Collateral Estoppel in Criminal Cases: How and Where Does It Apply?
Donald L. Catlett1 |
Charles D. Moreland1 |
Janet M. Thompson1 |
Introduction
Collateral estoppel sounds like one of those things that you hear about in law school but hope will never come up in your practice. As criminal law practitioners, we figured that it would rarely, if ever, make an appearance in our cases. How wrong we were. The doctrine recently played a central role in a capital case here in Missouri.
Collateral Estoppel in Civil Cases—General Principles
Principles of collateral estoppel have been used to protect litigants from the seemingly unnecessary burden of re-litigating an identical issue with the same party or someone in privity with that party. Collateral estoppel also has been used to “promote judicial economy by preventing [apparently] needless litigation.”2 The concept of collateral estoppel, like res judicata, is one of long-standing.
Collateral estoppel and res judicata are related concepts. Res judicata means that a judgment on the merits in a prior lawsuit will bar a second action between the same parties or their privies based on the same cause of action. Collateral estoppel means that, in a second action on a different cause of action, the judgment on the merits in the first lawsuit precludes re-litigation of issues in the second lawsuit.3
Collateral estoppel originally was limited by the doctrine of mutuality of parties. This meant that, unless both parties were bound by the judgment, neither could use a prior judgment as an estoppel against the other.4 Under this doctrine, the practical reasons for collateral estoppel were destroyed. Parties could litigate the same issue repeatedly, expending judicial time and resources, even when the issue had been decided adversely to them in the prior action. Further, those parties that were re-litigating issues gained an unfair advantage over their opposing party. These problems led to criticism, and ultimately largely a rejection, of the mutuality requirement.5
Collateral estoppel principles have been presented in two general contexts—offensive and defensive. The defensive use of collateral estoppel arises when a party is estopped from asserting a claim that the party had previously litigated and lost.6 The “offensive use of collateral estoppel” arises when a party seeks to estop the opposing party “from relitigating the issues [that] the [opposing party] previously litigated and lost.”7
Offensive use of collateral estoppel generally is less favored than defensive use.8 The United States Supreme Court in Parklane held that, because of the potential for unfairness arising from the offensive use of collateral estoppel, trial courts would be granted “broad discretion to determine when it should be applied.”9
Collateral Estoppel in Criminal Cases—Do the Same Principles Apply?
A. Ashe v. Swenson: The Facts and The Theory
Six men were playing poker in the basement of a Lee’s Summit home when three or four armed men suddenly broke in “and robbed each of the poker players of money and . . . personal property.”10 The robbers then fled in the car of one of the poker players. Later that morning, a state trooper arrested three men “while they were walking on a highway not far from” the car they had abandoned.11 Other officers arrested a fourth man, Bob Fred Ashe, some distance away. All four men were charged with the armed robbery of the six poker players and the theft of the car.
Ashe went to trial for the armed robbery of one of the poker players, Don Knight. The state’s four witnesses were uniform in their testimony that they had been robbed during the poker game. But their testimony that Ashe was one of the robbers was weak and inconsistent. “Two of the witnesses thought that there had been only three robbers” and didn’t identify Ashe as one of the three.12 One had positively identified the other three robbers” at the station and could only say that Ashe’s voice was very like that of one of the robbers. The final witness identified Ashe, but only by his size, height and actions.
The sole contested issue for the jury was whether Mr. Ashe was one of the robbers. The jury acquitted Ashe, finding the state had adduced insufficient evidence to sustain a conviction.
Dissatisfied with this result, the state brought Ashe to trial six weeks later, this time for the robbery of yet another of the six poker players. As the state later candidly conceded, “it treated the first trial as no more than a dry run for the second prosecution. . . .”13 The state refined its case, not calling the poker player who categorically had been unable to identify Ashe as one of the robbers, and adducing testimony from the other witnesses who, this time around, identified Ashe’s “features, size, . . . mannerisms” and voice as matching those of one of the robbers.14
This time around, the jury convicted Ashe of the robbery. Ashe, who had challenged the second prosecution as violating double jeopardy, appealed in state court and then filed a petition for a writ of habeas corpus in federal court. None of the courts granted relief, although the federal district court found Ashe’s arguments persuasive.15 The United States Supreme Court granted certiorari to consider his claim and found it meritorious.
