Highsmith v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia

CHARLES A. HIGHSMITH, JR.
OPINION BY
v. Record No. 1120-96-4 JUDGE JOHANNA L. FITZPATRICK
AUGUST 19, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge

Robert R. Sparks, Jr. (Matthew Scott
McConnell; Herge, Sparks & Christopher, on
briefs), for appellant.
(James S. Gilmore, III, Attorney General;
John K. Byrum, Jr., Assistant Attorney
General, on brief), for appellee.

On March 21, 1996, Charles A. Highsmith, Jr. (appellant) was

convicted by the Circuit Court of Arlington County (trial court)

in a jury trial of driving while intoxicated (DWI) in violation

of Code § 18.2-266. The sole issue on appeal is whether the

general district court's (district court) pretrial dismissal of

the DWI warrant precluded the Commonwealth, under the doctrine of
res judicata or the related plea of autrefois acquit, from

indicting appellant for the same offense. For the following

reasons, we reverse the decision of the trial court.

BACKGROUND

In the early morning hours of May 7, 1995, appellant was

stopped for a suspected DWI. He was given a blood test that

showed his blood alcohol content exceeded the statutory limit.

Appellant was then charged by warrant with driving while
intoxicated in violation of "Section 14.2-1/18.2-266, Code or

Ordinances of this city, county, or town." Additionally,

appellant's operator's license was suspended pursuant to the

administrative license suspension (ALS) provisions of Code

§ 46.2-391.2.

On May 11, 1995, the district court ruled on appellant's

motion to review the suspension of his license under Code

§ 46.2-391.2(C). The district court determined that the police

did not have probable cause to arrest appellant, restored

appellant's driving privileges, and returned his license.
On June 6, 1995, the district court heard argument on

appellant's motion to dismiss the DWI warrant, in which appellant

contended that the Double Jeopardy Clause of the Fifth Amendment

and the doctrine of collateral estoppel barred further

prosecution for DWI subsequent to the suspension of his driver's

license. By letter opinion and order dated June 16, 1995, the

district court found as follows:
It simply cannot be said that the DWI and ALS
are part of a single, unified proceeding.
. . . Despite the fact that they start at
approximately the same time, they result in
two separate but independent proceedings.

The district court further concluded that "the sanction of ALS

constitutes punishment" and the subsequent prosecution for DWI

was not punishment "meted out as a part of a single proceeding." 1
1
The general district court's finding that the ALS
proceeding raised double jeopardy concerns in a subsequent
prosecution was later determined by this Court and by the Supreme
Court to be an erroneous principle of law. See Brame v.

2
 Accordingly, the district court granted appellant's motion to

dismiss, citing the Double Jeopardy Clause's prohibition against

multiple punishments for the same offense.

After the district court's dismissal, appellant was indicted

on August 21, 1995 by a circuit court grand jury for the same DWI

offense. Appellant filed a new motion to dismiss. On February

7, 1996, the trial court denied appellant's motion to dismiss for

the following reasons:
My problem was the word dismissal, as to
whether that was a trial, whether it equaled
a trial on the merits, whether it was a
verdict, whether it did in fact end any
attempt by the Commonwealth to do what the
defendant said was an end run and indirect
appeal, if you will, by indicting in the
Circuit Court on the dismissed charges.
The defense counsel in each of these
cases submitted authorities. . . . The
Court[] [has] considered it at great length
and concludes that [the district court's]
decision was not a verdict. It was never a
dismissal on the merits. It did not put the
defendants in the jeopardy that would justify
double jeopardy plea.

Therefore, the motion to dismiss is
denied in all pending cases in which they are
under advisement.

Appellant was convicted of DWI on March 21, 1996.

Commonwealth, 252 Va. 122, 476 S.E.2d 177 (1996) (holding the
automatic license suspension under Code § 46.2-391.2 is a
remedial sanction whose purpose is "so clear and compelling that
it overrides any incidental punitive effect the provision may
have"); accord Nicely v. Commonwealth, 23 Va. App. 327, 477
S.E.2d 11 (1996); Tench v. Commonwealth, 21 Va. App. 200, 462
S.E.2d 922 (1995).

