State Of Iowa Vs. David John Halstead , 2010 Iowa Sup. LEXIS 134 ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 09–0647
Filed December 17, 2010
STATE OF IOWA,
Appellee,
vs.
DAVID JOHN HALSTEAD,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, Gary E.
Wenell, Judge.
Defendant, challenging the validity of inconsistent jury verdicts in
criminal cases, seeks further review of a decision by the court of appeals
affirming his conviction for assault while participating in a felony.
DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED IN PART, SENTENCE VACATED, AND
CASE REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, Stephan J. Japuntich,
Assistant State Appellate Defender, and Cory McAnelly, Student Legal
Intern, for appellant.
2
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, Patrick Jennings, County Attorney, and Drew H.
Bockenstedt, Assistant County Attorney, for appellee.
3
APPEL, Justice.
In this case, we confront the validity of inconsistent jury verdicts in
a criminal trial in which a single defendant is convicted on a compound
offense that requires, as an element, a finding of guilt on a predicate
offense, but is acquitted on the underlying predicate offense. The rule in
the majority of jurisdictions is to ignore the inconsistency and uphold the
jury verdicts. The majority rule, however, has been subject to criticism,
and a minority of courts has declined to follow it.
The court of appeals applied the majority rule and upheld the
verdict. We granted further review. After review of the pertinent
precedents and authorities, we decline to adopt the majority rule.
Pursuant to our power to supervise Iowa courts, we hold that a criminal
conviction of a compound offense cannot stand when the defendant has
been acquitted of the underlying predicate offense. As a result, the
defendant’s conviction for assault while participating in a felony is
reversed, and the case is remanded to the district court for resentencing
of the defendant based on his unappealed convictions.
I. Factual and Procedural Background.
Lester Recinos lived in a group home in Sioux City, Iowa, when he
became a crime victim. On August 1, 2008, Recinos failed to return to
the group home by curfew. At 2:30 a.m., a group-home employee saw
Recinos being pulled from a parked minivan. As Recinos fell to the
ground, a man kicked and punched him. Passengers in the van ordered
the attacker to take jewelry and money from Recinos. The group-home
employee called the police. The ensuing investigation implicated David
Halstead, allegedly a passenger in the van, in the crime.
The State charged Halstead with four criminal offenses: assault
while participating in a felony; theft in the first degree, which served as
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the predicate felony for assault while participating in a felony; robbery in
the second degree; and conspiracy to commit a forcible felony (robbery in
the second degree). A jury convicted Halstead of assault while
participating in a felony and robbery in the second degree. The jury
acquitted Halstead of theft in the first degree and instead found him
guilty of theft in the fifth degree, a misdemeanor lesser included offense
of theft in the first degree.
Halstead filed a motion for a new trial. In the motion, Halstead
asserted that the jury’s verdict on assault while participating in a felony,
a compound felony, was inconsistent with his acquittal on the charge of
theft in the first degree, the only available predicate felony under the jury
instructions in the case. The trial court overruled the motion, and this
appeal followed.
II. Standard of Review.
The parties suggest that the proper standard of review in this case
is for substantial evidence. The issue in this case, however, relates
primarily to a question of law regarding the consequence of a jury verdict
that convicts the defendant of a compound felony yet acquits the
defendant on the only predicate felony in the case as instructed by the
court. 1 See United States v. Hart, 963 F.2d 1278, 1280 (9th Cir. 1992).
To the extent constitutional issues are raised, review is de novo. State v.
Taeger, 781 N.W.2d 560, 564 (Iowa 2010).
III. Discussion.
A. Introduction. The problem of inconsistent verdicts has
plagued courts for some time. At common law, inconsistent verdicts
1The State concedes that the issue of whether an inconsistent verdict may stand
has been preserved. We therefore do not address the defendant’s alternate claims of
ineffective assistance of counsel.
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were invalid and set aside. See Steven T. Wax, Inconsistent and
Repugnant Verdicts in Criminal Trials, 24 N.Y.L. Sch. L. Rev. 713, 732
(1979) [hereinafter Wax]. In the United States, however, the approach to
inconsistent verdicts has varied, depending on the nature of the alleged
inconsistency and the jurisdiction involved.
At the outset, it is important to note that the term “inconsistent
verdicts” is often used in an imprecise manner and may include a wide
variety of related, but nonetheless distinct, problems. A jury verdict may
be deemed inconsistent based upon inconsistent application of facts or
inconsistent application of law. For example, in a vehicular
manslaughter case, the conviction of a defendant for the death of one
passenger in the car but acquittal on a charge related to another
passenger is “factually inconsistent.” DeSacia v. State, 469 P.2d 369,
371, 377–78 (Alaska 1970). There is no legal flaw in the jury’s verdict,
but the verdicts seem inconsistent with the facts. On the other hand, the
conviction of a defendant of a compound crime when he or she is
acquitted on all predicate offenses is said to be “legally inconsistent.”
