152 Wn.2d 107, State v. Mullin-Coston

[No. 73765-7. En Banc.]

Argued February 19, 2004. Decided July 15, 2004.

T HE S TATE OF W ASHINGTON , Respondent , v. T HOMAS M ULLIN -Coston, Petitioner . [1] Criminal Law - Parties to Offenses - Accomplices - Basis of Liability. A person can be guilty of a crime, even if it is committed by the conduct of another actor, if the person acts as an accomplice by encouraging or aiding in the planning or commission of the crime

with the knowledge that his or her actions will promote or facilitate the crime.

[2] Judgment - Collateral Estoppel - Review - Question of Law or Fact - Standard of Review. The issue of whether a tribunal is collaterally estopped from deciding an issue presents a question of law that is reviewed de novo.

[3] Criminal Law - Judgment - Collateral Estoppel - Nonmutual Collateral Estoppel - Separate Prosecutions of Codefendants. The doctrine of nonmutual collateral estoppel does not bar the relitigation of a factual issue in the trial of a criminal defendant that previously was litigated in the trial of a codefendant; i.e., decisions made by one codefendant's jury are not binding on the other codefendant's jury in a separate trial.

[4] Homicide - First Degree Murder - Accomplice Liability - Separate Trials of Codefendants - One Codefendant Found Guilty of Second Degree Murder - Effect. When codefendants charged with premeditated first degree murder are tried separately and one codefendant is found guilty of second degree murder rather than premeditated first degree murder, the jury in the other codefendant's trial is not, thereby, prevented from finding the codefendant guilty of premeditated murder as an accomplice based on a finding that the first codefendant's acts were premeditated.

[5] Appeal - Review - Issues First Raised Before Supreme Court. The Supreme Court generally will not consider an issue that was not raised at any inferior level of court.

[6] Appeal - Review - Issues Raised by Amici Curiae - In General. An appellate court may decline to consider an issue raised only by an amicus.

S ANDERS , J., concurs by separate opinion.

Nature of Action: Prosecution for premeditated first degree murder. An accomplice of the defendant who was separately tried on the same charge was convicted of second degree murder.

Superior Court: The Superior Court for King County, No. 99-1-02307-9, Michael C. Hayden, J., on December 14, 2001, entered a judgment on a verdict finding the defendant guilty of premeditated first degree murder.Court of Appeals: The court affirmed the judgment at  115 Wn. App. 679 (2003), holding that the doctrine of nonmutual collateral estoppel did not apply to preclude the State from relitigating the issue of premeditation, that the

jury was properly instructed on accomplice liability, and that the trial court did not err by allowing testimony that revealed that the defendant was in jail during certain conversations with witnesses.

Supreme Court: Holding that jury decisions made in the accomplice's trial were not binding in the defendant's trial, court affirms the decision of the Court of Appeals and the judgment.

Christopher Gibson (of Nielsen, Broman & Koch, P.L.L.C. ), for petitioner .

Norm Maleng , Prosecuting Attorney, and Lee D. Yates , Deputy, for respondent .

Christine O. Gregoire , Attorney General, and William B. Collins , Senior Assistant, on behalf of the Attorney General's Office, amicus curiae.

Debra L.W. Stephens and Bryan P. Harnetiaux on behalf of Washington State Trial Lawyers Association Foundation, amicus curiae.

B RIDGE , J . - Thomas Mullin-Coston was convicted of premeditated first degree murder for his participation in the killing of 15-year-old Sarah Starling. In an earlier trial, Mullin-Coston's friend, Jason McDaniels, was convicted of second degree murder for his own role in Starling's death. Mullin-Coston argues that his jury inappropriately relied on McDaniels' premeditation to convict Mullin-Coston based on the law of complicity, even though McDaniels' jury concluded that McDaniels had not acted with premeditation. Mullin-Coston argues that as a result, the doctrine of nonmutual collateral estoppel requires reversal of his premeditated first degree murder conviction. This court must determine whether the doctrine of nonmutual collateral

estoppel applies in criminal cases where the basis for asserting preclusion is a jury verdict in the case of another defendant. We decline to apply the doctrine in such cases and hold that issues decided by one defendant's jury are not binding on a jury in the later trial of a different defendant.

I

Facts and Procedural History

Fifteen-year-old Sarah Starling dated Jason McDaniels in early 1999, but the couple broke up in early March of that year. On March 9, 1999, Starling made plans to talk with McDaniels in the hopes of bringing closure to their relationship. That evening, she picked up McDaniels and Thomas Mullin-Coston from Anne Marie Kalabany's apartment.

