Timms v. Cupp

• Decision Date: 06 February 1979
• Docket Number: No. 99295,99295
• Citation: 590 P.2d 264,38 Or.App. 339
• Parties: Daniel Lee TIMMS, Respondent, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Appellant. ; CA 9961.
• Court: Oregon Court of Appeals

Page 264

590 P.2d 264

38 Or.App. 339

Daniel Lee TIMMS, Respondent, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Appellant.

No. 99295; CA 9961.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 15, 1978.

Resubmitted In Banc on Record and Briefs July 12, 1978.

Decided Feb. 6, 1979.

W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Robert C. Cannon, Salem, argued the cause for respondent. With him on the brief was Schlegel, Milbank, Wheeler, Jarman & Hilgemann, Salem.

TANZER, Judge.

This is an appeal by the state from an order granting post-conviction relief on the ground of denial of effective representation of counsel because petitioner's trial attorney failed to assert the doctrine of collateral estoppel as a ground for suppression of evidence.

In 1973, two policemen stopped and searched petitioner's automobile. Petitioner was driving and one Gerald Woods was a passenger. The officers found two loaded revolvers, one under each seat, and dangerous drugs.

Woods was charged with a weapons offense. The trial court granted his motion to suppress, holding that the police did not have probable cause to search the automobile. The state did not appeal.

Petitioner was charged with drug and weapons offenses. His attorney moved to suppress the fruits of the automobile search on the ground of lack of probable cause. The attorney was aware that Woods' motion had previously been granted, but he did not urge collateral estoppel as a ground for suppression. The motion was denied. The evidence was admitted in petitioner's trial. He was found guilty and it is this conviction from which he seeks relief.

The failure of counsel to assert a defense in the trial court entitles the client to post-conviction relief only if the raising of the issue would have affected the result. Barzee v. Cupp, 29 Or.App. 705, 564 P.2d 1366 (1977). Therefore, assuming for argument that failure to raise a sophisticated issue is incompetence of such a degree as to render counsel ineffective in a constitutional sense, See Rook v. Cupp, 18 Or.App. 608, 526 P.2d 605 Rev. den. (1974), and further assuming for argument that a preliminary evidentiary ruling is the type of ruling to which collateral estoppel would apply in a civil case, we look to whether interposition of the defense of collateral estoppel would have prevailed and required suppression in petitioner's trial.

The doctrine of collateral estoppel as it applies to criminal cases has developed in pieces. In State v. George, 253 Or. 458, 455 P.2d 609 (1969), the Supreme Court barred a trial for the murder of the second victim where the same defendant had been acquitted of murdering the first victim with the same bullet. The court made no constitutional pronouncement, but, rather, applied the civil rule of collateral estoppel. The doctrine, however, was not necessarily transferred to criminal law in all of its particulars.

Thereafter the United States Supreme Court decided the cases of Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971), and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holding that collateral estoppel was applicable to criminal prosecutions as an aspect of the constitutional protection against double jeopardy. Because the protection against double jeopardy cannot be claimed by a person other than the person who was placed in prior jeopardy, it follows strictly as a matter of constitutional law that the protection of collateral estoppel cannot be asserted by a person other than the defendant in the original prosecution. Hence, Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194, defines the doctrine as follows:

" '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. * * * "

See also, Harris v. Washington, 404 U.S. at 56, 92 S.Ct. 1189. The "same parties," of course, are the defendant and the state.

Thereafter, in State v. Mozorosky, 277 Or. 493, 561 P.2d 588 (1977), the Supreme Court of Oregon acknowledged that the doctrine of collateral estoppel had not theretofore been applied as a matter of constitutional law citing several cases including State v. George, supra, but proceeded to do so in the case before it in view of the decisions in Ashe v. Swenson and Harris v. Washington by the United States Supreme Court. In adopting a constitutional rationale, however, the Supreme Court did not expressly abandon the nonconstitutional rationale of George. Thus, the possibility that the Supreme Court will in future cases apply collateral estoppel in the broader nonconstitutional sense as in civil cases has not been logically excluded.

