State v. Terwilliger ( 2014 )

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STATE v. TERWILLIGER—CONCURRENCE
ROBINSON, J., with whom ZARELLA and ESPINOSA,
Js., join, concurring. I concur in the court’s judgment
affirming the conviction of the defendant, David B. Ter-
williger, of one count of intentional manslaughter in
the first degree with a firearm in violation of General
Statutes §§ 53a-55a (a) and 53a-55 (a) (1).1 Specifically,
I agree with the result reached in part I of the majority
opinion, which rejects the defendant’s claim that this
conviction, which was rendered after a jury trial in
2011, that followed his successful appeal from a 2005
conviction via a general verdict finding him guilty of
manslaughter in the first degree with a firearm as a
lesser included offense of murder, violates his double
jeopardy protections under the fifth amendment to the
United States constitution.2 I write separately, however,
because I respectfully disagree with the majority’s anal-
ysis insofar as it does not squarely address an important
threshold issue, namely, whether the defendant’s 2005
conviction of first degree manslaughter with a firearm,
which is an offense that may be committed under
numerous statutory alternatives, constitutes an
‘‘implied’’ or ‘‘implicit’’ acquittal triggering double jeop-
ardy protections under Green v. United States, 355 U.S.
184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), when it was
obtained by a general verdict that did not specify the
applicable statutory alternative. Relying on United
States v. Garcia, 938 F.2d 12 (2d Cir. 1991), cert. denied,
502 U.S. 1030, 112 S. Ct. 868, 116 L. Ed. 2d 774 (1992),
and State v. Torrez, 305 P.3d 944 (N.M. 2013), I conclude
that a general verdict convicting a defendant of a single
offense, which may be committed in alternative ways,
is not an implied acquittal that triggers double jeopardy
protections as to any of the charged statutory alterna-
tives. Thus, the defendant’s jeopardy for the offense
of first degree manslaughter continued following his
successful appeal from his 2005 conviction of that
offense, rendering his 2011 retrial for that same offense
not a violation of his double jeopardy rights with respect
to any of the charged statutory alternatives under
§§ 53a-55a (a) and 53a-55 (a).
My analysis begins with well settled background prin-
ciples. ‘‘We have recognized that the [d]ouble [j]eopardy
[c]lause consists of several protections: It protects
against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for
the same offense after conviction. And it protects
against multiple punishments for the same offense. . . .
These protections stem from the underlying premise
that a defendant should not be twice tried or punished
for the same offense. . . . The [c]lause operates as a
bar against repeated attempts to convict, with conse-
quent subjection of the defendant to embarrassment,
expense, anxiety, and insecurity, and the possibility
that he may be found guilty even though innocent.’’3
(Internal quotation marks omitted.) State v. Hedge, 297
Conn. 621, 665–66, 1 A.3d 1051 (2010).
‘‘[It has become] a venerable principl[e] of double
jeopardy jurisprudence that [t]he successful appeal of
a judgment of conviction, on any ground other than the
insufficiency of the evidence to support the verdict . . .
poses no bar to further prosecution on the same
charge.’’4 (Citation omitted; internal quotation marks
omitted.) Montana v. Hall, 481 U.S. 400, 402, 107 S. Ct.
1825, 95 L. Ed. 2d 354 (1987) (per curiam); see also,
e.g., Green v. United States, supra, 355 U.S. 189; United
States v. Ball, 163 U.S. 662, 671–72, 16 S. Ct. 1192, 41
L. Ed. 300 (1896). ‘‘Two overlapping theories advanced
in support of this rule are, first, that the defendant,
by successfully appealing his conviction, waives any
double jeopardy objection to a retrial . . . and, second,
that jeopardy continues through the appeal and into
the subsequent retrial.’’ (Citation omitted.) State v.
Boyd, 221 Conn. 685, 691, 607 A.2d 376, cert. denied,
506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992).
I agree with the United States Court of Appeals for the
Second Circuit that ‘‘the most persuasive theory is that
the first jeopardy does not end with conviction, but
rather continues through the appeal, and if successful,
the remand and retrial are part of the original jeopardy.