The next day, Starling's body was found in a wooded ravine in Kingsgate Park. The police also recovered a kitchen knife that had disappeared from Kalabany's apartment on the night that Starling was killed.^{Footnote 1} The medical examiner's autopsy revealed the primary cause of death was a stab wound to the neck, while strangulation and other blunt force injuries contributed. According to the State's medical expert, the strangulation alone would have been enough to cause Starling's death, but due to the stabbing, the strangulation was merely a contributing factor.

Both McDaniels and Mullin-Coston were charged with the premeditated first degree murder of Starling. The parties stipulated that the trials should be severed and McDaniels went to trial first. See State v. McDaniels , noted at 114 Wn. App. 1046, 2002 Wash. App. LEXIS 3338, 2002 WL 31648777, at * 1. At his trial, McDaniels claimed that Mullin-Coston choked Starling before they reached Kingsgate Park, and then Mullin-Coston forced him to stab

Starling. The jury was instructed to convict McDaniels of first degree murder if it found that either McDaniels or an accomplice premeditated the killing of Starling but to convict of the lesser charge of second degree murder if it could not unanimously agree that the killing was premeditated. The jury convicted McDaniels of second degree murder but did not complete the general verdict form as to the first degree murder charge. Mullin-Coston then proceeded to trial.

Mullin-Coston filed a motion to dismiss his first degree murder charge on the grounds of collateral estoppel, which the trial court denied.^{Footnote 2} At trial Mullin-Coston testified that while he and McDaniels were waiting for Starling to arrive at Kalabany's apartment, McDaniels claimed he was going to kill Starling and even produced the knife he obtained from Kalabany's kitchen. Mullin-Coston asserted that once they were in the car, McDaniels told Starling to pull over to the side of the road as they approached Kingsgate Park in Kirkland. He testified that McDaniels strangled Starling until she was unconscious, dragged her into a ravine, and stabbed her in the throat. Mullin-Coston said that he remained in the car but did not attempt to separate himself from McDaniels because he "was in shock." 11/06/01 Report of Proceedings (RP) at 49.

However, others testified that Mullin-Coston, not McDaniels, choked Starling in the car. Joe Eddie testified that on the evening of the murder Mullin-Coston admitted that he and McDaniels "just killed somebody," and that "he put a girl to sleep and . . . Jason stabbed her." 10/29/01 RP at 42-43, 54.^{Footnote 3} Anne Marie Kalabany also testified that she told Mullin-Coston that McDaniels claimed Mullin-Coston choked Sarah. Mullin-Coston nodded to Kalabany and did not correct or contradict McDaniels' account at the time.

Like the instruction used in McDaniels' trial, the "to convict" instruction in Mullin-Coston's case permitted the jury to convict Mullin-Coston of premeditated first degree murder if it found that either he or an accomplice acted with premeditated intent and killed Starling. During deliberations the jury inquired, "[i]f the murder was premeditated does the accomplice have to be in on the premeditation?" Clerk's Papers (CP) at 263. In response, the trial court told the jury to rely on the jury instructions. Mullin-Coston was convicted of premeditated first degree murder and was sentenced to 371 months in prison.

Mullin-Coston appealed, asserting in part that under the doctrine of nonmutual collateral estoppel, the State was precluded from relitigating whether McDaniels acted with premeditation. State v. Mullin-Coston ,  115 Wn. App. 679 , 680, 64 P.3d 40 (2003). The Court of Appeals rejected that argument and affirmed the conviction. This court granted review to resolve the issue of whether the doctrine of nonmutual collateral estoppel can apply in cases like this one, where preclusion would be based on a prior jury verdict from the trial of a separate defendant.

II

Analysis

[1] In Washington, a person is guilty of first degree murder when, "[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person." RCW 9A.32.030 (1)(a). In contrast, a person is guilty of second degree murder when, "[w]ith intent to cause the death of another person but without premeditation, he causes the death of such person." RCW 9A.32.050 (1)(a). A person is guilty of a crime, even if it is committed by the conduct of another person, if he acts as an accomplice by encouraging or aiding in the planning or commission of the crime with the knowledge that his actions will promote or facilitate the crime. See RCW 9A.08.020 (1)-(3).

