Com. v. Scala

• Decision Date: 08 August 1979
• Citation: 8 Mass.App.Ct. 202,392 N.E.2d 869
• Parties: COMMONWEALTH v. Francis SCALA.
• Court: Appeals Court of Massachusetts

Page 869

392 N.E.2d 869

8 Mass.App.Ct. 202

COMMONWEALTH v. Francis SCALA.

Appeals Court of Massachusetts, Middlesex.

Argued April 10, 1979.

Decided Aug. 8, 1979.

Irving H. Sheff, Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and ARMSTRONG and DREBEN, JJ.

DREBEN, Justice.

The defendant appeals from his conviction by a Superior Court jury on an indictment charging the unauthorized possession, with intent to distribute, of twenty packets of amphetamine. Prior to his conviction of this offense in the Superior Court, the defendant had been acquitted of a different drug offense in the District Court. During the course of the earlier proceedings, the District Court judge granted a motion filed by the defendant to suppress certain evidence. This appeal raises, inter alia, the question of the effect to be given in this action to that ruling of the District Court judge.

In the present action the defendant filed a motion to suppress the twenty packets of amphetamine. The motion was denied. The defendant claims that it should have been granted because under the principles of collateral estoppel the prior ruling of the District Court judge is binding and because, in any event, the amphetamine had been illegally seized. He also claims that his motions to dismiss the indictment and for a directed verdict should have been granted. We conclude that there was no error and, accordingly, affirm the conviction.

The facts are taken from evidence presented to the motion judge at the hearing on the motion to suppress the amphetamine in the Superior Court. On October 6, 1977, the Malden police obtained a warrant for the search of "the entire apartment located on the second floor above a business establishment named Vincent's Hair Designs, said building . . . (in Malden) being a two story construction of brick and wood . . . ." The warrant authorized the seizure of specified, allegedly stolen household furniture and also a search of certain persons.

On the same day, October 6, 1977, police officers of Malden and Somerville searched the Malden apartment pursuant to the warrant and found some of the stolen furniture. While in a bedroom, they opened what appeared to be a closet door and discovered a stairway leading to an attic. The only means of access to the attic was through the apartment and that stairway. One of the officers testified that the attic was lighted by a downstairs pull chain, that he went upstairs and saw there an open paper bag containing numerous bottles of drugs.

As a result of the seizure of these drugs in the Malden apartment, the police sought complaints against the defendant and obtained a warrant for his arrest. The defendant was arrested in Somerville pursuant to the warrant on October 7, 1977, and was found to have twenty packets of amphetamine on his person. These packets are the subject matter of the present action (hereinafter referred to as the Somerville felony).

Prior to his trial on the Somerville felony, the defendant was brought before the District Court of Malden on two misdemeanor complaints stemming from the seizure of drugs in the attic during the October 6, 1977, search. In the Malden actions, the defendant filed a motion to suppress the drugs found in the attic, and the motion was allowed. He was found not guilty on one complaint, and the other complaint was dismissed, the District Court judge finding that there was no probable cause.

At the hearing on the defendant's motion to suppress in the Superior Court for the Somerville felony, the defendant argued, as he now argues on appeal, that under the principles of collateral estoppel the Commonwealth is bound by the District Court's ruling that the seizure of the drugs in the attic on October 6, 1977, was illegal. ¹ He claimed that since the attic seizure was illegal, all that followed was also unlawful the arrest warrant which was obtained on the basis of the seizure, the arrest pursuant to the invalid warrant, and the search of the defendant's person incident to his unauthorized arrest. The search of his person being improper, the tainted fruits thereof, namely, the amphetamine packets, must, he argues, be suppressed. The defendant also contends that, even if the principles of collateral estoppel do not apply, the attic is not part of the second floor apartment and on that ground the seizure of the drugs in the attic was illegal.