. . . In other words the second trial, obtained at the
defendant’s own request, is a facet of the original jeop-
ardy and is not a second prosecution for the same
offense.’’ (Citations omitted.) Boyd v. Meachum, 77 F.3d
60, 63 (2d Cir.), cert. denied sub nom. Boyd v. Arm-
strong, 519 U.S. 838, 117 S. Ct. 114, 136 L. Ed. 2d 66
(1996).
A successful appeal does not, however, give the state
the opportunity to take a complete ‘‘mulligan’’5 at the
defendant’s new trial, because a defendant may not be
retried for charges of which he was acquitted at the
first trial, either expressly or implicitly. See, e.g., Green
v. United States, supra, 355 U.S. 192. In Green, which
is the leading case on implied acquittals, the United
States Supreme Court concluded that a jury’s verdict
that convicted a defendant of a lesser included offense,
but was silent as to the greater offense, constituted an
implied acquittal of the greater offense when the jury
had been ‘‘given a full opportunity to return a verdict
and no extraordinary circumstances appeared which
prevented it from doing so’’ with respect to the greater
offense. Id., 190–91. The court concluded that the jury’s
verdict convicting the defendant of the lesser included
offense of second degree murder, but remaining silent
on the greater offense of first degree murder, was no
different than if it ‘‘had returned a verdict which
expressly read: ‘We find the defendant not guilty of
murder in the first degree but guilty of murder in the
second degree.’ ’’ Id., 191. Thus, the Supreme Court
held that the defendant’s double jeopardy rights were
violated by retrying him for first degree murder after
he had successfully appealed from his conviction of
the lesser included offense of second degree murder,
rendered on a jury verdict that was silent as to the
greater offense of first degree murder.6 Id.; see also id.,
190 (The court noted that the defendant ‘‘was in direct
peril of being convicted and punished for first degree
murder at his first trial. He was forced to run the gantlet
once on that charge and the jury refused to convict
him.’’); accord Price v. Georgia, 398 U.S. 323, 329–31,
90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970) (concluding that
double jeopardy precluded reprosecution for murder
following reversal of conviction of lesser included
offense of manslaughter in first degree because initial
verdict was implied acquittal of murder, and overturn-
ing second manslaughter conviction because court
could not ‘‘determine whether or not the murder charge
against [the] petitioner induced the jury to find him
guilty of the less serious offense of voluntary man-
slaughter rather than to continue to debate his
innocence’’).
Moving beyond the federal cases, the implied acquit-
tal doctrine has been well established as a matter of
Connecticut law since this court’s decision in State v.
Troynack, 174 Conn. 89, 99, 384 A.2d 326 (1977). See,
e.g., State v. Sawyer, 227 Conn. 566, 586–87, 630 A.2d
1064 (1993) (discussing double jeopardy implications
stemming from implied acquittal doctrine in adopting
‘‘acquittal first instruction’’ to transition jury delibera-
tion from charged greater offense to lesser included
offenses); State v. Rodriguez, 180 Conn. 382, 398–99,
429 A.2d 919 (1980) (‘‘where a defendant is convicted
of a lesser offense than that charged, that conviction
is an implicit acquittal on the greater offense’’).
Beyond lesser included offenses, the implied acquit-
tal doctrine has a somewhat more limited application
in cases wherein a defendant is charged and tried under
multiple statutory alternatives for committing the same
offense, such as manslaughter in the first degree com-
mitted intentionally in violation of § 53a-55 (a) (1) or
recklessly in violation of § 53a-55 (a) (3). The jurispru-
dence of the lower federal courts and our sister states
is near uniform in holding that, as a general rule, when
a jury renders a verdict convicting a defendant of a
single offense that is charged under multiple statutory
alternatives that finds him guilty as to one alternative,
but is silent as to the other alternatives, there is no
implied acquittal with respect to those alternatives on
which the jury remained silent. See United States ex
rel. Jackson v. Follette, 462 F.2d 1041, 1045–46 (2d Cir.),
cert. denied sub nom. Jackson v. Follette, 409 U.S. 1045,
93 S. Ct. 544, 34 L. Ed. 2d 496 (1972);7 Beebe v. Nelson,
37 F. Supp. 2d 1304, 1308 (D. Kan. 1999); Schiro v. State,
533 N.E.2d 1201, 1207–1208 (Ind.), cert. denied, 493 U.S.
910, 110 S. Ct. 268, 107 L. Ed. 2d 218 (1989); State v.
