Krochta v. Com.

• Decision Date: 16 June 1999
• Citation: 711 N.E.2d 142,429 Mass. 711
• Parties: Michael KROCHTA v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 142

711 N.E.2d 142

429 Mass. 711

Michael KROCHTA v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 5, 1999.

Decided June 16, 1999.

Michael W. Reilly, Boston, for the plaintiff.

Thomas D. Ralph and William T. Harrington, Asst. Dist. Attys., for the Com.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

MARSHALL, J.

We decide in this case whether collateral estoppel bars criminal prosecution of a defendant for offenses following a finding in his favor at a probation revocation hearing triggered by the alleged commission of the same offenses. ¹ We hold that it does not.

I

On July 9, 1996, Michael Krochta (defendant) pleaded guilty in the Palmer District Court to the crime of larceny of property over $250. G.L. c. 266, § 30. The judge ordered the defendant to pay restitution and imposed a sentence of two years' probation, subject to the condition that he obey all laws. On December 16, 1997, a judge in the Palmer District Court found that the defendant had violated the terms of his probation by committing larceny by false pretense. G.L. c. 266, § 30. The judge added an additional five months of probation to the defendant's sentence, and ordered him to undergo psychiatric evaluation and counselling.

On January 9, 1998, further notice of probation surrender was filed in the Palmer District Court, this time alleging that charges were pending against the defendant in the Natick District Court for committing larceny by false pretense. This notice was amended by the addition of a criminal complaint for larceny by false pretenses filed against the defendant in the Marlborough District Court and one for larceny filed against the defendant in the Dedham District Court.

On June 16, 1998, a hearing was held before a judge in the Palmer District Court to determine whether the defendant had violated the terms of his probation in light of the new charges. A police officer and a probation officer testified regarding the charges pending in the Natick District Court. ² A police report was the only evidence presented regarding the Marlborough charge. The defendant objected to the report as unreliable hearsay. No evidence was presented regarding the charges pending in Dedham. The probation officer testified that the Commonwealth was "moving forward" on the charges in all three jurisdictions. The defendant moved for a directed verdict that was granted by the judge, who found that there was insufficient evidence to conclude that the defendant had violated the terms of his probation "based on those new offenses." ³

The defendant thereafter moved to dismiss the criminal complaints against him in the Dedham, Natick, and Marlborough District Courts, asserting that the finding that he had not violated his probation on the basis of those offenses precluded criminal prosecution of the charges. A judge in each District Court denied the motion. The defendant filed a petition pursuant to G.L. c. 211, § 3, seeking leave to appeal the denials of the three motions. ⁴ A single justice of this court stayed the proceedings pending against the defendant in the three District Courts, and reserved and reported the issue common to the three cases. ⁵

II

The defendant argues that the Commonwealth is barred from prosecuting him for the pending criminal offenses on grounds of double jeopardy, and that as a component of double jeopardy, Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), collateral estoppel precludes the Commonwealth from attempting to prove facts in the criminal prosecutions not proved at the probation revocation proceeding. The argument is without merit.

The double jeopardy clause of the Fifth Amendment to the United States Constitution "protects against a second prosecution for the same offense after acquittal ... a second prosecution for the same offense after conviction ... [and] against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). A probation revocation proceeding does not put a defendant at any of these risks. Without a first incidence of jeopardy, the probationer cannot be in "double" jeopardy at a subsequent criminal trial. See Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). No jeopardy attaches for a charge at a proceeding before a court without power to determine guilt or innocence of that charge. See Commonwealth v. Gonzalez, 388 Mass. 865, 869-870, 448 N.E.2d 759 (1983) (jeopardy did not attach at probable cause hearing because court was without power to make any determination regarding guilt or innocence). Because probation revocation proceedings are not criminal prosecutions, Commonwealth v. Durling, 407 Mass. 108, 112, 551 N.E.2d 1193 (1990), citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), ⁶ and any consequent revocation does not punish the defendant for any crime charged subsequent to the imposition of probation, Commonwealth v. Holmgren, 421 Mass. 224, 227 n. 1, 656 N.E.2d 577 (1995), a probation revocation hearing cannot be the basis for a claim of either multiple prosecution or multiple punishment.