See Price v. State, 949 A.2d 619, 634–38 (Md. 2008) (Harrell, J.,
concurring); State v. Arroyo, 844 A.2d 163, 171 (R.I. 2004); 75B Am. Jur.
2d Trial § 1558, at 352–55 (2007); see also Gonzalez v. State, 440 So. 2d
514, 515 (Fla. Dist. Ct. App. 1983). In these cases, the jury verdict is
inconsistent as a matter of law because it is impossible to convict a
defendant of the compound crime without also convicting the defendant
of the predicate offense. 2
2One other category, mutually exclusive verdicts, occurs when a jury makes
positive findings of fact that are mutually inconsistent. See Hammonds v. State, 7
So. 3d 1055, 1060 (Ala. 2008).
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Some allegedly inconsistent verdicts involve a defendant in a single
proceeding having multiple counts, such as a case involving compound
and predicate felonies or multiple deaths due to a single act or
occurrence. See W. E. Shipley, Annotation, Inconsistency of Criminal
Verdict with Verdict on Another Indictment or Information Tried at Same
Time, 16 A.L.R. 3d 866, 868 (1967). In other cases, jury verdicts may be
said to be inconsistent if multiple defendants are tried either together or
separately. For instance, it may be claimed that the conviction of one
defendant of conspiracy while all of the possible confederates are
acquitted produces an inconsistent verdict because it takes more than
one person to conspire. See Michelle Migdal Gee, Annotation,
Prosecution or Conviction of One Conspirator as Affected by Disposition of
Case Against Coconspirators, 19 A.L.R. 4th 192, 198–204 (1983); C. T.
Drechsler, Annotation, Inconsistency of Criminal Verdicts as Between Two
or More Defendants Tried Together, 22 A.L.R. 3d 717, 720–21 (1968).
This case involves a single defendant who is convicted of a
compound crime and acquitted of the predicate crime in a single
proceeding. Sometimes labeled in the cases as “true inconsistency” or
“repugnancy,” see, e.g., Brown v. State, 959 So. 2d 218, 220 (Fla. 2007);
People v. Bullis, 294 N.Y.S.2d 331, 332–33 (App. Div. 1968), a jury
verdict in a compound-conflict case, as will be seen below, has serious
flaws. For purposes of clarity, in this opinion we will refer to the
inconsistency in this case as a compound inconsistency.
Before addressing the narrow issue presented in this case, it is
important to note that the question of inconsistent verdicts has
sometimes been characterized as not involving constitutional issues. See
United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 477, 83
L. Ed. 2d 461, 469 (1984). As will be seen below, the question of the
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validity of an inconsistent verdict, however, can be approached only with
due regard to important constitutional concepts including double
jeopardy, guilt beyond a reasonable doubt, and the right to a unanimous
jury verdict. At a minimum, the outcome in this case is affected by
strong constitutional currents.
B. Approach of the United States Supreme Court to
Compound Inconsistency in Jury Verdicts in Criminal Cases. In
Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932),
the United States Supreme Court considered the question of proper
disposition of a case when the jury convicted a defendant of a compound
offense but acquitted the defendant on all predicate offenses. Dunn, 284
U.S. at 391–92, 52 S. Ct. at 190, 76 L. Ed. at 358. In Dunn, the
government charged Dunn with “maintaining a common nuisance by
keeping for sale at a specified place intoxicating liquor,” “unlawful
possession of intoxicating liquor,” and “unlawful sale of such liquor.” Id.
at 391, 52 S. Ct. at 190, 76 L. Ed. at 358. The jury acquitted the
defendant of the possession and sale counts, but convicted him of
maintaining a nuisance. Id. at 391–92, 52 S. Ct. at 190, 76 L. Ed. at
359. As is apparent, the case involved a claim of compound
inconsistency. See id. Nonetheless, the Supreme Court in Dunn upheld
the conviction on the compound felony. Id. at 394, 52 S. Ct. at 191, 76
L. Ed. at 359. The Supreme Court offered two rationales in support of its
decision.
At the outset, the Dunn Court noted that if the case had been tried
in two separate trials, the first trial would have no res judicata effect in
the second proceeding. Id. at 393, 52 S. Ct. at 190, 76 L. Ed. at 358–59.
