COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and Senior Judge Bray*
Argued at Chesapeake, Virginia
BARRY FRANCIS NEFF, JR.
OPINION BY
v. Record No. 1145-01-1 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 10, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Deborah M. Wagner (McDermott & Roe, on
brief), for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Barry Francis Neff, Jr., was indicted and convicted in a
bench trial of driving under the influence, second offense, in
violation of Code §§ 18.2-266 and 18.2-270. On appeal, he
contends the trial court erred in denying his motion to quash the
indictment because the doctrines of double jeopardy and res
judicata barred the indictment and its prosecution. For the
reasons that follow, we find no error and affirm Neff's
conviction.
__________
* Judge Bray participated in the hearing and decision of
this case prior to the effective date of his retirement on
September 1, 2002 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
I. BACKGROUND
On October 19, 2000, Neff was convicted in the general
district court of driving under the influence (DUI). He noted his
appeal to the circuit court that same day. On October 25, 2000,
Neff was arrested and charged with DUI, second offense. Neff's
appeal of the conviction on the first DUI offense was still
pending in the circuit court on November 16, 2000, when the trial
on the second DUI offense was set to commence in the general
district court. Thus, when the second DUI case was called for
trial in the general district court, the Commonwealth moved for a
continuance. Neff objected to a continuance because he had
received no prior notice of the Commonwealth's motion and both
parties had witnesses present. The general district court judge
denied the Commonwealth's motion for a continuance, whereupon the
Commonwealth moved to nolle prosequi the charge. The judge
likewise denied the Commonwealth's motion to nolle prosequi. Neff
then entered a plea of not guilty. The judge asked the
Commonwealth to present its case. The Commonwealth declined to
present any witnesses. No witnesses were sworn. The judge then
dismissed the DUI, second offense, charge against Neff.
The Commonwealth subsequently directly indicted Neff in the
circuit court for DUI, second offense. Neff moved to quash the
indictment, arguing, inter alia, that the doctrines of double
jeopardy and res judicata prohibited any further prosecution on
the same charge that had been dismissed by the general district
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court. The circuit court judge overruled the motion and found
Neff guilty on his conditional plea of guilty. This appeal
followed.
II. ANALYSIS
On appeal, Neff contends the trial court erred in denying his
motion to quash the indictment because his indictment and
prosecution in the circuit court on the same charge that was
dismissed by the general district court were barred under the
doctrines of double jeopardy and res judicata.
"In determining whether the trial court made an error of law,
'we review the trial court's . . . legal conclusions de novo.'"
Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102
(2001) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 193, 503
S.E.2d 233, 236 (1998)).
A. Double Jeopardy
Neff argues that the Commonwealth's refusal to present
evidence in the general district court trial amounted to the
"presentation of evidence" and, thus, jeopardy attached.
Therefore, he concludes, the dismissal of the charge constituted
an acquittal that barred his subsequent indictment and prosecution
of the same offense in the circuit court. We disagree.
The double jeopardy provisions of the United States and
Virginia Constitutions protect a criminal defendant from being
prosecuted a second time for the same offense following an
acquittal. Turner v. Commonwealth, 221 Va. 513, 529, 273 S.E.2d
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36, 46 (1980), cert. denied, 451 U.S. 1011 (1981). A dismissal
qualifies as an acquittal for double jeopardy purposes when it is
granted pursuant to a factual, as opposed to a legal, defense.
Johnson v. Commonwealth, 221 Va. 736, 743-44, 273 S.E.2d 784, 789
(1981). Furthermore, "[i]n a trial before a court without a jury
the danger of conviction or jeopardy of an accused begins when the
trial has reached the stage where the Commonwealth begins to
introduce its testimony." Rosser v. Commonwealth, 159 Va. 1028,
1036, 167 S.E. 257, 259 (1933). In other words, "jeopardy begins
after the accused has been indicted, arraigned and has pleaded,
and the court has begun to hear the evidence." Id. at 1037, 167
S.E. at 259. Thus, as the Supreme Court noted in Martin v.
Commonwealth, 242 Va. 1, 8, 406 S.E.2d 15, 18 (1991), "jeopardy
attaches only after . . . the first witness is sworn in a bench
trial."
In this case, Neff entered a plea of not guilty, and the
general district court judge called for the Commonwealth to
present its evidence. No witnesses, however, were sworn, and the
Commonwealth presented no evidence prior to the dismissal of the
charge by the judge. Accordingly, we hold that jeopardy had not
yet attached when the charge was dismissed. Thus, Neff's
indictment and subsequent prosecution in the circuit court on the
same charge was not barred by the doctrine of double jeopardy.
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B. Res Judicata
Neff also argues that the general district court's dismissal
of the charge constituted a decision on the merits. Therefore, he
concludes, his subsequent indictment and prosecution on the
identical charge in the circuit court were barred by the doctrine
of res judicata. Again, we disagree.
Res judicata is a judicially created
doctrine founded upon the "considerations of
public policy which favor certainty in the
establishment of legal relations, demand an
end to litigation, and seek to prevent
harassment of parties." Bates v. Devers,
214 Va. 667, 670, 202 S.E.2d 917, 920 (1974)
(citation omitted). Res judicata literally
means a "matter adjudged," Black's Law
Dictionary 1174 (5th ed. 1979), and it
precludes relitigation of a claim or issue
once a final determination on the merits has
been reached by a court of competent
jurisdiction. It rests upon the principle
that a person should not be required to
relitigate the same matter a second time
"with the same person or another so
identified in interest with such person that
he represents the same legal right,
precisely the same question, particular
controversy, or issue, which has been
necessarily tried and fully determined, upon
the merits, by a court of competent
jurisdiction . . . ." Patterson v.
