State v. Dann

• Decision Date: 08 August 1997
• Docket Number: Nos. 96-178,96-179,s. 96-178
• Citation: 167 Vt. 119,702 A.2d 105
• Parties: STATE of Vermont v. Carl L. DANN. STATE of Vermont v. Albert WURZBERGER.
• Court: Vermont Supreme Court

Page 105

702 A.2d 105

167 Vt. 119

STATE of Vermont v. Carl L. DANN.

STATE of Vermont v. Albert WURZBERGER.

Nos. 96-178, 96-179.

Supreme Court of Vermont.

Aug. 8, 1997.

Motion for Reargument Denied

Sept. 10, 1997.

James Maxwell, Windham County Deputy State's Attorney, Brattleboro, for plaintiff-appellee.

Herbert G. Ogden, Jr. of Harlow Liccardi & Crawford, P.C., and Karen Abatiell Kalter, Rutland, for defendants-appellants.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendants appeal related convictions for the sale and possession of fireworks in violation of 20 V.S.A. § 3132(a). Defendant Albert Wurzberger was the owner and operator of the 1836 Country Store in Wilmington. The State charged that defendant Wurzberger sold fireworks and that defendant Carl Dann possessed fireworks. Defendants argue that the trial court erred (1) in declining to apply claim preclusion to Wurzberger's case, (2) in declining to apply issue preclusion to either case, (3) in upholding the fireworks statute against a void-for-vagueness claim, (4) in improperly instructing the jury on mens rea, (5) in refusing to disqualify Judge DiMauro, and (6) in denying as untimely Wurzberger's motions to dismiss on the grounds of selective prosecution and contractual bar to prosecution. We affirm.

On two prior occasions, in 1987 and 1992, the State had unsuccessfully attempted to prosecute defendant Wurzberger for the sale of fireworks. In 1987, the State obtained a search warrant to seize fireworks from Wurzberger's store. After the warrant was executed, Wurzburger moved for return of the property. The district court held that 20 V.S.A. § 3131, which defines "fireworks," was unconstitutionally vague as applied to Wurzberger and ordered the State to return the items seized under the warrant. The State decided not to press charges against Wurzberger, and Wurzberger later alleged that the State agreed not to prosecute him for selling identical fireworks any time in the future.

In 1992, the State obtained another search warrant to seize fireworks from Wurzberger's store, and subsequently charged him with violating 20 V.S.A. § 3132(a), which prohibits the sale "at retail or wholesale" of fireworks, unless within specified exceptions. Holding that the fireworks statute was overbroad, the trial court again ordered the return of the items seized from Wurzberger's store. The State sought permission to appeal the order in both the trial court and in this Court, and was denied. Thereafter, the court dismissed the criminal case against Wurzberger.

The current appeals stem from two separate incidents in 1994. On May 2, 1994, Chief Thomas Donnelly of the Wilmington Police Department went to defendant Wurzberger's store and purchased various items including "Mystical Night Fireworks," "Flight of the Phoenix Fireworks," and "Big Bear Fireworks." Officer Donnelly also purchased items labelled as sparklers, and an unlabelled item that he believed to be a sparkler. Wurzberger was thereafter charged with selling fireworks. ¹ On November 17, 1994, in the related case of defendant Dann, several officers went to Dann's apartment to execute a search warrant. They seized various items from Dann's living room that they believed to be fireworks, and Dann was subsequently charged with possession of fireworks.

Dann's trial took place on December 6, 1995, followed the next day by Wurzberger's trial. Judge Theresa DiMauro presided over pretrial matters in both cases, and over the trial in Dann's case. Because of scheduling conflicts, Judge John Wesley presided over Wurzberger's trial. Both defendants were convicted by jury, and this consolidated appeal followed.

I.

Defendant Wurzberger's first claim of error is that his prosecution was barred by the doctrine of claim preclusion because a final judgment was issued in his favor in 1987 and 1992, and the prior cases involved the same parties, subject matter and causes of action. In prior cases, we have distinguished between claim preclusion, which is also called res judicata, and issue preclusion, sometimes referred to as collateral estoppel. See, e.g., Longariello v. Windham Southwest Supervisory Union, 165 Vt. 573, 574, 679 A.2d 337, 338 (1996); Cold Springs Farm Dev. v. Ball, 163 Vt. 466, 468, 661 A.2d 89, 91 (1995). Defendant Wurzberger raises the defense of claim preclusion, and both defendants raise issue preclusion. We turn first to claim preclusion.

