COLLATERAL ESTOPPEL IN CRIMINAL PROCEEDINGS: THE COMBINED MISDEMEANOR TRIAL AND FELONY PRELIMINARY HEARING
Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d 533, aff’d en banc, 64 Va. App. 70, 764 S.E.2d 724 (2014)
Often, when a district court conducts a felony preliminary hearing, the Commonwealth will opt to simultaneously try a criminal defendant on one or more related misdemeanor charges. The Davis decision reaffirms that under certain circumstances, an acquittal on such a misdemeanor charge may collaterally estop the Commonwealth from trying the defendant in a circuit court on the related felony charge or charges. The estoppel may arise pursuant to the constitutional protection against double jeopardy, as guaranteed by the Fifth and Fourteenth Amendments.
At Davis’ preliminary hearing in General District Court, on homicide and related felony charges, he simultaneously stood trial on the misdemeanor of reckless handling of a firearm. At the conclusion of the proceedings, the judge dismissed the felonies, commenting that the Commonwealth had not met its probable cause burden, “to believe that Mr. Davis was the one that fired the weapon[.]” In its very next sentence, the court ruled that the Commonwealth had not proven the misdemeanor charge “beyond a reasonable doubt,” and found Davis not guilty.
The Commonwealth thereafter obtained from a grand jury direct indictments against Davis on the homicide and related felony charges. Davis’ counsel moved to dismiss the indictments based on double jeopardy grounds, alleging the collateral estoppel doctrine. The circuit court denied the dismissal motion. It ruled that the General District Court’s misdemeanor determination constituted a general verdict of acquittal, and did not support collateral estoppel of the felony charges. At the subsequent trial, a jury convicted Davis of first-degree murder and attempted first-degree murder.
Davis appealed these convictions on several grounds, including the assertion of his collateral estoppel claim. A panel of the Court of Appeals reversed the felony convictions based exclusively on that claim, with one judge dissenting. The Commonwealth petitioned for rehearing en banc, which petition the court granted. Ultimately, the en banc court adopted the panel’s opinion, and affirmed its decision.
It thus reversed and dismissed Davis’ convictions, solely on the basis of his collateral estoppel claim. Three of the court’s judges dissented, adopting Judge Beales’ spirited dissenting opinion from the panel’s majority opinion.
The panel’s majority opinion noted the Fifth Amendment’s protection against double jeopardy, and cited Ashe v. Swenson, 397 U.S. 436, 443 (1970), for the proposition “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.” With respect to a collateral preclusive effect arising from that constitutional guarantee, it cited Rhodes v. Commonwealth, 223 Va. 743, 749, 292 S.E. 2d 373, 376 (1982), holding that a criminal defendant asserting collateral estoppel bears the burden to show that, “the verdict in the prior action necessarily decided the precise issue he seeks to now preclude.” Significantly, the panel also cited, and selectively quoted from Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979), and Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979), to emphasize that collateral estoppel will arise only when the previous acquittal “necessarily resolved the issue now in litigation,” and, was grounded solely upon the factual issue, “that the defendant seeks to foreclose from consideration.”
The panel interpreted the general district judge’s seriatim statements finding an absence of probable case on the felony charges, and acquitting on the misdemeanor, to constitute a factual finding that Davis did not fire the murder weapon and therefore was not the criminal agent. The Commonwealth had obtained indictments alleging Davis to be, and then tried him as a principal in the first degree. Thus, the factual basis for the misdemeanor acquittal warranted application of collateral estoppel on the felony indictments. It explained: “Since the district court judge, in acquitting Davis of the misdemeanor, held that the Commonwealth had failed to establish Davis was the gunman, the Commonwealth was precluded from relitigating that fact in the prosecution of the crimes of murder and attempted murder arising out of the same event.”
In dissent, Judge Beales, ultimately joined en banc by Judges Kelsey and McCullough, reasoned that Davis did not carry his burden to establish the basis for the General District Court’s purported general verdict of acquittal on the misdemeanor. The dissent interpreted the general district judge’s remarks differently from the majority, concluding that he, “made no findings or statements pertaining to his decision to acquit Davis of that misdemeanor charge.” (Emphasis in original.) It also noted that a court not of record lacks jurisdictional authority to try or render any verdict in a felony case. As a result, it deemed inappropriate the majority’s use of the general district judge’s comments on its disposition of the felony charges as determinative of its reasons to acquit Davis of the misdemeanor. It cited Standefer v. United States, 447 U.S. 10 (1980), to require caution in the application of collateral estoppel in criminal cases, and decried its application on the specific facts of this case.
Criminal practitioners, whether defense counsel or prosecutors, know well that the Commonwealth often makes abbreviated factual presentations at felony preliminary hearings. Many good reasons exist for such limited evidentiary offerings. Yet, in those instances when the district court simultaneously tries the defendant on one or more related misdemeanor charges, an acquittal on such a misdemeanor may result in a valid basis for collateral estoppel of a factual issue underlying a felony charge. As Davis teaches, a defendant’s later successful assertion of this double jeopardy-based claim depends on: (1) the district judge’s articulation of the factual basis for the misdemeanor acquittal; (2) a recordation, or later stipulation, of that articulated basis, and (3) the factual basis for misdemeanor acquittal must coincide directly with one or more facts necessary to establish the elements of the related felony offense. In such rare instances, a defendant properly may seek dismissal of a felony indictment in circuit court.