Petitioner received a general verdict of acquittal on an
information charging him with murder in the course of a robbery.
When petitioner was subsequently indicted for the robbery, his
defense, rejected by the state courts, was that constitutional
principles of double jeopardy collaterally estopped the State from
relitigating those factual issues already determined in his favor,
determinations that make his conviction of robbery logically
impossible.
Held: It must be concluded that the jury (which had
been given a charge on accessories) found that petitioner was not
present at the robbery-murder scene, thus negating the possibility
of a constitutionally valid conviction for the robbery.
Ashe v.
Swenson, 397 U. S. 436.
Petition for certiorari granted; 251 Ark. 499,
473 S.W.2d
904, reversed and remanded.
PER CURIAM.
On December 24, 1968, petitioner, one Richard Turner (no
relation to petitioner), the decedent Larry Wayne Yates, and one
other person were involved in a poker game, which lasted until the
early hours of Christmas morning. After he left the game, Yates was
murdered and robbed, and an information filed on December 27
charged that:
"[Petitioner,] on the 25th day of December, 1968 . . . did
unlawfully, willfully, feloniously and violently take from the
person of one Larry Wayne Yates . . . a sum of money in excess of
$300.00 . . . forcibly and against the will of the said Larry Wayne
Yates . . . and, while perpetrating said crime of robbery as
aforesaid, feloniously, willfully and with malice aforethought, and
with premeditation and deliberation, did kill and murder one Larry
Wayne Yates. . . . "
Page 407 U. S. 367
On April 24, 1969, petitioner received a general verdict of
acquittal on this information.
On October 3, 1969, however. a county grand jury indicted
petitioner for the robbery of Yates and alleged that
petitioner,
"on the 25th day of December, 1968, in Hempstead County,
Arkansas, did unlawfully take from Larry Yates by force and
intimidation lawful currency in the amount of Four Hundred Dollars
($400.00) belonging to the said Larry Yates, against the peace and
dignity of the State of Arkansas."
Petitioner moved to dismiss this indictment on double jeopardy
and
res judicata grounds, but the trial court denied the
motion. On appeal, it was stipulated that "the murder charge, of
which Defendant Dennis Turner was acquitted, and the robbery charge
arose out of the same set of facts, circumstances, and the same
occasion," and that "the same testimony adduced by the State of
Arkansas in the murder trial will necessarily need be reintroduced
in this robbery charge." A divided Arkansas Supreme Court affirmed
the denial of petitioner's motion,
Turner v. State, 248
Ark. 367,
452 S.W.2d 317
(1970), holding that the only question determined at the murder
trial was whether petitioner was guilty of murder. The court
pointed out that, under state law, murder and robbery charges could
not be joined in one indictment or information, and that no offense
could be jointly tried with murder. Petitioner's rehearing
petition, which argued the relevance of this Court's holding in
Ashe v. Swenson, 397 U. S. 436
(1970), announced seven days after the Arkansas Supreme Court's
decision, was denied. Petitioner then entered the complete
transcript of the murder trial into the record and once again moved
to dismiss the indictment on double jeopardy and
res
judicata grounds, and the trial court again denied the
motion.
Page 407 U. S. 368
An amended stipulation provided that the evidence the State
would present on the robbery charge would be identical with that it
introduced on the murder charge. The Arkansas Supreme Court
affirmed the decision of the trial court, 251 Ark. 499,
473 S.W.2d 904
(1971), declining to consider the applicability of this Court's
decision in
Ashe v. Swenson, supra, because it held that
its earlier decision denying petitioner relief now constituted the
"law of the case."
Petitioner contends that Fifth Amendment principles of double
jeopardy,
see Benton v. Maryland, 395 U.
S. 784 (1969), prevent his trial on the robbery
indictment, because the State is collaterally estopped from
relitigating those issues already determined in his favor at the
murder trial, determinations that make his conviction on the
robbery charge a logical impossibility. Collateral estoppel is part
of the Fifth Amendment's double jeopardy guarantee,
Ashe v.
Swenson, supra, and it is "a matter of constitutional fact
[this Court] must decide through an examination of the entire
record."
Id. at
397 U. S. 443.
Thus, the rejection of petitioner's claim by the Arkansas Supreme
Court on procedural grounds does not foreclose our inquiry on this
issue.
In
Ashe, the defendant had been tried and acquitted by
a general verdict of the robbery of one member of a poker game. He
was then tried and convicted of the robbery of another of the poker
players. This Court reversed his conviction, concluding that "[t]he
single rationally conceivable issue in dispute before the jury [in
the first trial] was whether the petitioner had been one of the
robbers," 397 U.S. at
397 U. S. 445,
and that, this issue once having been determined by a jury in the
petitioner's favor, the State was forestalled from relitigating
it.
In the present case, petitioner was not charged with robbery at
the first trial, but the State has stipulated that the robbery and
murder arose out of "the same set of
Page 407 U. S. 369
facts, circumstances, and the same occasion." The crucial
question, therefore, is what issues a general verdict of acquittal
at the murder trial resolved. The jury was instructed that it must
find petitioner guilty of first degree murder if it found that he
had killed the decedent Yates either with premeditation or
unintentionally during the course of a robbery. The jury's verdict
thus necessarily means that it found petitioner not guilty of the
killing. The State's theory, however, is that the jury might have
believed that petitioner and Richard Turner robbed Yates, but that
Richard actually committed the murder. This theory is belied by the
actual instructions given the jury.
*
The trial judge charged that:
"An accessory is one who stands by, aids, abets, or assists . .
. the perpetration of the crime."
"
* * * *"
"All persons being present, aiding and abetting, or ready and
consenting to aid and abet, in any felony, shall be deemed
principal offenders, and indicted or informed against, and punished
as such."
(Court's Instruction No. 13.) Had the jury found petitioner
present at the crime scene, it would have been obligated to return
a verdict of guilty of murder even if it believed that he had not
actually pulled the trigger. The only logical conclusion is that
the jury found him not present at the scene of the murder and
robbery, a finding that negates the possibility of a
constitutionally valid conviction for the robbery of Yates.
Page 407 U. S. 370
This case is thus squarely controlled by
Ashe v. Swenson,
supra, and must be reversed.
See Harris v.
Washington, 404 U. S. 55
(1971).
The writ of certiorari is granted, the decision of the Arkansas
Supreme Court is reversed, and the case is remanded for proceedings
not inconsistent with this opinion.
It is so ordered.
* These instructions reflect Ark.Stat.Ann. § 41-2227 which makes
accessories before the fact to first-degree murder subject to the
same punishment as principals. Ark.Stat.Ann. § 41-118 abolished the
distinction between principals and accessories before the fact, and
also provides that "all accessories before the fact shall be deemed
principals and punished as such." Ark.Stat.Ann. § 41-119 defines an
accessory as "he who stands by, aids, abets, or assists . . . the
perpetration of the crime."
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE REHNQUIST joins,
concurring.
Given the decision in
Ashe v. Swenson, 397 U.
S. 436 (1970) (
see, however, my dissent in
Harris v. Washington, 404 U. S. 55,
404 U. S. 57
(1971)), I join the judgment of the Court.
THE CHIEF JUSTICE, rather than taking summary action in this
case, would hear oral argument and give the matter plenary
consideration.