Mullin-Coston argues he is entitled to a new trial because his "to convict" instruction permitted the jury to return a guilty verdict on the first degree murder charge upon finding that Mullin-Coston "or an accomplice" acted with premeditated intent to kill. CP at 256. He contends that at McDaniels' trial, the State failed to prove that McDaniels acted with premeditated intent; thus, the State should not be allowed to relitigate the issue of McDaniels' premeditation in Mullin-Coston's prosecution. Without McDaniels' premeditation, the State would have been required to prove that Mullin-Coston premeditated the murder. Ultimately, Mullin-Coston asserts that because the State was erroneously allowed to rely on McDaniels' premeditation, it was relieved of proving an essential element of his crime, namely that Mullin-Coston himself acted with premeditated intent. See RCW 9A.32.030 (1)(a).

Generally, collateral estoppel establishes 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." Ashe v. Swenson ,  397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Despite its civil origin, the doctrine of collateral estoppel applies in criminal law through the concept of the Fifth Amendment guaranty against double jeopardy. State v. Williams ,  132 Wn.2d 248 , 253-54, 937 P.2d 1052 (1997). This case, however, does not implicate either pure collateral estoppel or double jeopardy because Mullin-Coston relies on the jury verdict of another defendant; he never faced jeopardy during McDaniels' trial.

[2] At one time Washington required mutuality, meaning there had to be identity or privity of parties in the same antagonistic relationship in both proceedings, before collateral estoppel could be asserted in the subsequent litigation. See , e.g ., Owens v. Kuro ,  56 Wn.2d 564 , 568, 354 P.2d 696 (1960). Washington courts have since retreated from that traditional rule in the context of civil cases and now apply nonmutual collateral estoppel so long as the party against whom preclusion is sought was a party or in privity with a

party to the prior litigation and had a full and fair opportunity to litigate the issue in question. See Kyreacos v. Smith ,  89 Wn.2d 425 , 428-30, 572 P.2d 723 (1977); see also Nielson v. Spanaway Gen. Med. Clinic, Inc .,  135 Wn.2d 255 , 258, 269, 956 P.2d 312 (1998). The party seeking to enforce the rule must show that:

"(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of [the] doctrine must not work an injustice."

State v. Bryant ,  146 Wn.2d 90 , 98-99, 42 P.3d 1278 (2002) (emphasis added) (quoting Williams , 132 Wn.2d at 254 ). In this case, Mullin-Coston asks us to apply the doctrine of nonmutual collateral estoppel by making a prior jury verdict in a case involving a separate defendant binding against the State in his criminal case. This argument presents an issue of first impression in this court and involves a question of law, subject to de novo review. State v. Vasquez , 109 Wn. App. 310 , 314, 34 P.3d 1255 (2001), aff'd ,  148 Wn.2d 303 , 59 P.3d 648 (2002).^{Footnote 4}

[3-6] Initially, it is important to note that because double jeopardy principles are not implicated in this case, the question here requires us to weigh various practical and policy concerns, but we do not face a constitutional issue. See Standefer v. United States ,  447 U.S. 10, 21-25, 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980) (discussing various policy concerns). The Washington Legislature has already weighed the competing policy considerations presented here. In fact, Mullin-Coston's argument runs directly afoul of subsection six of Washington's accomplice liability statute, which provides in relevant part:

A person legally accountable for the conduct of another person may be convicted on proof of the commission of the crime and of his complicity therein, though the person claimed to have committed the crime . . . has been convicted of a different crime or degree of crime . . . or has been acquitted.

RCW 9A.08.020 (6) (emphasis added). Thus, even if McDaniels' jury had acquitted him of all charges, RCW 9A.08.020 (6) would still permit Mullin-Coston to be convicted of first degree murder. In order to apply nonmutual collateral estoppel in this case, even just to negate the element of premeditation, we would have to ignore the clear intent of the legislature and render RCW 9A.08.020 (6) inoperative.

Moreover, the United States Supreme Court has refused to apply nonmutual collateral estoppel in federal criminal prosecutions, concluding that the policy reasons for applying the doctrine in civil cases are outweighed by competing concerns in the criminal context. Standefer , 447 U.S. at

22-25. In Standefer , the defendant was charged with aiding and abetting an Internal Revenue Service (IRS) agent in accepting unlawful compensation. Id . at 11-12. The IRS agent was prosecuted first and was convicted on some counts, but acquitted on others. Id . at 12-13. Even so, Standefer was then convicted for aiding and abetting the agent on all of the counts, including some on which the agent was acquitted. Id . at 13. The Court affirmed Standefer's convictions, holding nonmutual collateral estoppel did not apply in federal criminal cases. Id . at 25-26.

