Cite as: 510 U. S. 222 (1994)
Stevens, J., dissenting
refuses to acknowledge that the only way the jury could use the verdict forms submitted to it to express the conclusion that Schiro was guilty on Count II and not guilty on Counts I and III was to do just what it did—that is, to authorize the foreman to sign the verdict form for felony murder and to leave blank those forms for intentional murder and criminal deviate conduct.9 Once found not guilty of intentional murder, Schiro could not thereafter have been prosecuted a second time for that offense. Given that Schiro admitted the killing, the only issue that the jury's verdict on Count I could possibly have resolved in his favor is the intent issue. Since there is not even an arguable basis for assuming that the jury's verdict on Count I was grounded on any other issue, the collateral estoppel component of the Double Jeopardy Clause also precluded the State from attempting to prove intentional murder at the penalty phase to support a sentence of death.
As Justice Stewart explained in his opinion for the Court in Ashe v. Swenson, 397 U. S. 436, 444 (1970) (footnotes omitted):
"The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and ration-9 The Court's suggestion that the jury may have reached "a guilty verdict on Count II . . . without ever deliberating on Count I," ante, at 234, is not only pure speculation, but highly improbable. Presumably jurors would normally begin their deliberations with the first count in the indictment or the first verdict form the court submitted to them.
It is also noteworthy that the record explains why the jury concluded that Schiro was not guilty of killing while committing or attempting to commit criminal deviate conduct as charged in Count III—namely, that Schiro killed his victim prior to the deviate sexual conduct on which the charge was based rather than while he was engaged in that predicate felony. Thus the record fully supports the jury's disposition of the three counts at the guilt phase of the trial as well as its decision at the penalty phase.
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