Pexa, 574 N.W.2d 344, 347 (Iowa 1998); State v. Wade,
284 Kan. 527, 543–44, 161 P.3d 704 (2007); State v. Moul-
den, 292 Md. 666, 678–79, 441 A.2d 699 (1982); Common-
wealth v. Carlino, 449 Mass. 71, 80, 865 N.E.2d 767
(2007); State v. Torrez, supra, 305 P.3d 948; People v.
Jackson, 20 N.Y.2d 440, 452, 231 N.E.2d 722, 285
N.Y.S.2d 8 (1967), cert. denied, 391 U.S. 928, 88 S. Ct.
1815, 20 L. Ed. 2d 668 (1968); State v. Wright, 165 Wash.
2d 783, 798, 203 P.3d 1027 (2009); State v. Kent, 223 W.
Va. 520, 527, 678 S.E.2d 26 (2009); but see State v.
Hescock, 98 Wash. App. 600, 611, 989 P.2d 1251 (1999)
(following Terry v. Potter, 111 F.3d 454 [6th Cir. 1997],
and State v. Davis, 190 Wash. 164, 67 P.2d 894 [1937], and
concluding that trial court’s silence on one charged
forgery statutory alternative, while convicting on other,
operated as implied acquittal). Under these cases,
‘‘when jeopardy continues due to the reversal of a con-
viction for trial error, the defendant remains in jeopardy
of conviction under any appropriate alternative theory
of liability’’; State v. Wright, supra, 802; because ‘‘when
an individual is prosecuted for committing a single
offense that can be committed in multiple ways, jeop-
ardy attaches to the offense as a whole rather than to
the particular form in which it is tried, so that if an
individual succeeds in getting a conviction set aside,
the defendant’s ‘continuing jeopardy’ applies to any
alternative way of committing the same offense.’’ Id.,
800; see also id., 801 (‘‘A defendant charged and tried
under multiple statutory alternatives experiences the
same jeopardy as one charged and tried on a single
theory. The defendant is in jeopardy of a single convic-
tion and subject to a single punishment, whether the
[s]tate charges a single alternative or several.’’).
There is, however, an exception to this general rule,
under which a jury’s verdict finding the defendant guilty
with respect to one statutory alternative operates as an
implied acquittal as to factually inconsistent statutory
alternative ways of committing the same offense. Put
differently, courts will ‘‘imply an acquittal [if] a convic-
tion of one crime logically excludes guilt of another
crime.’’ Commonwealth v. Carlino, supra, 449 Mass.
78; compare Terry v. Potter, supra, 111 F.3d 458–60
(declining to follow Second Circuit’s decision in Follette
and appearing to limit implied acquittals to lesser
included offenses, and holding that jury’s guilty verdict
of murder under ‘‘wanton murder’’—or reckless—statu-
tory alternative, ‘‘can be interpreted’’ as implied acquit-
tal as to intentional murder alternative on which jury
was silent),8 and People v. Gause, 19 N.Y.3d 390, 395–96,
971 N.E.2d 341, 948 N.Y.S.2d 211 (2012) (jury verdict
of guilty of depraved indifference murder in second
degree implied acquittal of separate count charging sec-
ond degree murder under intentional act alternative
because state case law demonstrates that they ‘‘are
inconsistent counts, as guilt of one necessarily negates
guilt of the other’’ and ‘‘[the] defendant’s subsequent
retrial on the intentional murder charge, after the rever-
sal of his depraved indifference murder conviction, is
prohibited under double jeopardy’’ [internal quotation
marks omitted]), with United States v. Ham, 58 F.3d
78, 85–86 (4th Cir.) (concluding that jury’s failure to
select certain predicate acts in racketeering verdict was
not implied acquittal because ‘‘[n]othing in the jury’s
verdict . . . establishes a fact inconsistent with a find-
ing of guilt on the predicate acts’’), cert. denied, 516
U.S. 986, 116 S. Ct. 513, 133 L. Ed. 2d 422 (1995), Com-
monwealth v. Carlino, supra, 78 (‘‘here the jury con-
victed on theories of premeditation and extreme
atrocity or cruelty, and nothing in those conclusions
logically requires the conclusion that the jury must have
acquitted the defendant of felony-murder’’), and State
