People v. Jefferson
Illinois Supreme Court
People v. Jefferson, 2024 IL 128676 (Ill. 2024)
People v. Jefferson
Opinion
2024 IL 128676
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128676)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
TRENTON JEFFERSON, Appellant.
Opinion filed June 6, 2024.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White, Rochford,
and O’Brien concurred in the judgment and opinion.
OPINION
¶1 The defendant, Trenton Jefferson, was tried before a jury in the circuit court of
St. Clair County for first degree murder. At the close of trial, the jury was instructed
on first degree murder and was also given a special interrogatory asking whether
the State had proven beyond a reasonable doubt that Jefferson personally
discharged a firearm that proximately caused the victim’s death. The jury returned
a general verdict finding Jefferson guilty of first degree murder but answered the
special interrogatory in the negative. On appeal, the appellate court reversed
Jefferson’s conviction for reasons unrelated to the special interrogatory and
remanded the case for a new trial.
¶2 In the trial court, Jefferson filed a motion arguing that, under the doctrine of
issue preclusion as embodied in the double jeopardy clause of the federal
constitution, 1 the jury’s answer to the special interrogatory barred the State from
arguing or presenting evidence in his retrial that he personally discharged a firearm
that proximately caused the death of the victim. The trial court granted the motion,
and the State appealed. The appellate court reversed the judgment of the trial court,
holding that the jury’s answer to the special interrogatory did not bar the State from
arguing or presenting evidence that Jefferson discharged the firearm. 2022 IL App
(5th) 200185. For the reasons that follow, we affirm the judgment of the appellate
court.
¶3 BACKGROUND
¶4 In the early morning hours of April 11, 2010, 17-year-old Marcus Gosa was
shot and killed in an alley in East St. Louis, Illinois. A grand jury subsequently
indicted Jefferson for Gosa’s murder. Approximately one month after Jefferson was
indicted, a second suspect in Gosa’s murder, Renaldo Brownlee, was killed during
an unrelated armed robbery.
¶5 Jefferson’s first trial, held in September 2012, resulted in a mistrial after the
jury could not reach a unanimous verdict. Jefferson’s second trial took place in
February 2013. At that trial, Rochelle Davis, Jefferson’s ex-girlfriend and the
mother of his child, testified that on the night of April 10, 2010, Jefferson and three
other people, including Brownlee, picked her up in a green Buick. Brownlee sat in
the front passenger seat, and Jefferson sat in the back seat. Davis testified that she
1
Although the parties primarily use the terms “collateral estoppel” or “direct estoppel” in this
court, the United States Supreme Court has indicated that “issue preclusion” is the preferred term
when discussing the double jeopardy clause. Bravo-Fernandez v. United States, 580 U.S. 5, 7 n.1
(2016); see, e.g., Taylor v. Sturgell, 553 U.S. 880, 892 n.5 (2008) (“issue preclusion encompasses
the doctrines once known as ‘collateral estoppel’ and ‘direct estoppel’ ”). For consistency, we will
use the term “issue preclusion” in this opinion.
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knew Jefferson sometimes carried a black, 9-millimeter handgun and that, when
she joined Jefferson in the back seat of the car, he had that gun with him. Davis
stated that Brownlee was also carrying a 9-millimeter handgun. Davis testified that
the group drove to Jefferson’s aunt’s house, where Davis was dropped off. Jefferson
then left with the others in the car.
¶6 Kiyanna Howard, who had started dating Brownlee a few days before the
murder, testified that Jefferson and Brownlee picked her up around midnight in the
same car that Davis had been in earlier that night. The three then drove around
town, listening to music. Jefferson was driving the vehicle, Brownlee rode in the
front passenger seat, and Howard rode in the back seat. At some point during the
drive, Howard fell asleep. She stated that she awoke when she heard a car door slam
shut. Howard saw Jefferson standing in front of the car. Howard asked Brownlee
what Jefferson was doing. She got some kind of response and then lay back down.
A few seconds later, she heard three or four gunshots. Following the gunshots,
Howard sat up and saw Jefferson run back to the car and reenter the driver’s side
door. According to Howard, as Jefferson sped away, he said, “Let’s go. Let’s go. I
think I got that n***.” Howard stated that when Jefferson got back into the car, it
appeared to her as if he was holding something in his hands. However, she denied
ever seeing a gun. Howard admitted that, in an earlier statement given to police,
she told them Jefferson said, “I think I hit somebody” and “I think I got [d]ude.”
Howard stated that, after the shooting, she, Jefferson, and Brownlee drove to a
motel, where they stayed until about noon. Jefferson then drove Howard and
Brownlee to Brownlee’s grandmother’s house and dropped them off.
