State v. Brunet

Annotate this Case

State v. Brunet (2000-121); 174 Vt. 135; 806 A.2d 1007

[Filed 10-May-2002]
[Motion for Reargument Denied 26-Jul-2002]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 2000-121

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Kevin J. Brunet June Term, 2001

James R. Crucitti, J.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J. The question presented is whether collateral estoppel
bars a criminal prosecution based on factual allegations decided adversely
to the State in an earlier probation revocation proceeding. We hold that
it does not. Accordingly, we affirm the judgment of conviction.

The material facts are undisputed. In November 1998, defendant was
convicted of misdemeanor domestic assault, and sentenced to three to six
months. The sentence was suspended, and defendant was placed on probation
with the standard conditions of probation, as well as several special
conditions, including requirements that he not contact the victim of the
assault, and that he abide by any pending relief from abuse order.

On January 5, 1999, defendant was charged with a violation of
probation and two new offenses, second degree aggravated domestic assault
and violation of an abuse-prevention order, all

arising out of a single incident. Following a bail review hearing on
January 12, the court ordered that defendant be held without bail on the
pending violation of probation. On January 26, the court held a probation
violation hearing. The State alleged that defendant had violated the
conditions that he not engage in "threatening, violent, or assaultive
behavior," not have any contact with the victim, and abide by any pending
relief from abuse order. In support of the allegations, the State called
two witnesses. Bret Ward, a bartender/bouncer at Alley Cats, a Burlington
bar, testified about an incident that had occurred during the late evening
of December 23 or early morning of the 24th. He recalled observing the
victim and another woman approach the bar, and moments later saw defendant
strike the victim several times and kick her. Defendant's probation
officer testified that defendant had called her on December 28 to report
that the victim had "attacked" him.

Defendant called two witnesses. His current girlfriend testified
that on the night in question, she and her two young children and
defendant had parked across the street from Alley Cats to visit a friend
of defendant who lived above the bar. She recalled that as defendant
approached the bar, the victim came up behind him, pulled on his jacket,
spun him around, blocked his path, and struck him several times.
Defendant, in response, picked her up and put her on the ground in order to
subdue her. Defendant also testified, essentially corroborating his
girlfriend's account of the incident. He did not believe that Ward, the
bartender, could have observed the altercation.

At the conclusion of the hearing, the court issued findings from the
bench. The court found that defendant's meeting with the victim was
accidental, that the victim initiated the altercation, and that defendant
put her on the ground solely to subdue her. The court thus found that the
physical contact between defendant and the victim "was the result of the
Defendant trying to either protect himself or to extricate himself from
the situation." Accordingly, the court ruled that there was no probation
violation.

Defendant later moved to dismiss the criminal charges on several grounds,
including collateral estoppel. The trial court denied the motion in a
written decision, concluding that the State had not had a "full and fair
opportunity to litigate the issues" in the revocation proceeding, and
therefore was not collaterally estopped from proceeding with the criminal
prosecution. The matter proceeded to trial, which resulted in a hung
jury. At the retrial, the State called nine witnesses, including Ward
(the bartender who had testified in the revocation proceeding), an
acquaintance of defendant who stated that defendant was looking for the
victim as he approached the bar on the evening in question, the
investigating officers who described the victim's condition after the
incident, and the victim herself, who testified that defendant struck her
without provocation, threw her down - breaking a chair in the process -
and hit her with a piece of the broken chair. As in the earlier
revocation proceeding, defendant called his girlfriend, and testified on
his own behalf. The jury returned a verdict of guilty on the charge of
felony domestic assault, and defendant was subsequently sentenced to two
to five years.

On appeal, defendant renews his claim that collateral estoppel barred
the criminal prosecution for domestic assault because of the adverse
finding against the State in the earlier probation revocation proceeding.
Although we have not heretofore addressed this precise issue, our
analysis is necessarily informed by several well-settled principles and
precedents. The doctrine of collateral estoppel, or issue preclusion,
will bar the relitigation of an earlier decided issue where:

(1) preclusion is asserted against one who was a party or in
privity with a party in the earlier action; (2) the issue was
resolved by a final judgment on the merits; (3) the issue is the
same as the one raised in the later action; (4) there was a full
and fair opportunity to litigate the issue in the earlier action;
and (5) applying preclusion in the later action is fair.

Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265, 583 A.2d 583, 587
(1990); see also State v. Dann, 167 Vt. 119, 127-28, 702 A.2d 105, 110-11
(1997) (applying Trepanier elements in criminal

case); State v. Stearns, 159 Vt. 266, 268, 617 A.2d 140, 141 (1992)
(considering whether "cross-over" estoppel, i.e., principle that issue
decided in civil case is determinative in later criminal case, bars DUI
prosecution following judgment for defendant in civil suspension
proceeding).

The trial court here found, and the State implicitly concedes, that
the first two Trepanier elements were satisfied. The parties were
identical - both the revocation proceeding and the criminal prosecution
were brought by the State of Vermont against defendant - and there was a
final judgment on the merits in the revocation proceeding. We may assume,
as well, that the factual finding that defendant had not engaged in
"assaultive" behavior and that any physical contact with the victim was
purely inadvertent and defensive would - if conclusive - preclude the
charge of domestic assault predicated on the same facts. See Lucido v.
Superior Court, 795 P.2d 1223, 1225-26 (Cal. 1990) ("identical issue"
requirement addresses whether "identical factual allegations" are at
stake, not whether ultimate issues or dispositions are same).

The question thus resolves to whether the State had a "full and fair
opportunity" to litigate the issue in the revocation proceeding, and
whether application of the doctrine in these circumstances is fair, i.e.,
would "serve the interests of justice." Dann, 167 Vt. at 127, 702 A.2d at
110. In considering whether these two elements are satisfied, the court
"must look at the circumstances of each case." Id. Factors to consider
are the type of issue preclusion (offensive or defensive), the forum,
the incentive to litigate, the foreseeability of future litigation, the
legal standards and burdens employed in each action, the procedural
opportunities available in each forum, and the possibility of
inconsistent determinations of the same issue in separate cases. Id.; see
also Trepanier, 155 Vt. at 265, 583 A.2d at 587; Stearns, 159 Vt. at
271-72, 617 A.2d at 142-43.

We are aided in this evaluation by other courts that have considered
the identical issue. Most have concluded that probation revocation
hearings are so fundamentally different from criminal trials

in their purpose and procedures that it would be unfair to apply collateral
estoppel in these circumstances. See United States v. Miller, 797 F.2d 336, 341-42 (6th Cir. 1986); Lucido, 795 P.2d at 1226-32; State v.
McDowell, 699 A.2d 987, 990-91 (Conn. 1997); Green v. State, 463 So. 2d 1139, 1139 (Fla. 1985); State v. Jones, 397 S.E.2d 209, 210 (Ga. Ct. App.
1990); Krochta v. Commonwealth, 711 N.E.2d 142, 145-48 (Mass. 1999); State
v. Reed, 686 A.2d 1067, 1069 (Me. 1996); People v. Johnson, 477 N.W.2d 426, 428-29 (Mich. Ct. App. 1991); People v. Fagan, 489 N.E.2d 222, 222
(N.Y. 1985); State v. Dupard, 609 P.2d 961, 965 (Wash. 1980); State v.
Terry, 620 N.W.2d 217, 219-23 (Wis. Ct. App. 2000); see generally
Annotation, Determination that State Failed to Prove Charges Relied Upon
for Revocation of Probation as Barring Subsequent Criminal Action Based on
Same Underlying Charges, 2 A.L.R.5th 262 (2000). As explained below, we
find the reasoning of these decisions to be persuasive.

In Vermont, as in the federal courts and many other states, the rules
of evidence and procedure applicable in criminal trials are inapplicable
in probation revocation proceedings. See V.R.E. 1101(b)(3); State v.
Austin, 165 Vt. 389, 395, 685 A.2d 1076, 1080 (1996); Miller, 797 F.2d at
341; Reed, 686 A.2d at 1069 (Maine Rules of Evidence and other procedures
applicable in criminal trial do not apply to revocation proceeding);
Johnson, 477 N.W.2d at 428 (noting that in Michigan probation violation
hearings are not subject to rules of evidence or pleading applicable in
criminal trials). Moreover, the state typically bears a lower burden of
proof to establish a probation violation - in Vermont the standard is
only a preponderance of the evidence - as compared to proof beyond a
reasonable doubt in criminal prosecutions. See Austin, 165 Vt. at 398, 685 A.2d at 1082; State v. Bushey, 149 Vt. 378, 382, 543 A.2d 1327, 1329
(1988).