v. Kent, supra, 223 W. Va. 525 (no implied acquittal when
jury’s verdict ‘‘merely elected between two alternative
forms of [first degree] murder,’’ noting that guilt as to
one alternative was not inconsistent with guilt as to
other). In my view, this formulation of implied acquittal
doctrine is consistent with our case law, which does
not strictly limit application of that doctrine to lesser
included offenses. Indeed, this court has taken a
broader view that considers the nature of the crimes
charged and the manner in which the jury was
instructed to render a verdict. See State v. Troynack,
supra, 174 Conn. 99 (‘‘Although the conviction in this
case was for a crime which was not a lesser included
offense of the offense charged, the trial court instructed
the jury that if they did not find [the defendant] guilty
of manslaughter in the first degree, they must then
consider whether he was guilty of manslaughter in the
second degree. The verdict of guilty of manslaughter
in the second degree was thus an implicit acquittal on
the greater offense. The defendant, therefore, cannot
be retried for the crime of manslaughter in the first
degree.’’ [Emphasis omitted.]).
Thus, I turn to an examination of the record in the
present case and the law concerning the first degree
manslaughter charge to determine whether the jury’s
2005 general verdict convicting the defendant of man-
slaughter with a firearm in the first degree in violation
of § 53a-55a, which was silent as to whether the convic-
tion via intentional manslaughter in violation of § 53a-
55 (a) (1) or reckless manslaughter in violation of § 53a-
55 (a) (3), had the effect of being an implied acquittal
under Green v. United States, supra, 355 U.S. 184, as
to either statutory alternative, thereby precluding the
defendant’s retrial and conviction for the same offense
in 2011. With respect to the nature of the manslaughter
offense at issue in this appeal, I agree with the majority’s
characterization of §§ 53a-55a (a) and 53a-55 (a) under
State v. Marino, 190 Conn. 639, 650–51, 462 A.2d 1021
(1983), overruled on other grounds by State v. Chap-
man, 229 Conn. 529, 541–42, 643 A.2d 1213 (1994), as
‘‘creat[ing] only one crime—manslaughter in the first
degree—and treat[ing] the two subdivisionsections at
issue here as alternative ways to commit that crime.’’
I also agree with the majority that ‘‘the same evidence
may support both mental states and, thus, the state
may charge the defendant with offenses that include
inconsistent mental states.’’ (Emphasis omitted.) See
footnote 9 of the majority opinion; see also State v.
Rodriguez, supra, 180 Conn. 404–405. Finally, I agree
with the majority’s decision to assume, without decid-
ing,9 that under State v. King, 216 Conn. 585, 593–94,
583 A.2d 896 (1990), the jury could not properly convict
the defendant of both charged statutory alternatives,
intentional manslaughter under § 53a-55 (a) (1), or reck-
less manslaughter under § 53a-55 (a) (3). Thus, for pur-
poses of the present appeal, the jury’s 2011 verdict
finding the defendant guilty of intentional manslaughter
with a firearm means that it could not have found that
he acted recklessly. The question, however, is whether
we can afford similar effect to the jury’s general verdict
in 2005, finding the defendant guilty of first degree man-
slaughter with a firearm, but not specifying the statutory
basis for the conviction.
I conclude that no aspect of the 2005 general verdict
can be construed as an implied acquittal for purposes of
triggering double jeopardy protections. I find especially
persuasive the New Mexico Supreme Court’s decision
in State v. Torrez, supra, 305 P.3d 947, wherein a jury
returned a general verdict finding the defendant guilty
of first degree murder at his first trial, after having
been charged with that offense ‘‘under two alternative
theories: felony murder and depraved mind murder.’’
