Hanson v. City of Snohomish

852 P.2d 295, 121 Wash. 2d 552, 1993 Wash. LEXIS 118

• Court: Washington Supreme Court
• Decided: May 27, 1993
• Docket: 59269-1
• Status: Published

Opinions

Andersen, C.J.

Facts of Case

This action for malicious prosecution, false arrest and imprisonment, and violation of civil rights is based on the prosecution of Respondent Gerald L. Hanson for assault in the first degree. The issue is whether a conviction, which is later reversed, establishes the existence of probable cause as a matter of law. We hold that it does and affirm the trial court.

Gerald L. Hanson was convicted in 1985 of assault in the first degree. The criminal proceeding was based on the shooting of a convenience store clerk in Snohomish, Washington. The victim ultimately identified Hanson as her assailant. Three procedures were used by the Snohomish police to assist her in making that identification. First, she was shown a composite drawing which she believed was based on her own description of her attacker. Second, she was shown a photographic montage. And, third, she was shown a videotape lineup. The three procedures, which resulted in the identification of Hanson as the assailant, were accomplished within 2 days of the assault.

Hanson moved to suppress the identification on the ground that the procedures used by investigating police officers were impermissibly suggestive. The motion was denied and the identification evidence, along with other evidence, was admitted at Hanson's criminal trial. A jury found him guilty as charged.

Hanson appealed his conviction arguing, in part, that the trial court erred in denying his motion to suppress the identification evidence. The Court of Appeals reversed the trial court and remanded for a new trial because the admission into evidence at the trial of fiction written by Hanson was held to be irrelevant and prejudicial.¹ However, the Court of Appeals went on to hold that the identification evidence was properly admitted, agreeing with the trial court that the procedures used by the police were not so unreliable or suggestive as to give rise to a substantial likelihood of misidentification.² On remand for a new trial, Hanson was acquitted.

By the time his second trial was concluded, Hanson had spent approximately 18 months in jail.

While he was incarcerated, and while the criminal appeal was pending, Hanson filed the present action against the City of Snohomish and its police chief alleging: (1) malicious prosecution; (2) false arrest and imprisonment; (3) negligent investigation; (4) defamation; and (5) civil rights violations. The malicious prosecution, false arrest and imprisonment, civil rights violations and negligent investigation causes of action are based on Hanson's argument that the identification procedures used by the police were improperly suggestive.

The trial court in the civil action granted the City's motion for summary judgment of dismissal as to the malicious prosecution, false arrest and imprisonment, negligent investigation and civil rights claims.³ The trial court reasoned that the doctrine of collateral estoppel barred Hanson from relitigating the issue of whether the identification procedures used by the police were improperly suggestive. The Court of Appeals reversed, holding the requirements for collateral estoppel were not met.⁴

We granted review and, pursuant to RAP 12.1, asked the parties for additional briefing on the issue of whether Hanson's conviction, even though overturned, establishes probable cause as a matter of law. We hold that it does, reverse the Court of Appeals and reinstate the trial court's summary judgment of dismissal.

Two basic issues are here presented.

Issues

Issue One. Does a conviction which is subsequently reversed conclusively establish the existence of probable cause, absent a showing that the conviction was obtained by fraud, peijury or other corrupt means?

Issue Two. Does the doctrine of collateral estoppel bar relitigation of the impropriety of identification procedures used by the police in initiating the criminal action against Gerald Hanson?

Decision

Issue One.

Conclusion. The conviction of an accused conclusively establishes the existence of probable cause, thus defeating an action for malicious prosecution, unless the conviction was obtained by fraud, peijury or other corrupt means.

This case was determined by summary judgment. We thus engage in the same inquiry as the trial court,⁵ viewing the facts and all reasonable inferences therefrom in a light most favorable to the nonmoving party.⁶ Questions of law are reviewed de novo.⁷

Neither the parties, the trial court, nor the Court of Appeals considered whether Mr. Hanson's conviction for assault in the first degree conclusively established probable cause as a matter of law.

Although the general rule is that an issue or theory which is not presented to the trial court will not be considered on appeal, that rule "is not inexorable and has its limitations". Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970).⁸ One such limitation is set forth in RAP 12.1(b), which provides:

If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.