"To prevail under the Ashe collateral estoppel doctrine, the defendant must have been placed in jeopardy twice for the same offense." Commonwealth v. Scala, 380 Mass. 500, 504, 404 N.E.2d 83 (1980). Because jeopardy did not attach at the probation revocation hearing, the defendant has no valid collateral estoppel claim under Ashe. See Commonwealth v. Holmgren, supra.

III

The defendant next argues that criminal prosecution on the charges that triggered his probation revocation proceeding is barred by collateral estoppel principles found in the common law and in his right to due process of law under the Massachusetts and United States Constitutions. ⁷ Defensive collateral estoppel, from whatever source, is not available to the defendant against the government in the circumstances of this case.

Whatever protection that may arise for a defendant from collateral estoppel principles in the common law, see United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), has no applicability here because the probationary sentence the defendant received was authorized by statute. Commonwealth v. Forte, 423 Mass. 672, 674, 671 N.E.2d 1218 (1996). Cf. Commonwealth v. 707 Main Corp., 371 Mass. 374, 377-379, 357 N.E.2d 753 (1976) (collateral estoppel inapplicable in criminal proceeding for obscenity following acquittal in civil proceeding for dissemination of same materials because Legislature intended two types of enforcement to be available).

As to the defendant's due process claims, we previously have considered, without deciding, whether collateral estoppel protection between proceedings litigated against the government is encompassed within the constitutional right to due process, independent of the double jeopardy clause. ⁸ See Commonwealth v. Scala, 380 Mass. 500, 505, 404 N.E.2d 83 (1980). ⁹ We again do not decide this issue because we conclude that the essential components of collateral estoppel applicable in a criminal prosecution have not been met.

Collateral estoppel "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, 25 L.Ed.2d 469 (1970). ¹⁰ Collateral estoppel is available to a defendant as a shield against a subsequent attempt by the government to litigate an issue necessarily decided in previous litigation between the defendant and the government only where there is (1) a common factual issue ¹¹; (2) a prior determination of that issue in litigation between the same parties ¹²; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar. Commonwealth v. Lopez, 383 Mass. 497, 499, 420 N.E.2d 319 (1981). These necessary prerequisites are present in this case, but they are not sufficient because the "common factual issue" was earlier decided against the government under a standard different from the standard of proof in the proceedings at which estoppel is sought. ¹³ See Commonwealth v. Holmgren, 421 Mass. 224, 225, 656 N.E.2d 577 (1995) (reason that collateral estoppel did not bar Commonwealth from revoking probation based on violation of law of which defendant had been acquitted "[lay] in the difference in the burden of proof in the two proceedings"). See also Yates v. United States, 354 U.S. 298, 335-336, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds by Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Yates v. United States, supra, the Supreme Court considered whether judicial determinations made in the defendant's favor at a denaturalization proceeding were conclusive against the government under the doctrine of collateral estoppel at a subsequent criminal prosecution by the Federal government. Although the Court held that collateral estoppel was not available because the same factual issues were not in dispute, it reached that question only after making explicit its assumption that the same standards of proof were applicable in both proceedings. Id. at 336, 77 S.Ct. 1064.

The requirement that the two proceedings sharing a "common factual issue" be resolved using the same standards of proof is a prerequisite under Federal law to the application of collateral estoppel against the government in a criminal prosecution even where a defendant's rights protected under the double jeopardy clause of the Fifth Amendment are implicated. In Dowling v. United States, 493 U.S. 342, 348-349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), eyewitness testimony from a prior criminal prosecution in which the defendant had been acquitted was admitted in evidence against him at a later p...