Schiro v. Farley, 510 U.S. 222, 12 (1994)

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Cite as: 510 U. S. 222 (1994)

Opinion of the Court

We must first determine "whether a rational jury could have grounded its verdict upon an issue other than" Schiro's intent to kill. Ibid. Cf. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4421, p. 192 (1981) ("Issue preclusion attaches only to determinations that were necessary to support the judgment entered in the first action"). To do so, we "examine the record of a prior proceeding taking into account the pleadings, evidence, charge, and other relevant matter . . . ." Ashe v. Swenson, supra, at 444 (internal quotation marks omitted). The burden is "on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." Dowling, 493 U. S., at 350. In Dowling, for example, the defendant contended that because he had been acquitted of a robbery, the jury must have concluded that he had not been present at the crime. Ibid. In rejecting that argument, we considered the fact that during the trial there was a discussion between the lawyers and the judge where it was asserted that the intruder's identity was not a factual issue in the case. Id., at 351. Because there were "any number of possible explanations for the jury's acquittal verdict," the defendant had "failed to satisfy his burden of demonstrating" that he was not one of the intruders. Id., at 352.

Applying these principles, we find that the jury could have grounded its verdict on an issue other than Schiro's intent to kill. The jury was not instructed to return verdicts on all the counts listed on the verdict sheets. In fact, there are indications in the record that the jury might have believed it could only return one verdict. In closing argument at the guilt phase, defense counsel told the jury that it would "have to go back there and try to figure out which one of eight or ten verdicts . . . that you will return back into this Court." App. to Brief for Respondents 17. The prosecution also told the jury that "you are only going to be allowed to return one verdict." Id., at 27. Although the jury instructions indi-

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