The Court recognized that though application of nonmutual collateral estoppel is proper in civil cases, it should not be applied in criminal cases. Id . at 25. The Court distinguished criminal cases on several grounds, recognizing that "in a criminal case, the Government is often without the kind of 'full and fair opportunity to litigate' that is a prerequisite of estoppel." Id . at 22. For example, procedural rules limit the prosecution's discovery in criminal cases. Id . Furthermore, in federal cases evidence which is inadmissible against one defendant because it was obtained in violation of his constitutional rights may be admissible against another defendant whose rights were not violated. Id . at 23-24. In response to this reasoning, Mullin-Coston contends that case by case evaluation of new or different evidence available in a second defendant's trial would eliminate these evidentiary and discovery concerns, without the need for creating a blanket rule. However, the Standefer Court rejected such case by case evaluations because they would require potentially protracted and burdensome pretrial hearings that would frustrate the very purpose of judicial economy that collateral estoppel is designed to promote. Id . at 24.

The Standefer Court also noted that the prosecution in a criminal case cannot obtain a directed verdict or judgment notwithstanding the verdict, no matter how clear the evidence of guilt. Id . at 22. Nor can the prosecution obtain a new trial on the ground that acquittal was plainly contrary to the evidence. Id . Finally, there is no opportunity for

appellate review where a defendant has been acquitted. Id . The Court recognized that these procedural differences permit criminal juries "to acquit out of compassion or compromise or because of ' "their assumption of a power which they had no right to exercise, but to which they were disposed through lenity," ' " and such acquittals are unreviewable. Id . (quoting Dunn v. United States ,  284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932) (quoting Steckler v. United States , 7 F.2d 59, 60 (2d Cir. 1925))). Similarly, this court has recognized the power of a jury to return a not guilty verdict for impermissible reasons. State v. Goins , No. 73177-2, slip op. at 7 (Wash. June 10, 2004); State v. Ng ,  110 Wn.2d 32 , 48, 750 P.2d 632 (1988).

Mullin-Coston attacks this reasoning on two grounds. First, he argues that without any overt indication that an acquittal is the result of compromise, mistake, nullification, passion, or prejudice, the court must presume that the jury has followed its instructions. See State v. Brunson ,  128 Wn.2d 98 , 109, 905 P.2d 346 (1995). According to Mullin-Coston, his trial court was bound to presume that the State in the McDaniels trial simply failed to meet its burden to prove McDaniels' premeditation beyond a reasonable doubt. Yet such a rule would require subsequent trial courts and appellate courts to determine whether the previous jury's acquittal or conviction of a lesser offense actually resulted from a finding of innocence, a failure of the prosecution to establish proof beyond a reasonable doubt, or from impermissible reasons such as passion or lenity. Such inquiries into jury deliberations are not a task an appellate court will undertake. United States v. Powell ,  469 U.S. 57, 66, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Dunn , 284 U.S. at 394. Indeed, the problems inherent in speculation as to a jury's reasoning have been clearly recognized by this court. Goins , slip op. at 6-8; State v. McNeal ,  145 Wn.2d 352 , 359, 37 P.3d 280 (2002); Ng , 110 Wn.2d at 48 .

Second, Mullin-Coston contends that the problem of seemingly inconsistent jury verdicts threatens the integrity of the judicial system. The Standefer Court also considered this danger but ultimately concluded that there exists a:

simple, if discomforting, reality that "different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system." While symmetry of results may be intellectually satisfying, it is not required.

Standefer , 447 U.S. at 25 (quoting Roth v. United States ,  354 U.S. 476, 492, n.30, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)). This court has similarly accepted that verdict inconsistency alone is not enough to justify overturning the second verdict, even when the inconsistent verdicts are rendered by the same jury. See , e.g ., Goins , slip op. at 11 (refusing to overturn a guilty verdict that conflicted with a special verdict on the same charge); McNeal , 145 Wn.2d at 359 (refusing to overturn a guilty verdict that conflicted with a special finding on another charge); Ng , 110 Wn.2d at 48 (refusing to overturn guilty verdicts that were inconsistent with acquittals on other counts). Of course, if we are willing to accept the reality that the same jury can return conflicting verdicts against the same defendant, then we must also accept that our jury system allows two different juries to reach inconsistent answers to the same question posed in the cases of two different defendants. In sum, neither of Mullin-Coston's arguments overcomes the United States Supreme Court's sound reasoning that because a prior verdict involving a different defendant could have been induced by passion, prejudice, or lenity, later prosecutions of different defendants should not be controlled by such verdicts.

