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Docket Number

Docket No. 67015.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people. Gerald M. Lorence, for defendant on appeal.

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Smart Summary

People v. Paige, Michigan Court of Appeals, Docket No. 67015 (Dec. 6, 1983) — Summary

Factual and Procedural Background

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 27.424(2). On the morning of March 6, 1982, two men assaulted and wounded Rachel Powell in an attempted robbery. After Powell received medical treatment, she, defendant, defendant's brother Wilmon Nichols, and Nichols's wife returned to the area where the assault occurred. Defendant carried a rifle and Nichols a sawed-off shotgun. When Powell indicated she saw one of her assailants, defendant and Nichols left the car with their weapons. Soon after, either defendant or Nichols fatally shot Rodney Dozier.

Both defendant and Nichols were charged with first-degree murder and felony-firearm. At Nichols's bench trial, the prosecution presented conflicting evidence about which codefendant fired the fatal shot; the trial judge (who later presided at defendant's jury trial) specifically found that Nichols fired the fatal shot. At defendant's trial, the prosecution submitted alternate theories: that defendant was the principal who shot Dozier, or that defendant aided and abetted Nichols. Defendant appealed his convictions.

Legal Issues Presented

Whether the trial court was estopped (via collateral estoppel/issue preclusion) from submitting the first-degree murder charge to the jury because Nichols's earlier trial determined lack of the necessary mental element for premeditated murder.
Whether the prosecution should have been precluded from arguing that defendant was the principal (i.e., the shooter) because that issue was decided in Nichols's prior trial.
Whether evidence that Nichols was convicted only of second-degree murder should have been admitted at defendant's trial to show Nichols lacked guilt for premeditated murder, thereby negating defendant's liability for first-degree murder.
Whether the trial court's aiding and abetting instruction (including the illustrative example given) was proper or prejudicial.

Arguments of the Parties

Defendant's Arguments

The trial court was estopped from submitting the first-degree murder charge to the jury because Nichols's earlier conviction (or findings) established the absence of the requisite mental element for premeditated murder, and therefore the issue could not be relitigated.
The trial court should have precluded the prosecution's theory that defendant was the principal (the shooter), because that issue was determined in Nichols's earlier trial.
The trial court erred by refusing to admit evidence that Nichols was convicted only of second-degree murder; that evidence was relevant to show Nichols was not guilty of premeditated murder and therefore to support defendant's claim of innocence of first-degree murder.
The aiding and abetting instruction given by the trial court (and the illustrative example used) was improper or prejudicial.

The People's Arguments

The prosecution submitted the case on alternate theories: either defendant was the principal who shot Dozier or defendant aided and abetted Nichols.
With either theory, the prosecution argued the evidence established that defendant and Nichols intended to track down and murder Powell's assailants, which showed the requisite intent for premeditated murder as to both persons.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ashe v. Swenson, 397 U.S. 436 (1970)	Establishes that collateral estoppel (issue preclusion) applies in criminal cases and is embodied in the Fifth Amendment protection against double jeopardy (applied to states via the Fourteenth Amendment).	The court recognized Ashe's definition of collateral estoppel but noted Ashe contemplates mutuality of parties; Ashe was invoked to explain the general principle of issue preclusion in criminal litigation.
Standefer v. United States, 447 U.S. 10 (1980)	Refuses to adopt nonmutual collateral estoppel in criminal cases; holds an aider and abettor may be convicted even though the principal was previously acquitted.	The court relied on Standefer to reject application of nonmutual collateral estoppel as a constitutional rule and to support permitting prosecution of an aider/abettor despite a prior adjudication concerning a codefendant.
People v. Taylor, 12 Cal.3d 686 (1974)	Applied nonmutual collateral estoppel where an accused's guilt rested on vicarious liability for a previously acquitted confederate (limited to its facts).	The court considered Taylor but explicitly found it unpersuasive and declined to follow it in this case.
People v. Mangiapane, 219 Mich. 62 (1922)	Addresses Michigan law regarding accessories and principals (cited for the proposition that distinction has been abrogated by statute).	The court invoked Mangiapane to support the proposition that under Michigan law (and statutory abrogation), a principal's conviction is not a prerequisite to convicting an aider/abettor.
People v. Brown, 120 Mich. App. 765; 328 N.W.2d 380 (1982)	Applied the abrogation of the common-law distinction between accessories and principals in Michigan.	The court cited Brown to reinforce that an accessory may be convicted despite a principal's acquittal, supporting the conclusion that nonmutual collateral estoppel is not applicable here.