In order to properly decide this matter, we have applied this rule in the present case.⁹

We agree with the trial court's dismissal of Hanson's malicious prosecution, false arrest, false imprisonment, and civil rights claims. We affirm, however, on a different theory.¹⁰

Our analysis begins with the recognition that malicious prosecution actions are not favored in law.¹¹

The reasons assigned for this attitude on the part of the courts are that it is to the best interest of society that those who offend against the law shall be promptly punished; that any citizen who has good reason to believe that the law has been violated shall have the right to take proper steps to cause the arrest of the offender; and that in taking such steps the citizen who acts in good faith shall not be subjected to damages merely because the accused is not convicted; yet, withal, that no [person] shall be charged with a crime, exposed to the danger of a conviction, and subjected to the expense, vexation, and ignominy of a public trial merely for the gratification of another's malice or ill will.

Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 496-97, 125 P.2d 681 (1942).¹²

Hence, as has often been , pointed out, the action has been hedged about by limitations more stringent than those surrounding actions based on almost any other conduct causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with.

52 Am. Jur. 2d Malicious Prosecution § 5, at 188-89 (1970).¹³

In order to maintain an action for malicious prosecution in this state, a plaintiff must plead and prove the following elements: (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution.¹⁴ Although all elements must be proved, malice and want of probable cause constitute the gist of a malicious prosecution action.¹⁵

If probable cause is established, the action fails, for probable cause is a complete defense to an action for malicious prosecution.¹⁶

A majority of courts holds that probable cause is established by the prior conviction of the malicious prosecution plaintiff, even where that conviction has been overturned.¹⁷ This also is the Restatement view. The Restatement (Second) of Torts § 667(1) (1977) provides:

The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, peijury or other corrupt means.

The comment to this subsection explains that the rule applies

both when the proceedings are abandoned after the conviction has been set aside by the appellate court and when after a conviction has been set aside, the accused is acquitted upon a second trial. Unless the conviction was obtained by fraud, peijury or other corrupt means, the opinion of the trier of fact expressed by its verdict under the rule that the guilt of the accused must be established beyond a reasonable doubt, is regarded as conclusive evidence that the person who initiated the proceedings had reasonable grounds for so doing.

Restatement (Second) of Ibrts § 667, comment b, at 437 (1977).

A conviction is strong evidence that there was enough of a case to persuade a jury of guilt beyond a reasonable doubt, and thus is evidence that there was, at the very least, probable cause to prosecute.¹⁸ This majority view is consistent with the conclusion reached by this court in Hall v. Dare, 147 Wash. 264, 266 P. 162 (1928). In Hall, the sole issue was whether a conviction established the existence of probable cause if the conviction was shown to be void or to be the result of perjury. This court did not expressly adopt the majority and Restatement view; it did, however, direct dismissal of the malicious prosecution after determining that the conviction in that case was not void and was not obtained by fraud or perjury.¹⁹

There is a distinction between a finding of probable cause and a finding of guilt. The issue here is not whether Hanson is guilty or innocent, it is whether the police and the City of Snohomish had probable cause to prosecute.²⁰ The fact that a jury found Hanson guilty beyond a reasonable doubt established the existence of probable cause.

We now expressly hold that a conviction, although later reversed, is conclusive evidence of probable cause, unless that conviction was obtained by fraud, peijury or other corrupt means, or, of course, unless the ground for reversal was absence of probable cause.

Subsection 2 of the Restatement section involved here states that the converse of the above rule is not the law, that is, that an acquittal is not evidence of lack of probable cause. This court has not followed this rule and Peasley held that a prima facie case of want of probable cause is established by proof of acquittal.²¹ Whether we would continue to adhere to the rule as stated in Peasley or would adopt the majority view set forth in the Restatement (Second) of Torts § 667(2) (1977) is not before us in the present case and we do not reach that issue.

Here, there was a conviction. Our own precedent, and our view that the majority rule is correct, requires us to hold that a criminal conviction conclusively establishes probable cause for initiating a prosecution. Because probable cause is a complete defense to a malicious prosecution action, Hanson's claim for malicious prosecution was properly dismissed on summary judgment, unless the record on appeal demonstrates that conviction was obtained by fraud, peijury or other corrupt practices.

Issue Two.

Conclusion. The doctrine of collateral estoppel bars relitigation of the issue regarding impropriety of the identification procedures used by the police in initiating the criminal action against Gerald Hanson.