The relaxed procedural rules and evidentiary burden applicable in
revocation proceedings reflect their distinct purpose. As we have
explained, "The purpose of a revocation hearing is not to

determine defendant's culpability, but rather to decide 'whether the
alternatives to incarceration which have been made available to a
defendant remain viable for him.' " State v. Lockwood, 160 Vt. 547, 552,
632 A.2d 655, 659 (1993) (quoting People ex rel. Gallagher v. District
Court, 591 P.2d 1015, 1017 (Colo. 1978) (en banc)); see also Terry, 620 N.W.2d at 221 (noting that substantial procedural differences between
revocation proceeding and criminal trial "reflect substantial differences
between the interests involved in parole revocation and those in a criminal
prosecution") (quoting State v. DHSS, 260 N.W.2d 727, 732 (Wis. 1978)).

The goal of a revocation hearing is to not to decide guilt or
innocence, but to determine whether the defendant remains a good risk for
probation. See Lucido, 795 P.2d at 1230 ("The fundamental role and
responsibility of the hearing judge in a revocation proceeding is not to
determine whether the probationer is guilty or innocent of a crime, but
whether a violation of the terms of probation has occurred and, if so,
whether it would be appropriate to allow the probationer to continue to
retain his conditional liberty."). Any sentence imposed as a result of
revocation is not premised on the new criminal charges, but derives
exclusively from the original sentence on the earlier offense. See State
v. Therrien, 140 Vt. 625, 627, 442 A.2d 1299, 1301 (1982) (if violation is
established, court may revoke probation and impose original sentence under
28 V.S.A. § 304); Lucido, 795 P.2d at 1230 ("A revocation hearing arises
as a continuing consequence of the probationer's original conviction; any
sanction imposed at the hearing follows from that crime, not from the
substance of new criminal allegations against the probationer."); McDowell,
699 A.2d at 989 ("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."). Thus, it is universally
acknowledged that a revocation proceeding is not essentially "criminal" in
nature, and that double jeopardy does not attach at a revocation hearing
to bar a trial of the new criminal charges. See

Miller, 797 F.2d at 338-41; Lucido, 795 P.2d at 1230; McDowell, 699 A.2d at
990; State v. Daniels, 780 So. 2d 148, 149 (Fla. Ct. App. 2000); Krochta,
711 N.E.2d at 144-45.

The filing of new criminal charges against a probationer may signal
that "the rehabilitative purposes of probation have failed and defendant
is a threat to society." Lockwood, 160 Vt. at 552, 632 A.2d at 659.
Accordingly, revocation hearings are frequently held as expeditiously as
possible, and the State often lacks the preparation that precedes a
criminal trial. Indeed, in some cases an ongoing criminal investigation
may adduce additional evidence after the revocation proceeding has been
completed, but prior to the commencement of trial. See McDowell, 699 A.2d
at 990 ("[I]f 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."); Johnson, 477 N.W.2d at 428-29 ("Because of the limited nature and scope of a probation
violation hearing, as a practical matter the prosecutor may not present
all the evidence bearing on the commission of the alleged offense.");
Reed, 686 A.2d at 1069 (probation revocation hearings are held in "informal
manner" to allow court "to determine expeditiously whether continuing
probation remains an effective vehicle in accomplishing the probationer's
rehabilitation").

The lower standard of proof necessary to establish a violation may
also diminish the State's incentive to gather and present all of the
potentially available evidence at the probation hearing. See McDowell,
699 A.2d at 990 ("[t]he reality [is] that the state . . . had no incentive
to present its best evidence at the revocation proceeding where there was
a lower standard of proof").

The instant appeal is a case in point. Within three weeks after the
filing of the new charges, defendant had a bail hearing - in which bail
was denied - and a one-day probation revocation hearing. The State called
only two witnesses to establish the violation - the bartender and
defendant's probation officer - omitting the victim herself, the
investigating officers, and other

critical witnesses who later appeared at trial. Plainly, the revocation
hearing in this case was not the equivalent of a criminal trial for
purposes of rendering a full and final determination of guilt or
innocence.