Finally, the Standefer Court recognized an inherent distinction between civil litigation and criminal prosecution, namely the public's interest in the enforcement of criminal law:

"The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction. To plead crowded dockets as an excuse for not trying criminal defendants is in our view neither in the best interests of the courts, nor the public."

Standefer , 447 U.S. at 25 (emphasis added) (quoting United States v. Standefer ,  610 F.2d 1076, 1093 (3d Cir. 1979)). Mullin-Coston seems to disagree, arguing that applying nonmutual collateral estoppel to criminal cases furthers the policy of judicial economy in that it would reduce crowded criminal dockets. He cites People v. Taylor , 12 Cal. 3d 686, 527 P.2d 622, 117 Cal. Rptr. 70 (1974) for this proposition. The Taylor court did use a principal's acquittal to reverse the conviction of an alleged accomplice where the conviction was based solely on vicarious liability. Id . at 630-31. Yet the Supreme Court of California has since rejected Taylor , holding instead that "[i]f substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant." People v. Palmer ,  24 Cal. 4th 856, 15 P.3d 234, 235, 103 Cal. Rptr. 2d 13 (2001). California is not alone; the overwhelming majority of courts to confront the issue have held that issues decided by one defendant's jury are not binding in the subsequent prosecution of a different defendant.^{Footnote 5} We agree with all of those courts and the United States Supreme Court; the public interest in the justice of criminal results outweighs the interest in judicial economy.

Mullin-Coston also contends that the Standefer case is entirely distinguishable because he does not seek to completely bar future prosecution, but only to estop the State from obtaining a conviction based on McDaniels' premeditation. However, Mullin-Coston does not explain how the Standefer reasoning would permit a prior jury verdict to form the predicate of a nonmutual collateral estoppel defense, regardless of whether the result was dismissal or a more limited jury instruction in the second trial. In fact, the Court's discussion of the concept of jury lenity negates this

view. See Standefer , 447 U.S. at 22-23. The specific relief sought based on the prior jury verdict is irrelevant.

Finally, this case is also distinguishable from the only remaining, still valid, appellate decision allowing nonmutual collateral estoppel to bar a criminal prosecution. State v. Gonzalez , 75 N.J. 181, 380 A.2d 1128 (1977). In Gonzalez , the police conducted an unlawful search of an automobile which resulted in the indictment of Gonzalez and a codefendant. Id . at 1129-30. In the codefendant's case, the trial court suppressed the evidence obtained in the search, but a separate trial court subsequently denied Gonzalez's motion to suppress the same evidence. Id . at 1130. The New Jersey Supreme Court reversed, holding nonmutual collateral estoppel applied to prevent the State from relitigating constitutionality of the search against Gonzalez. Id . at 1130, 1135. Gonzalez is readily distinguishable from this case because the basis for collateral estoppel there was a trial court's suppression of evidence, not a jury verdict. Indeed, New Jersey courts have since construed Gonzalez to be limited to its facts and have adopted the Standefer reasoning. See State v. Parris , 175 N.J. Super. 603, 421 A.2d 604, 606 (1980).

In sum, we decline Mullin-Coston's invitation to depart from the plain intent of the legislature, the sound reasoning of the United States Supreme Court, and the weight of the overwhelming majority of other courts that have addressed the issue. Instead, we hold that issues decided by one defendant's jury are not binding in the later trial of a different defendant; thus the doctrine of nonmutual collateral estoppel does not apply in criminal cases where the basis for asserting preclusion is a jury verdict in the case of a separate defendant.^{Footnote 6}

III

Conclusion

We conclude that one jury verdict may not impact prosecution of a second criminal defendant, even if the conviction of the second defendant would result in inconsistent jury verdicts. Therefore, we affirm the Court of Appeals and uphold Mullin-Coston's conviction.

A LEXANDER , C.J ., and J OHNSON , M ADSEN , I RELAND , C HAMBERS , O WENS , and F AIRHURST , JJ ., concur .

S ANDERS , J . (concurring) - The majority affirms Thomas Mullin-Coston's conviction by asserting "the doctrine of nonmutual collateral estoppel does not apply in criminal cases where the basis for asserting preclusion is a jury verdict in the case of a separate defendant." Majority at 120 . While I agree with the majority's ultimate disposition, I write separately because the majority's dictum is needlessly broader than it should be.