3
 RES JUDICATA

First, appellant contends that the doctrine of res judicata

bars his later indictment on the identical charge that was

dismissed by the general district court. Appellant argues that

because the doctrine of collateral estoppel applies in criminal

proceedings, so too does res judicata, as both doctrines are

based on the conclusiveness of a court's judgment and the

estoppel effect of the judgment. 2 The application of res
judicata in a criminal context is an issue of first impression in

Virginia.
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." Res judicata
literally means a "matter adjudged," 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
2
It is well recognized in Virginia that "the doctrine of
collateral estoppel is a constitutional requirement embodied in
the fifth amendment protection against double jeopardy and is
applicable to the states through the fourteenth amendment to the
United States Constitution." Simon v. Commonwealth, 220 Va. 412,
415, 258 S.E.2d 567, 569 (1979). "'The doctrine of collateral
estoppel in criminal cases . . . means "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."'" Jones v. City of Lynchburg, 23
Va. App. 167, 171, 474 S.E.2d 863, 865 (1996) (quoting Rogers v.
Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 (1987)).

4
 the same question, particular controversy, or
issue, which has been necessarily tried and
fully determined, upon the merits, by a court
of competent jurisdiction. . . ."

Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376

S.E.2d 787, 788 (1989) (citations omitted) (emphasis added);

accord Bates v. Devers, 214 Va. 667, 670-71, 202 S.E.2d 917,

920-21 (1974); Patterson v. Saunders, 194 Va. 607, 611, 74 S.E.2d

204, 207, cert. denied, 345 U.S. 988 (1953).

A person seeking to assert res judicata as a defense must

establish 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. Johnson, 7 Va. App. at 618,
376 S.E.2d at 789. Further, to assert this defense, the party

must establish that "the judgment in the former action [was]

rendered on the merits by a court of competent jurisdiction."

Simmons v. Commonwealth, 252 Va. 118, 120, 475 S.E.2d 806, 807

(1996) (emphasis added).
A judgment is not res judicata if it
does not go to the merits of the case. . . .

By a judgment "upon the merits" is not
meant "on the merits" in the moral sense of
those words. It is sufficient that 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.

As to what constitutes a decision on the
merits, a decision of an issue of law on a
demurrer is a decision on the merits and

5
 constitutes res judicata as to any other
proceedings where the same parties and the
same issues are involved. . . .

* * * * * * *

A dismissal of a cause of 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.

8B Michie's Jurisprudence, Former Adjudication or Res Judicata
§ 12 (1996) (emphasis added). Each of the above requirements is

met in the case at bar.

Although we have yet to apply this doctrine in the criminal

context, it is well recognized by federal jurisdictions and other

states that "[t]he doctrines of res judicata and collateral

estoppel apply to criminal, as well as civil, proceedings."

United States v. Cejas, 817 F.2d 595, 598 (9th Cir. 1987); see

generally E.H. Schopler, Annotation, Modern Status of Doctrine of

Res Judicata in Criminal Cases, 9 A.L.R.3d 203 (1996).

Additionally,
[i]n most jurisdictions it is well settled
that the doctrine of collateral estoppel is
applicable in criminal cases, that is, that
the criminal nature of a proceeding does not,
ipso facto, preclude a judgment rendered
therein from operating as collateral estoppel
in another criminal prosecution. As applied
in criminal cases, the primary significance
of the doctrine of res judicata lies in its
operation as collateral estoppel, since the
doctrine of collateral estoppel, differently
from the defense of double jeopardy and
"former acquittal" or "former conviction," is
applicable irrespective of whether the former
and the later proceeding are based on the

6
 same offense. However, most of the cases
discussing the doctrine involve related
offenses, that is, offenses arising out of
the same occurrence or transaction.

