offense is the “predicate offense.”



                                            2
494 Mich 853 (2013).       Defendant asks this Court to answer that question in the

affirmative, on the basis of the collateral-estoppel strand of the Double Jeopardy Clause.

See Ashe v Swenson, 397 US 436, 445-446; 90 S Ct 1189; 25 L Ed 2d 469 (1970).3

                              I. COLLATERAL ESTOPPEL

                                     A. PRINCIPLES

       The seminal case involving collateral estoppel and the protection against double

jeopardy is Ashe. In Ashe, the prosecutor believed that the defendant and several other

masked persons broke into a house and participated in the robbery of six individuals. Id.

at 437. The prosecutor put the defendant on trial for the robbery of one of the six

individuals. Id. at 438. The sole defense raised was that the defendant was not one of the

masked persons who had participated in the robbery, id. at 438-439, and the jury

acquitted him. Id. at 439. Despite the acquittal, the prosecutor brought a new charge

against the defendant for the robbery of another of the individuals who had been robbed.

Id. After the defendant’s second trial resulted in a conviction, he contended that his first

jury had determined that he was not a participant in the robbery and to convict him of the

robbery of the second individual would be to derogate the finding made by the first jury

about whether the defendant participated in the robbery. Id. at 440.

       Before Ashe, collateral estoppel had not been viewed as a basis for raising a

double jeopardy claim. Id. at 440-441, citing Hoag v New Jersey, 356 US 484; 78 S Ct

3
 Defendant specifically eschews any reliance on the argument that first-degree felony
murder and the predicate offense of first-degree home invasion are the “same offense” for
double jeopardy purposes. See Blockburger v United States, 284 US 299; 52 S Ct 180;
76 L Ed 306 (1932).



                                             3
829; 2 L Ed 2d 913 (1958). Ashe, however, concluded that the doctrine of collateral

estoppel is “embodied in the Fifth Amendment guarantee against double jeopardy” and

prohibits a retrial when “an issue of ultimate fact has once been determined by a valid

and final judgment, [such that the] issue cannot again be litigated between the same

parties in any future lawsuit.” Ashe, 397 US at 443, 445-446.

       When the doctrine of collateral estoppel has been invoked by defendant, “[t]he

burden is ‘on [him] to demonstrate that the issue whose relitigation he seeks to foreclose

was actually decided in the first proceeding.’ ” Schiro v Farley, 510 US 222, 233; 114 S

Ct 783; 127 L Ed 2d 47 (1994), quoting Dowling v United States, 493 US 342, 350; 110

S Ct 668; 107 L Ed 2d 708 (1990).4 In assessing a defendant’s reliance on a verdict of

acquittal and the doctrine of collateral estoppel, a court must

       “examine the record of a prior proceeding, taking into account the
       pleadings, evidence, charge, and other relevant matter, and conclude
       whether a rational jury could have grounded its verdict upon an issue other
       than that which the defendant seeks to foreclose from consideration.”
       [Ashe, 397 US at 444, quoting Mayers & Yarbrough, Bis Vexari: New
       Trials and Successive Prosecutions, 74 Harv L Rev 1, 38-39 (1960)
       (emphasis added).]

4
    The majority opinion entirely overlooks that defendant bears the burden of
demonstrating what issues of ultimate fact were decided during the first trial. This causes
it to embark upon its analysis from the wrong starting point-- whether defendant is being
denied his double jeopardy rights rather than whether defendant has made out his
collateral-estoppel defense-- leading it to the mistaken conclusion that retrying defendant
on the first-degree felony murder charge would amount to using his subsequently
reversed conviction against him. When the burden is rightly placed on defendant to
demonstrate that the first jury resolved an “issue of ultimate fact” in his favor, the jury’s
verdict convicting defendant of first-degree felony murder cannot properly be said to
have been “used to [his] detriment.” After all, it is defendant in these circumstances who
has come forward and who seeks to rely on the verdict containing the first-degree felony
murder conviction.



                                              4
Put another way, a defendant will only prevail in sustaining his burden when the court,

“ ‘with an eye to all the circumstances of the proceedings’ ” is convinced that the first

jury, in acquitting the defendant, resolved the issue of ultimate fact in defendant’s favor.

Ashe, 397 US at 444, quoting Sealfon v United States, 332 US 575, 579; 68 S Ct 237; 92

L Ed 180 (1948). In this sense, Ashe, by inquiring what a “rational jury” determined,

premised defendant’s invocation of collateral estoppel on the existence of a rational jury

whose verdict has a singular and unmistakable explanation favoring defendant on the

issue of ultimate fact.

       Conversely, if “[t]here are any number of possible explanations for the jury’s

acquittal verdict at [defendant’s] first trial,” he will be unable to satisfy his burden and

the doctrine of collateral estoppel will not preclude relitigation of the issue from the first

verdict upon which defendant seeks to rely. Dowling, 493 US at 352 (emphasis added.).