In light of these basic differences in purpose and function, most
courts have concluded - correctly in our view - that it is neither fair
nor wise to apply collateral estoppel to bar the relitigation of issues at
a subsequent criminal trial. See, e.g., Lucido, 795 P.2d at 1230 (because
limited purpose of probation violation hearing may "not involve or invoke
presentation of all evidence bearing on the underlying factual
allegations, the People's failure to satisfy the lower burden of proof at
the revocation hearing does not necessarily amount to an acquittal or
demonstrate an inability to meet the higher criminal standard of proof");
accord Johnson, 477 N.W.2d at 429; McDowell, 699 A.2d at 990.

Most courts have also concluded that applying collateral estoppel to
bar a criminal prosecution based upon an earlier probation-revocation
decision would undermine the interests of justice, and erode public
confidence in the criminal justice system. As the California Supreme Court
in Lucido cogently observed: "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 at to guilt or innocence of
newly alleged crimes." 795 P.2d at 1230-31; see also Miller, 797 F.2d at
342 (observing that "[t]he government is not required to complete its
entire investigation before seeking to revoke an individual's probation,
nor would such a requirement be in society's best interest"); Fagan, 489 N.E.2d at 222 ("[s]trong policy considerations militate against giving
issues determined in prior litigation preclusive effect in criminal cases"
because "correct determination of guilt or innocence is paramount in
criminal cases"); Dupard, 609 P.2d at 965 (question whether defendant
committed

new crime "is more appropriately addressed to the criminal justice system"
than informal revocation process); McDowell, 699 A.2d at 991 ("public
confidence in our criminal justice system" requires that only criminal
trials be used to determine guilt or innocence).

The possibility of inconsistent judicial determinations - as occurred
in this case - does not alter our conclusion. Although consistency is
certainly desirable, it is not, as the court in Lucido noted, "the sole
measure of the integrity of judicial decisions. We must also consider
whether eliminating potential inconsistency (by displacing full
determination of factual issues in criminal trials) would undermine public
confidence in the judicial system." 795 P.2d at 1229. Like the court in
Lucido and the majority of other jurisdictions, we believe that the
interests of justice - and public confidence in the criminal justice
system - are best served through a full and fair determination of guilt
or innocence in a criminal trial, notwithstanding a prior inconsistent
ruling in a revocation proceeding.

The several decisions that have concluded otherwise are not
persuasive. See People v. Kondo, 366 N.E.2d 990, 992-93 (Ill. App. Ct.
1977); State v. Bradley, 626 P.2d 403, 405-406 (Or. Ct. App. 1981); State
v. Chase, 588 A.2d 120, 122-23 (R.I. 1991); Ex Parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986). Each was based on the narrow conclusion
that the State is estopped from relitigating "a specific finding on a
material matter of fact fully litigated" at the revocation proceeding.
Chase, 588 A.2d at 123; see also Kondo, 366 N.E.2d at 992-93 ("the State is
barred from seeking a relitigation, upon the same evidence, at a criminal
trial, of the issue that had been conclusively determined on its merits at
the prior probation revocation hearing"); Bradley, 626 P.2d at 406 ("an
express finding on a matter of fact material to a probation revocation
proceeding will collaterally estop the state from attempting to prove that
same fact at a later criminal trial . . . only where the issue was fully
litigated at the probation revocation proceeding") (italics omitted);
Tarver,

725 S.W.2d at 199-200 (factual finding decided adversely to State at
revocation hearing may not be relitigated at criminal trial).

None of these decisions examined in any depth the practical
differences underlying the State's opportunity and incentive to litigate
new criminal charges in the revocation setting as opposed to a criminal
trial. None, moreover, considered the undesirable consequences of
permitting an informal and relatively summary revocation hearing to
displace the traditional adjudicative function of a criminal trial. As
the court in Terry observed, applying collateral estoppel in these
circumstances would fundamentally alter the historical role of criminal
prosecutions, forcing "the revocation proceedings to become the main focus
of the litigation [and] turning revocation proceedings into mini-trials.
Public policy and common sense dictate that this court should not
countenance such a result." 620 N.W.2d at 222.

