People v. Krstic

SIXTH DIVISION
September 30, 1997

No. 1-96-4251

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. ) No. 96-MC1-210094
)
BRANISLAV KRSTIC, ) Honorable
) William P. O'Malley,
Defendant-Appellee. ) Judge Presiding.

JUSTICE THEIS delivered the opinion of the court:

The People of the State of Illinois, through Richard A. Devine,
the State's Attorney for the County of Cook, Illinois (the State),
appeal from an order entered by Judge William P. O'Malley in the
circuit court of Cook County dismissing a misdemeanor prosecution
against defendant, Branislav Krstic. Judge O'Malley dismissed the
charges of domestic battery and violation of an order of protection
against defendant because Judge Aubrey Kaplan, in the domestic
relations division of the circuit court, had entered a finding of "no
abuse" based on the same events. Without holding further, we find
that the State may not be collaterally estopped from pursuing a
subsequent criminal prosecution when the State was not a party to the
initial proceeding, whether civil or criminal. Accordingly, we
reverse Judge O'Malley's order dismissing the criminal prosecution.
On May 31, 1996, Dusanka Krstic (Dusanka) filed a pro se petition
seeking an order of protection against her husband, Branislav Krstic
(defendant), from the circuit court of Cook County, domestic relations
division, based on events that occurred on the morning of May 29,
1996. 750 ILCS 60/214(c)(1)(i) (West 1996). The petition was filed
within the Krstics' ongoing divorce proceeding (In re Marriage of
Krstic, case No. 94-D-18642), and sought to order defendant: (1) to
stay away from Dusanka; (2) to remain in the country; (3) to turn over
certain accounting books; and (4) not to spend marital assets. The
petition also sought to grant Dusanka temporary legal custody of the
minor children and exclusive possession of a 1994 Pontiac.
Based on the same events alleged in the petition for an order of
protection, Dusanka filed a misdemeanor complaint charging defendant
with domestic battery and violation of an order of protection. 720
ILCS 5/12-3.2(a)(1); 5/12-30 (West 1996).
On June 24, 1996, Judge Kaplan in the domestic relations division
held a hearing on Dusanka's petition. As adduced at the hearing,
Dusanka alleged that on May 29, 1996, defendant became upset with her
when she answered the telephone and received a personal call for
defendant. According to Dusanka, defendant threatened her that, "if I
deal in his personal businesses, he'll kill me. He'll kill me and I
will not be found." Defendant then "took his foot and he -- exactly
like a baseball hit -- hit my foot."
Afterward, Dusanka tried to stand up and telephone the police but
the defendant would not let her use the phone. When the defendant
walked away, Dusanka allegedly called the apartment manager, Barbara
Martinson, and asked her to call the police. Dusanka waited for the
police to arrive but they never did. Dusanka then went to call the
police herself but apparently the phone was dead. She then tried to
contact two neighbors, neither of whom answered their doors. Dusanka
then got dressed and went downstairs to call the police.
In the manager's office, Dusanka asked Martinson why she had not
called the police to which Martinson replied that the defendant had
been there. Defendant tried to chase Dusanka out of the office.
Dusanka then called the police. When the police arrived, they
accompanied Dusanka to the apartment. The phone was working. The
police then took Dusanka to St. Joseph Hospital where she was
prescribed pain pills. Dusanka explained that the doctor found no
visible sign of injury, "only little red scrape on the back of the leg
and in about ten days it will hurt even more."
Defendant testified that he had left the apartment and had been
working the entire time when Dusanka called the manager's office
ranting and raving about calling the police. Defendant stated that he
had several witnesses who could testify regarding his whereabouts that
morning.
Noting that there had been a great deal of extraneous evidence at
the hearing, Judge Kaplan stated the only issue "is whether or not he
kicked her at the date and time that appears in this petition." After
hearing all of the evidence, Judge Kaplan entered a finding of no
abuse regarding the events of May 29, 1996. Judge Kaplan was not
informed of a prior order of protection issued against defendant on
February 24, 1995, in the same case, which ordered defendant to stay
away from Dusanka and not to remove their two minor children from
Dusanka.
The criminal prosecution, which had been stricken, was reinstated
on August 5, 1996. Defendant filed a motion to dismiss arguing that
the charges were barred by either res judicata or collateral estoppel.
On October 17, 1996, Judge O'Malley granted the defendant's motion to
dismiss the criminal prosecution. Judge O'Malley found that the State