Court's Reasoning and Analysis

The court analyzed defendant's estoppel (issue preclusion) claim against the backdrop of Ashe, which recognizes collateral estoppel in criminal cases when an ultimate issue has been determined by a valid final judgment between the same parties. Because defendant urged nonmutual collateral estoppel (binding the government by its litigation and judgment in Nichols's trial), the court considered the United States Supreme Court's decision in Standefer, which declined to adopt nonmutual collateral estoppel in criminal cases and held that an aider and abettor can be tried notwithstanding a principal's prior acquittal.

The court rejected defendant's reliance on People v. Taylor (a California decision adopting nonmutual collateral estoppel in limited vicarious-liability circumstances), finding Taylor unpersuasive. The court explained that Michigan statutory law (MCL 767.39; MSA 28.979) abrogates the common-law distinction between accessories and principals, and cited People v. Mangiapane and People v. Brown to support the proposition that a principal's conviction is not a prerequisite to convicting an aider and abettor; consequently, an accessory can be convicted of a greater offense than the principal.

The court further found that, on the facts of this case, the prosecution presented legally sufficient evidence to prove defendant guilty either as a principal or as an aider and abettor. Thus, even if nonmutual collateral estoppel were to be adopted, the circumstances did not warrant its application here. The court also stated that, if it were to adopt nonmutual collateral estoppel, it would limit the doctrine to cases where fairness and justice required it, and it did not find such requirement in this case.

Regarding defendant's claim that the trial court erred in excluding evidence that Nichols was convicted only of second-degree murder, the court agreed with the trial court that such evidence was irrelevant under MRE 401. The court cited authority stating that where the acquittal (or lesser conviction) of the principal does not affect the accessory's liability, the record of the principal's outcome is not admissible to prove the accessory's innocence; admission would risk obfuscating the jury's independent factfinding.

Finally, the court addressed defendant's challenge to the aiding and abetting instruction, finding the instruction proper and the illustrative example not so similar to the facts as to be prejudicial.

Holding and Implications

Holding: Affirmed.

Implications:

The court affirmed defendant's convictions, rejecting the claim that nonmutual collateral estoppel barred prosecution or jury consideration of first-degree murder theories in defendant's trial.
The court held that evidence of Nichols's second-degree murder conviction was irrelevant to defendant's trial and properly excluded.
The court upheld the aiding and abetting instruction as proper and not prejudicial.
The opinion did not adopt a new broad rule applying nonmutual collateral estoppel in Michigan criminal cases and emphasized statutory and precedent-based reasons for rejecting defendant's arguments; no new precedent extending nonmutual collateral estoppel was established by this decision.

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PEOPLE v PAIGE

PER CURIAM.

Defendant appeals as of right from his jury conviction of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 27.424(2).

On the morning of March 6, 1982, two men assaulted and wounded Rachel Powell, defendant's ladyfriend, in an attempt to rob her. After Ms. Powell received medical treatment for her wound, she, defendant, defendant's brother Wilmon Nichols, and Nichols's wife, Romanitta Nichols, drove back to the area where Ms. Powell had been assaulted. Defendant and Nichols brought firearms; defendant had a rifle and Nichols carried a sawed-off shotgun. When Ms. Powell indicated she saw one of her assailants, defendant and Nichols left the car with their weapons. Soon after, either defendant or Nichols fatally shot Rodney Dozier.

Both defendant and Nichols were charged with first-degree murder and felony-firearm. At Nichols's bench trial, the people presented conflicting evidence regarding which codefendant actually shot Dozier. The trial judge, who also presided at defendant's subsequent jury trial, specifically found that Nichols fired the fatal shot.

The people submitted defendant's case to the jury on alternate theories: either defendant was the principal who shot Dozier or defendant aided and abetted Nichols in the murder of Dozier. With either theory, the people argued that the evidence showed that defendant and Nichols intended to track down and murder Ms. Powell's assailants and thus established that both defendant and Nichols had the requisite mental element or intent to be found guilty of premeditated murder.

Defendant argues that the trial court was estopped from submitting the people's case to the jury on the first-degree murder charge. Defendant argues that, because his codefendant was found to lack the necessary mental element to be found guilty of first-degree premeditated murder, the jury was precluded from deciding that issue at his trial. Moreover, defendant argues that the trial court should have precluded the people's theory that he was the principal, that is the person who fired the fatal shot, as that issue was also determined in Nichols's earlier trial.