We remain persuaded that "[t]he difference in the purposes of . . .
civil and criminal proceedings must affect the wisdom of applying
collateral estoppel." Stearns, 159 Vt. at 270, 617 A.2d at 142. Here,
the distinctly different purposes of a probation revocation hearing and a
criminal trial make the application of collateral estoppel unwise. We
conclude, therefore, that collateral estoppel did not bar the State from
prosecuting defendant on the assault charge which formed the basis of the
probation violation allegations decided adversely to the State.
Defendant's motion to dismiss was properly denied.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Dissenting

No. 2000-121

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Kevin J. Brunet June Term, 2001

James R. Crucitti, J.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J., dissenting. The policy issue presented by this case is
whether it is fair to require a criminal defendant to defend twice against
the same factual allegations if he obtains a favorable ruling in the first
proceeding. Here, defendant was accused, in a probation revocation
proceeding, of attacking his former girlfriend. The trial court heard
evidence from the State and defendant, and made a specific factual finding
that defendant acted to protect or extricate himself from an altercation
with his girlfriend, and therefore did not engage in violent behavior in
violation of his probation. Nevertheless, the State charged defendant
with assault, based on the same events, which resulted in a hung jury.
Only after a third trial, at which the State increased the number of

witnesses, was defendant convicted of assault. Then, as a result of the
conviction, defendant was again charged with violating his probation, and
his probation was revoked. All of these hearings and trials involved the
same incident.

Not surprisingly, defendant cries foul. Although the trial court in
the revocation proceeding had to decide whether defendant had engaged in
violent behavior, not whether defendant was guilty of the charge of
assault, defendant argues that the trial court's determination of the facts
undermined the elements of the subsequent charge of assault. Because the
State had a full and fair opportunity to litigate the revocation case, he
contends that the State should have been collaterally estopped from
relitigating the facts that were decided adversely to it in that
proceeding. I agree and respectfully dissent.

The United States Supreme Court has defined collateral estoppel as
"mean[ing] 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 (1970). There is no question that collateral
estoppel applies to criminal cases. State v. Dann, 167 Vt. 119, 126, 702 A.2d 105,110 (1997). In this context, collateral estoppel is a principle
of constitutional dimension, which is derived from the protection against
double jeopardy guaranteed by the Fifth and Fourteenth Amendments. Harris
v. Washington, 404 U.S. 55, 56 (1971). Although revocation proceedings do
not put a defendant in jeopardy, the policies underlying double jeopardy
and collateral estoppel serve the same function. Those policies insure
that "the State with all its resources and power . . . not be allowed to
make repeated attempts to convict an individual for an alleged offense,
thereby. . . compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent
he may be found guilty." Green v.

United States, 355 U.S. 184, 187-88 (1957); see United States v. Dixon, 509 U.S. 688, 705 (1993). Here, the issue of fact that had already been
determined was whether defendant attacked his former girlfriend at an
altercation in a bar. In prosecuting defendant for assault, the State had
a second opportunity to establish a different version of the same event
(and a third, after the hung jury). Because he finally suffered a
conviction, defendant was not even entitled to the benefit of the original
finding of no violation of probation. I have to conclude, on these facts,
that the State has violated the fundamental principle set forth in Ashe.

Of the elements of collateral estoppel established by this Court, I
agree with the majority that three have been met. Those are: "(1)
preclusion is asserted against one who was a party or in privity with a
party in the earlier action; (2) the issue was resolved by a final judgment
on the merits; [and] (3) the issue is the same as the one raised in the
later action." Dann, 167 Vt. at 126, 702 A.2d at 110 (internal citations
omitted). Where I disagree with the majority is in its conclusion that the
State did not have a "full and fair opportunity to litigate the issue in
the earlier action," and that applying preclusion in the later action
would not be fair to the State. Id. Because both the technical aspects of
collateral estoppel were met and the underlying policy rationale for the
doctrine is supported in this case, I would hold that dismissal of the
criminal case is the proper result.

To place the policy question squarely before us, I am compelled to
explain why this case is not about "a full and fair opportunity to
litigate the issue" in the prior action. Trepanier v. Getting Organized,
Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990) (emphasis added). There
is no evidence in the record that the State was denied the opportunity to
present its full case at the revocation hearing, by, for example, the
court limiting the State to the number of witnesses it could call.
Instead, the State's true complaint is that it failed to exploit the
opportunity to litigate the

crucial facts at issue in the revocation hearing. The proper inquiry,
therefore, is whether the State was given a chance to present its case
fully, not whether the State elected to present that case as completely as
possible. See Lucido v. Super. Ct., 795 P.2d 1223, 1224 n.2 (Cal. 1990).