The Court framed the question before it as “whether collateral estoppel is [part] of the Fifth Amendment’s guarantee against double jeopardy.”16 The Court resoundingly stated, “We do not hesitate to hold that it is.”17 If nothing else, the constitutional protection against double jeopardy “surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.”18
The Court began its analysis by noting 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.”19 While that rule was first developed in civil litigation, the Court stated that it was a long-established rule of criminal law.20
The crux of the matter, according to the majority, was what constituted “finally decided.”21 In cases involving general verdicts, the Court cautioned, a court must “examine the [entire] record of a prior proceeding” to determine “whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”22 The test applied must not be “technically restrictive,” the Court stated, because if it were, “the rule of collateral estoppel in criminal proceedings” would be non-existent.23
In Ashe’s case, the Court found that the sole issue in dispute was whether Ashe had been one of the robbers. The first jury found that he had not. Thus, the second prosecution was foreclosed. The Court stated that, just as Ashe could not have been tried a second time for the robbery of Knight after the first jury had rejected that conclusion, so, too, he could not be tried for the robbery of any of the other poker players. The victim’s name was irrelevant to whether Ashe was one of the robbers.24
Ashe v. Swenson involves the defensive use of collateral estoppel by a criminal defendant. Ashe sought to use collateral estoppel as a shield against the State’s second prosecution of him for the robbery. But could collateral estoppel have been used as a sword against him? Could the state have used collateral estoppel offensively against Ashe in a subsequent criminal prosecution? How do concepts of mutuality impact such usage?
Offensive Use of Collateral Estoppel: Concepts of Mutuality in Civil Cases
In civil cases, the collateral estoppel doctrine precludes parties from re-litigating issues of ultimate fact that previously have been decided by a valid judgment.25 The test in civil cases is the same as that outlined in Ashe. For it to be applied, the party asserting estoppel must show that: (1) the issue decided in the prior proceeding is identical to that raised in the instant proceeding; (2) the prior proceeding “resulted in a judgment on the merits”; (3) “the party against whom collateral estoppel is asserted [is] a party [to] or in privity with a party to the prior” proceeding; and (4) “the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior” proceeding.26 Identity of issues is critical for the application of collateral estoppel.27
The courts have delineated two manners in which collateral estoppel may be used. If a defendant seeks to bar a plaintiff from raising an issue that was decided in a prior action, its use is defensive.28 If the plaintiff seeks to use the doctrine against a defendant, to preclude the defendant from re-litigating an element of the plaintiff’s case, it is used offensively.29 Of the two usages, offensive use is the less favored.30
If a party seeks to use collateral estoppel principles offensively, the party must prove that: (1) the same issue was present in both the current and the earlier proceedings; “(2) the issue was actually litigated in the earlier” proceedings; (3) the issue was decided as “a critical and necessary part” of the prior proceedings, and “(4) the offensive use of collateral estoppel . . . would not be unfair to the” party against whom it is being asserted.31
Initially, collateral estoppel was held to apply only in those cases in which the parties to both proceedings were the same or in privity with a party in the prior proceedings.32 In civil cases, however, the concept has been expanded. As the Supreme Court of Missouri stated in Oates v. Safeco Insurance Co. of America, it now allows “strangers to the prior suit to assert collateral estoppel against parties to the prior suit to bar re-litigation of issues previously adjudicated. This extension of the concept of collateral estoppel removes the requirement of mutuality of estoppel, which required that the party asserting the estoppel also be bound by the estoppel.”33 Courts that have approved the use of non-mutual offensive collateral estoppel theorize that, if the facts in a given case demonstrate that fundamental fairness will not be denied, its use is appropriate. Its use is justified because it will protect the parties from re-litigating issues and will promote judicial economy.34
Offensive Use of Collateral Estoppel: Concepts of Mutuality in Criminal Cases
Since Ashe, various courts have addressed whether the state may use principles of collateral estoppel to preclude a criminal defendant from raising an issue decided in a prior criminal proceeding. The Third, Tenth and Eleventh Circuits have held that the government may not invoke collateral estoppel in a subsequent proceeding. The Third Circuit, in United States v. Pelullo,35 based its decision upon the Sixth Amendment right to a jury trial. The Sixth Amendment, it said, “necessitates that every jury empaneled for a prosecution considers evidence of guilt afresh and without the judicial direction attending collateral estoppel.”36 The Eleventh Circuit also held that the government may not use collateral estoppel against a criminal defendant in a successive proceeding.37 After a thorough discussion of the conflict among the circuits on the issue, the Tenth Circuit, in United States v. Gallardo-Mendez,38 joined with the Third and Eleventh Circuits. It found the reasoning supporting the government’s use of collateral estoppel against a criminal defendant was fatally flawed.
