Sevachko v. Commonwealth

BUMGARDNER, Judge. A jury convicted Steven Christopher Sevachko of perjury in violation of Code § 18.2-434. The defendant argues the doctrine of collateral estoppel precluded the prosecution. We find that the sole issue of fact, whether the defendant drove on December 24, 1995, was previously decided adversely to the Commonwealth, and we reverse this conviction. The defendant was first charged with driving on a suspended license. At that trial, he testified that he was not driving, and a jury acquitted him. After the acquittal, the Commonwealth learned that the defendant told his first attorney that he was driving. The Commonwealth indicted him for committing perjury at the first trial. Slayton v. Commonwealth, 185 Va. 371, 382, 38 S.E.2d 485, 491 (1946), addressed this precise issue in a case dealing with the identical issue of fact: was the defendant driving? The Court held that an acquittal does not bar subsequent prosecution for perjury at the trial. Subsequently, the United States Supreme Court ruled in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), that the guarantee against double jeopardy encompassed collateral estoppel and the Fourteenth Amendment made the doctrine applicable to the states. The Supreme Court of Virginia has — 564 — stated, “the doctrine of collateral estoppel is a Constitutional requirement embodied in the fifth amendment right against double jeopardy and is applicable to the states through the fourteenth amendment to the United States Constitution.” Simon v. Commonwealth, 220 Va. 412, 415, 258 S.E.2d 567, 569 (1979). The doctrine of collateral estoppel “means ‘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.’ ” Rogers v. Commonwealth, 5 Va.App. 337, 341, 362 S.E.2d 752, 754 (1987) (quoting Ashe, 397 U.S. at 443, 90 S.Ct. at 1194). “The party seeking the protection of collateral estoppel carries the burden of showing that the verdict in the prior action necessarily decided the precise issue he seeks to now preclude.” Id. (citation omitted). Where a “previous judgment of acquittal was based upon a general verdict ... a court [must] ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” Ashe, 397 U.S. at 444, 90 S.Ct. at 1194 (citation omitted). See United States v. Nash, 447 F.2d 1382 (4th Cir.1971) (when mail fraud acquittal is based on a general verdict, issue is whether rational jury could have grounded its verdict upon a collateral issue; court found that because there were two conflicting explanations as to defendant’s possession of money, the jury’s determination was not collateral but crucial and collateral estoppel barred redetermination). At the first trial of this defendant, the Commonwealth had only two issues to prove: the defendant drove; his license was suspended. See Code § 46.2-351. The defendant conceded his license was suspended, and at the perjury trial the Commonwealth conceded the sole issue of fact had been whether the defendant drove on December 24, 1995. The jury determined — 565 — that he did not drive when it acquitted. We hold that the doctrine of collateral estoppel precluded the perjury prosecution under the decision in Ashe because the Commonwealth would have to prove the identical issue. Accordingly, we reverse the conviction, and dismiss the case. Reversed and dismissed.