State v. Brunet

806 A.2d 1007, 174 Vt. 135, 2002 Vt. LEXIS 77

• Court: Supreme Court of Vermont
• Decided: May 10, 2002
• Docket: 00-121
• Status: Published

Opinions

Amestoy, C J.

The question presented is whether collateral estoppel bars a criminal prosecution based on factual allegations decided adversely to the State in an earlier probation revocation proceeding. We hold that it does not. Accordingly, we affirm the judgment of conviction.

The material facts are undisputed. In November 1998, defendant was convicted of misdemeanor domestic assault, and sentenced to three to six months. The sentence was suspended, and defendant was placed on probation with the standard conditions of probation, as well as ■ several special conditions, including requirements that he not contact the victim of the assault, and that he abide by any pending relief from abuse order.

On January 5, 1999, defendant was charged with a violation of probation and two new offenses, second degree aggravated domestic assault and violation of an abuse-prevention order, all arising out of a single incident. Following a bail review hearing on January 12, the court ordered that defendant be held without bail on the pending violation of probation. On January 26, the court held a probation violation hearing. The State alleged that defendant had violated the conditions that he not engage in “threatening, violent, or assaultive behavior,” not have any contact with the victim, and abide by any pending relief from abuse order. In support of the allegations, the State called two witnesses. Bret Ward, a bartender/bouncer at Alley Cats, a Burlington bar, testified about an incident that had occurred during the late evening of December 23 or early morning of the 24th. He recalled observing the victim and another woman approach the bar, and moments later saw defendant strike the victim several times and kick her. Defendant’s probation officer testified that defendant had called her on December 28 to report that the victim had “attacked” him.

Defendant called two witnesses. His current girlfriend testified that on the night in question, she and her two young children and defendant had parked across the street from Alley Cats to visit a friend of defendant who lived above the bar. She recalled that as defendant approached the bar, the victim came up behind him, pulled on his jacket, spun him around, blocked his path, and struck him several times. Defendant, in response, picked her up and put her on the ground in order to subdue her. Defendant also testified, essentially corroborating his girlfriend’s account of the incident. He did not believe that Ward, the bartender, could have observed the altercation.

At the conclusion of the hearing, the court issued findings from the bench. The court found that defendant’s meeting with the victim was accidental, that the victim initiated the altercation, and that defendant put her on the ground solely to subdue her. The court thus found that the physical contact between defendant and the victim “was the result of the Defendant trying to either protect himself or to extricate himself from the situation.” Accordingly, the court ruled that there was no probation violation.

Defendant later moved to dismiss the criminal charges on several grounds, including collateral estoppel. The trial court denied the motion in a written decision, concluding that the State had not had a “full and fair opportunity to litigate the issues” in the revocation proceeding, and therefore was not collaterally estopped from proceeding with the criminal prosecution. The matter proceeded to trial, which resulted in a hung jury. At the retrial, the State called nine witnesses, including Ward (the bartender who had testified in the revocation proceeding), an acquaintance of defendant who stated that defendant was looking for the victim as he approached the bar on the evening in question, the investigating officers who described the victim’s condition after the incident, and the victim herself, who testified that defendant grabbed her from behind, shoved her to the ground, jumped on her and hit her. As in the earlier revocation proceeding, defendant called his girlfriend, and testified on his own behalf. The jury returned a verdict of guilty on the charge of felony domestic assault, and defendant was subsequently sentenced to two to five years.

On appeal, defendant renews his claim that collateral estoppel barred the criminal prosecution for domestic assault because of the adverse finding against the State in the earlier probation revocation proceeding. Although we have not heretofore addressed this precise issue, our analysis is necessarily informed by several well-settled principles and precedents. The doctrine of collateral estoppel, or issue preclusion, will bar the relitigation of an earlier decided issue where:

(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair.

Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990); see also State v. Dann, 167 Vt. 119, 127-28, 702 A.2d 105, 110-11 (1997) (applying Trepanier elements in criminal case); State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992) (considering whether “cross-over” estoppel, i.e., principle that issue decided in civil case is determinative in later criminal case, bars DUI prosecution following judgment for defendant in civil suspension proceeding).