The gravamen of Hanson's malicious prosecution claim is that the conviction was obtained by the use of improper means on the part of the Snohomish police and fits within the exception to the rule that a conviction establishes probable cause. Here, the only allegations that could even possibly support a claim of fraud, pexjury or corrupt practices are those relating to the identification procedures. Whether those procedures were proper was decided in the City's favor in the criminal action.

Hanson alleges here, as he did in the criminal proceeding, that the investigating police officers used impermissibly suggestive methods for identifying the assailant of the assault victim. Specifically, Hanson alleges the police manipulated the composite drawing, the photographic montage and the videotape lineup. These arguments are the same arguments Hanson made to the trial court at the pretrial suppression hearing and to the Court of Appeals on appeal from his conviction. In each court, Hanson was unsuccessful. He may not now relitigate this issue in this related civil case.

The doctrine of collateral estoppel prevents relitigation of an issue after the party estopped has had a full and fair opportunity to present its case.²² The purpose of the doctrine is to promote the policy of ending disputes,²³ to promote judicial economy and to prevent harassment of and inconvenience to litigants.²⁴ The doctrine may be applied in a civil action in which a party seeks to retry issues resolved against a defendant in a previous criminal case,²⁵ as well as in a civil rights action in which issues raised are the same as those determined in a criminal case.²⁶ The requirements which must be met when applying the doctrine are: (1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice.²⁷

In the present case, it is clear that Gerald Hanson was a party to the criminal proceeding and that the criminal proceeding ended in a final judgment on the merits.

There also was identity of issues. In the criminal action, Hanson moved for suppression of the identification evidence claiming the identification was manipulated, impermissibly suggestive and improper on the part of the police. The same arguments and the same evidence are now presented in his civil action.

The trial court in the criminal action determined the identification evidence was reliable and thus admissible. On appeal, the Court of Appeals agreed. With respect to the composite drawing, the Court of Appeals held:

Under the unusual circumstances of the present case, the preparation and use of the composite was not so suggestive as to require us to remove the identification from the jury's consideration. Often, a single suspect identification is suggestive because the very act of showing the witness one suspect indicates that the police have focused their attention on that person. In contrast, the victim in this case believed that the composite was based entirely on her own description of the assailant; she was not influenced to accept the initial composite as an accurate representation of the suspect. Although in general, single suspect identifications are suggestive, the instant case reveals "little pressure on the witness to acquiesce in the suggestion that such a display entails."

State v. Hanson, 46 Wn. App. 656, 666, 731 P.2d 1140 (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 53 L. Ed. 2d , 97 S. Ct. 2243 (1977)), review denied, 108 Wn.2d 1003 (1987).

The Court of Appeals also rejected Hanson's challenge to the photographic montage, determining that it was not impermissibly suggestive. The court explained:

while the subjects in the photo montage varied in appearance, these variations did not suggest that Hanson was a more likely suspect than the others displayed. Finally, the victim testified that no one drew her attention to any of the photos and that she felt free not to pick any of the subjects displayed in the montage.

State v. Hanson, 46 Wn. App. at 666-67.

The Court of Appeals also went on to hold the videotape lineup "was not suggestive".²⁸

The State petitioned for review of the Court of Appeals' reversal and remand. Hanson, however, did not request review of the court's decision. The challenges, the evidence and the arguments Hanson presents in the present civil case are identical to those presented to the trial court at the suppression hearing and to the Court of Appeals in State v. Hanson, supra. The issue was and is whether the Snohomish police impermissibly manipulated identification evidence. We thus find the element of identity of issues is met for purposes of collateral estoppel.

Furthermore, application of the doctrine of collateral estoppel would not work an injustice here as Hanson has had an opportunity to present his evidence and his arguments on the issue to the trial court and the Court of Appeals.

The effect of applying collateral estoppel, coupled with the rule on prior convictions, is that probable cause is established and the malicious prosecution action therefore fails.

As with an action for malicious prosecution, probable cause is a complete defense to an action for false arrest and imprisonment.²⁹ Since probable cause is established as a matter of law in this case, the false arrest and imprisonment claims necessarily fail.

Additionally, the civil rights action, which is predicated on Hanson's claim that he has a constitutional right to be free from malicious prosecution, false arrest and false imprisonment, cannot stand once the underlying claims are dismissed.³⁰

In sum, we hold that a conviction, although later reversed on appeal, conclusively establishes probable cause for the institution of the criminal proceeding, unless the conviction was obtained through fraud, peijury or other corrupt practice. In the present case, the only allegations that could even possibly support a claim of fraud, peijury or corrupt practices are those relating to the identification procedures. Whether those procedures were proper has already been decided in the City's favor. The doctrine of collateral estoppel precludes relitigating the issues in this case.

