COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Roanoke, Virginia
COMMONWEALTH OF VIRGINIA
v. Record No. 1866-95-3 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
BILLY WAYNE RODGERS MARCH 4, 1996
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellant.
Charles J. Strauss, for appellee.
Billy Wayne Rodgers (appellee) was indicted for bribery of a
law enforcement officer in violation of Code § 18.2-438.
Appellee filed a motion to suppress the evidence used in a prior
bribery trial based on the doctrine of collateral estoppel. The
trial court granted the suppression motion, and the Commonwealth
appeals that ruling pursuant to Code § 19.2-398(2). Because we
conclude that this appeal is not authorized by Code
§ 19.2-398(2), we do not reach the merits of the Commonwealth's
collateral estoppel argument.
Appellee was indicted for bribing a law enforcement officer
on September 14, 1994. In a trial held May 9, 1995, he was tried
and acquitted of the September 14 charge. Appellee was also
indicted for bribery of a law enforcement officer on September
22, 1994. Before his trial on the September 22 charge, appellee
filed a motion in limine, asserting that the doctrine of
collateral estoppel barred the use of evidence from his first
trial. He argued that "any trial . . . on the same charge using
the same evidence [presented at the first bribery trial] would
constitute double jeopardy" and that the Commonwealth should not
be allowed to use any evidence "presented in the former
proceeding to establish the alleged bribery of September 22,
1994." At the motion hearing held August 9, 1995, the trial
court granted appellee's motion and excluded any evidence of the
events occurring on September 14, 1994, basing its decision on
the doctrine of collateral estoppel. The Commonwealth appealed
that ruling pursuant to Code § 19.2-398(2).
In general, "[n]o appeal shall be allowed to the
Commonwealth in a case involving the life or liberty of a
person." Va. Const. art. VI, § 1. However, in derogation of
that general prohibition, the Commonwealth is allowed a limited
right of appeal in criminal cases. Code § 19.2-398 provides, in
pertinent part:
A petition for appeal from a circuit
court may be taken by the Commonwealth only
in felony cases, before a jury is impaneled
and sworn in a jury trial, or before the
court begins to hear or receive evidence or
the first witness is sworn, whichever occurs
first, in a nonjury trial. The appeal may be
taken from:
* * * * * * *
(2) An order of a circuit court prohibiting
the use of certain evidence at trial on the
grounds such evidence was obtained in
violation of the provisions of the Fourth,
Fifth or Sixth Amendments to the Constitution
of the United States or Article I, Sections
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8, 10 or 11 of the Constitution of Virginia
prohibiting illegal searches and seizures and
protecting rights against self-incrimination,
provided the Commonwealth certifies the
evidence is essential to the prosecution.
(Emphasis added.) Under Code § 19.2-398(2), "[t]he
Commonwealth's right to appeal is limited to suppression orders
granted on the basis of violation of specific provisions of the
United States Constitution and the Virginia Constitution."
Commonwealth v. Brown, 8 Va. App. 41, 43, 378 S.E.2d 623, 624
(1989). "The constitutional and statutory authority for
Commonwealth appeals is narrowly circumscribed. It was not
enacted to allow Commonwealth appeals from all allegedly
erroneous pre-trial rulings by the trial court." Id.
In interpreting the scope of Code § 19.2-398(2), we have
held that the Commonwealth may not appeal the suppression of
evidence based on the violation of a statute or based on the
violation of a defendant's constitutional due process rights.
See, e.g., Brown, 8 Va. App. at 42-43, 378 S.E.2d at 623-24
(violation of Code § 19.2-83, which limits police authority to
stop, question, and search a suspicious person); Commonwealth v.
Hawkins, 10 Va. App. 41, 42-43, 390 S.E.2d 3, 4 (1990) (violation
of constitutional due process in identification procedure). In
Hawkins, we stated:
Reduced to its basic provisions, Code
§ 19.2-398(2) provides that an appeal may
be taken from: "[a]n order . . . prohibiting
the use of certain evidence . . . obtained in
violation of the provisions of [the federal
constitutional provisions] or [the state
constitutional provisions] prohibiting
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illegal searches and seizures and protecting
rights against self-incrimination . . . ."
(emphasis added). The issue to be appealed
must be of constitutional dimension, relating
to the specific constitutional provisions,
but its subject matter is defined by the
emphasized language.
Id. at 44, 390 S.E.2d at 5 (second emphasis added).
In the instant case, the trial court suppressed the evidence
presented at the first bribery trial on the basis of collateral
estoppel. As in Hawkins, "[t]here was no finding that the
evidence suppressed resulted from an illegal search or seizure or
from an infringement of the defendant's right against self-
incrimination." Id. at 43, 390 S.E.2d at 4. Thus, although the
Commonwealth's use of the evidence at the second trial may have
had double jeopardy implications, this constitutional issue does
not fall within the scope of Code § 19.2-398(2) because it does
not involve "prohibiting illegal searches and seizures [or]
protecting rights against self-incrimination." Additionally, the
evidence suppressed by the trial court was not obtained in
violation of any of the listed constitutional provisions.
Because we conclude that this appeal is outside the scope of
Code § 19.2-398(2), we do not reach the merits of this case.
Accordingly, this appeal is dismissed.
Dismissed.
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