The Tenth Circuit based its holding on the Due Process Clause and did not reach the Sixth Amendment issue upon which the Third Circuit had based its decision.39 It held that, while considerations of “public policy and judicial efficiency” might be sufficient to apply collateral estoppel in civil cases, those considerations don’t carry the same weight in criminal cases.40 As Chief Justice Burger had put it in his dissent in Ashe, “in criminal cases, finality and conservation of private, public, and judicial resources are lesser values than in civil litigation.”41 Instead, in criminal cases, “the defendant has at stake an ‘interest of transcending value,’ his liberty.”42
Similarly, several state courts have rejected the offensive use of collateral estoppel against a criminal defendant. For instance, in State v. Ingenito,43 the court held that the state could not properly use a defendant’s conviction for unlawful transfer of a weapon to establish an essential element in the later prosecution of him for a felon in possession of a firearm. The court concluded that the defendant’s right to a jury trial was violated. It explained that “[i]f an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised.”44 The court found that offensive collateral estoppel “constitutes a strong, perhaps irresistible, gravitational pull towards a guilty verdict, which is utterly inconsistent with the requirement that a jury remain free and untrammeled in its deliberations.”45
To similar effect, the Michigan Supreme Court rejected the state’s argument that it could use the defendant’s established guilt of the underlying felony in his re-trial of a felony murder charge.46 The court held that “[e]stopping [the defendant] from contesting the armed-robbery charge would prevent the second jury from making its own independent evaluation of the armed-robbery element of felony murder, and, therefore, would be the equivalent of partially directing a verdict against him.”47
A California state court, in Gutierrez v. Superior Court,48 refused to let the state utilize collateral estoppel offensively against a criminal defendant. The court stated that the defendant’s interests in presenting a defense and having a jury trial on all of the issues “far outweigh any interest in judicial economy.”49
A Florida state court also has rejected using offensive collateral estoppel against a criminal defendant. It has concluded that due process “assure[s] an accused a jury trial on all issues relating to each element of a given criminal charge.”50
Most recently, the Tennessee Supreme Court also rejected the offensive use of collateral estoppel against a criminal defendant. In State v. Scarbrough,51 the court held that the offensive use of collateral estoppel against a criminal defendant denies the defendant his fundamental right to a jury trial and that such a denial “defies harmless error analysis.”52 The court rejected the state’s assertion that the interests of efficiency and judicial economy must be balanced against the defendant’s constitutional rights, finding the state’s interests “illusory” compared to the defendant’s rights.53
By contrast, the Eighth Circuit has held that the offensive use of collateral estoppel against a criminal defendant is permissible, and does not offend the Constitution. The Eighth Circuit’s position is based upon a now-discredited Ninth Circuit opinion in Pena-Cabanillas v. United States.54 There, the court found proper the government’s invocation of collateral estoppel against a criminal defendant on the issue of his alien status, an issue that had been decided in a prior criminal proceeding. The Ninth Circuit found the district court’s conclusion that
wise public policy and common sense judicial administration combine to advocate the application of the [collateral estoppel] doctrine against a defendant in criminal cases as to those issues which have in fact been litigated and adjudicated in a prior criminal case between the same prosecutor and the same defendant.55
The public policy and judicial administration concerns the court addressed in Pena-Cabanillas were based on the need to deter and control illegal entry by aliens into the United States. The court reasoned that, if collateral estoppel principles were not applied, illegal aliens would be encouraged repeatedly to attempt re-entry into the United States because of the prospect of “a trial de novo [before a jury] on the issue of alienage.”56 To similar effect, finding the Ninth Circuit’s reasoning “persuasive,” the Eighth Circuit in Hernandez-Uribe v. United States,57 held that collateral estoppel could be invoked against a criminal defendant in a subsequent proceeding.
