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
7
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.
15