Waters v. Com.

• Decision Date: 24 August 2004
• Docket Number: Record No. 1893-03-1.
• Citation: 43 Va.App. 636,600 S.E.2d 918
• Parties: Tyrone L. WATERS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

600 S.E.2d 918

43 Va.App. 636

Tyrone L. WATERS v. COMMONWEALTH of Virginia.

Record No. 1893-03-1.

Court of Appeals of Virginia, Chesapeake.

August 24, 2004.

Andrew G. Wiggin, Virginia Beach, for appellant.

Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, ELDER and FRANK, JJ.

FRANK, Judge.

Tyrone L. Waters (appellant) was convicted after a jury trial of malicious wounding while part of a mob, in violation of Code § 18.2-41.¹ On appeal, he contends the trial court erred in (1) denying his motion, based on the principle of res judicata, to reduce the malicious wounding by mob charge to assault and battery by mob, (2) disallowing cross-examination of a co-conspirator regarding his competency evaluation, (3) allowing another co-conspirator to invoke his Fifth Amendment right against self-incrimination, and (4) denying his motion to set aside the verdict based on the Commonwealth's failure to disclose exculpatory information regarding a co-conspirator's competency evaluation. For the reasons stated below, we affirm appellant's conviction.

I. Res Judicata

Appellant and several other people were arrested and charged with various crimes, including malicious wounding by mob. David Hicks, one of the co-conspirators, was tried in a bench trial prior to appellant's jury trial. The trial court found Hicks guilty of the lesser-included offense of assault and battery by mob. Appellant filed a pretrial motion based on Hicks's trial, arguing he was "a person so identified in interest with Hicks that [he] represents either the same legal rights related to culpability or a portion of the same culpability as did Hicks." He claimed the principle of res judicata prevented his conviction of any greater offense than assault and battery by mob and asked the court to reduce the malicious wounding indictment accordingly. The trial court heard argument and denied the motion.

Appellant cites no cases applying the principle of res judicata in the context of co-conspirators. He argues, however, that Highsmith v. Commonwealth, 25 Va.App. 434, 489 S.E.2d 239 (1997), allows this Court to extend the principle to this context. We disagree.

In Highsmith, this Court considered whether a defendant, using the principle of res judicata, could argue that the general district court's dismissal on the merits of a misdemeanor charge prohibited a trial in the circuit court on the same charge involving the same incident. Id. at 437-38, 489 S.E.2d at 240-41. The Court held that res judicata applies in criminal cases where "the second prosecution of a criminal case [against a defendant is] dismissed by a substantive pretrial judgment by a court which had jurisdiction to determine the case on its merits." Id. at 442, 489 S.E.2d at 243.

The Court made clear in its ruling that all the traditional burdens on a person asserting res judicata apply in the criminal context.

A person seeking to assert res judicata as a defense must establish identity of: (1) the remedies sought; (2) the cause of action; (3) the parties; and (4) the quality of the persons for or against whom the claim is made. [Commonwealth ex. rel. Gray v.] Johnson, 7 Va.App. [614,] 618, 376 S.E.2d [787,] 789 [(1989)]. Further, to assert this defense, the party must establish that "the judgment in the former action [was] rendered on the merits by a court of competent jurisdiction." Simmons v. Commonwealth, 252 Va. 118, 120, 475 S.E.2d 806, 807 (1996) (emphasis added).

Id. at 440, 489 S.E.2d at 241. While in Highsmith the Court found all of these elements were proven, id. at 441, 489 S.E.2d at 242, we find appellant has failed to prove all the elements of res judicata in the instant case.

Appellant claims he is "the same person" as Hicks, i.e., is a privy party to Hicks's case. He contends that because they are charged as part of the same mob, they are essentially the same people in these cases. We disagree.

There is no single fixed definition of privity for purposes of res judicata. Whether privity exists is determined on a case by case examination of the relationship and interests of the parties. The touchstone of privity for purposes of res judicata is that a party's interest is so identical with another that representation by one party is representation of the other's legal right.