The trial court here found, and the State implicitly concedes, that the first two Trepanier elements were satisfied. The parties were identical — both the revocation proceeding and the criminal prosecution were brought by the State of Vermont against defendant — and there was a final judgment on the merits in the revocation proceeding. We may assume, as well, that the factual finding that defendant had not engaged in “assaultive” behavior and that any physical contact with the victim was purely inadvertent and defensive would — if conclusive — preclude the charge of domestic assault predicated on the same facts. See Lucido v. Superior Court, 795 P.2d 1223, 1225-26 (Cal. 1990) (“identical issue” requirement addresses whether “identical factual allegations” are at stake, not whether ultimate issues or dispositions are same).

The question thus resolves to whether the State had a ‘Tull and fair opportunity” to litigate the issue in the revocation proceeding, and whether application of the doctrine in these circumstances is fair, i.e., would “serve the interests of justice.” Dann, 167 Vt. at 127, 702 A.2d at 110. In considering whether these two elements are satisfied, the court “must look at the circumstances of each case.” Id. Factors to consider are the type of issue preclusion (offensive or defensive), the forum, the incentive to litigate, the foreseeability of future litigation, the legal standards and burdens employed in each action, the procedural opportunities available in each forum, and the possibility of inconsistent determinations of the same issue in separate cases. Id.; see also Trepanier, 155 Vt. at 265, 583 A.2d at 587; Stearns, 159 Vt. at 271-72, 617 A.2d at 142-43.

We are aided in this evaluation by other courts that have considered the identical issue. Most have concluded that probation revocation hearings are so fundamentally different from criminal trials in their purpose and procedures that it would be unfair to apply collateral estoppel in these circumstances. See United States v. Miller, 797 F.2d 336, 341-42 (6th Cir. 1986); Lucido, 795 P.2d at 1226-32; State v. McDowell, 699 A.2d 987, 990-91 (Conn. 1997); Green v. State, 463 So. 2d 1139, 1139 (Fla. 1985); State v. Jones, 397 S.E.2d 209, 210 (Ga. Ct. App. 1990); Krochta v. Commonwealth, 711 N.E.2d 142, 145-48 (Mass. 1999); State v. Reed, 686 A.2d 1067, 1069 (Me. 1996); People v. Johnson, 477 N.W.2d 426, 428-29 (Mich. Ct. App. 1991); People v. Fagan, 489 N.E.2d 222, 222 (N.Y. 1985); State v. Dupard, 609 P.2d 961, 965 (Wash. 1980); State v. Terry, 620 N.W.2d 217, 219-23 (Wis. Ct. App. 2000); see generally Annotation, Determination that State Failed to Prove Charges Relied Upon for Revocation of Probation as Barring Subsequent Criminal Action Based on Same Underlying Charges, 2 A.L.R.5th 262 (1992). As explained below, we find the reasoning of these decisions to be persuasive.

In Vermont, as in the federal courts and many other states, the rules of evidence and procedure applicable in criminal trials are inapplicable in probation revocation proceedings. See V.R.E. 1101(b)(3); State v. Austin, 165 Vt. 389, 395, 685 A.2d 1076, 1080 (1996); Miller, 797 F.2d at ; Reed, 686 A.2d at 1069 (Maine Rules of Evidence and other procedures applicable in criminal trial do not apply to revocation proceeding); Johnson, 477 N.W.2d at 428 (noting that in Michigan probation violation hearings are not subject to rules of evidence or pleading applicable in criminal trials). Moreover, the State typically bears a lower burden of proof to establish a probation violation — in Vermont the standard is only a preponderance of the evidence — as compared to proof beyond a reasonable doubt in criminal prosecutions. See Austin, 165 Vt. at 398, 685 A.2d at 1082; State v. Bushey, 149 Vt. 378, 382, 543 A.2d 1327, 1329 (1988).