Therefore, the Court reasoned, there should be no res judicata effect
8
when the counts just happen to be part of a single indictment considered
by a jury in a single proceeding. Id.
Next, the Dunn Court justified the result on another ground.
According to the Court, the acquittal on the possession charge should be
interpreted merely as the assumption of a power that the jury had no
right to exercise, but was disposed to do so through lenity. Id. While
recognizing that an inconsistent verdict could be based upon motivation
other than lenity—for instance, as a result of compromise or of a mistake
on the part of the jury—the Court reasoned that it could not speculate
regarding these matters. Id. at 393–94, 52 S. Ct. at 190–91, 76 L. Ed. at
359. As a result, the Dunn Court adopted what amounted to an
irrebuttable presumption that the jury was engaged in an act of lenity
when it acquitted the defendant of the possession charge, even though
the Court recognized that the jury verdict could have been based on
other factors. See id.
Justice Butler dissented in Dunn. According to Justice Butler, the
jury’s determination of not guilty on the possession charge amounted to
a final determination of the possession element in all charges. Id. at
406–07, 52 S. Ct. at 195–96, 76 L. Ed. at 365–66 (Butler, J., dissenting).
Justice Butler thought the inference that the jury made a mistake was
preferred over the notion that the jury assumed a power that it could not
lawfully assert, namely, lenity. Id.
Subsequent to Dunn, the Supreme Court revised its res judicata
doctrine. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d
469 (1970), and Sealfron v. United States, 332 U.S. 575, 68 S. Ct. 237,
92 L. Ed. 180 (1948), the Supreme Court concluded that a finding of fact
in a prior judicial proceeding was binding in a subsequent criminal trial.
Ashe, 397 U.S. at 443–44, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475–76;
9
Sealfron, 332 U.S. at 578, 68 S. Ct. at 239, 92 L. Ed. at 184. Because
the res judicata rationale in Dunn was undermined by subsequent legal
developments, a number of lower federal courts began to drift away from
strict adherence to Dunn. See, e.g., United States v. Brooks, 703 F.2d
1273, 1278–79 (11th Cir. 1983); United States v. Bailey, 607 F.2d 237,
245 (9th Cir. 1979); United States v. Hannah, 584 F.2d 27, 28–30 (3d Cir.
1978). It seemed that the law of inconsistent verdicts might be evolving
away from the unqualified Dunn rule.
The prospect of a modification of the Dunn approach was put to
rest in Powell. Powell, 469 U.S. at 69, 105 S. Ct. at 479, 83 L. Ed. 2d at
471. In Powell, the defendant was charged with fifteen violations of
federal law, including “conspiring . . . ‘to knowingly and intentionally
possess with intent to distribute cocaine,’ ” “possession of a specific
quantity of cocaine with intent to distribute,” and “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.’ ” Id. at 59–60, 105 S. Ct. at 474, 83 L. Ed. 2d at 465
(quoting federal indictment). The jury acquitted Powell on the first two
counts of conspiracy to distribute and possession with intent to
distribute, but convicted her of using the telephone in connection with
these felonies. Id. at 60, 105 S. Ct. at 474, 83 L. Ed. 2d at 465.
The Supreme Court reaffirmed the approach in Dunn and upheld
the verdict. Id. at 69, 105 S. Ct. at 479, 83 L. Ed. 2d at 471. The Powell
Court recognized that the res judicata rationale of Dunn was no longer
applicable. Id. at 64, 105 S. Ct. at 476, 83 L. Ed. 2d at 468.
Nonetheless, the Powell Court concluded that the approach in Dunn
remained good law. Id.
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The first reason offered by the Powell Court for the continued
application of the Dunn rule was that it was “unclear” whether the
defendant was in fact harmed by the inconsistent verdict. Id. at 65, 105
S. Ct. at 476–77, 83 L. Ed. 2d at 468–69. While the Powell Court noted it
was possible that the jury made an error in convicting the defendant, it
was “equally possible that the jury, convinced of guilt, properly reached
its conclusion on the compound offense, and then through mistake,
compromise, or lenity, arrived at an inconsistent conclusion on the lesser
offense.” Id. Because it was “unclear whose ox has been gored,” the
Powell Court found no basis for providing the defendant with relief on
appeal. Id. at 65, 69, 105 S. Ct. at 477, 479, 83 L. Ed. 2d at 469, 471.
