State v. McDowell

Opinion

MCDONALD, J.

The defendant, Kirk McDowell, appeals from the denial of a motion to dismiss.¹ He claims that the state, because of common-law collateral estoppel and the constitutional protections against double jeopardy, may not prosecute him for an attempted robbery, criminal possession of a weapon or reckless endangerment when it has failed to prove a violation of probation based upon those charges. See State v. McDowell, 241 Conn. 413, 413-14, 696 A.2d 977 (1997). We reject the defendant’s claims and, therefore, we affirm the judgment of the trial court.

The following facts and procedural history are undisputed. The defendant was charged with attempted robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-49, criminal possession of a weapon in violation of General Statutes § 53a-217, threatening in violation of General Statutes § 53a-62 and reckless endangerment in the first degree in violation of General Statutes § 53a-63. These charges stemmed from an incident at Mitchell’s Grocery in the city of Hartford. The state also sought to revoke the defendant’s probation on the basis of that incident.²

At the defendant’s revocation hearing, the state sought to prove that the defendant had been carrying a gun and had used and threatened to use immediate physical force to obtain money. After the hearing, the trial court found that the state had proved by a preponderance of the evidence that the defendant had violated his probation. Upon the defendant’s request for clarification of this finding, the court held that the defendant had violated his probation by threatening an employee of the grocery store, by committing a breach of the peace and by committing an assault. See State v. McDowell, supra, 241 Conn. 414. The court further found, however, that the state had not presented sufficient evidence to establish that a robbery or an attempted larceny had occurred, and did not address the charges of criminal possession of a weapon and reckless endangerment. The trial court thereupon extended the defendant’s probation for one year.

The defendant thereafter moved to dismiss the criminal charges.³ He argued that collateral estoppel bars the state from retrying factual issues decided at the revocation hearing.⁴

The trial court denied the defendant’s motion. The court held that the issues in the criminal case were not fully and fairly litigated in the revocation hearing because the state lacked the incentive to present its best evidence at that hearing. The trial court also concluded that no final judgment was rendered at the revocation hearing as to the robbery charge. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4024 and General Statutes § 51-199 (c).

I

The defendant argues that his trial on the criminal charges would violate the double jeopardy clause.⁵ We find no merit to the defendant’s claim.

The defendant claims that jeopardy attaches in a revocation hearing because it is essentially a criminal proceeding. He argues that the revocation of probation is essentially punitive, rather than remedial, because a consequence of a probation violation may be incarceration. The defendant further argues that the basis of the punishment is the new criminal conduct and not the prior conduct for which he had already been sentenced. He thereby attempts to distinguish State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988), which held that “[Revocation hearings are not concerned with punishment or retribution.”

The defendant also argues that because of the policy concerns for judicial economy, public perception of inconsistent verdicts, and vexatious litigation, this court should eschew labels and look at the substance of the revocation hearing. In support of this argument, the defendant cites Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). In Breed, the United States Supreme Court prohibited the retrial of a defendant as an adult who previously had been found delinquent at a juvenile hearing. Id., 541. The court thereby rejected the prosecution’s contention that the rehabilitative purpose of the juvenile proceeding should control rather than its criminal nature. Id., 535.

In sum, the defendant argues that the revocation hearing and the criminal trial are essentially similar and, therefore, the principles of double jeopardy are applicable. He asserts that a revocation proceeding is tantamount to a criminal trial because in both proceedings a defendant has a right to counsel, to an arrest by warrant, to bail, to notice of the charges, to cross-examine witnesses, and to call one’s own witnesses. See General Statutes § 53a-32; State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973). We disagree with the defendant.

Jeopardy attaches only to proceedings which are “ ‘essentially criminal.’ ” Breed v. Jones, supra, 421 U.S. 528. The United States Supreme Court and this court have held that revocation hearings are not criminal proceedings. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); State v. Smith, supra, 207 Conn. 176.