¶7 Davis testified that, at some point after the murder, Jefferson made several
statements to her that led her to believe he had killed Gosa. Davis stated that
Jefferson told her that, on the night of the murder, he saw two boys walking in the
alley and that both he and Brownlee got out of the car and started shooting at the
boys. Davis further testified that Jefferson told her he heard Gosa scream and that
it sounded like he had fallen over something. Davis also stated that she eventually
stopped dating Jefferson and told him she had started a new relationship with
someone else. Jefferson responded by saying, “You tell [d]ude don’t end up like
Marcus did.”
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¶8 A few days after the murder, Jefferson was apprehended by police officers in
the same green Buick that had been identified by Davis and Howard. After he was
arrested and charged with Gosa’s murder, Jefferson shared a jail cell with Reshon
Farmer at the St. Clair County jail. Farmer testified against Jefferson as part of a
plea deal with the State. According to Farmer, in May 2011, Jefferson admitted to
him he “killed the dude” in a drive-by shooting because “they was into it with
them.” Jefferson told Farmer he rode in the passenger seat, while his friend
Brownlee drove the vehicle. According to Farmer, only Jefferson fired shots.
Farmer stated Jefferson never mentioned the victim’s name, but he did say the
victim “was from Washington Park and they was into it with Washington Park. So,
[Jefferson] felt like he, you know, had to do what he did.” According to Farmer,
although Jefferson did not personally know Gosa, he was familiar with him from
Washington Park.
¶9 An autopsy revealed Gosa died of a single gunshot wound to the back. Police
did not recover the bullet that killed Gosa. At the crime scene, police recovered two
9-millimeter shell casings, which ballistics testing established had been fired from
the same gun. No fingerprints were found on the shell casings. It was not known
whether the shell casings were discharged from the firearm that caused Gosa’s
death. At the close of the State’s case, Jefferson moved for a directed verdict, which
was denied. Jefferson did not present any evidence.
¶ 10 During closing arguments, the State asserted that Jefferson had shot and killed
Gosa and argued to the jury that the three witnesses who had testified supported
that conclusion. The State also told the jury that, if it believed the testimony of
Davis that both Jefferson and Brownlee got out of the car and fired shots, Jefferson
would still be guilty of first degree murder under a theory of accountability, even if
he did not fire the weapon that killed Gosa.
¶ 11 Following closing arguments, the jury was instructed that, to find Jefferson
guilty of murder, it had to find that the evidence proved beyond a reasonable doubt
that the “defendant, or one for whose conduct he was legally responsible,”
(1) performed the acts that caused Gosa’s death and (2) intended to kill or do great
bodily harm to Gosa, knew that such acts would cause Gosa’s death, or knew that
such acts created a strong probability of death or great bodily harm to Gosa.
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¶ 12 The State also requested that the trial court instruct the jury regarding a firearm
sentencing enhancement pursuant to section 5-8-1(a)(1)(d)(iii) of the Unified Code
of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010) (providing a sentence
enhancement of 25 years to natural life “if, during the commission of the offense,
the person personally discharged a firearm that proximately caused *** death to
another person”)). Based on this request, the trial court provided the following
instruction to the jury:
“The State has also alleged that during the commission of the offense of
First Degree Murder the defendant was armed with a firearm and personally
discharged the firearm that proximately caused death to another person.
If you find the defendant is guilty of First Degree Murder, you should then
go on with your deliberation to decide whether the State has proved beyond a
reasonable doubt the allegation that the defendant was armed with a firearm and
personally discharged the firearm that proximately caused death to another
person.
Accordingly, you will be provided with two verdict forms: ‘We, the jury,
find the allegation that the defendant was armed with a firearm and personally
discharged the firearm that proximately caused death to another person was not
proven[’] and ‘We, the jury, find the allegation that the defendant was armed
with a firearm and personally discharged the firearm that proximately caused
death to another person was proven.’
From these two verdict forms, you should select the one verdict form that
reflects your verdict and sign it as I have stated. Do not write on the other verdict
form. Sign only one of these verdict forms.
Your agreement on your verdict as to the allegation must also be unanimous.
Your verdict must be in writing and signed by all of you, including your
foreperson.”
¶ 13 The jury returned a general verdict finding Jefferson guilty of first degree
murder. The jury also answered the special interrogatory in the negative, returning
the verdict form stating that the State failed to prove beyond a reasonable doubt that
Jefferson personally discharged the firearm that proximately caused Gosa’s death.
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Thereafter, the trial court sentenced Jefferson to 30 years’ imprisonment. Jefferson
appealed.
¶ 14 On appeal, the appellate court held that portions of Davis’s testimony (which
are not at issue here) were unfairly prejudicial to Jefferson and were improperly
admitted by the trial court. People v. Jefferson, 2016 IL App (5th) 130289-U. The
appellate court reversed Jefferson’s conviction and remanded for a new trial.