Schopler, supra, at § 5(a).

Moreover, the doctrine of res judicata has been applied to a

pretrial dismissal on the merits. See Cejas, 817 F.2d at 599

(holding that a pretrial dismissal of an indictment was a final

decision on the merits that barred further prosecution and that

"[t]he granting of a motion to dismiss based upon double jeopardy

. . . would have the effect of putting an end to all further

prosecution"). See also United States v. Oppenheimer, 242 U.S.
85, 87-88 (1916) (a case in which the Supreme Court determined

that "a judgment for the defendant upon the ground that the

prosecution is barred goes to his liability as a matter of

substantive law, and one judgment that he is free as matter of

substantive law is as good as another."). The Oppenheimer Court

further held that "[a] plea of the statute of limitations is a

plea to the merits" and explained that:
It cannot be that a judgment of acquittal on
the ground of the statute of limitations is
less a protection against a second trial than
a judgment upon the ground of innocence, or
that such a judgment is any more effective
when entered after a verdict than if entered
by the government's consent before a jury is
empaneled . . . .

* * * * * * *

[T]he Fifth Amendment was not intended
to do away with what in the civil law is a
fundamental principle of justice in order,
when a man once has been acquitted on the
merits, to enable the government to prosecute

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 him a second time.

Id. at 87 (citations omitted). See also United States v.

Blackwell, 900 F.2d 742, 745 (4th Cir. 1990) (stating that the

doctrines of res judicata and collateral estoppel are "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"); United States v. Byars, 762 F.Supp. 1235, 1237

(E.D. Va. 1991) ("the doctrines of res judicata and collateral

estoppel apply in criminal cases . . . and more particularly, to

pretrial dispositions of issues in criminal cases").
We see no reason to bar the application of this doctrine to

the issue in the instant case: the second prosecution of a

criminal case dismissed by a substantive pretrial judgment by a

court which had jurisdiction to determine the case on its

merits. 3 Accordingly, we find that the Commonwealth's contention

that no decision on the merits was encompassed by the general

district court's dismissal on double jeopardy grounds is without

merit.

In the instant case, the prosecution on the indictment in

the trial court involved the same charge and the same parties as
3
The doctrine of res judicata applies to the instant case
because it involves the pretrial dismissal of a misdemeanor by
the general district court. Clearly, this doctrine has no
applicability either to a general district court's finding of no
probable cause at a felony preliminary hearing or to a later
straight indictment on the same charge.

8
did the prosecution on the warrant in the general district court.

Subsequent to the general district court's dismissal of the

charge on double jeopardy grounds, both this Court and the

Supreme Court of Virginia rejected the district court's

rationale. 4 Although the district court's dismissal was based on

a principle of law that was later determined to be erroneous, its

dismissal was nevertheless a final ruling on the merits of the

case. To hold otherwise would improperly allow the defendant's

rights to be contingent on the correctness of the judge's

actions. See, e.g., Slagle v. Slagle, 11 Va. App. 341, 346, 398
S.E.2d 346, 349 (1990) (a judgment is conclusive even though

manifestly wrong in law or fact); Nicholas v. Commonwealth, 186

Va. 315, 320, 42 S.E.2d 306, 309 (1947) (the power to decide

includes the power to decide wrongly and an erroneous decision is

as binding as one that is correct). See also 8B Michie's

Jurisprudence, Former Adjudication or Res Judicata § 10 (1996)

("A judgment on the merits, fairly rendered, by a court of

competent jurisdiction, having cognizance both of the parties and

the subject matter, however erroneous it may be, is conclusive on
the parties and their privies until reversed or set aside in a

direct proceeding for that purpose, and it is not amenable to

collateral attack.") (emphasis added); Thomas v. Consolidated

Coal Co., 380 F.2d 69, 80 n.16 (4th Cir.), cert. denied, 389 U.S.

4
See supra note 1.

9
1004 (1967) ("A judgment on the merits is res judicata even

though erroneous.").

