Currier v. Commonwealth

• Decision Date: 15 December 2015
• Docket Number: Record No. 1428–14–2.
• Citation: 779 S.E.2d 834,65 Va.App. 605
• Court: Virginia Court of Appeals
• Parties: Michael N. CURRIER v. COMMONWEALTH of Virginia.

65 Va.App. 605

779 S.E.2d 834

Michael N. CURRIER

v.COMMONWEALTH of Virginia.

Record No. 1428–14–2.

Court of Appeals of Virginia, Richmond.

Dec. 15, 2015.

J. Addison Barnhardt (Grisham & Barnhardt, PLLC, on briefs), for appellant.

Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: ALSTON, McCULLOUGH, JJ. and CLEMENTS, Senior Judge.

McCULLOUGH, Judge.

Michael N. Currier challenges his conviction for possession of a firearm after having been convicted of a violent felony. He argues that the Double Jeopardy Clause, and particularly its collateral estoppel protections, bar his conviction. He also contends that the trial court abused its discretion in concluding that evidence of appellant's involvement in a breaking and entering and a grand larceny were relevant and not prejudicial to his charge of being a felon in possession of a firearm. We disagree and affirm.

BACKGROUND

Paul Garrison, II, returned home from work on March 7, 2012 to find that someone had broken into his home. A large gun safe containing cash, personal papers, and 20 guns was gone. The safe was later located, partially submerged in the Rockfish River in Nelson County. Police recovered it and discovered that the lock mechanism had been destroyed and removed. The firearms were badly damaged from the water.

A neighbor testified that she had noticed a lot of "loud banging" and "loud noises" coming from the Garrison residence across the street. She looked out from her front porch and observed an older model white pickup truck with an orange stripe coming out of the Garrisons' driveway. She noticed two individuals in the truck and said there may have been a third. There was a safe on the bed of the pickup truck. She could not identify the driver due to the glare on the windshield. However, she positively identified appellant as the passenger from a photographic lineup and at trial.

Police developed Bradley Wood as a suspect. Wood is Garrison's nephew, and he had been to the Garrisons' house before. Wood implicated appellant in the crime. Wood, a felon with an extensive criminal record, had entered into a plea agreement with the Commonwealth. He testified at trial that he had known appellant from prison. Wood thought there would be a large sum of money in the safe. Wood mentioned this to appellant, who responded that "he was in the red on child support and he really needed some money."

Wood and appellant broke into the Garrisons' home and initially tried to cut the safe open with a cutting torch, but failed. They returned with Wood's truck, loaded the safe onto the truck, and drove away with it. They were eventually able to open the safe. Appellant took out the guns and loaded them onto the bed of the truck. They later placed the guns back in the safe and pushed the safe into the water.

When police located the truck and processed it for evidence, it appeared as if its bed had been recently washed. Nevertheless, police found the white insulation from the gun safe that matched what they found in the Garrisons' home, metal shavings, and a cigarette butt containing appellant's DNA.

Officer William Underwood testified concerning his efforts to apprehend appellant. He conducted surveillance on a particular location where appellant was thought to be staying. He turned to the U.S. Marshal Service for assistance in locating appellant, and ultimately arrested him outside of a motel in Buckingham County. Underwood obtained warrants on March 7, 2012, but appellant was not arrested until October 18, 2012.

A single grand jury indicted appellant on the same date for burglary, grand larceny, and possession of a firearm as a convicted felon. Prior to trial, the defense and the prosecution agreed to sever the firearm charge from the grand larceny and the breaking and entering charges. The case proceeded to trial on the burglary and grand larceny charges, and a jury acquitted appellant of both charges.

