Commonwealth v. Trace
| Decision Date | 10 May 2018 |
| Docket Number | Docket No.: CR16-3193-04 |
| Court | Circuit Court of Virginia |
| Parties | Re: Commonwealth of Virginia v. Steven A. Trace |
Ramin Fatehi, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510
S.W. Dawson, Esquire
DAWSON, P.L.C.
P.O. Box 58
Norfolk, Virginia 23501
Dear Counsel:
Today the Court rules on the "First Amended Motion to Set Aside Verdict as Contrary to Law" (the "Motion") filed by Defendant Steven A. Trace, which seeks to set aside the Court's finding that he possessed a firearm as a convicted violent felon as contrary to law. The issues before the Court are as follows: (1) whether the evidence at trial was sufficient to find Trace guilty of the crime charged, (2) whether Trace's conviction of possessing a firearm as a convicted violent felon—after being found not guilty of using a firearm in the commission of robbery during the same incident—violates the constitutional prohibition against double jeopardy, and (3) whether—based on Trace previously being found not guilty of robbery, conspiracy to commit robbery, and use of a firearm in the commission of robbery during the same incident—the Commonwealth is collaterally estopped from pursuing a conviction for possession of a firearm by a convicted violent felon.
The Court finds as follows: (1) the evidence at trial was sufficient to find Trace guilty of possessing a firearm as a convicted violent felon, (2) Trace's conviction for possession of a firearm after being found not guilty of using a firearm in the commission of robbery does not violate double jeopardy because the crimes are separate, distinct crimes under the Code of Virginia that require different elements of proof, and (3) the Commonwealth is not collaterally estopped from pursuing a conviction for possession of a firearm by a convicted violent felon because Trace has not satisfied the burden of proving that the jury verdict in the prior proceeding was based only on identity. The Court therefore DENIES Trace's motion to set aside the verdict as contrary to law.
On December 2, 2016, Trace was indicted for Robbery; Conspiracy to Commit Robbery; Use of a Firearm in Commission of Felony, Subsequent Offense; Conspiracy to Commit Use of a Firearm in Commission of a Felony, Subsequent Offense; and Possession of a Weapon by a Violent Felon. On November 27, 2017, prior to the start of trial, the Court granted Trace's motion to sever the weapon possession charge from the other charges. On the second day of trial, the Court granted the Commonwealth's motion to nolle prosequi the conspiracy charge. At the conclusion of the two-day jury trial, a jury acquitted Trace of Robbery, Conspiracy to Commit Robbery, and Use of a Firearm in the Commission of a Felony. Trace was then remanded to custody based on the remaining severed charge.
A bench trial on the remaining charge was held on February 20, 2018, at which Trace was found guilty of Possession of a Weapon by a Violent Felon. A sentencing hearing was held on March 2, 2018, and a related sentencing order was signed on March 20, 2018. Trace was sentenced to five years' imprisonment with the Virginia Department of Corrections—plus six additional months that were suspended, during which Trace is to be placed on post-release supervision—and ordered to pay all fines and court costs.
Trace filed a motion to set aside the Court's finding of guilt on March 14, 2018, and amended his motion on March 19, 2018. The Court held a hearing (the "Hearing") on the Motion on March 30, 2018. At the conclusion of the Hearing, the Court took the matter under advisement and subsequently issued an Order Suspending the Final Sentencing Order, tolling the twenty-one-day finality provision articulated in Rule 1:1.
The Court now rules as follows.
Trace presents three arguments in the Motion. First, he alleges that there was insufficient evidence at the bench trial to prove that he was guilty of possessing a firearm as a violent felon because the conviction was "based on the uncorroborated description of an object as a 'Glock' by a lay witness unfamiliar with firearms, without being coupled with an actual or implied threat to do harm by Defendant, or even a direction to do anything." (Def.'s Mot. 3.)