The factors identified by the State and the majority in support of the
position that the State did not have a full and fair opportunity fail to
identify any barrier that was outside the control of the State. For
example, the State chose to bring the revocation proceeding within three
weeks after filing the new charges, knowing that the hearing would be held
within a short period of time. The State also chose to rely on only two
witnesses in this proceeding, instead of the nine witnesses it produced at
the second criminal trial, and chose not to call crucial witnesses such as
the victim herself. The State complains that it did not have the
incentive to fully litigate at this early stage of the proceedings, but
the lack of incentive should have counseled against bringing the probation
revocation before the criminal assault. No rule of law required the State
to proceed to probation revocation first, and, in fact, we have advised
against such an approach in the past. See State v. Begins, 147 Vt. 295,
300, 514 A.2d 719, 723 (1986 ) (better method of dealing with problems
raised by concurrent criminal and revocation proceedings is to postpone
revocation proceedings). The point is that the State made several
strategic choices. Those choices did not bear fruit for the State, but it
was not because the State was not afforded the opportunity to litigate its
case fully. (FN1)

Contrary to the majority's assertion, this case closely resembles
those where courts have barred subsequent relitigation of specific facts
previously determined at prior hearings. In Ex Parte Tarver, 725 S.W.2d 195, 198 (Tex. Crim. App. 1986) the probationer was charged with assault
and the state brought a revocation hearing. At the hearing, in which
three witnesses testified for the state, the court found the allegations
of assault unbelievable. The court of criminal appeals barred the
subsequent criminal trial on the ground of collateral estoppel. The court
held that "it is clear that a fact at issue, i.e. whether applicant
assaulted the complainant, has been found adversely to the State." Id. at
198. Similarly, at the revocation hearing in State v. Chase, 588 A.2d 120,
121 (R.I. 1991), the court made a determination that the defendant did not
buy drugs from an undercover police officer, after hearing testimony from
both the defendant and the undercover officer. The Rhode Island Supreme
Court held that "a specific finding on a material matter of fact fully
litigated at the probation-revocation hearing will collaterally estop the
state from attempting to prove the same fact at trial." Id. at 123; see
also People v. Kondo, 366 N.E.2d 990, 992-93 (Ill. App. Ct. 1977) ("[T]he
court made a finding on the only disputed question of fact involved . . . .
[T]he State is barred from seeking a relitigation, upon the same evidence,
at a criminal trial, of the issue that had been conclusively determined .
. . ."); State v. Donovan, 751 P.2d 1109, 1114 (Or. 1988) ("[I]f the state
elects and a judge agrees to conduct a probation revocation hearing that
concerns any of the elements of the new offense, then collateral estoppel
. . . will apply against the state if the judge finds that a necessary
element is not proven at the hearing."). These cases are indistinguishable
from the present in which the court made a specific factual finding that
defendant's contact with his former girlfriend

was accidental. All the technical aspects of the collateral estoppel
doctrine point toward barring the State from relitigating that specific
finding.

The resolution of this case, therefore, hinges on whether "applying
preclusion in the later action is fair." Trepanier, 155 Vt. at 265, 583 A.2d at 587. The majority reasons that it is not fair because the
differences in procedure and purpose between probation revocation hearings
and criminal trials do not justify preclusion on the factual issues
decided, and that the criminal trial should be preserved as the forum
where criminal charges are adjudicated.

There are substantial differences between a revocation proceeding and
a criminal hearing, but these differences hardly make it unfair to apply
preclusion to the State. In fact, the differences are advantageous to the
State, and therefore disadvantageous to the defendant. See Chase, 588 A.2d
at 123. As already noted, the State has the advantage of choosing when to
proceed and how vigorously to prosecute. The State enjoys a lower burden
of proof than at a criminal trial, and may use evidence that is not
admissible under a strict reading of the rules of evidence. This allows
the State to make strategic choices about how much evidence it will put
on. Because the defendant has no choice but to defend or suffer a
violation, the State has the further opportunity to "discover" a
defendant's case at the revocation hearing and essentially to audition its
case in a relatively low stakes setting before the criminal trial. See
Begins, 147 Vt. at 297, 514 A.2d at 721; see Tibbs v. Florida, 457 U.S. 31,
41 (1982) (multiple prosecutions give the State "another opportunity to
supply evidence which it failed to muster in the first proceeding" and
allow the State to "hon[e] its trial strategies . . . through successive
attempts at conviction") (internal quotations omitted). Finally, the

