PEOPLE OF MI V LONNIE MCKISSIC
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2002
Plaintiff-Appellee,
v
No. 228578
Ingham Circuit Court
LC No. 98-073427-FH
LONNIE MCKISSIC,
Defendant-Appellant.
Before: Sawyer, P.J., and Murphy and Hoekstra, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of perjury, MCL 750.422. The trial court
sentenced defendant to 45 to 120 months’ imprisonment. Defendant appeals as of right, and we
affirm.
Defendant argues that the trial court improperly denied his motion to vacate the
conviction because collateral estoppel barred the perjury prosecution. We disagree.
Application of a preclusion doctrine, such as collateral estoppel, represents a question of
law we review de novo. See People v Garcia, 448 Mich 442, 458; 531 NW2d 683 (1995), cert
den 516 US 1002; 116 S Ct 548; 133 L Ed 2d 450 (1995); Minicuci v Scientific Data
Management, Inc, 243 Mich App 28, 34; 620 NW2d 657 (2000), citing Pierson Sand & Gravel,
Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). The doctrine of collateral
estoppel applies to criminal cases. Ashe v Swenson, 397 US 436, 443; 90 S Ct 1189; 25 L Ed 2d
469 (1970). Collateral estoppel bars relitigation of an issue in a subsequent, different litigation
between the same parties where the prior proceeding culminated in a valid, final judgment and
the issue was both actually litigated and necessarily determined. People v Gates, 434 Mich 146,
154; 452 NW2d 627 (1990), cert den 497 US 1004; 110 S Ct 3238; 111 L Ed 2d 749 (1990).
“Collateral estoppel bars relitigation of issues where the parties had a full and fair opportunity to
litigate those issues in an earlier action.” Dearborn Heights School Dist No 7 v Wayne Co
MEA/NEA, 233 Mich App 120, 124; 592 NW2d 408 (1998). Moreover, collateral estoppel only
applies if the issue was necessarily determined by the judgment in the prior proceeding. Gates,
supra, 434 Mich at 158. “An issue is necessarily determined only if it is ‘essential’ to the
judgment.” Id. “Collateral estoppel applies only where the basis of the prior judgment can be
ascertained clearly, definitively, and unequivocally.” Id.
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Defendant premises his collateral estoppel claim on the acquittal of Thomas Patrick,
accused as a co-conspirator in defendant’s cocaine distribution organization. At Patrick’s trial,
Defendant testified in Patrick’s favor, asserting that Patrick was never involved in the
organization. Defendant claims that Patrick’s acquittal constitutes a final determination that
defendant’s testimony related to Patrick was truthful and that Patrick was not involved in the
organization. Therefore, defendant argues, that issue cannot be re-litigated through this case.
There is no dispute that defendant’s testimony at Patrick’s trial, and more importantly at
Patrick’s preliminary examination, was contrary to defendant’s earlier grand jury testimony.
Before the grand jury, defendant implicated Patrick as a participant and kilogram-level customer
of the organization. Before Patrick’s preliminary examination, however, defendant recanted, and
testified at the preliminary examination that Patrick had not participated in the organization. The
perjury charges at issue in this case arise from the change in defendant’s testimony between the
grand jury and Patrick’s preliminary examination.
We find no support for defendant’s contention that collateral estoppel prohibits his
perjury prosecution. First, the doctrine of collateral estoppel requires the same parties to be
involved in both proceedings. Gates, supra at 155. Substantial identity of parties, and not
precise identity, is all that is required. Dearborn Heights, supra at 126. A party is one who was
directly interested in the subject matter, and who had a right to defend in, or control, the
proceedings, and who had a right to appeal from the judgment. Id. at 127. In Patrick’s trial,
defendant had no direct interest in the subject matter, he had no right to defend himself or to
control the proceedings, and he had no right to appeal the judgment if Patrick was convicted. He
was simply a defense witness. Therefore, we find no substantial identity of parties between this
case and Patrick.
Second, the prosecution did not have a full and fair opportunity to litigate defendant’s
perjury at Patrick’s preliminary examination or during Patrick’s trial. Gates, supra at 156-157.
The prosecution could not bring perjury charges against defendant as part of Patrick’s trial;
rather, criminal charges had to be brought against defendant in a separate forum where he had
the opportunity to present a defense. Const 1963, art 1, §§ 13, 20; US Const, Am VI;
Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). Moreover, this is not
an example of a defendant testifying in his own behalf; therefore, there is no danger of an
overzealous prosecutor asking a second jury to reevaluate defendant’s testimony in an attempt to
bypass an earlier acquittal. People v White, 411 Mich 366, 379; 308 NW2d 128 (1981).
Patrick’s acquittal is unaffected by defendant’s perjury conviction.
Finally, the truthfulness of defendant’s testimony regarding Patrick’s participation in the
cocaine organization was not necessarily determined by Patrick’s acquittal. Gates, supra at 158.
“An issue is necessarily determined only if it is ‘essential’ to the judgment.” Id. “Collateral
estoppel applies only where the basis of the prior judgment can be ascertained clearly,
definitively, and unequivocally.” Id. The record does not indicate the Patrick jury’s reasons for
acquittal. Therefore, even if defendant was charged with perjury at Patrick’s trial rather than
Patrick’s preliminary examination, it would be impossible for this Court to conclude that
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Patrick’s acquittal necessarily determined that defendant’s testimony—particularly that given at
Patrick’s preliminary examination—was truthful.
Affirmed.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Joel P. Hoekstra
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