In other words, “unless the record establishes that the issue was actually and necessarily

decided in the defendant’s favor,” the issue may be relitigated without offending the Fifth

Amendment guarantee against double jeopardy.           Schiro, 510 US at 236 (emphasis

added). To assess whether an issue of ultimate fact was “actually and necessarily decided

in the defendant’s favor,” a court must “scrutinize a jury’s decisions.” Yeager v United

States, 557 US 110, 123; 129 S Ct 2360; 174 L Ed 2d 78 (2009). Relevant to this case,

for defendant to prevail on his collateral-estoppel argument, he must demonstrate that the

first jury “actually and necessarily” determined that he had not engaged in conduct

satisfying the elements of the predicate offense of first-degree home invasion.




                                              5
                             B. INCONSISTENT VERDICTS

       The United States Supreme Court has had multiple opportunities to discuss

whether a defendant can satisfy his burden of demonstrating that an issue of ultimate fact

was actually and necessarily determined by a jury that rendered a “truly inconsistent”

verdict. See United States v Powell, 469 US 57, 64; 105 S Ct 471; 83 L Ed 2d 461

(1984); Dunn v United States, 284 US 390; 52 S Ct 189; 76 L Ed 356 (1932). As

background, Dunn involved a defendant charged with three counts: (1) “maintaining a

common nuisance by keeping for sale at a specified place intoxicating liquor;” (2)

“unlawful possession of intoxicating liquor;” and (3) “unlawful sale of such liquor.”

Dunn, 284 US at 391. The jury convicted the defendant of the first count but acquitted

him of the second and third counts. Id. at 391-392. The defendant argued that when the

evidence supporting each of the three counts was essentially identical, his conviction on

the first count should be discharged on the basis of his acquittals on the second and third

counts. Dunn held that “[c]onsistency in the verdict is not necessary” for the verdict to

be valid. Id. at 393. In doing so, it stated that “an acquittal on one [of the counts] could

not be pleaded as res judicata of the other.” Id.5

       Powell involved an even more logically inconsistent verdict in which the jury

convicted the defendant of several compound offenses while acquitting her of several

predicate offenses required to be proved to sustain the convictions for the compound


5
  This Court similarly has upheld the validity of inconsistent verdicts and rejected a
defendant’s attempt to employ a verdict’s inconsistent character to undermine charges for
which he had been convicted by way of charges for which he had been acquitted. People
v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).




                                              6
offenses. Powell, 469 US at 60-61.6 Relying on Ashe, Powell argued that the jury’s

verdict of acquittal on the predicate offense collaterally estopped the jury from convicting

her of the compound offense. Id. at 64. In assessing the jury verdict, the United States

Supreme Court noted that when a jury has rendered an inconsistent verdict, “the verdict[]

cannot rationally be reconciled.” Id. at 69. This is so because when a jury renders an

inconsistent verdict, the jury has acted in “error” or with “irrationality” in that it has not

accurately or faithfully followed the jury instructions in applying the law to its factual

conclusions. See id. at 65, 67 (“Inconsistent verdicts therefore present a situation where

‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly

has occurred . . . .”) That the jury verdict is the product of “error” or “irrationality” has

fatal consequences for a defendant’s ability to rely on the verdict to show that an issue of

ultimate fact has been resolved in the defendant’s favor:

               The problem is that the same jury reached inconsistent results; once
       that is established, principles of collateral estoppel—which are predicated
       on the assumption that the jury acted rationally and found certain facts in
       reaching its verdict—are no longer useful. [Id. at 68]




6
  Notably, the inconsistency in the verdict in the instant case is the same as the
inconsistency in the verdict in Powell. Wilson was convicted of first-degree felony
murder but acquitted of home invasion (the predicate-felony), and Powell was convicted
of the “compound offenses” of 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-- but acquitted of conspiracy to knowingly
and intentionally possess with intent to distribute cocaine and possession of cocaine with
intent to distribute (the predicate felonies).



                                              7
Accordingly, the Court rejected Powell’s double jeopardy argument premised on

collateral estoppel, upholding her conviction for the compound offense despite the jury’s

acquittal on the predicate offense.

       The reason that “principles of collateral estoppel . . . are no longer useful” when

there is an inconsistency in the verdict relied on by the defendant for an issue of ultimate

fact is that it is simply not possible to apprehend whether the jury resolved the issue of

ultimate fact in the defendant’s favor in accordance with the part of the verdict acquitting

the defendant, or in the prosecutor’s favor in accordance with the part of the verdict

convicting the defendant. Pertinent to the verdict in the instant case, it is simply not

possible to apprehend whether the jury resolved the issue of ultimate fact in defendant’s

favor in accordance with the part of the verdict acquitting him of first-degree home

invasion, or in the prosecutor’s favor in accordance with the part of the verdict convicting

him of first-degree felony murder, a charge necessarily encompassing a finding that he

had “engaged in conduct satisfying the elements of the predicate offense of first-degree

home invasion.”