The relaxed procedural rules and evidentiary burden applicable in revocation proceedings reflect their distinct purpose. As we have explained, “The purpose of a revocation hearing is not to determine defendant’s culpability, but rather to decide ‘whether the alternatives to incarceration which have been made available to a defendant remain viable for him.’ ” State v. Lockwood, 160 Vt. 547, 552, 632 A.2d 655, 659 (1993) (quoting People ex rel. Gallagher v. District Court, 591 P.2d 1015, 1017 (Colo. 1978) (en banc)); see also Terry, 620 N.W.2d at 221 (noting that substantial procedural differences between revocation proceeding and criminal trial “ ‘reflect substantial differences between the interests involved in parole revocation and those in a criminal prosecution’ ”) (quoting State ex rel. Flowers v. DHSS, 260 N.W.2d 727, 732 (Wis. 1978)).

The goal of a revocation hearing is not to decide guilt or innocence, but to determine whether the defendant remains a good risk for probation. See Lucido, 795 P.2d at 1230 (“The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty.”). Any sentence imposed as a result of revocation is not premised on the new criminal charges, but derives exclusively from the original sentence on the earlier offense. See State v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982) (if violation is established, court may revoke probation and impose original sentence under 28 V.S.A. §304); Lucido, 795 P.2d at 1230 (“A revocation hearing arises as a continuing consequence of the probationer’s original conviction; any sanction imposed at the hearing follows from that crime, not from the substance of new criminal allegations against the probationer.”); McDowell, 699 A.2d at 989 (“The purpose of a revocation hearing is to determine whether the defendant is a good risk for continued probation and not to punish him for a new criminal offense.”). Thus, it is universally acknowledged that a revocation proceeding is not essentially “criminal” in nature, and that double jeopardy does not attach at a revocation hearing to bar a trial of the new criminal charges. See Miller, 797 F.2d at 338-41; Lucido, 795 P.2d at 1230; McDowell, 699 A.2d at 990; State v. Daniels, 780 So. 2d 148, 149 (Fla. Dist. Ct. App. 2000); Krochta, 711 N.E.2d at 144-45.

The filing of new criminal charges against a probationer may signal that “the rehabilitative purposes of probation have failed and defendant is a threat to society.” Lockwood, 160 Vt. at 552, 632 A.2d at 659. Accordingly, revocation hearings are frequently held as expeditiously as possible, and the State often lacks the preparation that precedes a criminal trial. Indeed, in some cases an ongoing criminal investigation may adduce additional evidence after the revocation proceeding has been completed, but prior to the commencement of trial. See McDowell, 699 A.2d at 990 (“[I]f the state proceeds with a revocation proceeding before its criminal investigation is complete, evidence may be acquired after the revocation proceeding and before the criminal trial.”); Johnson, 477 N.W.2d at 428-29 (“Because of the limited nature and scope of a probation violation hearing, as a practical matter the prosecutor may not present all the evidence bearing on the commission of the alleged offense.”); Reed, 686 A.2d at 1069 (probation revocation hearings are held in “informal manner” to allow court “to determine expeditiously whether continuing probation remains an. effective vehicle in accomplishing the probationer’s rehabilitation”).

The lower standard of proof necessary to establish a violation may also diminish the State’s incentive to gather and present all of the potentially available evidence at the probation hearing. See McDowell, 699 A.2d at 990 (“[t]he reality [is] that the state... had no incentive to present its best evidence at the revocation proceeding where there was a lower standard of proof’).

The instant appeal is a case in point. Within three weeks after the filing of the new charges, defendant had a bail hearing — in which bail was denied — and a one-day probation revocation hearing. The State called only two witnesses to establish the violation — the bartender and defendant’s probation officer — omitting the victim herself, the investigating officers, and other critical witnesses who later appeared at trial. Plainly, the revocation hearing in this case was not the equivalent of a criminal trial for purposes of rendering a full and final determination of guilt or innocence.

. In light of these basic differences in purpose and function, most courts have concluded — correctly in our view — that it is neither fair nor wise to apply collateral estoppel to bar the relitigation of issues at a subsequent criminal trial. See, e.g., Lucido, 795 P.2d at 1230 (because limited purpose of probation violation hearing may “not involve or invoke presentation of all evidence bearing on the underlying factual allegations, the People’s failure to satisfy the lower burden of proof at the revocation hearing does not necessarily amount to an acquittal or demonstrate an inability to meet the higher criminal standard of proof’); accord Johnson, 477 N.W.2d at 429; McDowell, 699 A.2d at 990.