But what happens to the underlying constitutional principles when a court finds that the government can invoke collateral estoppel against a criminal defendant in a subsequent proceeding? What happens when the issue is not the politically expedient question of clearing an already overburdened court docket of illegal aliens who are, for the umpteenth time, contesting their status as aliens?
Consider again the Court’s opinion in Ashe. There, the Court held that, once the first jury decided—clearly and unequivocally—that Ashe was not one of the robbers at the poker game, the state could not again litigate that issue in a subsequent criminal prosecution. Why not? Because the identical issue (Ashe’s identity) was at stake in both proceedings; because there had been a judgment on the merits in the prior proceeding; because the party against whom collateral estoppel was being asserted—the state—was the same in the prior proceeding; and because the state had had a full and fair opportunity—over four days of hearings plus the opportunity to present for review documents and affidavits—to litigate the issue in the prior proceeding.58 The state was thus collaterally estopped from raising the issue again—from treating the first proceeding as a “dry run” for any subsequent proceeding.59 The Fifth and Fourteenth Amendments’ guarantee against double jeopardy, in which collateral estoppel protections are embodied, protect the defendant “from having to ‘run the gantlet’ a second time.”60
But what would have happened had the first jury convicted Ashe, and thus found beyond a reasonable doubt that he was one of the robbers? If the state had thereafter chosen to prosecute Ashe for the robbery of the other five poker players, would Ashe have been precluded from challenging the state’s case? From presenting a defense? From a having a jury trial on this issue? According to the Eighth Circuit and the Ninth Circuit opinion upon which it rests its position, yes. But would that be consonant with the Constitution? Would that accord with Ashe? No.
If the holdings of the Eighth Circuit and the original position of the Ninth Circuit were applied to the factual situation presented in Ashe, and Ashe had been convicted in the first robbery prosecution, in any subsequent prosecutions the state would have been relieved of its burden of proving that Ashe was one of the poker game robbers. After all, that was the sole fact at issue in the first prosecution. In those subsequent prosecutions, Ashe could not have challenged that identification. According to the Eighth Circuit, he would have been bound by that finding.
But the majority in Ashe, and even Chief Justice Burger in dissent, intimated that is not the law. After all, Justice Stewart, writing for the majority, stated that it was “much too late to suggest [that collateral estoppel] is not fully applicable to a former judgment in a criminal case,
. . . because of lack of ‘mutuality.’”61
In a later opinion acknowledging Ashe, Simpson v. Florida,62 the Court “noted that ‘mutuality’ was not an ingredient of the collateral estoppel rule imposed by the Fifth and Fourteenth Amendments upon the States.”63 Suggesting a marked difference between offensive and defensive use of collateral estoppel, in United States v. Dixon the Court recognized that “a conviction in the first prosecution would not excuse the Government from proving the same facts the second time.”64 (Emphasis added.) And Chief Justice Burger, while disagreeing with the majority’s application of the rule, acknowledged that
courts that have applied the collateral-estoppel concept to criminal actions would certainly not apply it to both parties, as is true in civil cases, i.e., here, if Ashe had been convicted at the first trial, presumably no court would then hold that he was thereby foreclosed from litigating the identification issue at the second trial.65
Despite these statements, courts and parties continue to assert that, in criminal cases, unless a finding in the initial prosecution would be equally binding upon both parties in any subsequent prosecution, i.e., unless there is mutuality, collateral estoppel will not apply.
66 This argument is flatly contrary to
Ashe and the Constitution. Yet, it was the state’s argument in
State ex rel. Johns v. Kays.