       It is well understood that there are multiple potential explanations for why juries

sometimes render inconsistent verdicts. At least some (if not most) of these explanations

fail to support the conclusion that the jury “actually and necessarily” decided an issue of

ultimate fact in the defendant’s favor. Perhaps, the most commonplace explanation for

why a jury might do this is that the jury simply sought to grant the defendant some degree

of mercy or lenity.7 Speaking to the jury’s mindset in this regard, Dunn stated:

7
  As the majority opinion appears to believe that the particular explanation for an
inconsistent verdict is irrelevant once the convictions have been reversed, it never affords


                                             8
               “The most that can be said in such cases is that the verdict shows
       that either in the acquittal or the conviction the jury did not speak their real
       conclusions, but that does not show that they were not convinced of the
       defendant's guilt. We interpret the acquittal as no more than their
       assumption of a power which they had no right to exercise, but to which
       they were disposed through lenity.” [Dunn, 284 US at 393, quoting
       Steckler v United States, 7 F2d 59, 60 (CA 2, 1925)][8]

Obviously, when mercy or lenity are the precipitating causes of a jury’s inconsistent

verdict, it becomes impossible to argue that it has “actually and necessarily decided the

issue of ultimate fact in defendant’s favor.” Indeed, when an inconsistent verdict is the

product of mercy or lenity by the jury, the exact opposite conclusion must result, to wit,

that the jury “actually and necessarily decided the issue of ultimate fact against

defendant,” for had it not, there would be no need for mercy or lenity.




consideration to what might have caused the jury here to render an inconsistent verdict.
Under this analysis, even if it were known with certainty that the jury had acquitted
defendant of the predicate offense out of mercy or lenity, the majority opinion would still
reach the same conclusion, barring retrial of the first-degree felony murder charge based
on the acquittal of the first-degree home invasion charge.
8
  This Court has similarly concluded that mercy and lenity are the most likely
explanations for why a jury might render an inconsistent verdict:

              Juries are not held to any rules of logic nor are they required to
       explain their decisions. The ability to convict or acquit another individual
       of a crime is a grave responsibility and an awesome power. An element of
       this power is the jury’s capacity for leniency. Since we are unable to know
       just how the jury reached their conclusion, whether the result of
       compassion or compromise, it is unrealistic to believe that a jury would
       intend that an acquittal on one count and conviction on another would serve
       as the reason for defendant’s release. . . . But we feel that the mercy-
       dispensing power of the jury may serve to release a defendant from some of
       the consequences of his act without absolving him of all responsibility.
       [People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980) (citations
       omitted).]


                                              9
       Other typical explanations for why a jury might have rendered an inconsistent

verdict are equally of little avail in a defendant’s attempt to demonstrate that the jury

“actually and necessarily decided an issue of ultimate fact in defendant’s favor.” For

instance, in Powell it was suggested that in addition to lenity, “mistake” or “compromise”

might well explain why a jury has rendered an inconsistent verdict. Powell, 469 US at

65. However, when an inconsistent verdict is the product of a mistake, it is impossible to

know whether a jury mistakenly convicted, or mistakenly acquitted, defendant because it

is “unclear whose ox has been gored”-- the prosecutor’s or the defendant’s-- by the

mistake. Id. And when an inconsistent verdict is the product of compromise, a jury

simply cannot be said even to have decided any issue of ultimate fact.

       In the end, the mere fact alone that there are myriad explanations for why a jury

has rendered an inconsistent verdict only underscores that there is no way of determining

whether such a jury has “actually and necessarily decided the ultimate issue of fact upon

which defendant seeks to rely.” It is for this reason that it is usually as possible that a

jury determined the issue of ultimate fact against defendant as that the jury determined

the issue of ultimate fact in favor of defendant:

                The rule that the defendant may not upset [an inconsistent] verdict
       embodies a prudent acknowledgment of a number of factors.
       First, . . . inconsistent verdicts—even verdicts that acquit on a predicate
       offense while convicting on the compound offense—should not necessarily
       be interpreted as a windfall to the Government at the defendant’s expense.
       It is equally possible that the jury, convinced of guilt, properly reached its
       conclusion on the compound offense, and then . . . arrived at an inconsistent
       conclusion on the lesser offense. [Id.]