The trial judge then indicated in the judgment and sen-
tence that the defendant ‘‘was found guilty of ‘[m]urder
in the [f]irst [d]egree ([f]elony [m]urder).’ ’’ Id. On retrial
following a successful appeal, the state refiled the
charges under both theories; the defendant was subse-
quently convicted of felony murder. Id. The New Mexico
Supreme Court rejected the defendant’s argument that,
‘‘because the judgment and sentence entered in the first
trial stated that he was found guilty of felony murder,
he was implicitly acquitted of depraved mind murder’’
and that ‘‘his right to be free from double jeopardy was
violated because he can only be retried ‘for the offense
which resulted in a conviction in the first trial’—i.e.,
felony murder.’’ Id. The New Mexico court first held,
because of the general verdict that meant that ‘‘neither
we nor the district court could know under which the-
ory [the] [d]efendant was convicted,’’ the trial judge
‘‘should simply have entered a judgment stating that
the jury found [the] [d]efendant guilty of first degree
murder. [The] [d]efendant was neither expressly nor
impliedly acquitted of depraved mind murder.’’
(Emphasis added.) Id.; see also id., 948 (‘‘retrial under
both first degree felonies—felony murder and depraved
mind murder—did not violate [the] [d]efendant’s right
to be free from double jeopardy’’).
Similarly, in Garcia, the Second Circuit concluded
that a general verdict of guilty on an extortion charge
provides ‘‘no basis’’ for an implied acquittal under Green
v. United States, supra, 355 U.S. 184, because the defen-
dants ‘‘were convicted on the contested charge, and
the only unanswered question was under which of two
extortion theories the jury had based its conviction.
And since the jury was never asked to state the basis
for its conviction on the extortion charge, its silence
on the question, unlike the silence of the jury in Green,
signifies nothing.’’ (Emphasis added.) United States
v. Garcia, supra, 938 F.2d 15; see also id., 16 (‘‘Thus,
here, as in so many other cases, the uncertainty over
theories could have been clarified through the use of
special interrogatories, which would have obviated the
need for a retrial. Had the jury based its verdict on the
‘wrongful use of fear’ theory only, then there would
have been an implicit acquittal on the alternative theory
and a retrial would have violated the double jeopardy
clause. Had the jury clearly based its verdict on the
theory of extortion under color of official right, or both
theories, not only would there not have been a double
jeopardy problem, but there would not even have been
a reversal on the first appeal. Instead, we would have
affirmed the convictions, because there was sufficient
evidence to support a conviction for extortion under
the official-right theory.’’).
Relying on these well reasoned authorities, I con-
clude that the jury’s general verdict in 2005, which con-
victed the defendant of manslaughter in the first degree
with a firearm in violation of § 53a-55a (a), was not
an implied acquittal as to either statutory alternative
incorporated through § 53a-55 (a). As the majority
observes, determining the factual basis for the general
verdict would require impermissible speculation, and I
decline to attribute the serious double jeopardy conse-
quence of an acquittal to pure speculation, particularly
given the significant public policy bases that support
permitting retrials after most successful appeals. See,
e.g., Montana v. Hall, supra, 481 U.S. 402–403; see also
footnote 4 of this opinion. Accordingly, I agree with
the majority’s conclusion that the defendant has not
demonstrated the existence of a double jeopardy viola-
tion, and would affirm his 2011 conviction for inten-
tional manslaughter in the first degree with a firearm.
1
General Statutes § 53a-55a (a) provides: ‘‘A person is guilty of manslaugh-
ter in the first degree with a firearm when he commits manslaughter in the
first degree as provided in section 53a-55, and in the commission of such
offense he uses, or is armed with and threatens the use of or displays or
represents by his words or conduct that he possesses a pistol, revolver,
shotgun, machine gun, rifle or other firearm. No person shall be found guilty
of manslaughter in the first degree and manslaughter in the first degree
with a firearm upon the same transaction but such person may be charged
and prosecuted for both such offenses upon the same information.’’