67
In 1999, Alis Ben “Joe” Johns was tried in Pulaski County Circuit Court on one count of first degree murder and was sentenced to death. Although the issue of Johns’ mental status was raised in terms of competency and as an issue in sentencing, his potential mental retardation was not raised as a disqualification for the death penalty. Indeed, at that time it would not have been, since the trial pre-dated the United States Supreme Court’s decision in Atkins v. Virginia.68 In that case, the Court held that executing one who is mentally retarded violates the Eighth Amendment.
The Supreme Court of Missouri affirmed Johns’ conviction and sentence on direct appeal.69
In 2001, Johns timely filed a motion for post-conviction relief under Rule 29.15 in Pulaski County Circuit Court. Appointed counsel’s amended motion included a claim that Johns was mentally retarded. Before the evidentiary hearing on the motion, the United States Supreme Court decided Atkins. Then, in 2003, the motion court heard four days of testimony and considered countless records and depositions about whether Johns met Missouri’s statutory definition for mental retardation, set forth in § 565.030, RSMo, and whether he thus was ineligible for the death penalty.
The motion court found that Johns had “presented substantial, credible evidence demonstrating that he is mentally retarded.”70 As Missouri’s statute required for that finding, IQ testing showed his “significantly subaverage intellectual functioning” and the evidence further showed he demonstrated “extensive related deficits and limitations in two or more adaptive behaviors.”71 The motion court thus found that Johns was mentally retarded. The motion court then re-sentenced Johns to life imprisonment with no opportunity for probation or parole.
The state did not appeal from the motion court’s decision.
In April 2001, after the Supreme Court of Missouri’s decision affirming the Pulaski County case on direct appeal, the state charged Johns in Camden County with another count of first degree murder and the state sought the death penalty against him.72 Johns moved that he be found mentally retarded. He also moved that the state dismiss the statutory aggravating circumstances since, as someone who is mentally retarded, he is ineligible for the death penalty. Relying on Ashe v. Swenson and its expressed application of defensive collateral estoppel, he asserted that the state was estopped from proceeding against him with a death penalty prosecution because of the post-conviction judge’s finding, in the Pulaski County case, that he is mentally retarded.
The Camden County trial judge ultimately appointed to the case (the original judge having died of cancer during the pendency of the proceedings) denied Johns’ motions. The trial judge found that the death penalty proceedings in Camden County were not collaterally estopped.
Johns’ attorneys filed a petition for a writ of prohibition or, in the alternative, a writ of mandamus, in the Missouri Supreme Court. The Court issued a preliminary writ. Following oral argument, the Court made its preliminary writ absolute, to prohibit the state from seeking the death penalty against Johns.73
The Supreme Court of Missouri enunciated the Nunley test and noted that the respondent had acknowledged that all four prongs of the test had been met.74 The same issue—whether Johns was mentally retarded—was presented in both cases; the Pulaski County post-conviction court had reached a judgment on the merits in that proceeding; the state of Missouri, against which collateral estoppel was being asserted, was the same party in both proceedings; and the state of Missouri had had a full and fair opportunity to litigate the issue of Johns’ mental retardation in the prior proceeding.75
The Court noted, however, that the respondent had argued, based on State v. Lundy, “that collateral estoppel also requires that a party seeking to take advantage of collateral estoppel must be bound by an adverse judgment in the prior adjudication.”76 The Court rejected that “what is sauce for the goose is sauce for the gander” argument. It recalled that, in Lundy, the two cases had involved two different defendants and noted that the Lundy court had acknowledged the applicability of collateral estoppel when the parties to both cases are the same.77 It went on to hold that, when the defendant is the same in both cases, Lundy adds no other element to the collateral estoppel test.78
Although the state’s argument raised whether the offensive use of collateral estoppel is permitted, the Supreme Court of Missouri did not need to reach that question in Johns. The sole issue before the Court was that presented in Ashe—whether a criminal defendant can use the doctrine of collateral estoppel as a shield against a successive prosecution brought by the state. The Johns Court resoundingly re-affirmed its allegiance to the doctrine of defensive use of collateral estoppel in criminal cases. And, as to the state’s invitation to find that the application of collateral estoppel in a criminal case also requires mutuality—that “a party seeking to take advantage of collateral estoppel must be bound by an adverse judgment in the prior adjudication”—the Court responded, “Lundy does not add an additional requirement where the defendant is the same person in both cases.”79
This statement suggests that the Supreme Court of Missouri is in accord with the majority of courts to address the issue. It will not impose the mutuality requirement suggested by the state in applying collateral estoppel in a criminal case. Whether this means that collateral estoppel cannot be used offensively in Missouri is still, however, an open question. But, it is hoped that, if the Supreme Court of Missouri concludes that a criminal defendant’s constitutional right to a jury trial supersedes the state’s interest in efficiency and judicial economy, it specifically will reject the offensive use of collateral estoppel in criminal cases. Such a holding properly will elevate the importance of a defendant’s constitutional rights over the state’s interests in efficiency and judicial economy.
