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SJC-11699
KEIAL KIMBROUGHTILLERY vs. COMMONWEALTH.
Suffolk. February 3, 2015. - May 26, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Practice, Criminal, Probation, Revocation of probation,
Collateral estoppel. Collateral Estoppel.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 24, 2014.
The case was reported by Cordy, J.
Rebecca Kiley, Committee for Public Counsel Services, for
the petitioner.
Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
SPINA, J. In this case, here on a reservation and report
from a single justice of the county court, we consider whether
principles of collateral estoppel bar a second probation
revocation proceeding on the same charged misconduct that was
litigated in an earlier probation revocation proceeding in a
different county and was resolved in favor of the petitioner,
2
Keial Kimbroughtillery. We conclude that principles of
collateral estoppel bar the second proceeding.
1. Background. On February 28, 2013, the petitioner was
charged by criminal complaint in the New Bedford Division of the
District Court Department (New Bedford District Court) with
unarmed robbery, G. L. c. 265, § 19 (b), and assault and
battery, G. L. c. 265, § 13A (a) (new offenses). The complaint
was based on allegations that on February 26, 2013, while the
victim was sitting in the driver's seat of her vehicle, the
petitioner leaned over her, grabbed an envelope containing $630
from her right coat pocket, and fled the scene. At the time the
complaint issued, the petitioner was serving probationary
sentences imposed by the Dorchester Division of the Boston
Municipal Court Department (Boston Municipal Court), the New
Bedford District Court, and the Fall River Division of the
District Court Department (Fall River District Court).1 A notice
1
On April 25, 2012, the petitioner pleaded guilty in the
Dorchester Division of the Boston Municipal Court Department
(Boston Municipal Court) to a complaint charging him with
assault and battery, G. L. c. 265, § 13A (a). On July 31, 2012,
the petitioner pleaded guilty in the New Bedford Division of the
District Court Department (New Bedford District Court) to a
complaint charging him with uttering a false check, G. L.
c. 267, § 5, and forgery of a check, G. L. c. 267, § 1. That
same day, he pleaded guilty in the New Bedford District Court to
a separate complaint charging him with larceny of property over
$250 by false pretenses, G. L. c. 266, §§ 30 (1), 34, and
uttering a false check. On October 2, 2012, the petitioner
pleaded guilty in the Fall River Division of the District Court
Department (Fall River District Court) to a complaint charging
3
of probation violation and hearing was issued to the petitioner
from the Boston Municipal Court on March 4, 2013. Similar
notices were issued to him from the New Bedford District Court
on March 5, 2013, and from the Fall River District Court on
May 15, 2013. Each notice alleged that the petitioner had
violated the terms of his probation by committing the new
offenses.2
The first probation revocation hearing was held in the
Boston Municipal Court on June 12 and August 20, 2013. During
the hearing, the petitioner's probation officer testified, as
did the alleged victim of the new offenses and three witnesses
called by the defense.3 Following closing arguments, a judge
found "no violation of probation" with respect to the new
offenses.4 However, he did find that the petitioner had violated
him with two counts each of forgery of a check, uttering a false
check, and larceny over $250.
2
The notice from the Boston Municipal Court also alleged
that the petitioner had failed to pay an attorney's fee of $150
and a victim witness fee of $50. In addition, the notice from
the Fall River District Court alleged that he had failed to
report to his probation officer on one occasion and had failed
to pay restitution in the amount of $6,582.40.
3
One of the defense witnesses was Miriam Lopes, a caregiver
for the petitioner who was employed by Beacon Adult Foster Care.
She testified, among other things, that in early February, 2013,
the petitioner had surgery, that he required constant care
because he was "really sick," and that he did not leave the
house on February 26.
4
As this court pointed out in Commonwealth v. Holmgren, 421
Mass. 224, 225 (1995), a criminal prosecution and a subsequent
4
his probation by failing to pay certain fees. See note 2,
supra. Based on the agreement of the parties, the judge
extended the petitioner's probation for nine months.
