Sevachko v. Commonwealth

ANNUNZIATA, Judge,

concurring.

I concur in the majority decision but write separately to underscore the factual predicate of the decision and to make clear the limits of our holding. As noted by the majority opinion, the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), held that the principle of collateral estoppel is embodied in the double jeopardy protections afforded under the Fifth Amendment of the United States Constitution. See also Simon v. Commonwealth, 220 Va. 412, 258 S.E.2d 567 (1979). Its application in our adversary system of justice “means simply 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.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194.

For collateral estoppel to apply, the following factors must be established:

the court must decide (1) whether the issue in question is identical to the previous issue, (2) whether it was actually determined in the prior adjudication, (3) whether it was necessarily decided in that proceeding, (4) whether the resulting judgment settling the issue was final and valid, and (5) whether the parties had a full and fair opportunity to litigate the issue in the prior proceeding.

United States v. Fiel, 35 F.3d 997, 1006 (4th Cir.1994) (citation omitted), cert. denied, 513 U.S. 1177, 115 S.Ct. 1160, 130 L.Ed.2d 1116 (1995).

Guided by this principle, we hold today that under the decision in Ashe, the perjury prosecution is precluded by the *566doctrine of collateral estoppel. However, barment of a subsequent perjury prosecution does not necessarily follow as a matter of law from an acquittal of a charge in which false testimony has been given. See United States v. Nash, 447 F.2d 1382, 1385 (4th Cir.1971). Prosecution for perjury subsequent to an acquittal on the charge will be precluded only when it cannot be said that “a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194. In other words, collateral estoppel will bar a subsequent prosecution “when the issue adjudicated in the first proceeding is ... dispositive of an element of the crime tried in the second proceeding.” Simon, 220 Va. at 416, 258 S.E.2d at 570; see Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979).

Because the verdicts in criminal cases customarily are general, it is imperative that, consistent with the Ashe test, the reviewing court make a thorough analysis of the record of the prior proceeding to identify the issues foreclosed. See Nash, 447 F.2d at 1385; see also Simon, 220 Va. at 418, 258 S.E.2d at 571 (in determining which issues have necessarily been decided by an acquittal in a prior trial, the appellate court must examine the record of the prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter). The requirement to do so serves two critical elements of our system of justice, of equal but competing value: 1) the need to protect and preserve the integrity of the fact finding process;1 and 2) the guarantee that multiple proseeu*567tions for the same offense are prohibited.2

To serve these dichotomous goals, the reviewing court must neither read the record too broadly and prohibit prosecution for perjury where it is warranted, see, e.g., United States v. Carter, 60 F.3d 1532 (11th Cir.1995); Adams v. United States, 287 F.2d 701 (5th Cir.1961), nor read the record too restrictively and compel the accused, in the words of Ashe, to “ ‘run the gantlet’ ” twice in violation of the Double Jeopardy Clause of the United States Constitution. Ashe, 397 U.S. at 446, 90 S.Ct. at 1195 (quoting Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957)).