¶ 15 On remand, Jefferson filed a pretrial motion in which he pointed to certain
statements in the appellate court’s order that had discussed the jury’s answer to the
special interrogatory. Based on these statements, the motion argued that the State
was barred from arguing or presenting any evidence that he personally shot and
killed Gosa. Invoking the law of the case doctrine, the trial court granted Jefferson’s
motion. The State appealed the trial court’s order pursuant to Illinois Supreme
Court Rule 604(a)(1) (eff. Mar. 8, 2016).
¶ 16 On that appeal, the appellate court held that the trial court erred in granting
Jefferson’s motion based on the law of the case doctrine because nothing in its
previous decision had barred the State from retrying Jefferson under a principal
liability theory for first degree murder. People v. Jefferson, 2019 IL App (5th)
170221-U, ¶ 31. The appellate court also noted that, for the first time on appeal,
Jefferson had argued that the doctrine of issue preclusion as embodied in the double
jeopardy clause of the federal constitution (U.S. Const., amend. V) prevented the
State from arguing or presenting any evidence suggesting that he fired the shot that
murdered Gosa. Jefferson, 2019 IL App (5th) 170221-U, ¶ 33. However, the court
indicated that the parties had provided the court “with little or no analysis” of the
doctrine, and therefore, the court declined to fully consider the issue. Id. ¶ 49. The
appellate court reversed the trial court’s order and remanded the case to the trial
court for further proceedings. The appellate court noted, however, that because it
had not made a final determination on the merits of Jefferson’s preclusion
argument, he was not prevented from raising and relitigating the application of
“issue preclusion as it relates to his case on remand.” Id. ¶ 50.
¶ 17 Returning again to the trial court, Jefferson filed a “Collateral Estoppel Motion
to Bar Evidence” in which he argued that, under Ashe v. Swenson, 397 U.S. 436
(1970), the doctrine of issue preclusion as embodied within the double jeopardy
clause of the federal constitution barred the State from arguing or introducing
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evidence in his retrial that he personally discharged the firearm that proximately
caused the death of Gosa. The motion acknowledged that issue preclusion “comes
into effect only where it can be ascertained with certainty that the verdict in the first
case necessarily determined a particular fact” (People v. Haran, 27 Ill. 2d 229, 235
(1963)) but maintained that a factual determination had been made by the jury here.
The motion pointed out that the undisputed evidence from Jefferson’s previous trial
had established that Gosa died from a single gunshot wound and that only one other
person, Brownlee, could have fired that shot. Further, the motion noted, the State
had expressly argued to the jury that it could find Jefferson guilty under a theory of
accountability. Given the jury’s negative answer to the special interrogatory, the
motion asserted that the jury must have found Jefferson guilty of first degree murder
based on accountability. As Jefferson’s counsel stated to the trial court while
arguing in support of the motion: “If you look at all of these circumstances, the only
conclusion that that jury could have drawn would have been that [Jefferson] was
only accountable and he didn’t fire the gun.”
¶ 18 Emphasizing the unique circumstances of this case, Jefferson’s motion
maintained that the jury’s negative answer to the special interrogatory, considered
together with the general verdict, amounted to a factual determination by the jury
that Brownlee fired the fatal shot, not Jefferson. Because the jury had made this
factual determination, the motion argued the doctrine of issue preclusion barred the
State from introducing any evidence contradicting it, including any statements by
Davis and Howard that expressly or implicitly indicated that Jefferson shot Gosa,
as well as Farmer’s testimony that Jefferson fired the fatal shot. The motion did not
argue that the State was barred from retrying Jefferson for the murder of Gosa but
asserted that he could only be retried under a theory of accountability.
¶ 19 Following a hearing, the trial court granted Jefferson’s motion “in part.” 2 In its
order, the trial court stated it agreed with Jefferson that the jury had found him
guilty in his previous trial based on accountability, noting that “[t]he State told the
jury to complete the verdict this way if Defendant was guilty by accountability.
2 During the hearing on Jefferson’s motion, the State conceded that, in light of the jury’s negative
answer to the special interrogatory, the State “could not seek a sentencing enhancement in the
future” and Jefferson “cannot get the enhancement ever again.” The State does not take a different
position before this court. See Jefferson, 2019 IL App (5th) 170221-U, ¶¶ 15-17 (noting the State’s
identical concession in that appeal).
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They did just that.” Concluding that the jury had “made a factual determination
which carries the weight and effect of issue preclusion,” the trial court determined
the State was barred from “attempting to contradict that explicit finding.” The court
held the State was barred “from proceeding on a theory, and presenting evidence or
argument that proof exists beyond a reasonable doubt, that [Jefferson] was armed
with a firearm and personally discharged the firearm that proximately caused the
death of Marcus Gosa.”