Footnotes
1 The authors, Don Catlett, Charles Moreland and Janet Thompson, attorneys with the Central Capital Office of the Missouri Public Defender System, dedicate this article to the memory of their friend and colleague, Lew A. Kollias, the first Appellate/Post-Conviction Division Director of the Missouri Public Defender System. Mr. Catlett is a 1981 graduate of the University of Missouri-Columbia School of Law. Mr. Moreland is a 1984 graduate of the University of Missouri-Kansas City School of Law. Ms. Thompson is a 1984 graduate of the University of Missouri-Columbia School of Law.
2 Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979).
3 Id.
4 Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127 (1912).
5 Parklane, 439 U.S. at 327.
6 See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971).
7 Parklane, 439 U.S. at 329.
8 Parklane, 439 U.S. at 329; James v. Paul, 49 S.W.3d 678, 685 (Mo. banc 2001).
9 Parklane, 439 U.S. at 330-331.
10 Ashe v. Swenson, 397 U.S. 436, 437 (1970).
11 Id.
12 Id. at 438.
13 Id. at 447.
14 Id. at 440.
15 Ashe v. Swenson, 289 F. Supp. 871, 873 (W.D. Mo. 1967).
16 Ashe, 397 U.S. at 442.
17 Id. at 445.
18 Id. at 445. This constitutional framework is significant, since it clearly puts at issue a criminal defendant’s rights to due process and a jury trial.
19 Id. at 443.
20 Id.
21 Later, for example, in Standefer v. United States, 447 U.S. 10 (1980), the Court found a second prosecution not collaterally estopped. The first prosecution involved the principal, an IRS agent, and the second involved the corporate employee, alleged to have aided and abetted the IRS agent’s conduct. The principal was acquitted of the charged offense. The Court noted the jury could well have decided to acquit based on some other factor, such as emotion. Id. at 22-23.
22 Ashe at 444, citing Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38-39 (1960).
23 Id.
24 Id. at 446.
25 King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 500 (Mo. banc 1991); In re Caranchini, 956 S.W.2d 910, 912 (Mo. banc 1997).
26 King at 500. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979); Major v. Frontenac Indus., Inc., 968 S.W.2d 758, 761 (Mo. App. E.D. 1998).
27 In re Caranchini, 956 S.W.2d at 913.
28 Consumer Fin. Corp. v. Reams, 158 S.W.3d 792, 796 (Mo. App. W.D. 2005); SSM Health Care St. Louis v. Radiologic Imaging Consultants, 128 S.W.3d 534, 541 (Mo. App. E.D. 2003).
29 Id.; Parklane, 439 U.S. at 329.
30 Consumer Finance, 158 S.W.3d at 797; James v. Paul, 49 S.W.3d 678, 685 (Mo. banc 2001).
31 State v. Daniels, 789 S.W.2d 243, 244-45 (Mo. App. W.D. 1990).
32 Parklane, 439 U.S. at 347.
33 Oates, 583 S.W.2d at 719; Estate of Brown v. Bank of Piedmont, 763 S.W.2d 719, 721 (Mo. App. S.D. 1989); Board of Education v. City of St. Louis, 879 S.W.2d 530, 532 (Mo. banc 1994).
34 Parklane, 439 U.S. at 326.
35 14 F.3d 881 (3rd Cir. 1994).