                                           * * *




                                             10
              Second, respondent's argument that an acquittal on a predicate
       offense necessitates a finding of insufficient evidence on a compound
       felony count simply misunderstands the nature of the inconsistent verdict
       problem. . . . [Defendant’s] argument necessarily assumes that the acquittal
       on the predicate offense was proper—the one the jury “really meant.” This,
       of course, is not necessarily correct; all we know is that the verdicts are
       inconsistent. The Government could just as easily—and erroneously—
       argue that since the jury convicted on the compound offense the evidence
       on the predicate offense must have been sufficient. [Id. at 68.]

Just as a prosecutor is unable to prevail on a collateral-estoppel argument by relying on

the convicted charges to seek retrial on the acquitted charges, a defendant in support of a

claim of collateral estoppel is unable to rely on the acquitted charges to avoid retrial on

the convicted charges. Id. When the burden of proof is on the defendant to sustain the

claim of collateral estoppel, the inconsistency in the verdict, which prevents a reviewing

court from knowing with any certainty what the defendant’s jury actually and necessarily

determined, will foreclose the defendant’s ability to prevail on the claim.

       The verdict here on which defendant relies for his collateral-estoppel defense was

genuinely inconsistent.    Because the jury convicted defendant of first-degree felony

murder predicated on the first-degree home invasion charge but acquitted him of first-

degree home invasion, it is not possible to know what determination it “actually and

necessarily” made regarding whether defendant engaged in conduct satisfying the

elements of first-degree home invasion. The appellate reversal of defendant’s conviction

for first-degree felony murder because he was not permitted to represent himself during

his first trial neither alters what factual findings the jury actually and necessarily made

nor enables any rationality to be ascribed to the jury’s verdict.




                                             11
                       II. RESPONSE TO MAJORITY OPINION

       The majority opinion offers three arguments for why Powell and Dunn are not

“relevant” to the instant case: (1) Powell’s and Dunn’s discussions of the doctrine of

collateral estoppel took place within the context of a single trial and should not be applied

when, as here, a second trial is involved, (2) Powell and Dunn are in conflict with Ashe

and Yeager, which should control this case, and (3) reliance on Powell and Dunn to

defeat defendant’s collateral-estoppel defense would alter the “legal meaning” given to

defendant’s reversed conviction and in so doing conflict with Burks v United States, 437

US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978).

                                 A. MULTIPLE TRIALS

       The majority opinion distinguishes Powell and Dunn on the grounds that they

“feature only direct appeals from a single jury verdict” and that principles of “collateral

estoppel and double jeopardy are simply not applicable to a single verdict.” There is no

dispute that principles of collateral estoppel and double jeopardy have no place within the

context of a single trial, but the majority opinion fails to ever consider why this is so. In

overlooking this basic question, the majority opinion erroneously dismisses Powell’s and

Dunn’s counsel regarding the interplay between inconsistent verdicts and collateral

estoppel.

       The only time a defendant might, even theoretically, advance a claim of collateral

estoppel within the context of a single trial is when a jury has rendered an inconsistent

verdict. This is because, in order for a defendant to advance a claim of collateral

estoppel, he must first identify an issue of ultimate fact that the jury has resolved in his

favor. The only time he can identify such an issue is when the jury has (a) acquitted the


                                             12
defendant or (b) acquitted the defendant of a charge that shares a disputed issue of

ultimate fact with another charge of which the jury convicted the defendant, thus

producing an inconsistent verdict. No explanation is required for why the defendant

would lack cause, or justiciable interest, to appeal a full acquittal. Therefore, the only

time a defendant might attempt to raise a collateral-estoppel argument on direct appeal in

the single trial context is when the jury has rendered an inconsistent verdict.

Accordingly, the reason that principles of collateral estoppel have no place within the

context of a single trial is because of the holdings from Powell and Dunn that principles

of collateral estoppel are “no longer useful” when the jury has rendered an inconsistent

verdict, the one and only scenario in which a defendant might even theoretically attempt

to raise a collateral-estoppel defense within the context of a single trial.

       If Powell and Dunn stand only for what the majority opinion views as the

pedestrian proposition that collateral estoppel and double jeopardy have no relevance in

the context of a single trial, then what explains the United States Supreme Court’s

decision to discuss at length in those cases principles of collateral estoppel and

inconsistent verdicts and ground its holdings on those very issues? If the majority

opinion’s position regarding Powell’s significance is correct, the unanimous Court in

Powell could have easily authored a one-page opinion stating that (a) Dunn allowed for

inconsistent verdicts and (b) principles of double jeopardy never apply within the context

of a single trial because the defendant has only been tried once. Instead, however, the

Court clearly, and without any qualification, announced that when the jury renders a truly

inconsistent verdict, principles of collateral estoppel are “no longer useful.” Powell, 469




                                              13
US at 68.9 It is only as a result of this conclusion that Powell effectively determined that

principles of collateral estoppel and double jeopardy have no place within a single trial.

As such, there is no obvious reason that Powell’s holding should be limited to cases

involving a single trial because to do so would be to divorce Powell’s reasoning from the

effect of Powell’s rule.