¶ 20 The court stated in its order that it was granting Jefferson’s motion “in part”
because the State was still allowed to argue and present evidence that Jefferson was
accountable for the murder of Gosa. The court then identified several statements
made by Howard and Davis in the previous trial that were “consistent with a theory
of accountability” and that could again be introduced by the State in the retrial, so
long as the State made no attempt to argue that the testimony established Jefferson’s
guilt under a theory of principal liability. The court did not discuss the contents of
Farmer’s previous testimony except to note that, because Farmer was a jailhouse
informant, his testimony would be subject to section 115-21 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-21 (West 2020)), a provision that
requires the trial court to conduct a hearing to determine whether an informant’s
testimony is reliable.
¶ 21 Lastly, the trial court noted that, upon Jefferson’s request, the jury could “be
cautioned and instructed that there was insufficient evidence that proof exists
beyond a reasonable doubt that [Jefferson] was armed with a firearm and personally
discharged the firearm that proximately caused the death of Marcus Gosa.” The
State again filed an interlocutory appeal pursuant to Rule 604(a)(1).
¶ 22 On appeal, the appellate court again reversed the judgment of the trial court and
remanded the case to the trial court. 2022 IL App (5th) 200185. The appellate court
first rejected the State’s argument that the court lacked jurisdiction under Rule
604(a)(1). The appellate court concluded that the trial court’s order had the
substantive effect of suppressing evidence as required for appeal under Rule
604(a)(1) and, therefore, jurisdiction had been established. Id. ¶ 20.
¶ 23 As to the merits of the State’s appeal, the appellate court disagreed with the trial
court’s finding that, under the doctrine of issue preclusion, the jury’s negative
answer to the special interrogatory had a preclusive effect on the State’s ability to
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retry Jefferson as a principal. Id. ¶ 23. The appellate court noted the purpose of the
special interrogatory was to comply with Apprendi v. New Jersey, 530 U.S. 466
(2000), and to enable the State to obtain a sentence enhancement. 2022 IL App (5th)
200185, ¶ 24. The appellate court then stated that courts have consistently refused
“ ‘to consider the answer to the “special interrogatory” beyond the purpose for
which it was asked—whether there could be a sentence enhancement.’ ” Id.
(quoting People v. Jackson, 372 Ill. App. 3d 605, 612 (2007)). The appellate court
concluded that, “[b]ecause the special interrogatory here applied only to whether a
sentence enhancement should be applied, and not to the general verdict of guilt, [it]
did not have the effect of precluding [Jefferson] from being retried under both
principal and accountability theories of first degree murder.” Id. Accordingly, the
appellate court reversed the judgment of the trial court. Id. ¶ 25.
¶ 24 We granted Jefferson’s petition for leave to appeal pursuant to Illinois Supreme
Court Rule 315(a) (eff. Oct. 1, 2021).
¶ 25 ANALYSIS
¶ 26 Appellate Court Jurisdiction
¶ 27 Jefferson initially contends the appellate court lacked jurisdiction under Rule
604(a)(1) because the trial court’s order did not have the “substantive effect” of
suppressing evidence as required for the State to appeal the order under that rule.
See In re K.E.F., 235 Ill. 2d 530, 537 (2009). An order suppresses evidence within
the meaning of Rule 604(a)(1) when it “ ‘prevents [the] information from being
presented to the fact finder.’ ” Id.at 538 (quoting People v. Drum,194 Ill. 2d 485, 492
(2000)). When the order leaves open an avenue for admission of the evidence
in question, it does not suppress evidence. Id. We review de novo the issue of
whether the trial court’s order suppressed evidence and thereby conferred
jurisdiction upon the appellate court. Id.
¶ 28 In this case, the trial court’s order expressly barred the State from presenting
evidence that Jefferson personally discharged the firearm that proximately caused
the death of Gosa. Nevertheless, Jefferson maintains that this was insufficient to
establish appellate jurisdiction under Rule 604(a)(1). Jefferson notes that the trial
court’s order identified specific statements previously made by Davis and Howard
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that could be admitted in the retrial under a theory of accountability but did not
identify with the same specificity what statements of Davis and Howard were to be
suppressed. Jefferson argues that the trial court’s order “did not bar a single
identifiable item of evidence” and, therefore, the appellate court lacked jurisdiction
under Rule 604(a)(1). We disagree.
¶ 29 As the State points out, trial courts often make rulings that suppress proffered
testimony without attempting to identify every possible statement the witness might
make at trial. This is necessarily so because it is impossible to know beforehand
exactly what a witness will say, or attempt to say, when called to testify. Simply
because the trial court’s order in this case did not set forth all the possible statements
the witnesses might make does not mean that the trial court’s order failed to
suppress evidence. Further, even if the trial court’s order did not say so explicitly,
it clearly had the effect of suppressing Farmer’s testimony, since he had stated at
the previous trial that Jefferson admitted shooting Gosa. By its plain terms, the trial
court’s order had the substantive effect of suppressing evidence. Accordingly, the
appellate court had jurisdiction under Rule 604(a)(1) to address the merits of the
State’s appeal.
