MSC 146480 PEOPLE OF MI V DWAYNE E WILSON Opinion - Leave Granted - Reverse CoA 06/18/2014

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, S AAD, P.J.,
and J ANSEN and K. F. KELLY, JJ., reversed his convictions in an unpublished opinion per curiam,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, M URPHY , C.J., and O’C ONNELL and W HITBECK, 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reversed in an unpublished opinion per curiam, issued November 15, 2012 (Docket No. 311253),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 M C C ORMACK, joined by Chief Justice YOUNG and Justices
C AVANAGH and K ELLY, the Supreme Court held:
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Robert P. Young, Jr.
Justices:
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
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Corbin R. Davis

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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

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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 M ARKMAN, joined by Justices ZAHRA and V IVIANO , 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

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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

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FILED June 18, 2014
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146480
DWAYNE WILSON,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
MC CORMACK, 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
Michigan Supreme Court
Lansing, Michigan
Opinion Chief Justice:
Robert P. Young, Jr.
Justices:
Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

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2
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

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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.

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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.

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13
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.

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14
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

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S T A T E O F M I C H I G A N
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

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2
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)
(C AVANAGH , J., dissenting). The enumerated offense is the “predicate offense.”

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3
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).

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4
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.

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5
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.

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6
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).

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7
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).

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8
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

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9
“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).]

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10
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.]
* * *

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11
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.

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12
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

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13
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

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14
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.

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15
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

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16
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.

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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).

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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.

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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

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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.

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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.

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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.]

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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.”).

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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.

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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

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