Next, the Powell Court reasoned that individualized challenges to
jury verdicts designed to ferret out the basis of the inconsistency would
be “imprudent” and “unworkable.” Id. at 66, 105 S. Ct. at 477, 83
L. Ed. 2d at 469. The Powell Court reasoned that any attempt to divine
the reason for the inconsistent verdict would “be based either on pure
speculation, or would require inquiries into the jury’s deliberations that
courts generally will not undertake.” Id.
Finally, the Powell Court concluded that the remedial scheme
afforded to defendants following a guilty verdict was sufficient protection
to guard against juries that would convict out of passion or prejudice. Id.
at 67, 105 S. Ct. at 478, 83 L. Ed. at 470. The Powell Court reasoned
that by requiring the government to convince jurors at trial and judges
on appeal of the defendant’s guilt and the sufficiency of the evidence to
support the verdict, a convicted defendant was sufficiently protected
against juror abuse. Id.
The Powell Court emphasized, however, that its decision was not
based on federal constitutional considerations, but only on its
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“supervisory powers over the federal criminal process.” Id. at 65, 105
S. Ct. at 477, 83 L. Ed. 2d at 469. Consequently, we are free to accept or
reject the Powell approach in state criminal proceedings.
Powell and Dunn, of course, involve criminal proceedings. It is
interesting to note, however, that the approach of the United States
Supreme Court to inconsistent verdicts in criminal cases differs from its
approach in civil cases. While the law is not entirely clear in the civil
context, see, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 804–06,
106 S. Ct. 1571, 1576–77, 89 L. Ed. 2d 806, 814–15 (1986) (Stevens, J.,
dissenting), it appears that the United States Supreme Court is more
likely to intervene to prevent jury inconsistency in civil cases than in the
criminal context. See generally Alexander M. Bickel, Comment, Judge
and Jury—Inconsistent Verdicts in the Federal Courts, 63 Harv. L. Rev.
649, 654 (1950) (stating there is no civil equivalent to Dunn to prevent
upsetting inconsistent civil verdicts) [hereinafter Bickel]; Shaun P.
Martin, Rationalizing the Irrational: The Treatment of Untenable Federal
Civil Jury Verdicts, 28 Creighton L. Rev. 683, 694–98 (1995) (discussing
various measures federal courts take to cure inconsistencies).
C. Approach of State Courts to Compound Inconsistency in
Jury Verdicts in Criminal Cases.
1. Majority state court view regarding compound inconsistency.
The substantial majority of state courts that have considered the
question of inconsistent jury verdicts in criminal cases involving
compound inconsistencies have followed the approach of the United
States Supreme Court in Powell and Dunn. See, e.g., People v. Frye, 898
P.2d 559, 569–70 (Colo. 1995); People v. Jones, 797 N.E.2d 640, 644–47
(Ill. 2003); Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010); State v.
Brown, 565 A.2d 1035, 1039–40 (N.H. 1989). These state courts
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generally break no new ground but restate the rule and reasoning in
Dunn and Powell. The fact that a marked majority of state court cases
adopt Dunn and Powell, of course, is not determinative on the Iowa law
question presented in this case as the persuasiveness of authority is not
determined by the pound, but by the quality of the analysis.
2. Minority state court view regarding compound inconsistency.
Several state courts have elected not to follow the approach of the United
States Supreme Court in Dunn and Powell. A review of cases in the
minority state court jurisdictions is helpful in identifying some of the
considerations that may have a bearing on the outcome in this case.
More than a decade prior to Powell, the Alaska Supreme Court
decided DeSacia. DeSacia, 469 P.2d at 381. Unlike this case, DeSacia
involved a factual inconsistency in which a defendant charged with two
counts of manslaughter—one count for each of two victims killed in a car
accident—was convicted on one count but acquitted on another. See id.
at 370. The DeSacia court recognized that the res judicata rationale of
Dunn was no longer good law. Id. at 375. With respect to the
presumption of lenity, the DeSacia court emphasized:
[T]he truth is simply that we do not know, nor do we have
any way of telling, how many inconsistent verdicts are
attributable to feelings of leniency, to compromise, or, for
that matter, to outright confusion on the part of the jury.
Id. at 377. Rejecting the presumption of lenity in Dunn, the DeSacia
court held that an inconsistent verdict was infected with legal error and
could not be affirmed. Id. at 378.
With respect to remedy, however, the DeSacia court did not provide
the defendant with an unqualified victory. The DeSacia court recognized
that under double-jeopardy principles, the defendant could not be retried
on the charge for which he was acquitted. Id. at 379. The DeSacia
13
court, however, held that the defendant could be retried on the charge
that resulted in a conviction. Id. at 381. The DeSacia court reasoned
that double jeopardy did not apply and that principles of collateral
estoppel did not bar retrial on the ground that such a result would be
unfair to the state. Id. at 379–81.