¶ 30 Issue Preclusion
¶ 31 In the appeal now before us, the appellate court held that, as a matter of law, a
jury’s answer to a special interrogatory submitted by the State for the purpose of
seeking a sentencing enhancement may never have preclusive effect in a subsequent
trial. 2022 IL App (5th) 200185, ¶ 24. However, in this court, the State does not
primarily defend this line of reasoning. Instead, the State’s principal argument is
that the trial court erred in applying the issue preclusion component of the federal
double jeopardy clause as recognized by the United States Supreme Court in Ashe.
Jefferson, in response, argues that the trial court did not err in its application of
Ashe or the issue preclusion doctrine. Given the nature of the parties’ arguments,
we begin with Ashe.
¶ 32 In Ashe, three or four masked men broke into a house in the town of Lee’s
Summit, Missouri, and robbed six men who were playing poker in the basement.
Ashe, 397 U.S. at 437. The defendant was charged with separate counts of armed
robbery with respect to each of the poker players, but at trial, the State of Missouri
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proceeded on only one of the robbery charges against a single victim. Id. at 438. At
the close of trial, the judge instructed the jury that the defendant could be found
guilty on a theory of accountability, stating that, if the jury found that the defendant
was one of the participants in the armed robbery, then “he was guilty under the law
even if he had not personally robbed [the victim].” Id. at 439. The jury found the
defendant “ ‘not guilty due to insufficient evidence.’ ” Id. Shortly thereafter, the
State tried the defendant for robbing a second poker player and obtained a
conviction. Id. at 439-40.
¶ 33 Although the second prosecution was technically a different offense, since it
involved a different victim, the Supreme Court nevertheless held that the second
prosecution violated the double jeopardy clause of the fifth amendment. That
provision states, “No person shall *** be subject for the same offence to be twice
put in jeopardy of life or limb ***.” U.S. Const., amend. V.
¶ 34 In so holding, the Supreme Court found that the doctrine of issue preclusion or
collateral estoppel is embodied within the double jeopardy clause. Ashe, 397 U.S.
at 444-45. The Court described this doctrine as “mean[ing] 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.
at 443. Explaining that the doctrine should be applied in criminal cases with
“realism and rationality,” and not with a “hypertechnical and archaic approach,”
the Court stated:
“Where a previous judgment of acquittal was based upon a general verdict, as
is usually the case, this approach requires a court to 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.” (Internal quotation marks omitted.) Id. at 444.
¶ 35 Based on an evaluation of the record, the Supreme Court determined there was
no question that the victim had been robbed and that the only contested issue in the
first trial had been the identity of the robbers. Id. at 445. Since the jury had been
instructed that the defendant could be found guilty under an accountability theory,
the defendant’s acquittal necessarily meant that the jury had found as an “ultimate
fact” (id. at 443) that “the defendant was not one of the robbers” (id. at 446). The
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Court concluded that the doctrine of issue preclusion barred the State from
prosecuting the defendant for the robbery of another poker player since the second
jury would have to again decide whether the defendant participated in the robbery.
Id. at 445. Accordingly, the Court held that the defendant’s conviction had been
obtained in violation of the double jeopardy clause. Id. at 447. ¶ 36 Jefferson notes that Ashe was discussed by this court in People v. Jones,207 Ill. 2d 122
(2003). There, this court stated that a defendant seeking to invoke the
doctrine of issue preclusion as embodied within the double jeopardy clause must
show that
“(1) the issue was raised and litigated in a previous proceeding; (2) that the
determination of the issue was a critical and necessary part of the final judgment
in a prior trial; and (3) the issue sought to be precluded in a later trial is the same
one decided in the previous trial.” Id. at 139.
Applying this rule, Jefferson maintains that the issue of whether he fired the shot
that killed Gosa was raised and rejected in his previous trial, as the jury answered
the special interrogatory in the negative; that this was a critical and necessary part
of the final judgment; and that this is the same issue he seeks to preclude in his
retrial. As he did in the trial court, Jefferson again stresses that he is not seeking to
bar the State from retrying him for murder. Rather, he is seeking only to bar the
State from relitigating a theory of criminal liability that he contends was rejected at
his previous trial, i.e., that he was guilty of the murder of Gosa as a principal.
Jefferson contends that, under a “[s]traightforward application” of Ashe and Jones,
“the State may retry [him] for murder, but it may not reassert the issue of ultimate
fact that he fired the fatal bullet.”