The Court of Appeals is reversed and the trial court's summary judgment of dismissal is reinstated.

Brachtenbach, Dolliver, Durham, Smith, and Guy, JJ., concur.

1 State v. Hanson, 46 Wn. App. 656, 664, 731 P.2d 1140, review denied, 108 Wn.2d 1003 (1987).

2 State v. Hanson, 46 Wn. App. at 664-68.

3 The trial court denied the City's motion for summary judgment of dismissal on the defamation claim and that denial was affirmed by the Court of Appeals. Hanson v. Snohomish, 65 Wn. App. 441, 828 P.2d 1133 (1992). Hanson subsequently abandoned his claim for negligent investigation.

4 Hanson v. Snohomish, supra.

5 Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).

6 Scott v. Pacific West Mt. Resort, 119 Wn.2d 484, 487, 834 P.2d 6 (1992).

7 Our Lady of Lourdes Hosp. v. Franklin Cy., 120 Wn.2d 439, 443, 842 P.2d 956 (1993).

8 See also RAP 2.5(a); Bennett v. Hardy, 113 Wn.2d 912, 918, 784 P.2d 1258 (1990); Crawford v. Wojnas, 51 Wn. App. 781, 786, 754 P.2d 1302, review denied, 111 Wn.2d 1027 (1988).

9 See Obert v. Environmental Research & Dev. Corp., 112 Wn.2d 323, 333, 771 P.2d 340 (1989).

10 See LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (appellate court can sustain a trial court judgment on any theory established by the pleadings and supported by the proof, even if the trial court did not consider it), cert. denied, 493 U.S. 814 (1989).

11 Bender v. Seattle, 99 Wn.2d 582, 602-03, 664 P.2d 492 (1983) (Dimmick, J., concurring in part, dissenting in part); Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 496, 125 P.2d 681 (1942).

12 See generally W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 119, at 871 (5th ed. 1984).

13 See Prosser and Keeton on Torts § 119, at 876.

14 Peasley, 13 Wn.2d at 497.

¹⁵

16 Peasley, 13 Wn.2d at 499; Pace v. Brodie-National, Inc., 60 Wn.2d 654, 656, 374 P.2d 1000 (1962).

17 Annot., Conclusiveness, as Evidence of Probable Cause in Malicious Prosecution Action, of Conviction as Affected by the Fact That It Was Reversed or Set Aside, 86 A.L.R.2d 1090, 1094 (1962); 52 Am. Jur. 2d Malicious Prosecution § 179, at 298-99 (1970).

18 Prosser and Keeton on Torts § 119, at 882.

19 Hall v. Dare, 147 Wash. 264, 268, 266 P. 162 (1928).

20 The dissent contends that a judicial determination that a victim's identification of her assailant is reliable does not, even absent any contradictory evidence, establish probable cause. Dissenting opinion, at 575-76. Not only is this position illogical, it is legally unsupportable. See, e.g., State v. Moon, 45 Wn. App. 692, 695, 726 P.2d 1263 (1986); 1 W. LaFave, Search and Seizure § 3.4(c) (2d ed. 1987).

21 Peasley, 13 Wn.2d at 498.

22 Malland v. Department of Retirement Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985); Beagles v. Seattle-First Nat'l Bank, 25 Wn. App. 925, 929, 610 P.2d 962 (1980).

23 Beagles, 25 Wn. App. at 929.

24 Malland, 103 Wn.2d at 489.

25 Medrano v. Schwendeman, 66 Wn. App. 607, 612, 836 P.2d 833 (1992); Franklin v. Klundt, 50 Wn. App. 10, 13, 746 P.2d 1228 (1987).

26 Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980).

27 Malland, 103 Wn.2d at 489; Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983).

28 State v. Hanson, 46 Wn. App. 656, 667, 731 P.2d 1140, review denied, 108 Wn.2d 1003 (1987).

29 Bender v. Seattle, 99 Wn.2d 582, 592, 664 P.2d 492 (1983).

30 See, e.g., Peterson v. Littlejohn, 56 Wn. App. 1, 13, 781 P.2d 1329 (1989).