The motion judge ruled that the District Court judge's decision to allow the defendant's motion to suppress was not a finding of fact but an evidentiary ruling as to which the principles of collateral estoppel do not apply. We agree that the principles of collateral estoppel are not controlling here, but for somewhat different reasons. ²

Collateral estoppel is a doctrine which developed in civil litigation. Crucial to its application and to the notion of a "full day in court" is the right to appeal. The reason, of course, is that collateral estoppel applies to erroneous judgments as well as to correct ones, and the party sought to be precluded must, in fairness, have the right to correct the error on appeal. ³ Without that right, there is no preclusion. Restatement (Second) of Judgments § 68.1(a) and Comment on clause (a) (Tent. Draft No. 4, 1977). See Rudow v. Fogel, --- Mass. ---, --- - --- ^A, 382 N.E.2d 1046 (1978). Thus, if the principles of collateral estoppel applicable in civil proceedings were followed here, there is no question that the determination of the District Court judge would not be binding on the Commonwealth as it had no right to appeal. ⁴

In criminal cases, however, this crucial aspect of collateral estoppel in civil proceedings must give way where mandated by the constitutional prohibition against double jeopardy, by the requirements of the due process clause, or by policy considerations. In such cases, the principles of collateral estoppel are applied against the Commonwealth even in the absence of a right of appeal. This is not such a case.

We first examine the defendant's claim that to deny collateral estoppel effect to the District Court judge's ruling is to place him in jeopardy for a second time contrary to the mandate of the Fifth Amendment as applicable to the States through the Fourteenth Amendment. In Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which held that principles of collateral estoppel are embodied in the Fifth Amendment guarantee against double jeopardy, those principles, taken in the most favorable reading to the defendant there, were used to protect a defendant from multiple prosecutions for different "offenses" based on a "single alleged criminal transaction." Id. at 445 n. 10, 90 S.Ct. 1189. We are not dealing here with a single transaction. The felony with which the defendant is charged occurred in Somerville on October 7, 1977; the misdemeanor of which he was acquitted allegedly occurred in Malden on October 6, 1977. Not only are there two offenses, ⁵ but they do not involve the same set of facts. The only common link between the two is the allegedly illegal attic search by the police. Since the offenses charged happened at different times and places, no jeopardy considerations are applicable here. See State v. Doucet, 359 So.2d 1239, 1247 (La.1978). Compare United States ex rel. DiGiangiemo v. Regan, 528 F.2d 1262, 1266 (2d Cir. 1975), cert. denied sub nom. DiGiangiemo v. Olgiatti, 426 U.S. 950, 96 S.Ct. 3172, 49 L.Ed.2d 1187 (1976) (hypothetical example posed by Judge Friendly where Ashe v. Swenson "seemingly" would prevent relitigation where there were two different offenses but both occurred at the same time and place). In addition, the question of the legality of the search never impinged on the merits of either charge. Contrast United States v. McKim, 509 F.2d 769, 775 (5th Cir. 1975) (where there were two different offenses but the prior determination was of a matter crucial to the substance of the second offense).

We next turn to the question whether there are due process considerations here which preclude relitigation of the illegality of the attic seizure. In deciding whether an issue is foreclosed in civil cases where due process is not involved (see United States ex rel. DiGiangiemo v. Regan, supra at 1266) a court is involved in "a balancing of important interests: on the one hand, a desire not to deprive a litigant of an adequate day in court; on the other hand, a desire to prevent repetitious litigation of what is essentially the same dispute." Restatement (Second) of Judgments § 68, Comment c (Tent. Draft No. 4, 1977). In criminal cases additional interests of at least equal importance are involved, and it has been suggested that the possibility of harassment, the disparity of resources between the State and a criminal defendant, and the strain of a second prosecution in which the same non-jeopardy issues would be relitigated, make a strong case for the application of collateral estoppel against the State as a matter of due process. See United States ex rel. Hubbard v. Hatrak, 588 F.2d 414, 417 (3d Cir. 1978); Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 31-33, 40-41 (1960).

These considerations led Judge Friendly, in writing for the court, to answer the question left open in Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), and to state in dictum that collateral estoppel in criminal cases involves elements of due process. More particularly, the court concluded that due process would forbid the relitigation by a State of the issue determined adversely to it on a suppression hearing if the State had an opportunity for a full hearing and at least one appeal as of right. United States ex rel. DiGiangiemo v. Regan, 528 F.2d at 1265-1266. ⁶ These conditions are not satisfied here.

We also do not consider this a case in which, in the absence of constitutional requirements, the...