State is not precluded, on double jeopardy grounds, from bringing a
subsequent criminal prosecution based on the same facts. (FN2)

The only prejudice the State suffers in this scenario, assuming
collateral estoppel applies, is the preclusive effect of any specific
issues of fact decided at the revocation hearing. (FN3) But the State can
avoid that harm completely by choosing to prosecute the underlying offense
first. We confronted the problems raised by the order of prosecution in
Begins, and concluded that "[w]hen it is not detrimental to the
probationer or to the public's safety, the better method of dealing with
problems of concurrent criminal and probation revocation jurisdiction is to
postpone the probation proceedings until after disposition of related
criminal proceedings." 147 Vt. at 300, 514 A.2d at 723. In Begins, we
recognized the disadvantages to a defendant who is subject to two
proceedings, and found it necessary, to preserve a defendant's Fifth
Amendment right to remain silent, to create an exclusionary rule to
prevent the State's use of a defendant's testimony in the subsequent
criminal prosecution. Id. at 299-300, 514 A.2d at 722-23. But we did not
remove from the State the discretion to make the choice on the order of
prosecution. 147 Vt. at 298, 514 A.2d at 722. Because the State can avoid
any potential prejudice to its criminal case, it is not fair to allow the
State "to treat the revocation hearing as a 'Heads I win, tails I flip
again' proposition." Lucido, 795 P.2d at 1243 (Broussard, J.,
dissenting).

Moreover, revocation proceedings are not like other hearings where the
need for summary dispositions explains our reluctance to give their
results preclusive effect. This case is unlike State v. Stearns, 159 Vt.
266, 617 A.2d 140 (1992) where we declined to apply collateral estoppel to
bar prosecution for DUI when the State failed to prove the defendant
refused to take a breath test at a civil suspension hearing. There, we
held that the State had not had a "full and fair opportunity" because the
civil suspension hearing is a summary proceeding designed to get suspected
drunk drivers off the road expeditiously. Id. at 271, 617 A.2d at 142-43.
See 23 V.S.A. § 1205 (providing for civil suspension of driver's license
by affidavit alone). Similarly, we do not apply collateral estoppel to
small claims cases because in those proceedings the procedures have been
designed to "provide a simple, informal and inexpensive procedure for
determining" cases with small amounts in controversy, where the parties
are typically unrepresented by counsel. Cold Springs Farm Dev., Inc. v.
Ball, 163 Vt. 466, 469, 661 A.2d 89, 91 (1995) (citation omitted). These
informal procedures are "woefully inadequate" to support the application
of collateral estoppel in a subsequent suit. Id. at 470, 661 A.2d at
91-92. In revocation proceedings, in contrast, there is no need for
promptness or accessibility or informality that limit the procedures, such
that application of collateral estoppel in a subsequent criminal trial
would be unfair. To the extent that public safety is threatened by the
probationer, the State may use conditions of release or the denial of bail
on the new charges to protect the public. (FN4) See Lucido, 795 P.2d at
1238-39 (Mosk, J., dissenting).

The final consideration of the fairness question is the impact that
applying collateral estoppel to facts determined at a revocation
proceeding will have on our judicial system. Here, too, the prejudice
suffered by the judicial system is greater when collateral estoppel is not
applied to

revocation proceedings. We have identified those interests as protecting
the integrity of the judicial system by avoiding the possibility of
inconsistent judgments, relieving litigants from having to prove a fact
twice, and preventing an uneconomic use of judicial resources. See In re
Tariff Filing of Cent. Vt. Pub. Serv. Corp., __ Vt. __, __, 769 A.2d 668,
673 (2001). I cannot agree with the analysis in Lucido that these
policies weigh against applying collateral estoppel in revocation cases.
Indeed, I believe that applying collateral estoppel to this case serves
all three policies, particularly where the pitfalls of not applying
collateral estoppel are so evident here - this defendant was put to his
proof three times, received a different result each time, and the State
needed three court proceedings before it succeeded in convicting
defendant.

First, the public must have confidence that our system produces
accurate results, no matter the purpose of the hearing. For the State to
try defendant criminally for the same incident plainly calls into question
the accuracy of the fact-finding at the revocation hearing. Failure to
apply collateral estoppel leaves us hard pressed to explain why the
factual finding at the criminal trial is any more valid than the factual
findings of the revocation hearing. Such relitigation casts a shadow over
all revocation hearings, renders their results less valid than the results
of a criminal trial, and does not inspire confidence in our judicial
system.