36 Id. at 896.
37 United States v. Harnage, 976 F.2d 633, 636 (11th Cir. 1992).
38 United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998).
39 Id. at 1244.
40 Id. at 1244.
41 Ashe, 397 U.S. at 464.
42 Gallardo-Mendez, 150 F.3d at 1244, quoting In re Winship, 397 U.S. 358, 364 (1970) (other internal quotations omitted).
43 State v. Ingenito, 432 A.2d 912 (N.J. 1981).
44 Id. at 916.
45 Id. at 918-19.
46 People v. Goss, 521 N.W.2d 312, 316 (Mich. 1994).
47 Id.
48 Gutierrez v. Superior Court, 29 Cal. Rptr. 2d 376 (1994).
49 Id. at 386.
50 State v. Stiefel, 256 So.2d 581, 585 (Fla. Dist. App. 1972).
51 State v. Scarbrough, 181 S.W.3d 650 (Tenn. 2005).
52 Id. at 658.
53 Id.
54 394 F.2d 785 (9th Cir. 1968). Since Pena-Cabanillas, the Ninth Circuit has accepted the government’s position and concession that collateral estoppel cannot be used offensively against a criminal defendant. United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir. 2005); see also United States v. Arnett, 353 F.3d 765 (9th Cir. 2003).
55 Pena-Cabanillas at 787.
56 Id.
57 515 F.2d 20 (8th Cir. 1975).
58 The Supreme Court of Missouri, in State v. Nunley, 923 S.W.2d 911 (Mo. banc 1996), reiterated that “collateral estoppel means ‘when an issue of ultimate fact has been determined by a valid judgment, it may not again be litigated between the same parties.’” Id. at 922. The test to determine whether collateral estoppel applies, said the Court, is whether (1) the issue in this case is “identical to the issue decided in the prior” proceeding; (2) there was “a judgment on the merits in the prior proceeding; (3) . . . the party against whom collateral estoppel [is] asserted [is] the same party or [is] in privity with a party in the prior [proceeding]; and (4) . . . the party against whom collateral estoppel is asserted [had] a full and fair opportunity to litigate the issue in the prior [proceeding].” Id.
59 Ashe, 397 U.S. at 447.
60 Id. at 446.
61 Id. at 443.
62 403 U.S. 384 (1971).
63 Id. at 386.
64 509 U.S. 688, 710 n. 15 (1993) (emphasis added).
65 397 U.S. at 464-65.
66 Indeed, relying on cases such as State v. Lundy, 829 S.W.2d 54 (Mo. App. S.D. 1992), parties present the facially logical argument to courts with some success. A review of the facts of Lundy and their application to the rationale and rule of Ashe demonstrates the fallacy of the argument. Lundy asserted that the court in his case was bound by the finding of another trial court, which had granted another defendant’s motion to suppress. The Southern District rejected Lundy’s argument, noting that “Lundy was not a party to that proceeding and would not be bound by the result of that proceeding had it been determined the marijuana was admissible.” Id. at 56. As argued here, to assert that collateral estoppel can only be applied if there is mutuality does violence to Ashe. Lundy merely stands for the proposition that collateral estoppel applies where the parties are the same or in privity. Since Lundy, like Standefer, involved different defendants, neither Court held that collateral estoppel applied.
67 State ex rel. Johns v. Kays, 181 S.W.3d 565 (Mo. banc 2006).
68 536 U.S. 304 (2002).
69 State v. Johns, 34 S.W.3d 93 (Mo. banc 2000).
70 Johns v. State, Pulaski County Case No. CV501-0389CC (filed July 14, 2003).
71 Section 565.030.6, RSMo Supp. 2006.
72 34 S.W.3d 93 (Mo. banc 2001). Johns was also charged with first degree murder in Newton County. That case was resolved by a plea agreement after the Missouri Supreme Court affirmed the Pulaski County judgment and sentence on direct appeal.
73 State ex rel. Johns v. Kays, 181 S.W.3d 565, 566 (Mo. banc 2006).
74 Id.
75 Id.
76 Id.
77 Id.
78 Id.
79 Id.