A decade after DeSacia, the New York Court of Appeals decided
People v. Tucker, 431 N.E.2d 617 (N.Y. 1981). In Tucker, the court
considered a case in which a jury convicted the defendant on two counts
of robbery and one count of possession of a loaded gun, but acquitted
him on two other counts of robbery. Tucker, 431 N.E.2d at 617. The
Tucker court affirmed the convictions on the ground that the verdicts
were not legally inconsistent. Id. at 620–21. That court observed that
reversal on grounds of inconsistent verdicts is appropriate only if
“acquittal on one crime as charged to the jury is conclusive as to a
necessary element of the other crime, as charged, for which the guilty
verdict was rendered.” Id. at 619. The Tucker court emphasized that the
inquiry necessary to determine whether verdicts were legally
inconsistent, and therefore flawed, did not require inquiry into the jury
process but only an objective analysis of the jury charge to ascertain if
there was an irreconcilable conflict. Id.
In Brown, the Florida Supreme Court followed the approach
outlined in Tucker in considering whether a conviction of felony murder
could stand when the defendant was acquitted of the felonies upon
which the felony murder was based. Brown, 959 So. 2d at 219–20. The
court concluded that the felony-murder conviction could not stand. Id.
at 221, 223. The court explained that verdicts “ ‘in which an acquittal on
one count negates a necessary element for conviction on another count’ ”
were not tolerated in Florida courts. Id. at 220 (quoting Gonzalez, 440
14
So. 2d at 515). The Brown majority also reasoned that the State, not the
defendant, bears the burden “of ensuring parallel verdict forms for legally
interlocking counts.” Id. at 223.
Most recently, the Supreme Court of Maryland has considered the
problems posed by inconsistent verdicts. In Price v. State, 949 A.2d 619
(Md. 2008), a jury found the defendant not guilty on all drug-trafficking
charges, but found him guilty of possessing a firearm “during and in
relation to a drug-trafficking crime.” Price, 949 A.2d at 622. The
Maryland Supreme Court, finding the verdicts inconsistent, concluded
that the guilty verdict was infected with legal error and could not be
sustained. Id. at 630.
In reaching its conclusion, the court in Price noted that in civil
cases, Maryland law did not tolerate inconsistent verdicts. Id. at 628–29.
If inconsistent verdicts were not tolerated in the civil context, the Price
court observed, the case was even stronger in the context of criminal law
in which the law affords greater procedural protections for a defendant
than is given to either side of a civil trial. Id. at 630.
In sum, the majority of state cases simply adopt the approach of
Dunn and Powell, but a significant minority distinguishes between
factual and legal inconsistency and regard inconsistencies resulting from
conviction of a compound felony and acquittal on the underlying
predicate felony as fatally flawed.
D. Iowa Case Law Related to the Issue of Compound
Inconsistency in Jury Verdicts in Criminal Cases. This court has had
only one occasion to consider a question involving a claim of compound
inconsistency in a jury verdict in a criminal case. In State v. Fintel, 689
N.W.2d 95 (Iowa 2004), the defendant was charged with conspiracy to
manufacture a controlled substance and manufacturing a controlled
15
substance. Fintel, 689 N.W.2d at 100. The jury acquitted the defendant
on the manufacturing charge, but convicted him on the conspiracy
charge. Id. at 100. The defendant appealed, claiming that the
inconsistent jury verdict required reversal. Id.
We affirmed the conspiracy conviction. Id. at 101. We noted that
the case did not involve a true inconsistency as one could conspire to
manufacture a controlled substance without completing the offense of
manufacturing. Id. at 97, 101. In its analysis, however, the court did
not rely upon Powell or Dunn, but instead referred to Hoffman v. National
Medical Enterprises, Inc., 442 N.W.2d 123, 126–27 (Iowa 1989), a civil
matter often cited for the proposition that jury consistency is required.
See id. at 101. The Fintel court noted that the test for inconsistency in
civil cases asks whether the verdict is “so logically and legally
inconsistent as to be irreconcilable within the context of the case.” Id.
Fintel does not control the outcome here. While Fintel suggestively
employed the standard used in civil cases for determining inconsistency,
no inconsistency was found under the civil standard. See id. It was,
therefore, not necessary to determine whether a defendant in a criminal
case faced a higher hurdle to obtain relief on inconsistency grounds than
in a civil case. See id. Further, even if a verdict in a criminal case was
found to be inconsistent, the issue of appropriate remedy was not
addressed in Fintel and remains an open question. 3 See id.