¶ 37 The State disagrees with Jefferson’s statement of the issue preclusion doctrine
recognized in Ashe and, in support, points to the Supreme Court’s decision in
Currier v. Virginia, 585 U.S. 493 (2018) (plurality opinion). In Currier, the
defendant challenged his conviction for unlawful possession of a firearm by a felon
by arguing, in part, that the conviction was obtained in violation of the issue
preclusion component of the double jeopardy clause. Id. at 497-98. The Supreme
Court upheld his conviction for reasons not relevant here. Id. at 510. However, eight
of the justices addressed the scope of the issue preclusion doctrine and the Court’s
holding in Ashe, and on this question, they were evenly divided.
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¶ 38 Justice Gorsuch, in a plurality opinion joined by three other members of the
Court, rejected the idea that the double jeopardy clause prevents “the parties from
retrying any issue or introducing any evidence about a previously tried issue.” Id.
at 503 (opinion of Gorsuch, J., joined by Roberts, C.J., and Thomas and Alito, JJ.).
Rather, according to Justice Gorsuch, the double jeopardy clause only bars retrial
of offenses, not issues. Id. at 504 (“the Clause speaks not about prohibiting the
relitigation of issues or evidence but offenses”). Justice Gorsuch concluded that
Ashe did not import issue preclusion principles from civil cases into the double
jeopardy clause but, instead, held only that, “in narrow circumstances, the retrial of
an issue can be considered tantamount to the retrial of an offense” and thus
prohibited by the double jeopardy clause. Id. at 506. Justice Gorsuch also
questioned, as a general matter, whether the doctrine of issue preclusion could be
meaningfully employed in criminal cases, noting, among other things, that the
doctrine usually does not bar the relitigation of issues when the party against whom
preclusion is being sought could not have obtained review of the judgment in the
initial action and that the State cannot obtain appellate review of acquittals. Id. at
507-08. ¶ 39 Justice Ginsburg, also joined by three members of the Court, dissented.Id. at 512-26
(Ginsburg, J., dissenting, joined by Breyer, Sotomayor, and Kagan, JJ.).
Stressing the importance given to the preservation of the finality of judgments
under the double jeopardy clause, Justice Ginsburg concluded that Ashe did
incorporate civil, issue preclusion principles into the double jeopardy clause. Id. at
515. Justice Ginsburg noted that Ashe explicitly described its holding in terms of
preventing the relitigation of an “issue” (id.) and stated that Ashe stands for the
proposition that “issue preclusion prevents relitigation of a previously rejected
theory of criminal liability” even if it does not bar a successive trial (id. at 521).
Justice Ginsburg concluded that, within the limits of the double jeopardy clause,
the prosecution is free “ ‘to charge an acquitted defendant with other crimes
claimed to arise from the same or related conduct; but it may not prove the new
charge by asserting facts necessarily determined against it on the first trial.’ ” Id. at
525 (quoting United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961)).
¶ 40 Essentially adopting the position advanced by Justice Gorsuch, the State
contends here that the application of issue preclusion under the double jeopardy
clause is narrow. According to the State, under the double jeopardy clause, issue
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preclusion only applies when, as was the case in Ashe, there is a shared element
between offenses. In this situation, according to the State, the subsequent
prosecution is barred because, to convict in the second trial, the jury would have to
reach a contrary conclusion on the shared element from the first trial. In other
words, the double jeopardy clause bars the successive prosecution because it would
be “tantamount to the retrial” of the first offense. Id. at 506 (opinion of Gorsuch, J.,
joined by Roberts, C.J., and Thomas and Alito, JJ.). Beyond this limited
circumstance, however, the State argues that issue preclusion principles have no
application under the double jeopardy clause.
¶ 41 Applying that rule here, the State contends that the jury’s answer to the special
interrogatory has no preclusive effect that would prevent it from presenting
evidence or argument in Jefferson’s retrial because the issue addressed in the
special interrogatory—whether Jefferson personally discharged the firearm that
caused the victim’s death—is not an element the State must prove beyond a
reasonable doubt to prove defendant guilty of first degree murder. See 720 ILCS
5/9-1(a)(1), (2) (West 2010) (first degree murder requires proof that the defendant
or someone for whose conduct he is legally responsible caused the victim’s death
and had the requisite intent). For this reason, the State contends the trial court erred
in granting Jefferson’s motion to suppress evidence.
¶ 42 Jefferson, in response, argues that the State’s reading of Ashe would “radically
circumscribe” the issue preclusion doctrine, “essentially eliminating [it] from our
criminal jurisprudence.” Jefferson again asserts that, “under Ashe, the State may
retry [him] for murder, but it may not reassert the issue of ultimate fact that he fired
the fatal bullet, because that issue has already been resolved.”