In Ashe v Swenson, 397 U.S. 436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970), the court found that collateral estoppel, or issue preclusion, does apply to criminal as well as civil cases. The court defined collateral estoppel:

"[W]hen 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." (Emphasis added.)

The court found that collateral estoppel as applied to criminal litigation was embodied in the Fifth Amendment guarantee against double jeopardy. Therefore, the collateral estoppel doctrine applied to state criminal prosecutions via the Fourteenth Amendment.

In this case, because there is no mutuality of parties involved in these criminal cases, defendant asks this Court to adopt the doctrine of nonmutual collateral estoppel. Defendant argues that, because the government litigated the same issues involving the same transaction in Nichols's trial, the government should be bound by the judgment in the prior case and should have been precluded from retrying those issues in the action against him.

In Standefer v United States, 447 U.S. 10; 100 S Ct 1999; 64 L Ed 2d 689 (1980), the court refused to adopt the application of the doctrine of nonmutual collateral estoppel in criminal cases. The court held that an aider and abettor could be found guilty even though the principal is previously acquitted in a separate action. The court stated in a footnote: "Nothing in the Double Jeopardy Clause or Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury has determined that his principal was not guilty." 447 U.S. 22, fn 6.

Defendant argues that this Court should find that the doctrine of nonmutual collateral estoppel is applicable to criminal cases in this state as a matter of Michigan's constitutional protection against double jeopardy. Const 1963, art 1, § 15. Defendant relies upon People v Taylor, 12 Cal.3d 686, 698; 117 Cal.Rptr. 70; 527 P.2d 622 (1974), in which the court concluded that the lack of identity of parties-defendant did not preclude the application of the doctrine of collateral estoppel where an accused's guilt must be predicated upon his or her vicarious liability for the acts of a previously acquitted confederate.

Taylor was the getaway driver in a liquor store robbery perpetrated by Smith and Daniels. The liquor store owner shot and killed Smith during the robbery. Daniels was acquitted of Smith's murder. However, Taylor was found guilty of Smith's murder on a theory that he was vicariously liable for his confederate's actions. The Taylor court specifically limited its holding to the circumstances of that case.

We do not find Taylor persuasive. First, by statute, MCL 767.39; MSA 28.979, the common-law distinction between accessories and principals is abrogated. Thus the conviction of a principal as a prerequisite to a valid conviction of the aider and abettor is not required. People v Mangiapane, 219 Mich. 62; 188 N.W. 401 (1922); People v Brown, 120 Mich. App. 765, 771; 328 N.W.2d 380 (1982). If an accessory may be convicted despite the principal's acquittal, it follows that an accessory can be found guilty of a greater offense than the offense for which the principal was found guilty.

Second, even if we should disagree with the above rule, the circumstances in this case would not warrant the application of the nonmutual collateral estoppel doctrine. The people presented legally sufficient evidence in defendant's trial to prove defendant guilty as a principal as well as an aider and abettor.

Third, even if we were to adopt a doctrine of nonmutual collateral estoppel in criminal cases, we would limit that doctrine's application to those cases where fairness and justice required, since we do not agree that the doctrine is embodied in any constitutional protection against double jeopardy. Standefer, supra. We do not find that fairness and justice require the doctrine's application in this case.

Defendant's second argument is that the trial court erred by refusing to allow in as evidence the fact that Nichols was only convicted of second-degree murder. Defendant correctly states that the people had to prove the principal's guilt at defendant's trial in order to prove the defendant's guilt as an accessory. Defendant argues that Nichols's second-degree murder conviction was proof that Nichols, as the principal, was not guilty of premeditated murder. That proof, argues defendant, should have been admitted as evidence that defendant, as the accessory, was not or could not be guilty of first-degree murder.

We agree with the trial court's ruling that evidence of the fact that Nichols had been convicted of second-degree murder was irrelevant evidence. MRE 401. "[W]here the acquittal of the principal does not affect the criminal liability of the accessory * * * the record of acquittal is not admissible in evidence on the trial of the accessory to prove the innocence of the principal." 22 CJS, Criminal Law, § 105, p 295. Moreover, such evidence would tend to obfuscate the independent factfinding responsibility of a jury.

Finally, we find no merit in defendant's third argument. The trial court's aiding and abetting instruction was proper. The example the trial court gave with that instruction was not so similar to the facts of this case as to be prejudicial.

Affirmed.

PEOPLE v. PAIGE