While the standards in a civil case for dealing with inconsistent
verdicts are not necessarily determinative in this criminal case, they may
3The Iowa Court of Appeals has, on at least two occasions, considered the
question of the remedy for inconsistent jury verdicts in a criminal case. In State v.
Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App. 1996), the court said that an
inconsistency does not require reversal if the inconsistency resulted from the jury’s
exercise of lenity. In State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct. App. 1995), the
court adopted the approach of Dunn and Powell.
16
nonetheless be instructive. See State v. Mumford, 338 N.W.2d 366, 370–
71 (Iowa 1983). Iowa Rule of Civil Procedure 1.934 governs treatment of
inconsistent verdicts in civil cases. Of particular relevance is a provision
precluding the court from ordering judgment when special interrogatories
are inconsistent with each other and at least one special interrogatory is
inconsistent with the general verdict. See Iowa R. Civ. P. 1.934. When
this occurs, the court may send the jury back for further deliberation or
order a new trial. Id. Thus, in a civil case, a legally inconsistent jury
verdict in a multiple-count case cannot establish the basis of a civil
judgment. See Clinton Physical Therapy Servs., P.C. v. John Deere Health
Care, Inc., 714 N.W.2d 603, 609, 614 (Iowa 2006) (concluding that, once
the jury is discharged, inconsistent verdicts in a civil case lead to
reversal of judgment and remand for a new trial).
E. Academic Commentary on Compound Inconsistent Jury
Verdicts in Criminal Cases. There is a body of academic commentary
on the question of proper treatment of inconsistent verdicts in criminal
cases generally. There have been a number of somewhat dated pieces
that tend to support the Supreme Court’s approach. See, e.g., Bickel, 63
Harv. L. Rev. at 651–52 (1950); Chad W. Coulter, Comment, The
Unnecessary Rule of Consistency in Conspiracy Trials, 135 U. Pa. L. Rev.
223, 225–26 (1986) [hereinafter Coulter]. These commentators tend to
emphasize the sanctity of juries in our system of criminal justice and the
undesirability of seeking to determine the underlying cause of
inconsistency in jury verdicts. Bickel, 63 Harv. L. Rev. at 651
(characterizing the review of a jury verdict as a radical encroachment on
the province of the jury); Coulter, 135 U. Pa. L. Rev. at 236–37 (“The
Dunn case represents a practical and just compromise between the
‘jury’s role in seeing that the individual gets justice with mercy’ and ‘the
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important federal interest in the enforcement of the criminal law.’ ”
(quoting Bickel, 63 Harv. L. Rev. at 655 (first quote); Standefer v. United
States, 447 U.S. 10, 24, 100 S. Ct. 1999, 2008, 64 L. Ed. 2d 689, 700
(1980) (second quote)).
More recent commentary, however, has been more critical. The
leading commentator has characterized the Supreme Court’s approach to
inconsistent verdicts as “distressing.” See Eric L. Muller, The Hobgoblin
of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.
Rev. 771, 834 (1998) [hereinafter Muller]. According to this authority,
while we cannot do the equivalent of throwing open the hood and looking
at the engine of jury deliberations, we should nonetheless not tolerate
obvious jury error. Id. The commentator proposes a number of possible
solutions to the general problem of inconsistent jury verdicts, including
harmless error analysis, refusal to accept an inconsistent verdict, and
retrial at the option of the defendant. Id. at 821–34.
Another prominent academic has observed that the message in
Dunn is, it is “[b]etter that ten innocent defendants be convicted than
that ten guilty defendants be denied the boon of unlawful jury
nullification.” Albert W. Alschuler, The Supreme Court and the Jury: Voir
Dire Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi.
L. Rev. 153, 213 (1989) [hereinafter Alschuler]. The commentary
questions a rationale in Powell—namely, that the government would have
no recourse under double-jeopardy principles if the inconsistent guilty
verdict were vacated—as imposing an improper penalty for application of
double-jeopardy principles. Id. at 213. Further, it is suggested that it
makes no sense to impose extensive and cumbersome front-end controls
on the trial process and then have no controls on the back end when the
jury produces an inconsistent verdict. Id. at 154–55, 229.
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A third academic critic characterizes as “surprising” the notion in
Dunn that a government-sanctioned decision maker is entitled to
“ ‘indulge’ in ‘carelessness’ and other ‘vagaries.’ ” Andrew D. Leipold,
Rethinking Jury Nullification, 82 Va. L. Rev. 253, 280 (1996) (quoting
United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 135, 88
L. Ed. 48, 50–51 (1943)). The critic also observes that the approach in
Dunn deprives the defendant of valuable evidence “that the jury failed to
find proof of each element of the crime beyond a reasonable doubt,
thereby increasing the risk of an erroneous conviction,” and that the
potential for a compromise verdict under Dunn is “particularly
troublesome.” Id. at 279 n.99, 280.