State Water Control Bd. v. Smithfield Foods, Inc., 261 Va. 209, 214, 542 S.E.2d 766, 769 (2001).

Clearly the choices that Hicks made in defense of his case are not binding on appellant nor could appellant control Hicks's decisions in the earlier case. See Barnett v. Commonwealth, 348 S.W.2d 834, 835-36 (Ky. 1961)

("For the purpose of the doctrine [of res judicata], a party is one who has a direct interest in the subject matter of the action and has a right to control the proceedings, make defense, examine witnesses, and appeal if an appeal lies."). If Hicks had pled guilty to all offenses, appellant would not be bound by that plea. See State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 558-59 (1950) (explaining the co-conspirators' guilty pleas were not binding in Bradley's case as he was not the same party and not in privity with them). If Hicks claimed self-defense or moved to suppress evidence, the fact finder's ruling on those issues would not bind appellant. We find appellant and Hicks were not "the same person."

In order to apply the doctrine of res judicata to estop a party from relitigating an issue, mutuality must exist.

The principle of mutuality limits the influence of the initial adjudication "by requiring that to be effective the estoppel of the judgment must be mutual." Norfolk and Western Ry. Co. v. Bailey, 221 Va. 638, 640, 272 S.E.2d 217, 218 (1980). Thus, "a litigant is generally prevented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the issue reached the opposite result." Id. As recently as 1980, this Court made a considered, unanimous decision to resist the so-called "modern trend" and not to abrogate the mutuality requirement. Id. at 641, 272 S.E.2d at 219. Since that decision, other courts, including the Supreme Court of the United States in Haring v. Prosise, 462 U.S. 306, 317 n. 10, 103 S.Ct. 2368, 2375 n. 10, 76 L.Ed.2d 595 (1983), have been guided by our position on this subject.

Selected Risks Ins. Co. v. Dean, 233 Va. 260, 264, 355 S.E.2d 579, 581 (1987). Here, if Hicks were convicted of all charges, appellant would not automatically be convicted of the offenses-the Commonwealth would still have to go forward with its case against appellant. "It is well settled that a judgment of acquittal or conviction does not operate as res judicata in the prosecution of another defendant, even though the same transaction is involved." E.H. Schopler, Annotation, Modern Status of Doctrine of Res Judicata in Criminal Cases, 9 A.L.R.3d 203 (2004). See State v. Arevalo, 132 N.M. 306, 47 P.3d 866, 869 (Ct.App.2002)

(explaining the "traditional rule" that a defendant must have been the defendant in a previous criminal case in order to invoke doctrines of collateral estoppel); United States v. Musgrave, 483 F.2d 327, 332 (5th Cir.1973) ("A judgment of acquittal of one defendant in a prior trial does not operate as res judicata in the prosecution of a second defendant in a later trial, even where the same transaction is involved and the second defendant is charged as an accessory to the first."). As no mutuality exists between Hicks's case and appellant's, res judicata does not apply here.

Finally, to apply res judicata in this context would unfairly limit the Commonwealth's ability to prosecute a case. As the United States Supreme Court explained when discussing estoppel in criminal cases involving aiding and abetting charges:

The absence of these remedial procedures in criminal cases[, such as the ability to secure appellate review where a defendant has been acquitted,] permits juries to acquit out of compassion or compromise or because of "`their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'" Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), quoting Steckler v. United States, 7 F.2d 59, 60 (C.A.2 1925).

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But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect. See Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 3, 1976) (denying preclusive effect to an unreviewable judgment).

The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime "whose rights were [not] violated." Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Accord, Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 426, 58 L.Ed.2d 387 (1978)

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Finally, this case involves ... the important federal interest in the enforcement of the criminal law.

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The Court of Appeals opinion put the point well:

"[The] purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the

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