General Statutes § 53a-55 (a) provides: ‘‘A person is guilty of manslaughter
in the first degree when: (1) With intent to cause serious physical injury to
another person, he causes the death of such person or of a third person;
or (2) with intent to cause the death of another person, he causes the death
of such person or of a third person under circumstances which do not
constitute murder because he committed the proscribed act or acts under
the influence of extreme emotional disturbance, as provided in subsection
(a) of section 53a-54a, except that the fact that homicide was committed
under the influence of extreme emotional disturbance constitutes a mitigat-
ing circumstance reducing murder to manslaughter in the first degree and
need not be proved in any prosecution initiated under this subsection; or
(3) under circumstances evincing an extreme indifference to human life, he
recklessly engages in conduct which creates a grave risk of death to another
person, and thereby causes the death of another person.’’
2
‘‘ ‘The double jeopardy clause of the fifth amendment to the United
States constitution provides: ‘‘[N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or limb . . . .’’ The double jeopardy
clause is applicable to the states through the due process clause of the
fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S.
Ct. 2056, 23 L. Ed. 2d 707 (1969).’ ’’ State v. Alvarez, 257 Conn. 782, 787,
778 A.2d 938 (2001).
3
As the majority notes, ‘‘when the state charges a defendant in separate
counts with a jeopardy barred offense and an offense that is not so barred,
and the jury finds the defendant guilty on both counts, the defendant is
entitled to a new trial on the nonbarred offense unless the state is able to
prove beyond a reasonable doubt that the joinder of the two charges did
not prejudice the defendant. . . . When a jeopardy barred charge has been
joined with a permissible charge, however, [t]he question is not whether
the accused was actually prejudiced [by the joinder], but whether there
is [a] reasonable possibility that he was prejudiced.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.) State v. Hedge, supra,
297 Conn. 666–67. Because I conclude that there was no jeopardy barred
offense in this case, I do not reach this portion of the Hedge analysis, which
is in essence a harmless error inquiry. See, e.g., Morris v. Mathews, 475
U.S. 237, 245–47, 106 S. Ct. 1032, 89 L. Ed. 2d 187 (1986); Price v. Georgia,
398 U.S. 323, 329–31, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970).
4
This principle is rooted in the policy concern that it would ‘‘be a high
price indeed for society to pay were every accused granted immunity from
punishment because of any defect sufficient to constitute reversible error
in the proceedings leading to conviction. From the standpoint of a defendant,
it is at least doubtful that appellate courts would be as zealous as they now
are in protecting against the effects of improprieties at the trial or pretrial
stage if they knew that reversal of a conviction would put the accused
irrevocably beyond the reach of further prosecution. In reality, therefore,
the practice of retrial serves [the] defendants’ rights as well as society’s
interest.’’ (Internal quotation marks omitted.) Montana v. Hall, 481 U.S. 400,
403, 107 S. Ct. 1825, 95 L. Ed. 2d 354 (1987) (per curiam).
5
‘‘A ‘mulligan’ is ‘a free shot sometimes awarded a golfer in nontournament
play when the preceding shot has been poorly played.’ ’’ Bortner v. Wood-
bridge, 250 Conn. 241, 256 n.15, 736 A.2d 104 (1999); see also Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003).
6
In so concluding, the Supreme Court rejected the government’s argument
that the defendant ‘‘ ‘waived’ his constitutional defense of former jeopardy
to a second prosecution on the first degree murder charge by making a
successful appeal of his improper conviction of second degree murder. We
cannot accept this paradoxical contention. ‘Waiver’ is a vague term used
for a great variety of purposes, good and bad, in the law. In any normal
sense, however, it connotes some kind of voluntary knowing relinquishment
of a right. . . . When a man has been convicted of second degree murder
and given a long term of imprisonment it is wholly fictional to say that he
‘chooses’ to [forgo] his constitutional defense of former jeopardy on a charge
of murder in the first degree in order to secure a reversal of an erroneous
conviction of the lesser offense. In short, he has no meaningful choice.’’
