       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      EDDIE VINCENT RUTLEDGE,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3659

                             [ April 17, 2019 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No.
502008CF000919AXXXMB.

   Carey Haughwout, Public Defender, and Siobhan Helene Shea,
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Following the second trial in this case, Eddie Rutledge appeals his
convictions and sentences for first-degree murder and conspiracy to
commit first-degree murder. We affirm on all issues. We write solely to
address appellant’s argument that because he was acquitted at his first
trial of solicitation to commit murder, collateral estoppel barred the State
from introducing evidence that he solicited an acquaintance to murder the
victim.

    Appellant and his co-defendant, Kenakil Gibson, were charged with
first-degree murder with a firearm, conspiracy to commit first-degree
murder, and solicitation to commit first-degree murder. Appellant and the
co-defendant were tried separately. At appellant’s first trial, he was
convicted of first-degree murder and conspiracy to commit first-degree
murder, but he was acquitted of the solicitation charge. We reversed
appellant’s convictions in Rutledge v. State, 150 So. 3d 830 (Fla. 4th DCA
2014), due to the trial court’s error in failing to inquire into a potential
conflict between appellant and his counsel.
   Appellant proceeded to a second trial on the first degree murder and
conspiracy charges.      The evidence at the second trial, which was
substantially similar to the evidence at the first trial, showed the following
facts relevant to this opinion.

   On the night of November 25, 2007, the victim, George Mannarino, was
shot and killed while standing in the open garage of his home. The victim
was scheduled to testify the next day in a burglary case against appellant
and the co-defendant. The burglary had occurred at the victim’s next door
neighbor’s home.

    The police responded to the scene of the murder. The police found a
rifle with an attached scope in some bushes across the street from the
victim’s home. The State’s forensic scientist determined that appellant
was a source of DNA profiles on the trigger, trigger guard, and hammer of
the rifle.

   On the evening of the shooting, one of the victim’s neighbors heard a
loud sound and saw a male running between some houses across the
street. The male then got into the back seat of a dark-colored sedan, which
took off quickly.

    Another neighbor heard a “pop” and then saw a green Ford Crown
Victoria or a Mercury Grand Marquis car coming around the corner with
its headlights off and its tires screeching. This neighbor testified that the
model year of the car appeared to be between 2000 and 2006. At the time
of the murder, appellant owned a green 1999 Mercury Grand Marquis.

    Less than one week before the murder, appellant brought a rifle to a
gun store and paid to have a scope mounted onto it. The State presented
evidence that the rifle appellant brought into the gun store was the same
rifle found in the bushes near the crime scene. The State also presented
evidence that in 2006 the co-defendant was in possession of the same rifle
at his apartment and allowed a friend to have his picture taken with the
rifle.

   A search of the co-defendant’s computers showed that: (1) an internet
search for the victim’s name was conducted in February 2007, and (2) an
internet search for the victim’s address was conducted in April 2007.

   Over appellant’s objection that he had been acquitted of solicitation at
the first trial, the State offered testimony that appellant and the co-
defendant solicited an acquaintance to murder the victim.

                                      2
    Specifically, the acquaintance testified that, about a week or two before
the murder, he was at appellant’s house to buy drugs. Appellant told him,
in the presence of the co-defendant, that “we need you to kill somebody
for us.” The acquaintance replied that he did not do such things, but that
he “could try to find somebody for you.” Appellant took the acquaintance
to a computer where he showed him a picture of the victim and the location
of the victim’s neighborhood. Appellant explained that the victim was the
only witness who could identify him and the co-defendant at an upcoming
burglary trial. The acquaintance told appellant that what he was asking
to be done “might cost a pretty penny.” Appellant then asked the co-
defendant if he would pay for half the cost, and the co-defendant said
“yeah.” However, when the acquaintance indicated that he didn’t know if
he could find someone by the time appellant and the co-defendant “wanted
it done,” the co-defendant said, “F this, I’ll do it myself.”

   At the conclusion of the second trial, the jury found appellant guilty as
charged on both counts.

    On appeal, appellant argues that the collateral estoppel component of
double jeopardy barred the State from introducing the acquaintance’s
testimony that appellant solicited him to commit murder, as this testimony
was the factual basis for the solicitation charge for which he was acquitted
at the first trial. 1 We disagree and conclude that collateral estoppel does
not apply under the circumstances of this case.

   “Whether collateral estoppel precludes litigation of an issue is reviewed
de novo.” Criner v. State, 138 So. 3d 557, 558 (Fla. 5th DCA 2014).

