Before Wagner, Chief Judge, and Terry and Farrell, Associate
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)
(Argued January 19, 2000 Decided March 9, 2000)
This appeal presents a variation on the theme of inconsistent verdicts in a criminal case, arising from the fact that, as to each victim, the jury was given cumulative opportunities to consider second degree murder as a lesser included offense, when it should have been told to return a single verdict on that charge.
On the basis of two slayings in the course of an armed burglary and robbery, appellant Fisher was charged with (inter alia) multiple counts each of first degree felony murder while armed and first degree premeditated murder while armed. *fn1 As to each murder victim, the jury was properly instructed that it could consider second degree murder as a lesser included offense of both felony murder and premeditated murder. It was not told, however, that as to each victim it could return only one verdict on second degree murder; and as to each victim the verdict form asked it to consider second degree murder three times - twice as a lesser included offense of felony murder (the predicates being armed burglary and armed robbery) and once as a lesser included offense of premeditated murder. As it happened, the jury then acquitted Fisher of all counts of first degree murder and of second degree murder as a lesser included offense of premeditated murder, but found him guilty of second degree murder as a lesser included offense of all counts of felony murder. On appeal Fisher contends, first, that the jury may have convicted him of what he asserts is the nonexistent offense (in this jurisdiction) of "second degree felony murder." Viewing the jury instructions as a whole, we are satisfied that the verdict reflects no such conviction. Fisher also argues that the acquittal of second degree murder as a lesser included offense of premeditated murder nullified his convictions for second degree murder, so that he cannot stand convicted of any murder. On the basis of the law governing inconsistent verdicts, we reject this argument. Finding no merit in his remaining contentions as well, we affirm.
The evidence fairly allowed the jury to conclude that Fisher and two other men (Walker and Cawthorne) planned and executed the robbery of Rodney Bailey, in the course of which they shot to death both Bailey and his girlfriend, Nikisha Simpson. According to the government's proof, on February 1, 1994, Charee Lytle drove the three men to Bailey's house where Fisher and Cawthorne, both armed, entered intending to rob Bailey. While Cawthorne went upstairs looking for money, Fisher confronted Bailey downstairs, demanded money, and shot him when Bailey appeared to resist. Fisher then joined Cawthorne upstairs where they found Simpson in a bedroom and ordered her to reveal the location of Bailey's money. When she professed ignorance, they ransacked the room and when she continued denying knowledge of the money, Fisher shot her repeatedly, killing her. The two men returned to the lower floor where Fisher, seeing Bailey still alive, shot him in the back of the head. They then fled to Lytle's car where all four occupants divided up cocaine taken from the house.
Through cross-examination, Fisher attempted to show that Cawthorne had an independent motive to kill Bailey, who had threatened him if he did not return money Cawthorne owed him. Fisher testified that he had entered Bailey's home with Cawthorne merely to get some nose tissue and was surprised by Cawthorne's action in shooting the victims.
The jury convicted Fisher of the predicate felonies of armed burglary and armed robbery but, as indicated, acquitted him of the two counts each of felony murder and premeditated murder while both acquitting and convicting him of second degree murder as to each victim. Fisher does not dispute that second degree murder may be a lesser included offense of both premeditated murder and felony murder. Specifically, in relation to felony murder, *fn2 a conviction of second degree murder is proper "if there is proof from which the jury might reasonably find that the defendant did not commit one of the [statutorily] enumerated felonies but was guilty of an intentional killing on impulse." Fuller v. United States, 132 U.S. App. D.C. 264, 294, 407 F.2d 1199, 1229 (1968) (en banc); see Towles v. United States, 521 A.2d 651, 657 (D.C. 1987) (en banc). Fisher reads the jury's mixed verdict, however, as revealing that it found him guilty of a crime that he maintains does not exist in this jurisdiction, second degree felony murder. *fn3 He derives that conclusion from two facts. First, he argues that the jury's acquittal of premeditated murder and second degree murder as a lesser offense of that charge proves that it "ruled out the existence of malice apart from that imputed from the commission of the two [predicate] felonies." And second, he points to the jury verdict form on which the trial judge described the second degree murder charges descending from felony murder as "Second Degree Murder While Armed (alleged burglary or housebreaking resulting in death of Rodney Bailey [and Nikisha Simpson, respectively])" and "Second Degree Murder While Armed (alleged armed robbery resulting in death of Rodney Bailey [and Nikisha Simpson, respectively])." The verdict form, Fisher asserts, invited the jury to predicate second degree murder convictions on the commission of the charged burglary and/or robbery, without more.
We find no realistic possibility in the record that the jury convicted Fisher of a crime of "second degree felony murder" on which it was never instructed. That crime, if it exists in this jurisdiction, involves a non-purposeful killing during the commission of a felony not enumerated in the felony murder statute. See note 3, supra. But since Fisher was charged only with the enumerated felonies of armed burglary or housebreaking and robbery, the trial court had no occasion to - and did not - instruct the jury on the elements of that putative crime. Rather, the court's oral instruction on second degree murder consisted of the standard definition of the crime as requiring (inter alia) that the defendant either "had the specific intent to kill or seriously injure the decedent or acted in conscious disregard of an extreme risk of death or serious bodily injury to the decedent." See Comber, supra note 3, 584 A.2d at 38-39. The jury therefore was told that a finding of malice (as defined) was necessary to convict Fisher of second degree murder; a lesser state of mind (e.g., purposeful commission of any felony) would not suffice. The trial court's parenthetical coupling of second degree murder with the charged predicate felonies in the verdict form, while unfortunate, does not persuade us that the jury ignored its instruction to find malice as an essential component of a conviction for second degree murder. Fisher's additional argument - that the jury "ruled out the existence of malice" by acquitting of premeditated murder and second degree murder as a lesser offense of that crime - simply raises the question of inconsistent verdicts by assuming that the jury, applying the definition of second degree murder and given redundant opportunities to convict of that offense, could not lawfully both convict and acquit him of the offense in relation to the same victim.
Thus, we are brought to Fisher's second contention, which is that the acquittals of second degree murder nullified, in the law's eye, his corresponding convictions for that offense. We begin by rejecting his reliance at oral argument on Turner v. United States, 459 A.2d 1054 (D.C. 1983), aff'd on reh., 474 A.2d 1293 (D.C. 1984). Turner resembles this case superficially in that the jury there, instructed on second degree murder as a lesser included offense of both felony murder and premeditated murder, acquitted of the charge as an included offense of the former while failing to reach a verdict on it as an included offense of the latter. The government then sought to retry Turner on the charge on which the jury had hung. Agreeing with his objection to retrial on double jeopardy grounds, this court held that principles of collateral estoppel implicit in the double jeopardy clause, see Ashe v. Swenson, 397 U.S. 436 (1970), barred retrial on second degree murder because the jury's previous acquittal on the charge had resolved in Turner's favor the "issue[s] of ultimate fact," i.e., whether he "caused the death of the victim and . . . acted with malice and not in the heat of passion." Turner, 459 A.2d at 1057.
Besides the fact that the Turner jury, unlike the jury here, made no finding of guilt on second degree murder, the issue in Turner was one of successive prosecutions, as to which the Constitution - the double jeopardy clause in particular - applies special rules. E.g., Ashe, supra. The present case, in marked contrast, presents only the issue of what effect is to be given a conviction in a single trial when the same jury has inconsistently acquitted of that offense. In this setting very different rules apply, to which we now turn.
At least since 1932, the Supreme Court has made clear that courts are not to inquire into the thinking of a jury with respect to inconsistent verdicts in a single trial. In Dunn v. United States, 284 U.S. 390 (1932), the ...