On September 25, 2013, the petitioner filed a motion in the
New Bedford District Court and the Fall River District Court to
hold the Commonwealth bound by the order of the Boston Municipal
Court. The petitioner asserted that because the judge found no
violation of probation with respect to the new offenses, the
parties were bound by the judge's order under the doctrine of
collateral estoppel. The Commonwealth opposed the motion. The
parties then filed a joint motion to consolidate the probation
violation hearings, which was allowed by a judge in the New
Bedford District Court. On February 18, 2014, the petitioner's
motion to hold the Commonwealth bound by the order of the Boston
Municipal Court was denied. He thereafter filed a petition for
relief in the county court pursuant to G. L. c. 211, § 3,
contending that, because the issue whether he had violated the
terms of his probation by committing the new offenses already
had been decided by a valid and binding final judgment of the
Boston Municipal Court, collateral estoppel barred relitigation
probation revocation proceeding have different standards of
proof. "In a criminal case, of course, the Commonwealth must
prove the elements of each crime charged beyond a reasonable
doubt. In a probation revocation hearing, the Commonwealth
bears a lesser burden. . . . [I]t is proof by a preponderance
of the evidence." Id. at 225-226.
5
of the issue.5 The Commonwealth opposed the petition. On June
18, 2014, a single justice reserved and reported the case to the
full court.
2. Discussion. The petitioner contends that once the
judge in the Boston Municipal Court found no probation violation
with respect to the new offenses, principles of collateral
estoppel barred a subsequent probation revocation proceeding in
a different county on the new offenses. In its brief before
this court, the Commonwealth states that, "having considered at
length both the legal and policy issues inherent in the question
before the [c]ourt, [it] now substantially agrees with the
defendant."
The doctrine of collateral estoppel, also known as issue
preclusion, provides 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." Commonwealth v. Lopez, 383 Mass. 497, 499 (1981),
quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970). See
Commonwealth v. Scala, 380 Mass. 500, 503 (1980). "In a
criminal case, the applicability of the doctrine may derive
either from the common law, with roots in civil proceedings,
5
Because the petitioner's claim is so closely identified
with double jeopardy, a petition for relief under G. L. c. 211,
§ 3, is the appropriate avenue for review. Cf. Cepulonis v.
Commonwealth, 426 Mass. 1010, 1010 (1998); Costarelli v.
Commonwealth, 374 Mass. 677, 679-680 (1978).
6
. . . or from the protection against double jeopardy of the
Fifth Amendment to the United States Constitution" (citations
omitted). Commonwealth v. Stephens, 451 Mass. 370, 375 (2008).
See Commonwealth v. Williams, 431 Mass. 71, 74 (2000);
Commonwealth v. Ellis, 160 Mass. 165, 165 (1893).
The double jeopardy clause of the Fifth Amendment consists
of three independent constitutional protections. "It protects
against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against multiple
punishments for the same offense" (footnotes omitted).
Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, cert.
denied, 459 U.S. 864 (1982), S.C., 390 Mass. 438 (1983), quoting
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). See Krochta
v. Commonwealth, 429 Mass. 711, 713 (1999). Unlike the United
States Constitution, the Massachusetts Declaration of Rights
does not include a double jeopardy clause, but our statutory and
common law have long embraced the same principles and
protections. See Commonwealth v. Selavka, 469 Mass. 502, 509
n.8 (2014); Commonwealth v. Woods, 414 Mass. 343, 346, cert.
denied, 510 U.S. 815 (1993). See also G. L. c. 263, § 7.
Jeopardy does not attach at a probation revocation proceeding.6
6
A probation revocation proceeding is not considered to be
a new criminal prosecution because the Commonwealth already has
"met its burden of proving beyond a reasonable doubt the
7
See Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006); Krochta,
supra at 713-714. Therefore, as the petitioner acknowledges,
collateral estoppel based on principles of double jeopardy is
not applicable in this case. See Krochta, supra at 714.
In the past, we have considered, without deciding, "whether
collateral estoppel protection between proceedings litigated
against the government is encompassed within the constitutional
right to due process, independent of the double jeopardy
clause." Id. at 715. See Williams, 431 Mass. at 73-74;
Commonwealth v. Dias, 385 Mass. 455, 460 (1982); Scala, 380
Mass. at 503. Here, we again need not decide this issue because
the present case can be resolved by application of common-law
collateral estoppel principles. See Williams, supra at 74.