Thus, in the instant case, res judicata barred the

indictment and subsequent trial of appellant in the circuit court

for the same offense that had been dismissed previously by the

general district court.

AUTREFOIS ACQUIT

As a corollary to his defense of res judicata, appellant

asserts the additional plea of autrefois acquit and relies upon
the cases of Adkins v. Commonwealth, 175 Va. 590, 9 S.E.2d 349

(1940), and Commonwealth v. Perrow, 124 Va. 805, 97 S.E. 820

(1919). However, we find that the plea of autrefois acquit does

not control the case at bar.

This plea is generally recognized as being subsumed within

the Double Jeopardy Clause. See generally 2C Michie's

Jurisprudence, Autrefois, Acquit and Convict § 1 et seq. (1996).

It is well settled "'that jeopardy means the danger of

conviction.' Equally well settled is the principle that jeopardy

attaches '[i]n a trial before a court without a jury . . . when

the trial has reached the stage where the Commonwealth begins to

introduce its testimony.'" Courtney v. Commonwealth, 23 Va. App.
561, 567, 478 S.E.2d 336, 338 (1996) (quoting Rosser v.

Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933)); see

also Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d

709, 710 (1982). In the instant case, it is undisputed that

10
jeopardy had not attached at the time of the district court's

disposition of the case. Further, the United States Supreme

Court made clear in United States v. Scott, 437 U.S. 82 (1978),

that the disposition of the instant case is not to be categorized

as an "acquittal."

"Autrefois acquit" literally means "formerly acquitted" and

is defined as "[t]he name of a plea in bar to a criminal action,

stating that the defendant has been once already indicted and

tried for the same alleged offense and has been acquitted."

Black's Law Dictionary 123 (6th ed. 1997). The Supreme Court

addressed the application of autrefois acquit in Adkins v.

Commonwealth, 175 Va. 590, 9 S.E.2d 349 (1940), a case involving

a prosecution for bigamy. The first indictment against the

defendant charged him with one count of bigamy and a second count

of aiding and abetting the commission of the crime of bigamy.

The defendant, "upon his arraignment, demurred" to the first

indictment on the ground that, being an unmarried person, he was

not included within the statute defining bigamy and that as a

matter of law, he therefore could not be an accessory to the

crime of bigamy. Adkins, 175 Va. at 594, 9 S.E.2d at 350. The

court, by order, sustained the demurrer to the indictment and

"'to each count thereof,'" and discharged the defendant from the

indictment. Id. at 594-95, 9 S.E.2d at 350.

Subsequently, the defendant was arraigned on a second

indictment charging him with aiding and abetting the commission

11
of the crime of bigamy. Upon his arraignment, the defendant

filed a plea of autrefois acquit, alleging that "having been

acquitted on the merits and discharged from custody [on the first

indictment], he should not be required to answer the second

indictment." Id. at 595, 9 S.E.2d at 351. However, the trial

court sustained the Commonwealth's demurrer to the defendant's

plea, and he was tried and convicted on the second indictment.

Id.
On appeal, the Supreme Court interpreted the defendant's

plea as "founded solely on the legal proposition that having once

been acquitted on the merits and discharged . . . he [was]

protected from further prosecution." Id. at 596, 9 S.E.2d at 351

(emphasis added). The Court found that the Commonwealth's

demurrer, alleging that the "discharge" of the defendant under

the first indictment had not been established, was "untenable"

and held as follows:
There is not a syllable [in the order
sustaining the demurrer] which indicates that
the demurrer was sustained without prejudice.
There is not a word in it which indicates
that the demurrer was sustained on the ground
that it was defective in form. The court, as
evinced by the order, sustained the demurrer
as to each count thereof on the ground relied
upon by the accused and discharged him
"without day." This, in our opinion, was an
ultimate decision upon a question of law
. . . .

Adkins, 175 Va. at 596, 9 S.E.2d at 351 (emphasis added).