The doctrine of collateral estoppel in criminal cases, whether founded in common law, statutes or the constitution, has been consistently applied by the Oregon and United States Supreme Courts in the manner of Res judicata for the benefit of the same litigant regarding the same criminal episode and has never been applied as in civil law for the benefit of other litigants. The failure of the Supreme Court in Mozorosky to expressly abandon the George rationale suggests that the Supreme Court may in a proper case wish to apply the doctrine more expansively, but this case presents no reason to do so. Accordingly, we conclude that had petitioner's attorney urged collateral estoppel as a basis for suppression, he would not have succeeded. Hence, petitioner has not shown that he was denied the effective assistance of counsel.

Reversed.

SCHWAB, Chief Judge, specially concurring.

I know of no authority applying the doctrine of collateral estoppel to rulings on the admissibility of evidence in either civil or criminal cases. The suppression order at issue here, albeit a pretrial ruling, was essentially nothing more or less than an order sustaining an objection to proffered evidence.

BUTTLER, Judge, specially concurring.

The only constitutional question presented here is whether petitioner was denied effective counsel because his attorney at his 1973 criminal trial did not assert the doctrine of collateral estoppel in support of a motion to suppress evidence obtained as a result of a warrantless search of an automobile in which petitioner and a friend were riding. Petitioner's friend had gone to trial first and had successfully contended in a pretrial hearing that there was no probable cause to support the warrantless search. The state did not appeal.

The majority would have us believe that there is no problem because the law in Oregon was clear in 1973, and is clear now, that collateral estoppel is inapplicable to criminal cases, even with respect to pretrial motions. This is so, it is suggested, because collateral estoppel, as applied in the criminal context, is a constitutional concept, a part of former jeopardy, and therefore is available only to the defendant in the original proceedings, even though former jeopardy has no application to pretrial motions because jeopardy has not attached.

While I concur with the majority's disposition of the case, I do not agree that collateral estoppel has no application to criminal cases independent of constitutional law or Res judicata, at least as to issues determined in pretrial motions to suppress. I see no reason why the state should have as many "bites of the apple" as there are defendants to establish that a given warrantless search was valid. I agree with petitioner that the application of the doctrine in civil cases in Oregon since 1970 was clear at the time of his trial: collateral estoppel precludes a party from relitigating an issue, decided adversely to that party, in a subsequent lawsuit involving a litigant who was not a party to the prior proceeding. Bahler v. Fletcher, 257 Or. 1, 474 P.2d 329 (1970). It makes no difference that the second litigant may not be bound by a prior determination in favor of his adversary; mutuality of estoppel is not required. As restated in State Farm v. Century Home, 275 Or. 97, 550 P.2d 1185 (1976), there are two essential conditions for the application of collateral estoppel by a nonparty against one who was a party to a prior action:

"First, there must exist an identity of issue between the prior action and the action in which estoppel is asserted; and second, the party against whom estoppel is sought must have had a full and fair opportunity to contest the issue decided adversely to him." 275 Or. at 102, 550 P.2d at 1188.

Both of those conditions were met in this case.

Its application to criminal cases, however, is not so clear. It is true that ORS 136.430 provides:

"The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specifically provided in the statutes relating to crimes and criminal procedure."

It is also true that no statute specifically provides that collateral estoppel is inapplicable in criminal proceedings.

Further, the Oregon Supreme Court in State v. George, 253 Or. 458, 455 P.2d 609 (1969), applied collateral estoppel, as distinct from former jeopardy, in a criminal case, rejecting the idea that collateral estoppel is exclusively a constitutional concept. The Court stated:

"The basis for this decision is Not former jeopardy which applies only when the prosecution in both cases is for the same offense. * * * For present purposes, it may be assumed that the killing of Kirk and the killing of Eggsman, albeit by the same bullet, were separate offenses, and therefore, that the case is not governed by the constitutional provision against double jeopardy. * * * Nevertheless, '(T)he conclusiveness of a fact which has been competently adjudicated by a criminal trial is not confined to such matter only as is sufficient to support a plea of...