       The majority opinion’s narrow reading of Powell is all the more perplexing in

light of what Supreme Court caselaw after Powell has understood Powell to represent.

See part II(B) of this opinion. In this respect, Powell’s rule is not in conflict with other

cases examining principles of collateral estoppel, but is in full concert with the manner in

which other cases understand how and when principles of collateral estoppel prevent the

retrial of a defendant.

                B. POWELL CONSISTENT WITH YEAGER AND ASHE

       Yeager is the most recent United States Supreme Court case to apply collateral-

estoppel principles within the context of the Double Jeopardy Clause. The defendant in

Yeager was charged with various counts of fraud and insider trading predicated on the

fraud. Yeager, 557 US at 113. His first trial resulted in the jury’s acquitting him of the

predicate fraud offenses but not reaching a verdict on the compound offense of insider

trading. Id. at 115. When the government sought to retry the defendant on the insider-

trading charge, he sought to dismiss the prosecution on double jeopardy grounds. Id. He

argued that principles of collateral estoppel barred retrial of the compound offenses on

9
   Notably, the majority opinion fails to give any weight to Powell’s unequivocal
statement on this point.



                                            14
which the jury had been hung given that the jury had acquitted defendant of the predicate

offenses. Id.

       At issue was whether a verdict encompassing acquittals and hung counts is the

type of verdict from which a court can conclude that the jury “actually and necessarily

determined an issue of ultimate fact” such that principles of collateral estoppel would

preclude retrial of the hung counts, id. at 118-119, or whether such a verdict instead

implicates Powell’s holding that principles of collateral estoppel do not apply within the

context of an inconsistent verdict, id. at 124-125. Yeager held that a verdict consisting of

acquittals and hung counts (as opposed to a verdict consisting of acquittals and

convictions) was not a truly inconsistent verdict, but was only “seemingly inconsistent”

and not indicative of a jury that had acted irrationally, such that principles of collateral

estoppel were applicable. Id. at 122-123. Nonetheless, Yeager once again emphasized

that principles of collateral estoppel are only applicable when the jury’s verdict is

consistent and rational, and premised its application of collateral estoppel on being able

to ascribe sufficient consistency and rationality to the verdict rendered by the jury in the

defendant’s case. Id. at 123-125.

       In speaking of the proposition of law for which Powell stands, Yeager stated that

Powell “reason[ed] that issue preclusion is ‘predicated on the assumption that the jury

acted rationally.’ ”   Yeager, 557 US at 124, quoting Powell, 469 US at 68.              In

distinguishing Powell from Yeager, the Supreme Court’s sole focus was on the

rationality/irrationality of the verdicts in each case and not on the fact that Powell

involved a single trial while Yeager involved the retrial of a defendant. Indeed, not a

single justice saw fit to concur in Yeager for the purpose of distinguishing that decision


                                            15
from Powell on single/multiple trial grounds. No substantive reference to this reading of

Powell can be found anywhere in Yeager’s majority, concurring, or dissenting opinions.10

       Yeager rejected the government’s attempt to rely on Powell to label the verdict in

Yeager as inconsistent because to do so would take “Powell’s treatment of inconsistent

verdicts and import[] it into an entirely different context involving both verdicts and

seemingly inconsistent hung counts.” Id. In rejecting the government’s reliance on

Powell, the Court noted that relevant to the question of what facts the jury has, in fact,

determined, a hung count “is evidence of nothing—other than, of course, that [the jury]

has failed to decide anything.” Id. at 125. In considering the range of evidence from

which one might draw conclusions as to what issues a jury actually and necessarily


10
  The majority opinion quotes Justice Scalia’s dissent in Yeager for the proposition that
“[a]s a conceptual matter, it makes no sense to say that events occurring within a single
prosecution can cause an accused to be ‘twice put in jeopardy.’ ” This quotation,
however, is removed from context as the next three sentences of Justice Scalia’s dissent
proceed to discuss how Dunn and Powell accepted the validity of inconsistent verdicts,
but rejected the application of collateral estoppel in the context of an inconsistent verdict.
Yeager, 557 US at 130 (Scalia, J., dissenting). Thus, Justice Scalia ultimately relied on
Dunn and Powell, as well as on Ashe, to support his position that the inconsistent nature
of the verdict in Yeager nullified Yeager’s reliance on the valid and final acquittal for
collateral-estoppel purposes:

       And our cases, until today, have acknowledged that. Ever since Dunn v.
       United States, 284 U.S. 390, 393 (1932), we have refused to set aside
       convictions that were inconsistent with acquittals in the same trial; and we
       made clear in United States v. Powell, 469 U.S. 57, 64–65 (1984), that Ashe
       does not mandate a different result. There is no reason to treat perceived
       inconsistencies between hung counts and acquittals any differently. [Id.]