Most courts have also concluded that applying collateral estoppel to bar a criminal prosecution based upon an earlier probation-revocation decision would undermine the interests of justice, and erode public confidence in the criminal justice system. As the California Supreme Court in Lucido cogently observed: “Preemption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations at to guilt or innocence of newly alleged crimes.” 795 P.2d at 1230-31; see also Miller, 797 F.2d at 342 (observing that “[t]he government is not required to complete its entire investigation before seeking to revoke an individual’s probation, nor would such a requirement be in society’s best interest”); Fagan, 489 N.E.2d at 222 (“[sjtrong policy considerations militate against giving issues determined in prior litigation preclusive effect in a criminal case” because “correct determination of guilt or innocence is paramount in criminal cases”); Dupard, 609 P.2d at 965 (question whether defendant committed new crime “is more appropriately addressed to the criminal justice system” than informal revocation process); McDowell, 699 A.2d at 991 (“public confidence in our criminal justice system” requires that only criminal trials be used to determine guilt or innocence).

The possibility of inconsistent judicial determinations — as occurred in this case — does not alter our conclusion. Although consistency is certainly desirable, it is not, as the court in Lucido noted, “the sole measure of the integrity of judicial decisions. We must also consider whether eliminating potential inconsistency (by displacing full determination of factual issues in criminal trials) would undermine public confidence in the judicial system.” 795 P.2d at 1229. Like the court in Lucido and the majority of other jurisdictions, we believe that the interests of justice — and public confidence in the criminal justice system — are best served through a full and fair determination of guilt or innocence in a criminal trial, notwithstanding a prior inconsistent ruling in a revocation proceeding.

The several decisions that have concluded otherwise are not persuasive. See People v. Kondo, 366 N.E.2d 990, 992-93 (Ill. App. Ct. 1977); State v. Bradley, 626 P.2d 403, 405-06 (Or. Ct. App. 1981); State v. Chase, 588 A.2d 120, 122-23 (R.I. 1991); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986). Each was based on the narrow conclusion that the State is estopped from relitigating “a specific finding on a material matter of fact fully litigated” at the revocation proceeding. Chase, 588 A.2d at 123; see also Kondo, 366 N.E.2d at 992-93 (“the State is barred from seeking a relitigation, upon the same evidence, at a criminal trial, of the issue that had been conclusively determined on its merits at the prior probation revocation hearing”); Bradley, 626 P.2d at 406 (“an express finding on a matter of fact material to a probation revocation proceeding will collaterally estop the state from attempting to prove that same fact at a later criminal trial... only where the factual issue was fully litigated at the probation revocation proceeding”) (italics omitted); Tarver, 725 S.W.2d at 199-200 (factual finding decided adversely to State at revocation hearing may not be relitigated at criminal trial).

None of these decisions examined in any depth the practical differences underlying the State’s opportunity and incentive to litigate new criminal charges in the revocation setting as opposed to a criminal trial. None, moreover, considered the undesirable consequences of permitting an informal and relatively summary revocation hearing to displace the traditional adjudicative function of a criminal trial. As the court in Terry observed, applying collateral estoppel in these circumstances would fundamentally alter the historical role of criminal prosecutions, forcing “the revocation proceedings to become the main focus of the litigation [and] turning revocation proceedings into mini-trials. Public policy and common sense dictate that this court should not countenance such a result.” 620 N.W.2d at 222.

We remain persuaded that “[t]he difference in the purposes of ... civil and criminal proceedings must affect the wisdom of applying collateral estoppel.” Stearns, 159 Vt. at 270, 617 A.2d at 142. Here, the distinctly different purposes of a probation revocation hearing and a criminal trial make the application of collateral estoppel unwise. We conclude, therefore, that collateral estoppel did not bar the State from prosecuting defendant on the assault charge which formed the basis of the probation violation allegations decided adversely to the State. Defendant’s motion to dismiss was properly denied.

Affirmed.