Hudgins v. Com.

• Citation: 577 S.E.2d 505,40 Va. App. 1
• Decision Date: 04 March 2003
• Docket Number: Record No. 0078-02-1.
• Parties: Tarik H. HUDGINS v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

577 S.E.2d 505

40 Va. App. 1

Tarik H. HUDGINS v. COMMONWEALTH of Virginia.

Record No. 0078-02-1.

Court of Appeals of Virginia, Chesapeake.

March 4, 2003.

James L. Grandfield, Assistant Public Defender, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, ELDER, JJ., and COLEMAN, Senior Judge.

ELDER, Judge.

Tarik H. Hudgins (appellant) appeals from his bench trial conviction for grand larceny from the person in violation of Code § 18.2-95(i). On appeal, he contends the trial court erroneously ruled that his trial and conviction for grand larceny from the person did not violate double jeopardy principles in light of his previous acquittal on an indictment for robbery arising out of the same theft. Because appellant's acquittal on the robbery indictment acted as an acquittal on the lesser-included offense of petit larceny, we hold that the collateral estoppel protections of the Double Jeopardy Clause barred the Commonwealth's subsequent attempt to convict appellant for the grand larceny of that same bicycle from the person of the victim. Thus, we reverse and dismiss.

I. BACKGROUND

On October 1, 2000, appellant pushed an eleven-year-old boy (the victim) from his bicycle and took the bicycle from him.

On February 28, 2001, the grand jury issued an indictment charging that, "On or about Sunday, October 1, 2000," appellant "did rob [the victim] of U.S. Currency or other personal property, in violation of Code § 18.2-58." In a bench trial on March 16, 2001, appellant was tried on the robbery indictment and found not guilty. Before acquitting appellant of robbery, the trial court indicated its belief that the evidence was sufficient to support a conviction for larceny from the person but that it could not convict appellant of larceny from the person on an indictment for robbery because larceny from the person was not a lesser-included offense of robbery.

On March 26, 2001, the grand jury issued a different indictment alleging that "On or about Sunday, October 1, 2000," appellant "did steal property having a value of five dollars ($5) or more from the person of [the victim], in violation of Code § 18.2-95."

Appellant moved to dismiss on grounds of former jeopardy. In a memorandum in support of that motion, he conceded the general principle that larceny from the person is not lesser included in the offense of robbery. However, he argued that the Commonwealth impermissibly relied on the same theft to support the second indictment that it had to support the first indictment, on which he was acquitted. The Commonwealth conceded in the trial court that "the `same conduct' by [appellant] resulted in the two indictments, one for Robbery, and one for Grand Larceny from the Person."

Relying on Graves v. Commonwealth, 21 Va.App. 161, 462 S.E.2d 902 (1995), aff'd on reh'g en banc, 22 Va.App. 262, 468 S.E.2d 710 (1996),

the trial court denied the motion, holding that "while the act alleged—the theft of a bicycle—may be the same, robbery and larceny from the person are not identical offenses."

After hearing evidence on the grand larceny indictment, the trial court convicted appellant, and he noted this appeal.

II. ANALYSIS

Double jeopardy principles "protect[] against prosecution for the same offense after either an acquittal or a conviction of that offense and against multiple punishments for that same offense." Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E.2d 732, 733-34 (2001). Under a "same elements" test, sometimes referred to as the Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)

(holding that to determine whether single act constitutes one offense or two, court must examine "whether each provision requires proof of a fact which the other does not"); see also Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977) (holding that "[t]he greater offense is ... by definition the 'same' for purposes of double jeopardy as any lesser offense included in it" and, thus, that conviction for lesser offense prevented subsequent conviction for greater offense), former jeopardy applies to prevent prosecution under multiple indictments (1) when the two offenses are identical; (2) when the former offense is lesser-included in the subsequent offense; and (3) when the subsequent offense is lesser-included in the former offense. Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660 (1978). "The elements of the crimes, their `fundamental nature,' are determinative, not `the particular facts of a specific case....'" Crump v. Commonwealth, 13 Va.App. 286, 290, 411 S.E.2d 238, 241 (1991) (quoting Taylor v. Commonwealth, 11 Va.App. 649, 652, 400 S.E.2d 794, 795 (1991)), quoted with approval in Graves, 21 Va.App. at 164-65,

462 S.E.2d at 903-04.

Although the United States Supreme Court has abandoned the "same conduct" test of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled in United States v. Dixon, 509 U.S. 688, 703-12, 113 S.Ct. 2849, 2859-64, 125 L.Ed.2d 556 (1993),

it continues to acknowledge that collateral estoppel is a component of the Fifth Amendment's protections against double jeopardy, Dixon, 509 U.S. at 691, 704-05,

113 S.Ct. at 2853, 2860. "For whatever else [the Fifth Amendment guarantee against double jeopardy] may embrace, it surely protects a man who has been acquitted from having to `run the gantlet' a second time." Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970) (citation omitted).

Collateral estoppel "may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts." Dixon, 509 U.S. at 705, 113 S.Ct. at 2860.

[W]hen 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. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law ... [for] more than 50 years ....

[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational [trier of fact] could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180, 184. Any test more technically restrictive would, of course, amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based on a general verdict of acquittal.

Ashe, 397 U.S. at 443-44, 90 S.Ct. at 1194 (footnote omitted).

On appeal, appellant contends that the offense of grand larceny from the person was lesser included in the offense of robbery under the facts of this case. Based on the holding in Graves, we disagree.

Graves involved a robbery indictment which "contained no allegation of the value of the property stolen and no allegation that the property was taken from [the victim's] person."

21 Va.App. at 164,462 S.E.2d at 903. Under those circumstances, we held that "the [robbery] indictment, on its face, failed to specify an accusation of grand larceny from the person." Id. As a result, we concluded, "grand larceny from the person was not a lesser offense included within the robbery specification of the indictment." Id. at 166, 462 S.E.2d at 904.

Although Graves involved the trial court's authority to convict the defendant for grand larceny from the person on an indictment charging robbery arising out the same facts, we believe its holding is equally applicable here. Here, as in Graves, the first indictment, the robbery indictment, "contained no allegation of the value of the property stolen and no allegation that the property was taken from [the victim's] person." Id. at 164, 462 S.E.2d at 903. The second indictment, as required to charge grand larceny of the person, alleged that the value of the property stolen was five dollars or more and that the property was taken "from the person of [the victim]." Thus, here, as in Graves, the offense of grand larceny from the person was not lesser included in the offense of robbery. That appellant's case involved successive indictments while Graves involved a single indictment is not dispositive.

Nevertheless, we conclude appellant's conviction for grand larceny from the person is barred by collateral estoppel. Although appellant did not denominate it as such at trial or on appeal, a careful review of his argument at both stages indicates his contention that the collateral estoppel component of the Double Jeopardy Clause barred his prosecution on the second indictment.

As outlined above, collateral estoppel applies both civilly and criminally to prevent relitigation, in a future lawsuit between the same parties, of "an issue of ultimate fact [that] has once been determined by a valid and final judgment." Ashe, 397 U.S. at 443, 90 S.Ct. at 1194. Collateral estoppel applies "when the prior acquittal necessarily resolved the issue now in litigation." Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979). "The doctrine ... does not apply if it appears that the prior judgment could have been grounded 'upon an issue other than that which the defendant seeks to foreclose from consideration.'" Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (19...