This court generally considers only those issues necessary to properly dispose of the case, rather than examining each and every issue posed by the parties. Griffin v. W. RS, Inc .,  143 Wn.2d 81 , 88, 18 P.3d 558 (2001); Schmidt v. Cornerstone Invs., Inc .,  115 Wn.2d 148 , 165, 795 P.2d 1143 (1990); Ajax v. Gregory , 177 Wash. 465 , 475, 32 P.2d 560 (1934). The majority's sweeping language is plainly unnecessary because these facts are not enough to invoke collateral estoppel in the first place.

There are four elements that must be met before the court will preclude litigation of an issue in a subsequent case:

(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question ? (2) Was there a final judgment on the merits ? (3) Was the party against whom the plea of collateral estoppel is asserted a party or in privity with the party to the prior adjudication? (4) Will the application

of the doctrine not work an injustice on the party against whom the doctrine is to be applied?

State v. Tili ,  148 Wn.2d 350 , 361, 60 P.3d 1192 (2003) (emphasis added); see also Nielson v. Spanaway Gen. Med. Clinic, Inc .,  135 Wn.2d 255 , 262-63, 956 P.2d 312 (1998). The party asserting preclusion has the burden to prove all four elements. State v. Williams ,  132 Wn.2d 248 , 254, 937 P.2d 1052 (1997); McDaniels v. Carlson ,  108 Wn.2d 299 , 303-04, 738 P.2d 254 (1987). Absence of any element prevents application of collateral estoppel. Tili , 148 Wn.2d at 361 ; McDaniels , 108 Wn.2d at 303 . "In addition, collateral estoppel precludes only those issues that have actually been litigated and determined . . . ." McDaniels , 108 Wn.2d at 305 (emphasis added).

Here the asserted basis for issue preclusion is Jason McDaniels' conviction of second degree murder, which Mullin-Coston claims is proof of the jury's determination that McDaniels, Mullin-Coston's cohort, did not act with premeditation. But this record only suggests the McDaniels jury either acquitted McDaniels of first degree murder or simply failed to reach unanimity on the premeditation issue. Specifically, the jury verdict which convicted McDaniels of second degree murder provided:

We, the jury, find the defendant, Jason Roy McDaniels, not guilty of the crime of Murder in the First Degree as charged, or being unable to unanimously agree as to that charge , find the defendant Jason Roy McDaniels, GUILTY

(write in not guilty or guilty)

of the lesser included crime of Murder in the Second Degree.

Clerk's Papers (CP) at 315 (emphasis added).^{Footnote 7} The jury elected to forgo using the general verdict form, instead of returning a unanimous verdict of not guilty to first degree

murder. See CP at 316.^{Footnote 8} These facts signal the possibility - if not probability - the jury did not reach unanimity on the premeditation issue.

The distinction between a unanimous "not guilty" verdict and a jury's failure to reach unanimity on the higher charge undercuts Mullin-Coston's assertion that McDaniels' second degree murder conviction ipso facto constituted a conclusive determination on the premeditation issue, even though here a not guilty verdict and failure to reach unanimity had the same consequence. For instance, when only a single charge is at issue in a criminal trial, the jury's failure to reach unanimity does not result in the conclusive rejection of the State's case but rather a hung jury and an opportunity to reprosecute the defendant. See Arizona v. Washington ,  434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978) (double jeopardy does not prevent second prosecution of same defendant when first prosecution results in hung jury); State v. Carson ,  128 Wn.2d 805 , 821, 912 P.2d 1016 (1996) (same). Absent some showing by Mullin-Coston that this jury unanimously concluded McDaniels did not act with premeditation, he fails to meet his burden to prove the first jury "determined" the issue of McDaniels' premeditation McDaniels , 108 Wn.2d at 305 .

Yet the majority nonetheless imposes a per se bar against all criminal defendants from asserting nonmutual collateral estoppel when the basis for estoppel is a jury verdict. Though I recognize both the United States Supreme Court and an overwhelming majority of jurisdictions are in accord with the majority's ultimate conclusion,^{Footnote 9} it is not appropri-

ate for us to join that group unless the issue is properly before us, and the majority even recognizes this principle by refusing to consider the ancillary issue raised by amicus - whether nonmutual collateral estoppel may be asserted against the State in a civil case. See majority at 120 n.6.

Regardless of the merits to the majority's disposition, I posit this court is improvident to decide issues unnecessary to the disposition of the case at hand. Judicial restraint demands no less.

For the foregoing reasons I concur that Mullin-Coston's conviction should be affirmed.