Second, the failure to apply collateral estoppel in this case forced
defendant to prove his case more than once, giving the State multiple
"bites at the apple," and requiring defendant to mount multiple defenses
against the same charge. As discussed above, the defendant is prejudiced
when the full power of the State is brought to bear against an individual
defendant repeatedly. We should not "allow[ ] the [State], through sheer
perseverance, to litigate and litigate until [it], in [its] view, 'get[s]
it right.' " Lucido, 795 P.2d at 1236 (Mosk, J., dissenting).

Third, allowing the State a second chance to litigate what happened between
defendant and his former girlfriend is an unnecessary drain on judicial
resources. It is a waste of public funds to allow the State another
chance to present its case, when it had a fair opportunity to do so at the
revocation hearing. The concern for judicial economy is especially
pressing where the State failed under a less demanding evidentiary
standard than that faced at a criminal trial. Indeed, in various contexts
our actions are frequently guided by concern for judicial economy. See,
e.g., In re Gillin, __ Vt. __, __, 773 A.2d 270, 273 (2001) (mem.) (in
interests of judicial economy, court reaches issue trial court did not
decide, rather than remand); State v. Tongue, 170 Vt. 409, 414, 753 A.2d 356, 359-60 (2000) (in interest of judicial economy, trial court need not
reconsider pretrial suppression ruling when new facts are adduced on
motion to reconsider); Reporter's Notes, V.R.A.P. 2 (noting rule allows
this Court to suspend rules "to secure the just, speedy, and inexpensive
determination of every action"). I see no reason to cast aside those
concerns in this setting.

The Lucido majority identifies an additional rationale for not
applying collateral estoppel to revocation hearings. It holds that public
policy requires that "ultimate determinations of criminal guilt and
innocence not be made at probation revocation hearings," 795 P.2d at 1224,
but should be preserved for a full criminal trial. I agree, but I
emphasize again that whether the determination of criminal charges is made
at the probation revocation hearing or at a criminal trial is a matter of
the State's exercise of prosecutorial discretion. Although it is entirely
possible to reserve the trial of criminal charges for full criminal trials
by requiring the State to proceed with the criminal trial first, I doubt
that the State would have us adopt a rule that removes that choice from its
discretion.

The State could have waited until the conclusion of the criminal trial
before trying the probation revocation - it chose not to. We should not
allow the State to toss aside unfavorable judicial determinations as a
result. As Justice Mosk stated in Lucido, "the People control the

sequence of proceedings. They alone determine what appears to be in the
best interest of society and public safety. They should be bound by the
procedural choice they make." 795 P.2d at 1239 (Mosk, J., dissenting).
Therefore, I would hold that when the trial court in a revocation hearing
makes a specific factual finding, that finding is entitled to collateral
estoppel, assuming all other elements of the doctrine are met.
Accordingly, I respectfully dissent.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Even Lucido, the case on which the majority relies, recognized it was
answering a policy question based on fairness, not on a full and fair
opportunity to litigate. Ante, at 8. The Lucido majority explicitly
states that "[i]t appears that the People could have presented more
evidence had they wished to . . . . [T]he important question, at least
for threshold purposes, is whether the People had the opportunity to
present their entire case at the revocation hearing, not whether they
availed themselves of the opportunity." 795 P.2d at 1224 n.2 (emphasis in
original). The Lucido majority is clear that its decision is based on the
policy rationale behind collateral estoppel, not on the technical
requirements of the doctrine. "[A]ssuming all the threshold requirements
are satisfied, however, our analysis is not at an end. We have repeatedly
looked to the public policies underlying the doctrine before concluding
that collateral estoppel should be applied in a particular setting." Id.
at 1226.

FN2. Because the State must prove a criminal charge beyond a reasonable
doubt, collateral estoppel does not preclude the defendant who loses a
revocation hearing from trying the facts anew in a later criminal
prosecution.

FN3. Depending on the similarity of the issues in the revocation hearing
and a criminal charge based on the same conduct, the State may or may not
be precluded from bringing the subsequent criminal prosecution.

FN4. Defendant in this case was held without bail prior to hearing.

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