When read in full, Justice Scalia’S argument is not that Yeager understood collateral
estoppel differently from Dunn, Powell, and Ashe, but that Yeager applied principles of
collateral estoppel because it erroneously concluded that a verdict featuring hung counts
and acquittals was not an inconsistent or irrational verdict.


                                             16
determined, the Court described hung counts as the “thinnest reed of all.” Id. (emphasis

added). Accordingly, unlike Powell and Dunn in which attempts to rely on collateral

estoppel were rejected because the Court was presented with “jury verdicts that, on their

face, were logically inconsistent,” the mixed verdict of acquittals and hung counts in

Yeager created “merely a suggestion that the jury may have acted irrationally.” Id.

       But for the government’s failure to persuade the Supreme Court that a hung count

supported its claim that the jury acted irrationally, there is no indication that Yeager

would not have identically applied Powell and Dunn to defeat the defendant’s collateral-

estoppel defense. Id.11 Thus, Yeager is in no way a departure from Powell and Dunn, but

is fully consistent. Yeager, like Powell and Dunn, assessed the defendant’s collateral-

estoppel defense by determining what facts the jury “actually and necessarily” decided.

In the instant case, as in Powell and Dunn, there is simply no way to know this; in

Yeager, however, there was.

       Ashe, like Powell, Dunn, and Yeager, also focused the collateral-estoppel analysis

on what “a rational jury” has determined. Ashe, 397 US at 444; Powell, 469 US at 68. In

this sense, Ashe makes the existence of a rational jury a prerequisite for any defendant to

prevail on a collateral-estoppel defense. Put in practical terms, absent a finding in the

defendant’s favor that is part of a rational and consistent verdict, the defendant cannot


11
   In fact, the primary disagreement between the majority and the dissent in Yeager was
whether hung counts demonstrated that the jury had acted irrationally. Justice Scalia
disagreed with the majority only in viewing the hung counts, in combination with the
acquittals, as evidencing that there was “no clear, unanimous jury finding,” thus
preventing defendant from satisfying his burden under Ashe. Yeager, 557 US at 132
(Scalia, J., dissenting).



                                            17
sustain his burden and prevail on a collateral-estoppel defense. In the instant case,

defendant cannot establish that the first jury acted rationally when it convicted him of

first-degree felony murder while acquitting him of first-degree home invasion, the sole

predicate offense supporting the first-degree felony murder charge.           Therefore, the

subsequent reversal of his conviction for first-degree felony murder neither alters the

factual determinations actually and necessarily made by the jury nor serves to turn the

jury’s otherwise inconsistent and irrational verdict into a consistent and rational verdict.12

Accordingly, because Ashe’s application of collateral estoppel is premised on a “rational

jury,” Ashe too is consistent with Powell, Dunn, and Yeager and serves to undermine

defendant’s reliance on collateral estoppel to preclude retrial of the first-degree felony

murder charge of which his first jury convicted him.

       To overlook the factual findings made by defendant’s first jury with regard to the

first-degree felony murder conviction would also run afoul of Ashe’s requirement that a

court reviewing a defense of collateral estoppel do so “ ‘with an eye to all the

circumstances of the proceedings.’ ” Ashe, 397 US at 444, quoting Sealfon, 332 US at

579. In examining only the jury’s acquittal on the first-degree home invasion charge and

not the jury’s conviction on the first-degree felony-murder charge, the majority opinion

considers only those circumstances of the proceeding that support defendant’s collateral-

estoppel claim, disregarding those circumstances that are barriers to his claim.

12
   Defendant does not argue, and no reasonable argument could be made, that this is a
case in which the error resulting in the reversal—defendant’s being denied his right to
represent himself on any of the charges-- somehow explains the jury’s irrational verdict
as might be the case when, for example, there was some instructional error affecting only
the charge on which defendant was convicted by the jury.



                                             18
Regardless of whether a defendant’s conviction has or has not been subsequently

overturned, it remains that a jury verdict constitutes a “circumstance” of the proceedings

and, as such, must be given consideration under Ashe.

                                  C. “LEGAL MEANING”

       The majority opinion argues that allowing retrial would give new “legal meaning”

to defendant’s reversed conviction and permit it to be used against defendant in a manner

inconsistent with Burks. Respectfully, it is incorrect for three reasons.

       First, when the defendant has the burden of establishing that the jury determined

an issue of ultimate fact in his favor, and must do so in light of “all the circumstances of

the proceeding,” the reversed conviction is not being “used to the defendant’s detriment.”

Instead, the jury’s findings in convicting defendant are “circumstances” that the

defendant is simply unable to overcome in establishing his collateral-estoppel defense.

See footnote 3 of this opinion.