"The common-law doctrine of collateral estoppel is designed
to 'relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.'"
Stephens, 451 Mass. at 375, quoting Massachusetts Prop. Ins.
Underwriting Ass'n v. Norrington, 395 Mass. 751, 756 (1985).
See Scala, 380 Mass. at 505 (describing collateral estoppel
policy considerations). Our decision in Krochta, which
person's guilt on the underlying crime." Commonwealth v.
Wilcox, 446 Mass. 61, 65 (2006). See Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973) (probation revocation, like parole
revocation, not stage of criminal prosecution); Commonwealth v.
Durling, 407 Mass. 108, 112 (1990).
8
concerned the preclusive effect of a determination made at a
probation revocation proceeding on a subsequent criminal
prosecution, set forth the prerequisites for a valid collateral
estoppel claim. "Collateral estoppel is available to a
defendant as a shield against a subsequent attempt by the
government to litigate an issue necessarily decided in previous
litigation between the defendant and the government only where
there is (1) a common factual issue; (2) a prior determination
of that issue in litigation between the same parties; and (3) a
showing that the determination was in favor of the party seeking
to raise the estoppel bar" (footnotes omitted).7 Krochta, 429
Mass. at 715-716. For collateral estoppel to apply, the two
proceedings sharing a "common factual issue" must be resolved
using the same standard of proof.8 See id. at 716-717. The
7
For a discussion of the five requirements that must be met
for collateral estoppel to apply in the context of a motion to
suppress, see Commonwealth v. Cabrera, 449 Mass. 825, 829-831
(2007).
8
In Krochta v. Commonwealth, 429 Mass. 711, 711-712 (1999),
this court held that principles of collateral estoppel did not
bar criminal prosecution of a defendant on various larceny
charges, even though the same offenses had triggered an earlier
probation revocation proceeding that was resolved in the
defendant's favor. We explained that the essential components
of collateral estoppel had not been satisfied because common
factual issues were decided under different standards of proof
and under different procedural rules in the two proceedings.
Id. at 716, 718. See Holmgren, 421 Mass. at 225 (concluding
that, because of different burdens of proof in criminal case and
probation revocation proceeding, "[p]rinciples of collateral
estoppel do not bar the Commonwealth from revoking probation
based on evidence of a violation of law of which a probationer
9
burden of showing the concurrence of these three collateral
estoppel requirements "is always on the person raising the bar."
Lopez, 383 Mass. at 499.
In this case, the petitioner has satisfied the requirements
of collateral estoppel. Following a hearing in the Boston
Municipal Court, a judge determined, based on a preponderance of
the evidence, that the petitioner did not violate the terms of
his probation with respect to the new offenses. The
Commonwealth seeks to relitigate this same factual issue based
on the same standard of proof and the same procedural rules at
subsequent probation revocation proceedings on the new offenses
that have been consolidated in the New Bedford District Court.9
We conclude that principles of collateral estoppel bar the
Commonwealth from doing so.
3. Conclusion. We remand this matter to the single
justice for entry of a judgment allowing the petition for relief
under G. L. c. 211, § 3, and reversing the February 18, 2014,
has been found not guilty"). Further, we stated in Krochta,
supra at 719, that "[i]f collateral estoppel bars a criminal
prosecution as a result of a probation revocation proceeding, a
conflict between the separate goals of the probation department
and the district attorney may result, frustrating the ability of
both to accomplish the ends assigned to them by the
Legislature."
9
With regard to two additional alleged probation violations
set forth in the notice from the Fall River District Court prior
to consolidation of the hearings, see note 2, supra, the
petitioner does not contend that the Commonwealth cannot proceed
on those alleged violations.
10
order of the New Bedford District Court that denied the
petitioner's motion to hold the Commonwealth bound by the order
of the Boston Municipal Court that found no probation violation
with respect to the new offenses.
So ordered.