In so holding, the Adkins Court relied upon its previous
decision in Commonwealth v. Perrow, 124 Va. 805, 97 S.E. 820

12
(1919). In Perrow, the defendant was convicted and fined upon a

warrant issued by a justice of the peace. He appealed to the

circuit court, and that court, finding the statute under which

the defendant was charged to be "unconstitutional and void,"

"quashed and dismissed the warrant." Id. at 808, 97 S.E. at 821.

The Commonwealth then appealed the circuit court's determination

to the Supreme Court. While basing its decision, in part, on the

principle that the Commonwealth had no right to appeal the

dismissal of the defendant's warrant, the Court also held the

following:
There was no jury trial in the instant
case, and we have not overlooked the fact
that jeopardy, as ordinarily understood in
legal parlance, refers to the danger of
conviction and punishment which a defendant
incurs in a criminal case where a jury has
been empaneled and sworn. But we are of the
opinion that the spirit and purpose of the
immunity intended to be secured by the
doctrine in question [former jeopardy] will
be violated whenever a defendant in any
criminal case has been formerly tried by
competent authority -- whether court or jury
-- and discharged upon a defense constituting
a bar to the proceeding, whether that defense
be rested upon the law or the facts.

5
Perrow, 124 Va. at 815, 97 S.E. at 823 (emphasis added). The

Court dismissed the Commonwealth's writ of error and the

defendant prevailed. Id. at 816, 97 S.E. at 823.
5
The Perrow Court concluded that, as a general rule, the
Commonwealth has no right to appeal from a judgment in a
defendant's favor absent express statutory authority. See
Perrow, 124 Va. at 815, 97 S.E. at 823. Since that time, the
General Assembly has provided certain appeal rights to the
Commonwealth. See, e.g., Code § 19.2-398. However, this code
section is inapplicable to the case at bar.

13
 The Supreme Court of Virginia has yet to overrule either of

these cases; however, we interpret the holding and analysis of

the United States Supreme Court in United States v. Scott, 437

U.S. 82 (1978), decided subsequent to Perrow and Adkins, to be

determinative of the application of autrefois acquit under the

circumstances of the instant case. In Scott, the Court held that

for double jeopardy purposes "a defendant is acquitted only when

'the ruling of the judge, whatever its label, actually represents

a resolution [in the defendant's favor], correct or not, of some

or all of the factual elements of the offense charged.'" Scott,

437 U.S. at 97 (quoting United States v. Martin Linen Supply Co.,

430 U.S. 564, 571 (1977)) (emphasis added). The Court explained

that no double jeopardy concern is implicated where no factual

determination is rendered but the case is terminated, because the

reason for treating a termination obtained by a defendant "of the

proceedings against him in the trial court without any finding by

a court or jury as to his guilt or innocence" is that such

defendant "has not been 'deprived' of his valued right to go to

the first jury." Scott, 437 U.S. at 100. Thus, "[n]o interest

protected by the Double Jeopardy Clause is invaded when the

Government is allowed to appeal and seek reversal of such a

midtrial termination of the proceedings in a manner favorable to

the defendant." Id.; accord Greenwalt v. Commonwealth, 224 Va.

498, 500, 297 S.E.2d 709, 710 (1982) ("The double jeopardy

provisions . . . protect against a second prosecution for the

14
same offense after an acquittal. A dismissal qualifies as an

acquittal for double jeopardy purposes when it is granted

pursuant to a factual, as opposed to legal defense."); Dodson v.

Commonwealth, 23 Va. App. 286, 303, 476 S.E.2d 512, 520 (1996)

(holding that a dismissal of an indictment for procedural defects

does not qualify as an acquittal for double jeopardy purposes

because it was granted pursuant to a legal, as opposed to

factual, defense).
While we hold that the second prosecution is not barred by

the plea of autrefois acquit, it is encompassed by the related

bar of res judicata. Accordingly, for the foregoing reasons, the

decision of the trial court is reversed.

Reversed.

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