Second, Trace alleges that the Court's application of the standards set forth in Jordan v. Commonwealth, 286 Va. 153, 747 S.E.2d 799 (2013), and Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999), "eradicated the distinction between" a violent felon possessing a firearm and using that firearm to commit a felony. (Id.) Trace further contends that because a jury acquitted him of using a firearm to commit a felony, his subsequent trial and conviction on the possession charge violates the Double Jeopardy Clauses of the United States Constitution and the Virginia Constitution. (Id. at 4.)
Lastly, Trace argues that his trial on the possession charge should have been precluded by the doctrine of collateral estoppel because the jury must have based its prior acquittal on the use of a firearm charge by concluding that Trace was not present during the robbery. (Id. at 6.) In support thereof, Trace asserts that a judge of this court previously found—in a related case against his co-defendant—that a robbery occurred, so the only remaining issue for the jury in Trace's first trial was whether Trace was a participant in that robbery. (Id. at 6.) Trace contends that the Commonwealth therefore improperly tried Trace on an issue that had already been litigated. (Id. at 7.)
The Commonwealth first disagrees with Trace's insufficiency-of-evidence argument. It asserted at the Hearing that the Court considered this issue as part of Trace's motion to strike at trial, and the Court ultimately rejected this argument.
The Commonwealth further opposes the Motion regarding both Trace's double jeopardy and collateral estoppel arguments. It first argues that the double jeopardy claim was rejected by this Court at the conclusion of the trial. (Br. in Opp'n 1-2.) On the collateral estoppel issue, the Commonwealth asserts that the doctrine is inapplicable because the possession charge was severed based on Trace's own motion. (Id. at 1, 3-4.) It further argues that "Trace has failed to meet his burden to show that the general verdict of acquittal in the previous trial court could only have rested on the issue of whether . . . Trace possessed a firearm." (Id. at 1, 4-5.) At the Hearing, the Commonwealth relied on the Virginia Court of Appeals's decision in Currier v. Commonwealth, 65 Va. App. 605, 779 S.E.2d 834 (2015), aff'd, 798 S.E.2d 164 (Va. 2016), for the proposition that collateral estoppel is not applicable to matters in which the case has been severed for the benefit of the defendant.
According to the Rules of Supreme Court of Virginia, "[t]he court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent thereto." Va. Sup. Ct. R. 3A:10(c). The Court of Appeals has opined that "under Rule 3A:10(c), unless the Commonwealth and defendant agree to joinder, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction." Hackney v. Commonwealth, 28 Va. App. 288, 295, 504 S.E.2d 385, 389 (1998).
The Double Jeopardy Clause of the United States Constitution is enforceable against the states via the Fourteenth Amendment. The clause provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, the Constitution of Virginia contains its own Double Jeopardy Clause, which states that "[a man] shall not . . . be put twice in jeopardy for the same offense." Va. Const. Art. I, § 8. The prohibition of double jeopardy is intended to bar "a certain type of 'multiple prosecution'" in which there is "prosecutorial overreaching," rather than to act as a "bar to retrials or separate retrials across the board." Currier v. Commonwealth, 65 Va. App. 605, 612, 779 S.E.2d 834, 837 (2015), aff'd, 798 S.E.2d 164 (Va. 2016) (citations omitted).
Collateral estoppel is one component of the Double Jeopardy Clause. Ashe v. Swenson, 397 U.S. 436, 445 (1970) (). "It means simply 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." Id. at 443. The purpose behind the constitutionalization of the collateral estoppel doctrine is to "prevent[] prosecutorial abuse and overreaching." Currier, 65 Va. App. at 611, 779 S.E.2d at 836. For collateral estoppel to apply, the following requirements must be met:
(1) the parties to the two proceedings must be the same, (2) the issue of fact sought to be litigated must have been actually litigated in the prior proceeding, (3) the issue of fact must have been essential to the judgment, and (4) the prior proceeding must have resulted in a valid, final judgment against the party against whom the doctrine is sought to be applied.
Glasco v. Ballard, 249 Va. 61, 64, 452 S.E.2d 854, 855 (1995).
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