In State v. Smith, supra, 207 Conn. 176-78, this court concluded that the double jeopardy clause did not bar violation of probation hearings following a criminal conviction for three reasons. First, “[r]evocation hearings are not concerned with punishment or retribution.” Id., 177. Rather, probation seeks “to normalize the probationer into society as soon as reasonably possible,” and the revocation hearing “presents the ultimate question whether the probationer is still a ‘good risk’ to be continued in that status.” Id. Second, any punishment involved is “attributable to the crime for which [the defendant] was originally convicted and sentenced,” rather than to the charges on which the violation of probation is based. Id., 178. Third, the revocation hearing is less formal than the criminal trial, and, in that hearing, the state need only prove its case by a preponderance of the evidence. Id., 176-77; see State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). In Smith, we considered the differences in the state’s burden of proof to be significant. State v. Smith, supra, 177.

This case differs from Smith only in that we must here decide whether jeopardy attaches at a revocation hearing to bar a trial of the new criminal charges. We hold that the three rationales of Smith apply equally here and that, therefore, the double jeopardy clause does not prevent the state from prosecuting the defendant.

The purpose of a revocation hearing is to determine whether the defendant is a good risk for continued probation and not to punish him for a new criminal offense. Id., 177-78. This is central to the holding in Smith, which tracks any punitive aspect of the revocation of probation back to the original offense for which the defendant had been convicted. “Revocation is a continuing consequence of the original conviction from which probation was granted.” Id., 178. Moreover, as the court in Smith recognizes, a revocation hearing and a criminal trial differ in form and procedure. Revocation proceedings, although they are adversarial, are less formal than criminal proceedings and the technical rules of procedure do not apply. Id., 176-77. At a revocation proceeding the state must meet a burden of a preponderance of the evidence while at a criminal trial it must prove its case beyond a reasonable doubt. Id., 177. The revocation hearing is, thus, not essentially criminal.

We here continue to follow the clear holding in Smith that jeopardy does not attach at the revocation hearing. Accordingly, we hold that the double jeopardy clause does not bar the prosecution of the charges pending against the defendant.

II

The defendant also claims that the common-law doctrine of collateral estoppel should preclude the state from relitigating the same issues litigated in the revocation hearing. We find no merit to the defendant’s claim.

The defendant argues that the factual issues regarding the incident at Mitchell’s Grocery were necessarily decided at the revocation hearing, that they were fully and fairly litigated and that a final judgment was rendered in his favor. The defendant also argues that the policies giving rise to collateral estoppel support his position. He claims that the furtherance of judicial economy, the promotion of public confidence and the prevention of harassing litigation support his position.

The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. State v. Ellis, 197 Conn. 436, 466, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). 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). Issue preclusion arises when an issue “ ‘is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment.’ ” Scalzo v. Danbury, 224 Conn. 124, 128, 617 A.2d 440 (1992). Also, the issue “ ‘must have been fully and fairly litigated in the first action.’ ” Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).

The decisions of other courts provide us guidance. Some states have held that where “a specific finding on a material matter of fact [is] fully litigated” at the revocation proceeding, the state is estopped from relitigating the issue. State v. Chase, 588 A.2d 120, 123 (R.I. 1991); Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986); see also People v. Bone, 82 Ill. 2d 282, 412 N.E.2d 444 (1980); State v. Donovan, 305 Or. 332, 751 P.2d 1109 (1988). This reasoning does not persuade us. The court in State v. Chase, supra, 123, held that if the state had notice and the opportunity to litigate fully and fairly an issue at the revocation proceeding, it was sufficient to preclude the subsequent relitigation in a criminal trial. See State v. Donovan, supra, 336. This conclusion ignores the reality that the state in this case had no incentive to present its best evidence at the revocation proceeding where there was a lower standard of proof. Moreover, if the state proceeds with a revocation proceeding before its criminal investigation is complete, evidence may be acquired after the revocation proceeding and before the criminal trial. Ex parte Tarver, supra, 195, similarly fails to address this issue.