Claim preclusion will bar a subsequent action only if the court issued a final judgment in the previous action, and "the parties, subject matter and causes of action are identical or substantially identical." Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984). "Claim preclusion bars litigation of claims or causes of action which were or might properly have been litigated in a previous action." Cold Springs Farm Dev., 163 Vt. at 472, 661 A.2d at 93. For the purposes of claim preclusion, two causes of action are the same if they can be supported by the same evidence. See Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 31 (1974); see also Stratton v. Steele, 144 Vt. 31, 35, 472 A.2d 1237, 1239 (1984) (adopting logical relationship test). The doctrine of claim preclusion promotes judicial economy by requiring litigants to aggregate claims and compulsory counterclaims; its purpose is to protect courts and parties from the burdens of relitigation. Russell v. Atkins, 165 Vt. 176, 179, 679 A.2d 333, 335 (1996).

We have not conclusively decided whether claim preclusion, a concept more commonly raised in civil litigation, pertains to criminal proceedings. In several early cases, the United States Supreme Court held that the broader doctrine of "res judicata" applied to criminal as well as civil cases. See Sealfon v. United States, 332 U.S. 575, 580, 68 S.Ct. 237, 240, 92 L.Ed. 180 (1948) (acquittal in conspiracy trial was res judicata as to essential facts in second prosecution); United States v. Oppenheimer, 242 U.S. 85, 87-88, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916) (judgment dismissing indictment on ground that prosecution was barred by statute of limitations was res judicata as to second indictment for same offense). Since Sealfon and Oppenheimer were decided, however, courts have clarified what is meant by the term "res judicata," and have differentiated between claim preclusion and issue preclusion. Focusing on this distinction, the term "res judicata" as used in Sealfon and Oppenheimer is more accurately characterized as issue preclusion. Even if we held that claim preclusion applies to criminal cases, an issue we do not reach, we would conclude that claim preclusion does not bar prosecution of defendant Wurzberger.

The action against defendant Wurzberger is not barred by claim preclusion because, although the parties and causes of action may have been the same in 1987, 1992, and 1994, the subject matter is not. Wurzberger is charged with a crime, the sale of fireworks, that is capable of frequent repetition. Each event is separate, however, and gives rise to separate liability. See Turner v. Bragg, 118 Vt. 43, 45-46, 100 A.2d 431, 432 (1953) (since each instance of trespass is separate, former judgment covering trespasses up to certain date is not res judicata with respect to later trespasses).

In similar cases involving double jeopardy claims, we have held that each alleged act is a separate matter. See State v. Ramsay, 146 Vt. 70, 74, 499 A.2d 15, 18 (1985) (although alleged assaults by defendant on wife occurred on consecutive days, different dates and acts were involved); State v. Pianfetti, 79 Vt. 236, 246, 65 A. 84, 86 (1906) (where defendant was charged with selling illegal liquor on numerous occasions, defendant must show that prior convictions concerned same act to sustain plea of autrefois convict). Other courts considering claims of res judicata or collateral estoppel are in accord. See, e.g., State v. Ell-Gee, Inc., 255 So.2d 542, 545 (Fla.Dist.Ct.App.1971) (each performance of play constitutes separate act); Village of Northbrook v. Cannon, 61 Ill.App.3d 315, 18 Ill.Dec. 572, 577, 377 N.E.2d 1208, 1213 (1978) (prior acquittals of alleged dog-ordinance violations are not res judicata because not same matter). In addition, the purpose of claim preclusion--to encourage parties to aggregate related claims arising from the same transaction or event--would not be served in this case because the State could not rationally aggregate claims arising from acts separated by years. Since there is no identity of subject matter in the 1987, 1992 and 1994 proceedings, the trial court properly declined to apply claim preclusion to defendant Wurzberger.

II.

The second claim of error, raised by both defendants, is that the court was bound by its 1987 and 1992 rulings under the doctrine of issue preclusion. Collateral estoppel, or issue preclusion, is a constitutional right embodied in the Fifth Amendment guarantee against double jeopardy, Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970), and there is no question that it applies to criminal cases. See In re Smith, 146 Vt. 43, 45, 498 A.2d 497, 499 (1985). Defendants contend that, since the court previously held the fireworks statute unconstitutional, the issue cannot be relitigated.

The elements of issue preclusion are:

"(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair."

State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992) (quoting Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990)). Although the State contests this conclusion, we can assume for purposes of analysis that the first...