¶ 43 Although the State does not say so explicitly, its argument necessarily suggests
that, to the extent this court’s decision in Jones viewed Ashe as requiring that civil,
issue preclusion principles be applied in all criminal cases as a general matter, Jones
was incorrectly decided. However, we need not decide whether the State is correct
or revisit this court’s decision in Jones. Even applying the civil doctrine of issue
preclusion as Jefferson asks us to do, he cannot prevail here.
¶ 44 Standing alone, the jury’s negative answer to the special interrogatory in this
case is not a finding of fact. Rather, it is simply a determination by the jury that the
State failed to prove the sentencing enhancement beyond a reasonable doubt. See,
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e.g., United States v. Watts, 519 U.S. 148, 155 (per curiam) (“ ‘[A]n acquittal is not
a finding of any fact.’ ” (quoting United States v. Putra, 78 F.3d 1386, 1394 (9th
Cir. 1996) (Wallace, C.J., dissenting))). Jefferson argues, however, that when all of
the circumstances of the case are considered, the jury’s answer to the special
interrogatory does amount to a factual determination, just as the jury’s acquittal in
Ashe amounted to a factual determination that the defendant was not present at the
crime scene in that case.
¶ 45 Jefferson again notes that the undisputed evidence from his previous trial
showed that Gosa died from a single gunshot wound and that the only other person
besides Jefferson who could have fired that shot was Brownlee. Further, at his trial
the State argued, and the jury was instructed, that Jefferson could be found guilty
under a theory of accountability. Jefferson maintains that, when these
circumstances are viewed with “realism and rationality” (Ashe, 397 U.S. at 444),
the jury’s negative answer to the special interrogatory must mean that it concluded
he could not have “acted as the principal in the murder.” In other words, the jury’s
answer to the special interrogatory was a factual determination that Brownlee,
rather than Jefferson, fired the shot that killed Gosa. That being the case, Jefferson
argues that the State cannot, under principles of issue preclusion, attempt to
challenge that factual determination again. See id. at 443 (“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”).
¶ 46 The difficulty with Jefferson’s argument is that there is another way in which
the jury’s answer to the special interrogatory may be understood. Under Illinois
law, a jury may “return a general verdict of guilty even if there is no juror unanimity
with regard to the means by which the murder was committed.” (Emphasis in
original.) People v. Smith, 233 Ill. 2d 1, 16 (2009). In this case, some of the jurors
may have believed that Jefferson acted as a principal and fired the shot that killed
Gosa, while others may have believed that Brownlee fired the shot and Jefferson
was guilty by accountability. It is also possible, however, that the jurors were
simply unable to decide which of the two fired the shot but knew, beyond a
reasonable doubt, that either Jefferson or Brownlee did. That was sufficient to find
Jefferson guilty. See id.
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¶ 47 The jury’s answer to the special interrogatory in this case may be viewed as a
factual determination that Brownlee, and not Jefferson, shot Gosa. But it may also
be viewed as something quite different—an indication that the jury was uncertain
as to whether Jefferson or Brownlee shot Gosa but that it had determined, beyond
a reasonable doubt, that either one or the other did. Understood this way, it would
not be inconsistent with the jury’s findings to allow the State to again argue at
Jefferson’s retrial that either Jefferson or Brownlee shot Gosa.
¶ 48 Other courts have reached a similar conclusion. In People v. Santamaria, 884
P.2d 81, 82 (Cal. 1994), the defendant was tried before a jury for murder and
robbery. A codefendant pled guilty to being an accessory to the murder and testified
at trial on behalf of the prosecution. At the close of trial, the jury found the
defendant guilty of the charged offenses but also found “not true” the allegation
that he personally used a knife during the commission of the crimes. Id. On appeal,
the defendant’s convictions were reversed for reasons unrelated to the “not true”
finding. Id. On remand, the defendant moved, based on Ashe and the issue
preclusion doctrine of the double jeopardy clause, to prohibit the prosecution from
retrying him on the theory that he personally used the knife during the killing. Id.
The trial court granted the motion, and the appellate court affirmed. Id. at 82-83.
However, the Supreme Court of California reversed. Concluding that principles of
collateral estoppel or issue preclusion did not bar the prosecution from again
arguing that the defendant killed the victim with the knife, the court stated:
“Not only is there no unanimity requirement as to the theory of guilt, the
individual jurors themselves need not choose among the theories, so long as
each is convinced of guilt. Sometimes, as probably occurred here, the jury
simply cannot decide beyond a reasonable doubt exactly who did what. There
may be a reasonable doubt that the defendant was the direct perpetrator, and a
similar doubt that he was the aider and abettor, but no such doubt that he was
one or the other.