was collaterally estopped from pursuing the action based on the
finding of no abuse made by Judge Kaplan. In so holding, Judge
O'Malley reasoned that Judge Kaplan ruled on the single incident from
May 29, 1996, and while the State potentially had more evidence, the
State had not identified any further occurrence witnesses.
The issue on appeal is whether Judge O'Malley erred in applying
the doctrine of collateral estoppel to bar the subsequent criminal
prosecution of defendant when Judge Kaplan had previously entered a
finding of no abuse based on the same events. We review de novo the
circuit court's order granting a motion to dismiss.
The first proceeding involved a pro se petition for an order of
protection brought by Dusanka within the Krstics' ongoing divorce
proceedings. Dusanka was the petitioner and her husband, Branislav,
was the respondent. In the second action, the State filed two charges
against Branislav as defendant, a domestic battery charge and
violation of a prior order of protection. 720 ILCS 5/12-3.2(a)(1);
5/12-30 (West 1996). Defendant asserted defensive estoppel to
preclude the criminal prosecution.
The doctrine of collateral estoppel provides that an issue,
raised and decided by a court of competent jurisdiction, may not be
relitigated in a later action between the same parties in the same or
a different cause of action. People v. Buonavolanto, 238 Ill. App. 3d
665, 670, 606 N.E.2d 509, 512 (1992). In criminal cases, collateral
estoppel is a component of the double jeopardy clause. People v.
Carrillo, 164 Ill. 2d 144, 151, 646 N.E.2d 582, 586 (1995), citing
Ashe v. Swenson, 397 U.S. 436, 445-46, 25 L. Ed. 2d 469, 476-77, 90 S. Ct. 1189, 1195 (1970).
An equitable doctrine, collateral estoppel applies when: (1) the
issue decided in the prior adjudication is identical to the one
presented in the suit in question; (2) there was a judgment on the
merits in the prior adjudication; and (3) the party against whom
estoppel is asserted was a party or in privity with a party to the
prior adjudication. Talarico v. Dunlap, No. 81459, slip. op. at 4
(Ill. September 11, 1997). Without addressing the first two prongs,
we find that collateral estoppel is inapplicable here because the
State was not a party to the initial civil proceeding.
Historically, for collateral estoppel to apply, the law required
the parties in both proceedings to be the same. Known as "mutuality,"
this requirement has been abandoned for civil cases but is still
required for criminal cases. People v. Franklin, 167 Ill. 2d 1, 13-
14, 656 N.E.2d 750, 755 (1995). Although the courts have only
considered mutuality in the criminal context when applied to
defendants (Franklin, 167 Ill. 2d at 13-14, 656 N.E.2d at 755; People
v. Hall, 279 Ill. Ap. 3d 602, 605, 664 N.E.2d 1122, 1124 (1996)), we
believe, under the same rationale, the State may not be collaterally
estopped from a later criminal proceeding unless it was a party in the
initial suit. See also Talarico v. Dunlap, No. 81459, slip op. at 3
(Ill. September 11, 1997) (the party to be collaterally estopped must
have actually litigated the issue in the first suit).
The cases applying collateral estoppel upon which defendant
relies involved the State in both the civil and criminal proceedings.
For example, in Buonavolanto, 238 Ill. App. 3d 665, 606 N.E.2d 509,
the court applied collateral estoppel to bar the State from pursuing a
criminal conviction for delivery of a controlled substance when the
State had failed to prevail in the initial civil forfeiture suit based
on the same issue. Although the court relied on the differing burdens
of proof between the two proceedings, implicit to the discussion was
the fact that the State was a party in both the initial civil
forfeiture action and the subsequent criminal proceeding.
Buonavolanto, 238 Ill. App. 3d at 666, 606 N.E.2d at 510. See also
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).
For collateral estoppel purposes, the State's involvement as a
party in both proceedings is critical. By definition, the duty of the
State's Attorney is to "commence and prosecute all actions, suits,
indictments and prosecutions, civil and criminal, in the circuit court
for his county, in which the people of the State or county may be
concerned." 55 ILCS 5/3-9005(a)(1) (West 1996). In this case,
Dusanka filed the petition pro se and was represented at the hearing
by a private attorney.
In retaining the mutuality requirement as between criminal cases,
the Franklin court emphasized the necessity of affording the State the
full and fair opportunity to litigate an issue. Franklin, 167 Ill. 2d
at 13, 656 N.E.2d at 755. Because the State was not involved in the
initial petition for an order of protection, the State cannot be
estopped from pursuing criminal prosecution based on the same facts.
Reversed.
GREIMAN, P.J., and ZWICK, J., concur.