   The doctrine of collateral estoppel “is embodied in the Fifth Amendment
guarantee against double jeopardy.” Ashe v. Swenson, 397 U.S. 436, 445
(1970).    Collateral estoppel “precludes the State from seeking a
redetermination of evidentiary facts as well as ultimate facts in order to
establish the fact of the crime charged.” Hilaire v. State, 799 So. 2d 403,
405 (Fla. 4th DCA 2001). Evidence concerning an issue should be
excluded under the principle of collateral estoppel where: (1) the issue

1 While appellant never used the magic words “collateral estoppel” below, the
substance of appellant’s argument was that admitting the acquaintance’s
testimony about the solicitation would violate double jeopardy principles because
appellant was acquitted of solicitation at the first trial. Given that collateral
estoppel is a component of double jeopardy, appellant’s argument was sufficiently
specific to inform the trial court of the alleged error. Thus, the issue was
preserved for review.

                                       3
sought to be litigated is sufficiently similar to the issue presented in an
earlier proceeding and sufficiently material in both actions; (2) the issue
was actually litigated in the prior proceeding; and (3) the issue was
necessarily decided in the prior proceeding. Id.

    In Hilaire, for example, we held that collateral estoppel barred the State
from introducing evidence concerning a crime for which the defendant had
previously been acquitted at his first trial, even though the evidence was
relevant to prove the defendant’s consciousness of guilt on a different
charge that was not barred from retrial. Id. at 404–06. Thus, as a general
proposition, “evidence of crimes for which a defendant has been acquitted
is not admissible in a subsequent trial.” State v. Perkins, 349 So. 2d 161,
164 (Fla. 1977).

   The collateral estoppel component of the double jeopardy clause does
not, however, bar the government from retrying a defendant after a jury
has returned irreconcilably inconsistent verdicts of conviction and
acquittal, and the convictions are later vacated for legal error unrelated to
the inconsistency. Bravo-Fernandez v. United States, 137 S. Ct. 352, 362–
63 (2016). Stated another way, a defendant cannot meet the burden of
demonstrating that an issue was actually decided by a prior jury’s
acquittal “when the same jury returns irreconcilably inconsistent verdicts
on the question she seeks to shield from reconsideration.” Id. at 359.
Thus, an acquittal does not support the application of issue preclusion
“when inconsistent verdicts shroud in mystery what the jury necessarily
decided.” Id. at 366.

    Here, although collateral estoppel would usually bar evidence of a crime
for which appellant was acquitted at a previous trial, we conclude that the
jury in the first trial returned a factually inconsistent verdict by acquitting
appellant of the solicitation charge while convicting him of the conspiracy
charge. Under the facts of this case, the first jury could not have found
beyond a reasonable doubt that appellant and the co-defendant had an
agreement to murder the victim unless the first jury relied upon the
acquaintance’s testimony that appellant and the co-defendant solicited
him to murder the victim or to hire someone else to do so.

   The acquaintance’s testimony that appellant and the co-defendant
solicited him to kill the victim was the key evidence establishing that
appellant and the co-defendant conspired to murder the victim. Although
there was other evidence suggestive of a conspiracy between appellant and
the co-defendant to murder the victim, the acquaintance’s testimony
concerning the solicitation was necessary to prove the conspiracy beyond
a reasonable doubt.       Moreover, it is impossible to separate the

                                      4
acquaintance’s testimony concerning the solicitation from his testimony
demonstrating that appellant and the co-defendant conspired to have the
victim murdered.

   Because the first jury convicted appellant of conspiring with the co-
defendant to murder the victim but simultaneously acquitted him of the
solicitation that proved the existence of the conspiracy beyond a
reasonable doubt, the original verdict was irreconcilably inconsistent.
Therefore, applying the rule of Bravo-Fernandez, we hold that collateral
estoppel did not bar the acquaintance’s testimony concerning the
solicitation, because the first jury’s acquittal on the solicitation charge was
factually inconsistent with its conviction on the conspiracy charge.

   In short, appellant’s acquittal of the solicitation charge at the first trial
did not have issue-preclusive effect, because the first jury’s inconsistent
verdict shrouded in mystery what the first jury necessarily decided. Thus,
under the circumstances of this case, the State was not barred from
introducing testimony about the solicitation to establish that appellant
and the co-defendant conspired to murder the victim.

   Affirmed.

GERBER, C.J., and KUNTZ, J., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                       5