(Citation omitted; emphasis omitted.) Green v. United States, supra, 355
U.S. 191–92; see also id., 193 (describing government’s waiver argument in
‘‘plain terms’’ as impermissibly requiring defendant ‘‘to barter his constitu-
tional protection against a second prosecution for an offense punishable
by death as the price of a successful appeal from an erroneous conviction
of another offense for which he has been sentenced to five to twenty [years
of] imprisonment’’).
7
The decision of the United States Court of Appeals for the Second Circuit
in United States ex rel. Jackson v. Follette, supra, 462 F.2d 1041, appears
to be the leading case with respect to whether a jury’s verdict, convicting
a defendant on one statutory alternative, but remaining silent as to the
others, constitutes an implied acquittal as to the alternatives on which it
remained silent. In that case, the defendant was charged with first degree
murder of a police officer under statutory alternatives of felony murder and
premeditated murder, and ‘‘[w]ithout objection by [the defendant], the jury
was . . . instructed that if it returned a verdict on one count it was to
remain silent on the other. The conviction was for premeditated murder,
and no verdict was rendered as to felony murder.’’ (Footnote omitted.) Id.,
1043. The defendant successfully appealed from that conviction, and was
retried for first degree murder under both theories; at that second trial,
‘‘the jury found [him] guilty . . . of felony murder and remained silent on
premeditated murder.’’ Id., 1044. The Second Circuit rejected the defendant’s
argument that his retrial under the statutory alternative of felony murder
violated his rights against double jeopardy because the jury’s verdict at the
first trial had impliedly acquitted him, through its silence, of the statutory
alternative of felony murder. After characterizing the United States Supreme
Court’s implied acquittal cases, such as Green v. United States, supra, 355
U.S. 184, as limited to lesser included offenses, the Second Circuit held that
jeopardy attached and continued as to the entire offense of first degree
murder, despite the first jury’s silence as to the felony murder alternative.
United States ex rel. Jackson v. Follette, supra, 1045–47. In so concluding, the
court balanced the ‘‘competing interests of the public and [the] petitioner,’’
observing that (1) premeditated murder and felony murder were not factually
inconsistent given the evidence in the case, (2) the evidence with respect
to proof of the alternatives was cross admissible, meaning that there was
no prejudice to the defendant on retrial, (3) neither party sought narrowing
instructions or a special verdict at the first trial, and (4) it was undisputed
that the defendant was subject to retrial on the premeditated murder count,
meaning that the felony murder count ‘‘did not subject him to a greater
penalty or stigma or greater embarrassment, expense or ordeal.’’ Id., 1049–50.
8
I note my disagreement with substantial portions of the reasoning con-
tained within the opinion of the United States Court of Appeals for the Sixth
Circuit in Terry v. Potter, supra, 111 F.3d 454, much of which I believe may
be read broadly as an unconditional conclusion that a guilty verdict under
one statutory alternative is always an implied acquittal of all other charged
statutory alternatives, regardless of whether the guilty verdict logically
requires an acquittal under the other alternatives. See id., 458–60. This is
particularly so given the fact that the Sixth Circuit categorically rejected
the reasoning of the Second Circuit’s decision in United States ex rel.
Jackson v. Follette, supra, 462 F.2d 1041, and its apparent reading of ‘‘Green
as being limited to situations in which a defendant is convicted of a lesser-
included offense at the first trial’’ and ‘‘implicitly’’ concluding that jeopardy
attached to the general offense of murder, rather than its particular forms
under the unitary statute. Terry v. Potter, supra, 458–59; see also id., 459–60
(holding that ‘‘[w]hen a charge of murder is brought under two separate
statutory subsections of a unitary offense . . . jeopardy attaches separately
as to each’’). Although I agree with the Sixth Circuit insofar as it extends
the implicit acquittal doctrine beyond lesser included offenses to logically
inconsistent alternatives, I disagree with its somewhat conclusory analysis
of the silent aspects of the verdict. Rather, I read the Sixth Circuit’s decision
in Terry as properly limited to cases wherein a finding of guilt on both
statutory alternatives is logically inconsistent.
9
I agree with the majority that this assumption is appropriate in light of
the appeal pending before this court in State v. Nash, SC 19265, which was
argued on October 22, 2014. See footnote 10 of the majority opinion.