These more recent critics find a foundation in an older article
written by a prosecutor, Steven Wax. Wax, 24 N.Y.L. Sch. L. Rev. at 738.
In the article, Wax asserts that a strong argument can be made that
inconsistent verdicts are incompatible with the notion of guilt beyond a
reasonable doubt. Id. Like the minority of state courts, Wax notes that
“[t]he assumption by the proponents of the Dunn position that most
inconsistent verdicts are benign acts on the jury’s part is just that—an
assumption.” Id. at 739. What also may be at work, according to Wax,
includes confusion, compromise, enforcement of public safety,
misunderstanding of a charge, or what Wax calls “the gestalt
perspective.” Id. Wax thus suggests that, when an acquittal of one
charge is conclusive as to an element which is necessary to conviction on
another charge, the conviction should be reversed. Id. at 740.
In sum, while the academic literature on inconsistent verdicts is
not extensive and is mixed in its conclusions, a number of observers
regard Dunn and Powell as flawed, particularly in the context of legal
19
inconsistency caused by conviction of a compound felony and acquittal of
the potential underlying predicate felony.
F. Determination of Proper Approach to Compound
Inconsistent Jury Verdicts Under Iowa Law.
1. Validity of jury verdict involving compound inconsistency. After
review of the applicable precedents and authorities, we decline to follow
the approach of Dunn and Powell and conclude that, in a case involving
conviction of a compound felony when the defendant is acquitted of the
underlying predicate crime, the conviction cannot stand. We reach our
conclusion for several reasons.
If all inconsistent verdicts were the result of lenity with respect to
the acquittals, and rationality with respect to the convictions, the
approach in Dunn and Powell would make sense. But, we think it
obvious that this is not the case. At the outset, it is equally possible that
an inconsistent verdict is the product of animus toward the defendant
rather than lenity. See Muller, 111 Harv. L. Rev. at 798, 834. The
presumption of lenity seems particularly doubtful if the jury convicts a
defendant of the more serious component offense but acquits the
defendant on predicate felonies. Further, aside from the animus-lenity
coin, the inconsistent verdict may be a result of mistake, confusion, or
compromise. See DeSacia, 469 P.2d at 377.
Because we do not accept the presumption of lenity in cases
involving inconsistent verdicts, we place greater weight than Powell and
Dunn on the lack of reliability of jury verdicts when compound
inconsistency is present. The purpose of our criminal justice system is
to find the truth. When a jury convicts a defendant of a compound
offense, but acquits the defendant on a predicate offense, our confidence
in the outcome of the trial is undermined.
20
In constitutional terms, a jury verdict involving compound
inconsistency insults the basic due process requirement that guilt must
be proved beyond a reasonable doubt. See In re Winship, 397 U.S. 358,
364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970). When a jury
returns a compound inconsistency, a legal error has occurred. There is a
substantial possibility that the jury has simply made an error, engaged
in compromise, or engaged in some other process that is inconsistent
with the notion of guilt beyond a reasonable doubt.
Finally, we are concerned about the perceptions of the criminal
justice system when inconsistent verdicts are allowed to stand. We are
concerned that allowing a potentially long prison term arising from a
compound felony to stand when a defendant has been found not guilty of
predicate offenses will have a corrosive effect on confidence in the
criminal justice system. When liberty is at stake, we do not think a
shrug of the judicial shoulders is a sufficient response to an irrational
conclusion. We are not playing legal horseshoes where close enough is
sufficient. It is difficult to understand why we have a detailed trial
procedure, where the forum is elaborate and carefully regulated, and
then simply give up when the jury confounds us. See Alschuler, 56 U.
Chi. L. Rev. at 154, 229–33; cf. Richard L. Lippke, The Case for Reasoned
Criminal Trial Verdicts, 22 Can. J. L. & Jurisprudence 313, 318–19
(2009). It is also difficult to justify that we would afford less protection in
a criminal matter than in a civil matter involving money damages. See
Price, 949 A.2d at 626–30.
