[Copyrighted Material Omitted]
Charles C. Cosby, Jr., Richmond (Lawrence A. Drombetta, III, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: PETTY, BEALES and CHAFIN, JJ.
[63 Va.App. 48] Ronald Taft Davis, III, appeals his convictions of first-degree murder and attempted first-degree murder. On appeal, Davis argues: (1) the trial court erred in denying his motion for collateral estoppel to bar prosecution of the charges due to his acquittal on the charge of reckless handling of a firearm; (2) the trial court erred in not granting his motion for a mistrial after the Commonwealth's Attorney mentioned Davis's invocation of his Miranda rights during both opening statements and direct examination of law enforcement; and (3) the trial court erred in denying Davis's motion for mistrial after a witness testified that Davis had a criminal charge for which he received a two-year sentence. For the following reasons, we reverse the judgment of the trial court.
" On appeal, ‘ we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ " [63 Va.App. 49] Archer v. Common wealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). Furthermore, collateral estoppel is a legal doctrine " grounded in the Fifth Amendment guarantee against double jeopardy." Rhodes v. Commonwealth, 223 Va. 743, 747, 292 S.E.2d 373, 375 (1982). Therefore, we apply the de novo standard of review applicable to double jeopardy claims to determine whether collateral estoppel applies. See Davis v. Commonwealth, 57 Va.App. 446, 455, 703 S.E.2d 259, 263 (2011).
On November 16, 2008, Davis was arrested and charged with shooting into an occupied vehicle, first-degree murder, use of a firearm during the commission of murder, and reckless handling of a firearm. The charges arose from an altercation during which Davis allegedly fired ten or more bullets into an occupied car parked outside a nightclub. A passenger of the car was killed as a result of the shooting. On December 16, 2008, the General District Court of Surry County conducted a preliminary hearing on the felonies. During the course of the preliminary hearing, the district court judge realized that there was a pending misdemeanor charge of
reckless handling of a firearm  arising from the same incident. The Commonwealth's Attorney advised the judge that it was his intention to proceed to try the misdemeanor concurrently with the preliminary hearing on the felonies; Davis then entered a plea of not guilty to the misdemeanor charge. At the conclusion of the Commonwealth's evidence at the preliminary hearing, the judge dismissed the misdemeanor reckless handling of a firearm charge and the felonies were not certified. The judge noted,
[63 Va.App. 50] On the issue of probable cause, clearly the Commonwealth has met its burden as to whether a felony was committed or not— felonies. On the issue of whether or not [the Commonwealth's Attorney has] shown it reasonable to believe Mr. Davis was the one that fired the weapon, I find that you have not met that burden, and I find no probable cause.
On the misdemeanor charge as to whether or not [the Commonwealth's Attorney has] proven the case beyond a reasonable doubt, I would find that you have not. I'm going to find him not guilty of that charge.
The Commonwealth then obtained direct indictments against Davis for the felonies of attempted murder, murder, use of a firearm in the commission of an attempted capital murder, and two counts of attempted capital murder. Davis made a motion to the circuit court to dismiss those indictments based on the doctrine of collateral estoppel. The circuit court denied the motion, noting that the judgment of acquittal on the misdemeanor reckless handling of a firearm charge was based on a general verdict. The circuit court stated that the district court order did not specify which element of the offense was not proved beyond a reasonable doubt and " merely placed a checkmark in the printed square on the reverse side of the warrant designated, ‘ not guilty’ and ‘ I ORDER the charge dismissed.’ "  Thus, the Commonwealth proceeded with the prosecution of Davis on the felonies in the circuit court. Following the trial, Davis was convicted of first-degree murder and attempted first-degree murder.
[63 Va.App. 51] II. ANALYSIS
Davis argues that the trial court erred in denying his motion to dismiss both felonies because his acquittal on the reckless handling of a firearm charge collaterally estopped the Commonwealth from prosecuting him on the felonies involving the use of a firearm. We agree.
Collateral estoppel is a preclusion doctrine " grounded in the Fifth Amendment guarantee against double jeopardy." Rhodes, 223 Va. at 747, 292 S.E.2d at 375.
" It stands for [the] extremely important principle in our adversary system of justice ... 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."  [63 Va.App. 52] Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Furthermore, " [t]he 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." Rhodes, 223 Va. at 749, 292 S.E.2d at 376. However, " [t]he doctrine ... does not apply if it appears that the prior judgment could have been grounded ‘ upon an issue other than that which the defendant seeks to foreclose from consideration.’ " Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444, 90 S.Ct. at 1194). " Collateral estoppel becomes applicable only when the prior acquittal necessarily resolved the issue now in litigation." Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979).
As the Supreme Court stated in Jones v. Commonwealth, 217 Va. 231, 228 S.E.2d 127 (1976),
Ashe requires that the question whether the rule of collateral estoppel applies in a given case is to be approached " with realism and rationality." The Court established these guidelines: " Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this [realistic and rational] approach requires a court to ‘ 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 [63 Va.App. 53] verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ "
Id. at 233, 228 S.E.2d at 129 (alteration in original) (quoting Ashe, 397 U.S. at 444, 90 S.Ct. at 1194).
[t]he inquiry " must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every ...