Saunders, 194 Va. 607, 614, 74 S.E.2d 204,
209, cert. denied, 354 U.S. 998 (1953). In
short, once a matter or issue has been
adjudicated, it may be relied upon as
conclusive between the parties, or their
privies, in any subsequent suit.
Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376
S.E.2d 787, 788 (1989). We have held that the doctrine of res
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judicata applies in a criminal case. Highsmith v. Commonwealth,
25 Va. App. 434, 442, 489 S.E.2d 239, 243 (1997).
"One who asserts the defense of res judicata has the burden
of proving by a preponderance of the evidence that an issue was
previously raised and decided by a tribunal in a prior cause of
action." Fodi's v. Rutherford, 26 Va. App. 446, 449, 495 S.E.2d
503, 505 (1998). That party must prove the identity of: "(1) the
remedies sought; (2) the cause of action; (3) the parties; and (4)
the quality of the persons for or against whom the claim is made."
Highsmith, 25 Va. App. at 440, 489 S.E.2d at 241. The proponent
of the defense must also establish that "'the judgment in the
former action [was] rendered on the merits by a court of competent
jurisdiction." Id. (alteration in original) (emphasis added)
(quoting Simmons v. Commonwealth, 252 Va. 118, 120, 475 S.E.2d
806, 807 (1996)).
In Highsmith, we stated that a judgment "upon the merits"
occurs when
"the status of the suit was such that the
parties might have had their suit disposed of
on its merits if they had presented all their
evidence and the court had properly
understood the facts and correctly applied
the law to the facts. It is therefore
sufficient if the merits are actually or
constructively determined."
Id. at 440, 489 S.E.2d at 241-42 (emphasis omitted) (quoting 8B
Michie's Jurisprudence, Former Adjudication or Res Judicata § 12
(1996)). We further stated that "'[a] dismissal of a cause of
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action may constitute a judgment on the merits depending upon the
grounds upon which such dismissal is based. A judgment of
dismissal which is intended to be and is a disposition on the
merits of a claim is a final judgment on the merits.'" Id. at
440-41, 489 S.E.2d at 242 (emphasis omitted) (quoting Michie's
Jurisprudence, supra).
We also noted in Highsmith that "the doctrine of res
judicata . . . applie[s] to . . . pretrial dismissal[s] on the
merits." Id. at 441-42, 489 S.E.2d at 242 (citing, inter alia,
United States v. Blackwell, 900 F.2d 742, 745 (4th Cir. 1990)
(holding that the doctrine of res judicata "is implicated by the
pretrial disposition of a prior case if an ultimate issue in the
second prosecution was conclusively litigated and necessarily
determined as part of the judgment entered in the first case")).
The question before us, then, is whether the general district
court's dismissal of the charge of DUI, second offense, before the
presentation of any evidence, was a judgment on the merits. The
trial court ruled that the lower court's dismissal of the charge
was not a judgment on the merits. We agree with the trial court.
On the day of Neff's trial in the general district court, the
Commonwealth, having failed to obtain a continuance, moved to
nolle prosequi the charge. The general district court judge
denied the motion to nolle prosequi, took Neff's plea of not
guilty, and called for the Commonwealth to present its case.
Notwithstanding the court's directive, the Commonwealth refused to
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go forward with its evidence. The court, having full authority to
hear the evidence and convict or acquit Neff of the Class 1
misdemeanor charged in the warrant, dismissed the charge without
swearing any witnesses or hearing any evidence. Had the court
called and sworn a witness, Neff would have been subjected either
to the danger of conviction or the benefit of acquittal. A
subsequent dismissal for lack of evidence would have then
constituted a judgment on the merits. See Goolsby v. Hutto, 691
F.2d 199, 202 (4th Cir. 1982). Here, however, the dismissal of
the charge against Neff "amounted to no more than the assent of
the [judge] to a cessation of the proceedings, without any
examination whatever of the cause upon its merits. It was the
equivalent of a nolle prosequi—nothing more—and could not"
actually or constructively establish the guilt or innocence of the
accused. Ward v. Reasor, 98 Va. 399, 403, 36 S.E. 470, 471
(1900), overruled on other grounds by Graves v. Scott, 104 Va.
372, 51 S.E. 821 (1905); see also Cantrell v. Commonwealth, 7
Va. App. 269, 281, 373 S.E.2d 328, 334 (1988) (holding that a
nolle prosequi entered before jeopardy attaches neither functions
as an acquittal nor bars further prosecution on the same charge).
We hold, therefore, that, because no witnesses were sworn or
evidence taken, the general district court's dismissal of the DUI,
second offense, charge against Neff, following the Commonwealth's
refusal to present any evidence, did not constitute a final
judgment on the merits. Consequently, Neff's subsequent
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indictment and prosecution in the circuit court on the same charge
were not barred by the doctrine of res judicata.
Hence, we conclude the trial court did not err in denying
Neff's motion to quash the indictment. Accordingly, we affirm
Neff's conviction.
Affirmed.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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