When the Commonwealth sought to try appellant on the remaining charge of felon in possession of a firearm, appellant objected. He argued that the collateral estoppel protections embodied in the Double Jeopardy Clause precluded his retrial on the felon in possession of a firearm charge or, in the alternative, barred the Commonwealth from presenting evidence of his involvement in the theft and burglary of the Garrisons' home. The circuit court disagreed. The court also held that the evidence of his involvement in the burglary and larceny was relevant and that its relevance outweighed its prejudicial effect. Following a jury trial, appellant was convicted and sentenced to serve five years in prison. Appellant filed a motion to set aside the jury verdict, again raising the issue of collateral estoppel. The trial court denied the motion.

ANALYSIS

I. THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR A SECOND TRIAL .

Appellant argues that his acquittal in the prior trial means that the jury in that proceeding resolved the factual issues in his favor. Therefore, he contends, he cannot be tried anew on the firearm charge in a separate trial. The Commonwealth responds, among other arguments, that we need not even undertake the collateral estoppel analysis because of the posture of this case. Specifically, the Commonwealth notes that in this instance, all the charges were brought by a single grand jury, and would have been heard in a single proceeding, but the cases were severed to avoid any undue prejudice to the defendant that would stem from a single trial. In other words, this scenario does not bring into play the concern that lies at the core of the Double Jeopardy Clause: the avoidance of prosecutorial oppression and overreaching through successive trials. We agree with the Commonwealth.

"Whether there has been a double jeopardy violation presents a question of law requiring a de novo review." Fullwood v. Commonwealth, 279 Va. 531, 539, 689 S.E.2d 742, 747 (2010).

The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "Although the documentary history of the Double Jeopardy clause is scanty, the available evidence suggests that the draftsmen of the Bill of Rights intended to import into the Constitution the common law protections much as they were described by Blackstone." United States v. Jenkins, 490 F.2d 868, 873 (2d Cir.1973) (Friendly, J.) (tracing the history of the Clause), aff'd, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).

As a textual matter, the crime of possessing a firearm as a convicted felon is not the "same offense" as burglary or larceny. Therefore, a plain language reading of the clause would lead to the conclusion that appellant could be tried on the firearm charge after acquittal on the other charges. The Supreme Court, however, has interpreted the Double Jeopardy Clause according to the purposes it is designed to serve rather than according to its literal language. Thus, for example, the Supreme Court made clear at an early date that the protections of the clause are not limited to crimes where "life and limb" are at stake. Instead, its protections extend to all criminal offenses. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874).

One of the purposes of the clause is to protect final judgments. Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159–60, 57 L.Ed.2d 24 (1978). To this end, the clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The clause, however, is not "simply res judicata dressed in prison grey." Notes & Comments, Twice In Jeopardy, 75 Yale L.J. 263, 267 (1965). Its aim is to prevent "oppressive practices" by the prosecution. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

Appellant invokes the collateral estoppel protection component of the clause.

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. 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.

Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Preventing prosecutorial abuse and overreaching lies at the root of the constitutionalization of the collateral estoppel doctrine. Although not part of the original conception of the clause, the Court observed that

at common law, and under early federal criminal statutes, offense categories were relatively few and distinct. A single course of criminal conduct was likely to yield but a single offense. In more recent times, with the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses, it became possible for prosecutorsto spin out a startlingly numerous series of offenses from a single alleged criminal transaction. As the number of statutory offenses multiplied, the potential for unfair and abusive reprosecutions became far more pronounced. The federal courts soon recognized the need to prevent such abuses through the doctrine of collateral estoppel....

Id. at 446 n. 10, 90 S.Ct. at 1195 n. 10 (citations omitted and emphasis added). The risk of unfair and abusive prosecutions was on full display in Ashe. The appellant was tried for robbing one of six participants in a poker game and was acquitted. Id. at 437–39, 90 S.Ct. at 1190–92. The prosecution then turned around and tried appellant for robbing a different participant. Id. at 439–40, 90 S.Ct. at 1191–93. He was convicted in this second trial. Id. at 440, 90 S.Ct. at 1192–93. The Court noted with dismay that "the State in its brief has...