***
*** [T]he jury here may not have been able to decide beyond a reasonable
doubt whether defendant or [his codefendant] actually wielded the knife, but
was convinced beyond a reasonable doubt that, either way, defendant was guilty
of [the victim’s] murder. To go further and conclude that the jury specifically
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found defendant did not use the knife would not apply the collateral estoppel
rule with ‘realism and rationality.’ (Ashe, supra, 397 U.S. at p. 444,90 S.Ct. at p. 1194
.)
*** Whether defendant specifically used a knife is one question; we may
assume the prosecution did not prove that beyond a reasonable doubt, which
explains the not true enhancement verdict. Whether defendant committed
murder by either using a knife or aiding and abetting the one who did is quite a
different question; the prosecution did prove that to the jury’s satisfaction.
*** [W]e conclude the jury did not ‘ “necessarily decide[ ]” ’ [citations]
that defendant was the aider and abettor, only that it had doubts as to his exact
role. Defendant has the burden of showing that the issue he seeks to foreclose
was actually decided by the jury. [Citation.] This he cannot do.” (Emphases in
original.) Id. at 89-90.
See Santamaria v. Horsley, 133 F.3d 1242, 1244 (9th Cir. 1998) (en banc).
¶ 49 In addition to the foregoing, other considerations also counsel against giving
preclusive effect to a jury’s answer to a special interrogatory under the
circumstances present here. For example, assume that, in this case, Brownlee had
not died but had instead been prosecuted along with Jefferson for Gosa’s murder.
Assume further that the jury returned general verdicts finding each defendant guilty
of murder and, in addition, answered special interrogatories indicating that the State
had failed to prove beyond a reasonable doubt that either defendant personally
discharged the weapon that killed Gosa. In this example, there would be no
inconsistency between the general verdicts and the answers to the special
interrogatories. The jury might not have known beyond a reasonable doubt who
fired the fatal shot, but it would have known that one of the defendants did, and
since each defendant was accountable for the other, they could each be found guilty
of the murder.
¶ 50 Now assume that, on appeal, the defendants’ convictions were reversed for
reasons unrelated to the answers to the special interrogatories. If the answers were
given preclusive effect in a retrial, the State would be barred from arguing that
either Jefferson or Brownlee shot the victim. The State could not prosecute the
murder case against either defendant even though there would be no question that
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one or the other shot the victim. This is an absurd result and serves to underscore
why the jury’s answer to the special interrogatory cannot be given the preclusive
effect advanced by Jefferson here. See Santamaria, 884 P.2d at 90 n.9.
¶ 51 In addition to suppressing evidence, the trial court’s order in this case also stated
that the jury could be “instructed that there was insufficient evidence that proof
exists beyond a reasonable doubt that [Jefferson] was armed with a firearm and
personally discharged the firearm that proximately caused the death of Marcus
Gosa.” In Santamaria, the Supreme Court of California rejected the necessity of a
similar instruction, stating:
“The jury returns a verdict of guilt or innocence of the charge, not a verdict on
any particular theory. Although knife use is an ultimate fact of one possible
theory, that is not the test; knife use is not an ultimate fact of the charge of
murder, the only question the jury has to decide. It would be absurd, and would
only confuse the jury, to instruct that it could convict defendant if it thought
him guilty on some valid theory, even if uncertain which, but could not convict
him if it specifically believed he used the knife.” (Emphases in original.) Id. at
91 n.10.
We agree with the foregoing reasoning and conclude that the trial court’s proposed
instruction is inappropriate and should not be given.
¶ 52 In this case, Jefferson seeks to foreclose the State from arguing or presenting
evidence in his retrial that he “acted as the principal in the murder” of Gosa because
the jury in the previous trial made a factual determination that Brownlee rather than
Jefferson fired the fatal shot. However, as we have explained, the jury’s answer to
the special interrogatory and general verdict may also be understood as an
indication that the jury was unable to determine whether Jefferson or Brownlee shot
Gosa but that it had determined, beyond a reasonable doubt, that either one or the
other did. Because a rational jury in this case “ ‘could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose from
consideration’ ” (Ashe, 397 U.S. at 444 (quoting Daniel K. Mayers & Fletcher L.
Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev.
1, 39 (1960))), Jefferson has failed to establish that the doctrine of issue preclusion
applies here. We conclude, therefore, that the trial court erred in granting
Jefferson’s motion to suppress evidence. The State, on retrial, is not barred from
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again arguing that either Jefferson or Brownlee shot Gosa. The State is barred,
however, from seeking a sentence enhancement on remand, as the State has
conceded that Jefferson “cannot get the enhancement ever again.”
¶ 53 CONCLUSION
¶ 54 For the foregoing reasons, the judgment of the appellate court is affirmed. The
judgment of the trial court ordering the suppression of evidence is reversed.
¶ 55 Appellate court judgment affirmed.
¶ 56 Circuit court judgment reversed.
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