In departing from Dunn and Powell in this case, we do not open a
Pandora’s box by probing into the sanctity of jury deliberations. Our
analysis focuses solely on the legal impossibility of convicting a
defendant of a compound crime while at the same time acquitting the
21
defendant of predicate crimes. Making such a legal determination does
not require the court to engage in highly speculative inquiry into the
nature of the jury deliberations. See Tucker, 431 N.E.2d at 619–21
(refusing to speculate about jury motivation, but looking to objective
facts to assess whether the jury verdict is self-contradictory). We focus
solely on the elements of the crime, the jury verdicts, and the
instructions in the case.
We also accept the notion that any potential remedy should be
available only when the jury verdicts are truly inconsistent or
irreconcilable. A reviewing court must carefully examine the pleadings
and the instructions to ensure that the jury verdicts are so inconsistent
that they must be set aside. See, e.g., Cochran v. State, 220 S.E.2d 477,
478 (Ga. Ct. App. 1975) (emphasizing the need to carefully examine
crimes to determine whether they contain different elements, thereby
showing whether the verdicts are truly inconsistent or repugnant);
Commonwealth v. Austin, 906 A.2d 1213, 1219–21 (Pa. Super. Ct. 2006)
(discussing how apparently inconsistent verdicts may not be legally
inconsistent).
Applying these principles to the case at hand, we find that the jury
verdicts in this case are truly inconsistent. A jury simply could not
convict Halstead of the compound crime of assault while participating in
a felony without finding him also guilty of the predicate felony offense of
theft in the first degree. 4 There is simply no exit from this air-tight
conundrum. As a result, Halstead’s conviction of the compound felony
in this case must be reversed.
4The jury instructions at Halstead’s trial provided that only theft in the first
degree could serve as the predicate offense for the assault while participating in a felony
count. Due to this, the State conceded at oral argument that Halstead’s conviction for
second-degree robbery could not serve as the predicate offense for the compound felony.
22
2. Application of double jeopardy/collateral estoppel to potential
retrial. Having determined that the compound conviction in this case
cannot stand, we next confront whether the defendant may be retried on
remand. 5 It is clear under double-jeopardy principles that the defendant
may not be tried on the offenses for which he was acquitted.
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23
L. Ed. 2d 656, 664–65 (1969). The question arises, however, whether
Halstead may nonetheless be subject to retrial on the charge for which
he was found guilty, namely, the compound felony of assault while
participating in a felony. Compare DeSacia, 469 P.2d at 379–81 (allowing
retrial on offense when conviction was obtained in a prior trial), with
Smith v. State, 985 A.2d 1204, 1215 n.10 (Md. 2009) (citing Ferrell v.
State, 567 A.2d 937, 940 (Md. 1990)) (refusing to allow retrial on double-
jeopardy grounds).
We conclude that the defendant may not be retried on the
underlying felony. The Supreme Court has made it clear that the
doctrine of collateral estoppel applies against the government as part of
double jeopardy. Ashe, 397 U.S. at 442–46, 90 S. Ct. at 1193–95, 25
L. Ed. 2d at 474–76. Double-jeopardy doctrine prohibits postacquittal
appeal by the government that, if successful, would result in a second
trial or would necessitate further proceedings “ ‘ “devoted to the
resolution of factual issues going to the elements of the offense
charged” ’ ” before a second trier of fact. Smalis v. Pennsylvania, 476
U.S. 140, 145–46, 106 S. Ct. 1745, 1749, 90 L. Ed. 2d 116, 122 (1986)
5At the trial in this case, there was no effort to resolve the inconsistent verdict.
We therefore have no occasion to consider whether the trial court may ask a jury to
reconsider an inconsistent verdict before the jury is discharged. See Mumford, 338
N.W.2d at 369–72; State v. Peters, 855 S.W.2d 345, 349–50 (Mo. 1993); see also Heinze
v. State, 42 A.2d 128, 130 (Md. 1945).
23
(quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 570, 97
S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 650 (1977)). As is apparent from
Ashe and Smalis, the doctrine of collateral estoppel is part of double-
jeopardy doctrine. Under collateral estoppel, a conclusive determination
of a jury cannot be retried in a separate successive proceeding. Here, it
is clear that the jury has acquitted the defendant of the underlying
predicate offenses. We find that collateral estoppel bars any subsequent
retrial on the compound felony charge because the factual issues of guilt
on the predicate felonies have been authoritatively determined.
IV. Conclusion.
For the above reasons, Halstead’s conviction of assault while
participating in a felony is reversed, and his sentence is vacated. The
matter is remanded to the district court for entry of a judgment of
acquittal on the compound felony and for resentencing as a result of
Halstead’s unchallenged convictions on theft in the fifth degree and
robbery in the second degree.
DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED IN PART, SENTENCE VACATED, AND
CASE REMANDED FOR RESENTENCING.