We follow the better reasoning of other courts that have addressed this issue and have concluded that collateral estoppel does not apply to issues raised at a revocation hearing and later forming the basis of a criminal trial. United States v. Miller, 797 F.2d 336 (6th Cir. 1986); Lucido v. Superior Court, 51 Cal. 3d 335, 795 P.2d 1223, 272 Cal. Rptr. 767 (1990), cert. denied, 500 U.S. 920, 111 S. Ct. 2021, 114 L. Ed. 2d 107 (1991); People v. Fagan, 104 App. Div. 2d 252, 483 N.Y.S.2d 489 (1984), aff'd, 66 N.Y.2d 815, 489 N.E.2d 222, 498 N.Y.S.2d 335 (1985); Commonwealth v. Cosgrove, 427 Pa. Super. 553, 629 A.2d 1007 (1993); State v. Dupard, 93 Wash. 2d 268, 609 P.2d 961 (1980).

The New York Court of Appeals in People v. Fagan, supra, 66 N.Y.2d 815, refused to apply collateral estoppel even if its “formal prerequisites” were met. The court reasoned that “[t]he correct determination of guilt or innocence is paramount in criminal cases . . . and the People’s incentive to litigate in a felony prosecution would presumably be stronger than in a parole revocation proceeding . . . .” (Citations omitted.) Id.

The California Supreme Court reasoned that the differing purposes of the criminal justice and probation systems should control. Lucido v. Superior Court, supra, 51 Cal. 3d 348-49. “Preemption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.” Id., 349. The Pennsylvania Superior Court echoed this reasoning. “It is only through a criminal trial at which the defendant is presumed innocent and the Commonwealth bears the burden of proof of guilt beyond a reasonable doubt that contested issues of criminal culpability are determined with finality. To cede this responsibility to a setting that does not adhere to the procedural safeguards necessary for a fair adjudication of guilt, such as a probation revocation hearing, would result in a perversion of the criminal justice system.” Commonwealth v. Cosgrove, supra, 427 Pa. Super. 560.

Our own cases that discuss the policy behind collateral estoppel recognize these same principles. We have held that in criminal matters, judicial economy must give way to the demand for the truth. “[T]he essentially public objectives of the criminal law advise against the uncritical adoption of [res judicata] concepts.” State v. Ellis, supra, 197 Conn. 471. A court’s interest in finality, therefore, must be balanced against the needs of criminal justice. Finality “ ‘is less relevant in criminal cases where the pre-eminent concern is to reach a correct result and where other considerations peculiar to criminal prosecutions may outweigh the need to avoid repetitive litigation ....’” Id., 470, quoting People v. Plevy, 52 N.Y.2d 58, 64, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980).

Moreover, we must consider the importance of public confidence in our criminal justice system. State v. Ellis, supra, 197 Conn. 466. From the birth of this republic, only criminal trials have been used to decide matters of guilt or innocence. The people continue to look to that process. Accordingly, collateral estoppel arising from a probation revocation hearing should not bar such a criminal trial.

The judgment is affirmed.

In this opinion BORDEN, KATZ and PALMER, Js., concurred.

1 The state does not contest that the denial of this motion to dismiss constitutes a final judgment. See State v. Aparo, 223 Conn. 384, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785 (1993); State v. Powell, 186 Conn. 547, 552-53, 442 A.2d 939, cert. denied, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

2 In 1991, the defendant had been sentenced to a term of probation on his conviction of the sale of narcotics. See State v. McDowell, supra, 241 Conn. 417 (Berdon, J., dissenting).

3 The defendant conceded before the trial court, and has not argued otherwise to this court, that he can be tried on the threatening charge.

4 In Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the United States Supreme Court incorporated collateral estoppel into the double jeopardy clause of the fifth amendment to the United States constitution. Collateral estoppel, however, has constitutional significance only if jeopardy attaches at a proceeding. See Ohio v. Johnson, 467 U.S. 493, 500 n.9, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).

5 The defendant raises the double jeopardy issue under the fifth amendment to the United States constitution and article first, § 9, of the constitution of Connecticut. The defendant fails, however, to provide an independent analysis of his state constitutional claim. Accordingly, we do not consider it. State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996).