       Second, determining whether collateral estoppel applies to prohibit retrial focuses

on a highly factual analysis.      Only the underlying factual elements of defendant’s

reversed conviction are given continuing effect, not the reversed conviction itself. The

distinction between giving effect to factual elements of a reversed conviction and giving

continued legal effect to a reversed conviction can be demonstrated by looking at People

v Crable, 33 Mich App 254; 189 NW2d 740 (1971), a case cited by the majority opinion.

Crable held that a defendant who testifies cannot be impeached by way of questioning

him concerning the fact that he was convicted of an offense when that conviction was




                                             19
later reversed. Id. at 257. In this respect, the conviction itself no longer has any relevant

legal significance once it has been reversed.

       That is not to say, however, that factual elements from the first trial, which

resulted in the reversed conviction, must also be ignored or disregarded and cannot have

any continuing relevant legal significance. For instance, if a hypothetical defendant

testified at both trials (his first trial ending with a conviction that was subsequently

reversed), and the defendant’s testimony at the first trial contradicted his testimony at the

second trial, that the conviction from the first trial was reversed would not preclude the

prosecutor from impeaching defendant at the second trial with his testimony from the

first. Cf. United States v Havens, 446 US 620, 627-628; 100 S Ct 1912; 64 L Ed 2d 559

(1980) (holding that because ensuring truthful testimony “is a fundamental goal of our

legal system,” otherwise excludable evidence may be used for impeachment purposes on

cross-examination when the evidence contradicts a defendant’s testimony on direct

examination).    In this sense, while a reversed conviction has no continuing legal

significance and the occurrence of such a conviction may not be “used to the defendant’s

detriment,” specific factual elements from the conviction may persist in their legal

significance. In the context of a collateral-estoppel defense, it is not the conviction that is

being used against the defendant in this case but the underlying factual findings made by

the jury in convicting defendant of the compound offense.13

13
   In this regard, I do not, as the majority opinion contends, “jump[] over [the] critical
step” of recognizing that defendant’s conviction was reversed but simply view the
reversal as nullifying only the legal consequences associated with the conviction and not
the factual elements of the first trial. The reversal of Wilson’s conviction is just not
relevant to the collateral-estoppel analysis.



                                              20
       Third, and most importantly, the majority opinion’s reliance on Burks is misplaced

as a result of its failure to recognize the full scope of Burks’s statement about reversed

convictions. The majority opinion quotes Burks as follows:

              [R]eversal for trial error, as distinguished from evidentiary
       sufficiency, does not constitute a decision to the effect that the government
       has failed to prove its case. As such, it implies nothing with respect to the
       guilt or innocence of the defendant. Rather, it is a determination that a
       defendant has been convicted through a judicial process which is defective
       in some fundamental respect . . . . [Burks, 437 US at 15.]

However, the very next sentence of Burks premises the proposition that a reversed

conviction “implies nothing with respect to the guilt or innocence of the defendant” on

the specific fact that when a conviction is reversed, retrial is possible:

       When this occurs, the accused has a strong interest in obtaining a fair
       readjudication of his guilt free from error, just as society maintains a valid
       concern for insuring that the guilty are punished. [Id. at 15-16, citing Note,
       Double Jeopardy: A New Trial After Appellate Reversal for Insufficient
       Evidence, 31 U Chi L Rev 365, 370 (1964).]

When the ability to retry a defendant on a reversed conviction is foreclosed, the reversal,

coupled with the inability to retry the defendant, necessarily implies something about

defendant’s guilt or innocence. The premise of a collateral-estoppel defense is that, on

the basis of factual findings by a jury, defendant cannot be guilty of the charged offense,

thus implying something about defendant’s guilt or innocence. Despite relying on Burks,

which held that a reversed conviction “implies nothing with respect to the guilt or

innocence of the defendant,” the majority opinion employs principles of collateral

estoppel to forever foreclose the possibility of retrying defendant for first-degree felony

murder, thus in fact implying something significant about defendant’s guilt or innocence

on that charge.


                                              21
                      III. MAJORITY OPINION STANDS APART

       In foreclosing the state’s ability to retry a defendant when a jury returns an

inconsistent verdict and the convictions are subsequently overturned, the majority

opinion stands apart from all other courts that have addressed this issue. Unanimous high

courts in New Jersey and the District of Columbia have determined that when the jury

renders an inconsistent verdict, principles of collateral estoppel have no place even if the

convictions that make up the inconsistent verdict are subsequently overturned. State v

Kelly, 201 NJ 471; 992 A2d 776 (2010); Evans v United States, 987 A2d 1138 (DC,

2010), cert den 131 S Ct 1043 (2011). Both Kelly and Evans expressly rejected the

comparison that the majority opinion purports to make between a verdict, such as that in

Yeager, that includes hung counts and acquittals and a verdict that includes acquittals and

subsequently reversed convictions. Kelly, 201 NJ at 494; Evans, 987 A2d at 1142.

