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Criminal Practice – Constitutional – Double Jeopardy – Issue Preclusion – Acquittal & Mistrial – Ineffective Assistance Claim

By: S.C. Lawyers Weekly staff//January 25, 2023

Criminal Practice – Constitutional – Double Jeopardy – Issue Preclusion – Acquittal & Mistrial – Ineffective Assistance Claim

By: S.C. Lawyers Weekly staff//January 25, 2023

Respondent was tried for drug trafficking and possessing a weapon during the commission of a violent crime; he was acquitted of the weapon possession charge, but the jury could not reach a decision on the drug trafficking charges, so the trial court declared a mistrial. Since there were multiple reasons why the jury could have acquitted him on the weapon charge, this acquittal did not bar respondent’s retrial on the trafficking charges, and respondent’s trial counsel was not ineffective for reaching this conclusion.

We reverse the Court of Appeals’ decision to uphold the post-conviction review court’s finding that respondent received ineffective assistance of counsel.

Generally, the Double Jeopardy Clause does not preclude the state from re-prosecuting defendants on mistried counts unless the doctrine of issue preclusion applies. Issue preclusion prevents a party from relitigating an issue that was decided in a previous action. Issue preclusion in the criminal context is derived from the Double Jeopardy Clause.

Issue preclusion analysis 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.

In line with Ashe v. Swenson, 397 U.S. 436 (1970), and Yeager v. United States, 557 U.S. 110 (2009), we must conduct a two-phase analysis in determining whether issue preclusion bars retrial of a hung count. First, we must identify what issues, if any, the jury necessarily decided by its verdict of acquittal. Second, we must examine whether the necessarily-decided issue was an “essential element” of the offense for which the state sought re-prosecution.

Respondent argues the jury’s not-guilty verdict for possession of a firearm during the commission of a violent crime necessarily included a finding that he was not guilty of the predicate violent crime (trafficking). We disagree.

A jury acquittal for possession of a firearm during the commission of a violent crime could rest on any one of three bases: (1) the defendant did not commit the predicate violent offense; or (2) the state failed to prove the defendant possessed the firearm; or (3) the state failed to establish the requisite nexus between the firearm and the violent crime. Because these are disjunctive bases on which to acquit, a jury need not decide whether the defendant committed the violent crime should it find the state failed to carry its burden on the second or third elements. Based on the record before us, we conclude there are a host of reasons why the firearm charge could have been resolved in respondent’s favor without necessarily impacting the drug-trafficking charge. Merely as one example, respondent’s defense theory at trial was that law enforcement conducted a sloppy investigation, and the items found during the search—including the firearm—belonged to another individual living in their shared residence, not respondent. Furthering the claims of a slipshod investigation, respondent’s counsel emphasized at trial and in the PCR hearing that although the serial number of the firearm was intact, law enforcement failed to check the database to determine to whom the firearm was registered. Thus, as respondent himself argued, the jury could have acquitted him of the firearm charge after finding the state failed to prove respondent was the individual who possessed the firearm found in the rental house.

A rational jury could have acquitted respondent on the firearm charge for a number of reasons without ever passing judgment on whether he was the individual who possessed and trafficked the drugs found in the house. That crucial fact is wholly distinct from the situations presented in Ashe and Yeager, where there was but one issue in dispute on which the jury could have based its acquittal verdict.

Accordingly, respondent has not demonstrated that the issue he seeks to foreclose from relitigation was actually decided by [the] prior jury’s verdict of acquittal. The mere possibility that the jury may have determined respondent did not commit a violent crime did not prevent the relitigation of that issue in a later trial; that possibility in no way rose to the necessarily-decided threshold set forth in Ashe and Yeager.

We further note that petitioner’s acquittal on the firearm charge did not foreclose any element necessary for a trafficking conviction. The trafficking statute does not even mention possessing a weapon, much less require possession of a weapon as an element of the offense.

Trial counsel was correct in concluding a double jeopardy claim lacked merit under these facts. The record shows trial counsel clearly considered the issue, consulted with other attorneys, and ultimately concluded Yeager did not apply to respondent’s case. Because trial counsel’s conduct here was not deficient, the PCR court erred in finding counsel improperly failed to move for dismissal on double jeopardy grounds.


Ervin v. State (Lawyers Weekly No. 010-004-23, 11 pp.) (John Kittredge, J.) Appealed from Greenwood County (Mark Hayes, Post-Conviction Relief Judge) On writ of certiorari to the Court of Appeals. Alan McCrory Wilson and David Spencer for petitioner; Clarence Rauch Wise for respondent. S.C. S. Ct.

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