Reviewing the record with the scrutiny required by Ashe, it is manifest that the jury in the first trial necessarily credited the defendant’s account of events. See Nash, 447 F.2d at 1385 (determining that “[i]t is inconceivable that there would have been an acquittal [in the first trial] if the jury had not accorded truth to [the defendant’s] testimony”). Simply stated, the jury necessarily determined defendant’s credibility in his favor in order to acquit him of the charge. As conceded by the Commonwealth in the course of the perjury prosecution, the record establishes unequivocally that the sole issue in the prior trial was whether the defendant was driving on the date in question. Sevachko stated under oath in the earlier trial that “he was not driving, that in fact the car was being repaired, that it was at a service shop on Emmet Street and he didn’t get it back until after — this was the 24th of December.” Sevachko’s testimony squarely conflicted with the Commonwealth’s proof to the contrary. Because his testimony on the sole issue in contention, and its credibility, were crucial to the determination of guilt in the prior case, the jury necessarily determined the credibility of his account in reaching its verdict of acquittal. Sevachko’s credibility was therefore the *568“dispositive element” in both prosecutions. See Simon, 220 Va. at 416, 258 S.E.2d at 570; Lee, 219 Va. at 1111, 254 S.E.2d at 127. The record evinces no other predicate for the verdict.3 See Nash, 447 F.2d at 1385; United States v. Robinson, 418 F.Supp. 121 (D.Md.1976) (where prosecution attempted to premise its case in the former prosecution on its claim that defendant lied about the crucial facts of the case, prosecution for perjury based on that testimony is barred); see also Wheatley v. United States, 286 F.2d 519 (10th Cir.1961) (perjury prosecution barred where defendant’s testimony in prior trial that he had not received money for illegal liquor sales was crucial to his acquittal); Ehrlich v. United States, 145 F.2d 693 (5th Cir.1944) (perjury prosecution barred where defendant’s testimony in prior trial denying the illegal act alleged was determinative of the issue); United States v. Barnes, 386 F.Supp. 162 (E.D.Tenn.1973) (because rational jury could not have acquitted defendant in prior trial of working in illegal distillery without accepting as true his testimony that he did not work there, subsequent perjury prosecution for falsity of that testimony was barred); United States v. Drevetzki, 338 F.Supp. 403 (N.D.Ill.1972) (where rational jurors could not have acquitted defendant of theft at prior trial without believing his testimony, perjury prosecution based on falsity of that testimony was collaterally estopped); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (where sole issue litigated in prior trial was witness’ credibility, and the jury was forced to either accept the witness’ testimony or acquit the defendant and it resolved the issue in *569favor of the defendant, prosecution for perjury is barred); cf. Carter, 60 F.3d 1532 (because jury in prior trial need not necessarily have concluded defendant worked with accomplices on only one occasion in order to acquit him, government was not collaterally estopped from prosecuting defendant on charge of perjury for his sworn statement that he had worked with accomplices only once); Adams, 287 F.2d 701 (defendant’s prosecution for falsely testifying to alibi defense affirmed where jury in first trial need only have found that defendant was not present at crime scene, but not necessarily that he was at party defendant claimed to have attended on evening in question); United States v. Haines, 485 F.2d 564 (7th Cir.1973) (perjury prosecution not collaterally estopped where jury could have rejected defendant’s alibi testimony in prior trial and still concluded that government had failed to prove defendant’s participation in bank robbery); State v. Hutchins, 746 A.2d 447 (N.H.2000) (perjury prosecution not barred where defendant was acquitted of sexual assault in prior trial, but jury need not have accepted defendant’s testimony that “nothing of a sexual nature” had occurred between defendant and victim); People v. Briddle, 84 Ill.App.3d 523, 40 Ill.Dec. 265, 405 N.E.2d 1357 (1980) (prosecution for perjury not barred where defendant’s testimony in prior trial was irrelevant to the charges against him); cf also State v. DeSchepper, 304 Minn. 399, 231 N.W.2d 294 (1975); State v. McCue, 122 N.J.Super. 171, 299 A.2d 744 (1973).

In short, Sevachko’s prosecution for perjury is barred under the double jeopardy provisions of the Fifth and Fourteenth Amendments because it is clear that the jury in the prior proceeding necessarily determined his credibility on the only contested issue in the case, and Sevachko’s credibility is the dispositive element in the subsequent prosecution for perjury.

. As noted by the United States Court of Appeals for the Fifth Circuit:

[A]llowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely. The resulting detriment to the reliability of evidence and more so, to the stability of the judicial process, would only be enhanced by the obvious fact that the more persuasively flagrant the defendant's fabrication, the greater his chances of total exoneration. This completes a vicious circle since the successful acquittal on the substantive offense would immunize him as to the very falsehoods which brought it about.

Adams v. United States, 287 F.2d 701, 703 (5th Cir.1961).

. A failure to accurately identify the issue to be foreclosed in a subsequent peijury trial would permit the prosecutor "[to treat] ‘the first trial as no more than a dry run for the second prosecution,' and [to] 'refine[ ] his presentation in light of the turn of events at the first trial.’ ” Simon, 220 Va. at 417, 258 S.E.2d at 571 (quoting Ashe, 397 U.S. at 447, 90 S.Ct. at 1196).

. In Nash, the Fourth Circuit held that a prosecution of the defendant for perjury based on testimony in a trial for mail theft was barred under principles of collateral estoppel. The court reasoned that the jury necessarily passed upon the defendant’s testimony upon which the perjury charge was based in acquitting him of that charge. In examining the record, the court found, as we have here, that there were only two possible but conflicting explanations in the former mail theft trial of the defendants’ possession of the money, one of which was defendant’s explanation. Finding that his explanation was not simply a "collateral issue, but ... crucial [to the adjudication of the charge] ... its redetermination in a trial for perjury was estopped.” 447 F.2d at 1385.