Evans stated in this regard:

               The Supreme Court’s recent decision in Yeager does nothing to
       undermine this analysis. The distinguishing feature in Yeager was that the
       jury had acquitted on some counts and hung on others. The Court treated
       “the jury’s inability to reach a verdict on the insider trading counts [as] a
       nonevent[,]” 129 S. Ct. at 2367, “hold[ing] that the consideration of hung
       counts has no place in the issue-preclusion analysis.” Id. at 2368. It
       explained that the situation was “quite dissimilar” from that presented in
       Powell, where “respect for the jury’s verdicts counseled giving each verdict
       full effect, however inconsistent.” Yeager, 129 S. Ct. at 2369. In Yeager,
       there was no inconsistent verdict of guilt standing in opposition to the
       acquittals, and the Court held that “conjecture about possible reasons for a
       jury’s failure to reach a decision should play no part in assessing the legal
       consequences of a unanimous verdict that the jurors did return.” Id. at
       2368. [Evans, 987 A2d at 1142.]




                                            22
Both Kelly and Evans understood correctly the threshold premise that principles of

collateral estoppel are only applicable when the jury has acted rationally, and in so doing,

both Kelly and Evans relied on Powell to resolve the defendants’ claims of collateral

estoppel. Kelly, 201 NJ at 488; Evans, 987 A2d at 1141-1142.

       Similarly, the United States Court of Appeals for the Second Circuit reached this

same conclusion in United States v Bruno and found the answer to the issue sufficiently

clear to enable it to resolve the case by summary order, stating,

               We see no merit to Bruno’s argument because, unlike the cases
       [including Ashe] on which he relies (where collateral estoppel barred
       retrial), Bruno was convicted of the offenses that are now the subject of
       retrial. These convictions are significant because they indicate that,
       notwithstanding the acquittals, the jury found that Bruno possessed the
       requisite intent to devise a scheme to defraud. See 18 U.S.C. § 1341
       (including intent as an element of mail fraud). While Bruno argues that the
       now-vacated convictions should be considered a non-event and the jury’s
       determinations on those counts should be ignored, there is no legal or
       factual support for this proposition. [United States v Bruno, 531 Fed Appx
       47, 49 (CA 2, 2013) (second emphasis added).][14]

       In reaching the opposite conclusion, the majority opinion does not cite a single

case from a state high court, an intermediate court from another jurisdiction, or a federal

court at any level that has resolved the instant question in the fashion that the majority


14
   The majority opinion’s attempt to diminish the relevance of Bruno on the basis that the
convicted and acquitted counts in that case did not share in common an issue of ultimate
fact does nothing to call into question the legal proposition that Bruno stands for. The
Second Circuit delivered its opinion on the assumption that the convicted and acquitted
counts shared in common an issue of ultimate fact. Bruno, 531 Fed Appx at 49, citing the
Brief for Defendant-Appellant at 32 (“Next, Bruno argues that the counts on which he
was acquitted reflect a finding by the jury that he ‘did not possess the requisite intent to
devise a scheme to defraud,’ and, therefore that the government is collaterally estopped
from charging him with such a scheme now.”).



                                             23
opinion resolves it.15 This leaves Michigan to stand alone on the issue of whether the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, by

way of principles of collateral estoppel, bars retrial when a jury renders an inconsistent

verdict and the convictions within the inconsistent verdict are subsequently reversed.

                                    IV. CONCLUSION

         Principles of collateral estoppel are only applicable when a defendant can

demonstrate that a rational jury has resolved an issue of ultimate fact in the defendant’s

favor.    A defendant is unable to establish that the jury “actually and necessarily

determined any issue of ultimate fact” when it has rendered an inconsistent verdict.

Defendant’s jury rendered an inconsistent verdict by convicting defendant of the

compound offense of first-degree felony murder while acquitting him of the predicate

offense of first-degree home invasion. Accordingly, defendant is unable to satisfy his

burden of establishing that the jury actually and necessarily determined an issue of

ultimate fact in his favor. The majority opinion’s contrary decision enables defendant,

having once been convicted of first-degree felony murder, to escape retrial and the

mandatory “life without parole” sentence that would attend any such reconviction. It

reaches this conclusion by an analysis that is novel, singular, and detached from 80 years

of federal caselaw concerning constitutional principles of collateral estoppel. I would




15
  This is, of course, not to say that this Court is reliant on the decisions of other courts,
but merely to point out that the majority opinion has failed to identify a single authority
for the proposition it asserts concerning the meaning of Ashe, Powell, and Yeager.



                                             24
affirm the Court of Appeals and permit the prosecutor to retry defendant for first-degree

felony murder.


                                                      Stephen J. Markman
                                                      Brian K. Zahra
                                                      David F. Viviano




                                           25
