Court OKs Offensive Collateral Estoppel

In my experience, the mere mention of the terms “res judicata” and “collateral estoppel” in the classroom setting operates like a blast of intellectual air conditioning, causing mental processes to slow and eyes to glaze, if not to twitch. Notwithstanding this aversion to the concepts, at bottom they are quite simple. Both concepts are rules of preclusion; they preclude the relitigation of matters previously determined. Specifically, res judicata deals with claim preclusion while collateral estoppel deals with issue preclusion. Although the rules typically come up in civil cases, they can arise in the criminal context as well. And while they also typically are raised as defenses, they can be used offensively as well. Consider this example:

Suppose a defendant is charged with felony murder and first-degree burglary. Suppose further that the jury finds him guilty of first-degree burglary but can’t reach a verdict on the felony murder charge. The trial court declares a mistrial on the felony murder charge and enters a PJC on the burglary charge, pending a retrial on felony murder. At the defendant’s retrial on felony murder, the trial judge instructs the jury that “because it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that [the defendant] committed first degree burglary on [the date in question] . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt.”

And now a pop quiz: Is the instruction proper?

In the recent case State v. Cornelius, the N.C. Court of Appeals answered that question in the affirmative. Cornelius involved these very facts and at the second trial, the trial court gave the precise instruction set forth above. The defendant was convicted and appealed, arguing in part that the trial court erred by applying offensive collateral estoppel to bar him from relitigating, for purposes of the felony murder trial, whether he committed the felony of burglary. According to the defendant, offensive collateral estoppel should not apply in criminal cases.

The Cornelius court noted that other jurisdictions have held that offensive collateral estoppel is inappropriate in criminal cases. However, it found that its prior decision in State v. Dial, 122 N.C. App. 298 (1996), was controlling. In Dial, the defendant was indicted for first-degree murder. The defendant asserted that the prosecution could not prove that the murder occurred in North Carolina and, therefore, the State lacked jurisdiction over the offense. Although the jury returned a special verdict finding that North Carolina had jurisdiction, it hung as to guilt or innocence. The defendant then filed a motion to dismiss the indictment for lack of jurisdiction and to set aside the special verdict finding jurisdiction. The trial court determined that the special verdict resolved the jurisdictional issue and denied both motions. The defendant then was retried and convicted of second-degree murder. On appeal he argued that the special verdict was not binding at the retrial and the State should have been required to prove, beyond a reasonable doubt, jurisdiction to the same jury charged with deciding his guilt or innocence on the murder charge. Rejecting this argument, the Court found the issue resolved by “settled principles of res judicata and collateral estoppel.” It explained:

The doctrines of res judicata and collateral estoppel apply to criminal, as well as, civil proceedings, and their application against a criminal defendant does not violate the defendant’s rights to confront the State’s witnesses or to a jury determination of all facts.

In the present case, all the requirements for precluding relitigation of the jurisdiction issue have been met: (1) the parties are the same; (2) the issue as to jurisdiction is the same; (3) the issue was raised and actually litigated in the prior action; (4) jurisdiction was material and relevant to the disposition of the prior action; and (5) the determination as to jurisdiction was necessary and essential to the resulting judgment.

Id. at 306 (internal citations omitted). The court went on to hold that the trial court’s acceptance of the special verdict at the first trial precluded the defendant from relitigating the jurisdictional issue.

The Cornelius court rejected the defendant’s attempt to distinguish Dial and found the case controlling. It concluded that because the jury heard the evidence, deliberated, and without error returned a verdict of guilty of first-degree burglary, the defendant was not entitled to retry the issue of whether the defendant had committed the felony of first degree burglary.

So there you have it: application (again) of offensive collateral estoppel in the criminal context.