                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued by teleconference


BRYAN KEITH PAGE
                                                OPINION BY
v.   Record No. 3040-01-2               JUDGE JAMES W. BENTON, JR.
                                                JUNE 3, 2003
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
               William W. Sweeney, Judge Designate

           David B. Franzén (Feil, Pettit & Williams,
           P.L.C., on brief), for appellant.

           Amy L. Marshall, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     A jury convicted Bryan Keith Page of robbery and acquitted

him of the charge of using a firearm in the commission of that

robbery.   Page contends that the Commonwealth was collaterally

estopped from bringing this prosecution because of facts

necessarily resolved by the verdicts in a previous trial.     He

also contends that principles of double jeopardy barred the

second trial.   We disagree and affirm the conviction.

                               I.

     In four indictments, the grand jury charged that on March

17, 2000, Page robbed Christopher David Blickley, used a firearm

while robbing Blickley, robbed Christian David Kocher, and used
a firearm while robbing Kocher.     See Code §§ 18.2-58 and

18.2-53.1.

                            The First Trial

        Kocher and Blickley both testified that two men approached

them while they were walking from their apartment at 10:30 p.m.

Kocher and Blickley identified Page as one of the men, and both

said he had a gun.    Page ordered Kocher and Blickley to get on

the ground and put their hands on their heads.      Kocher and

Blickley testified that Page straddled Kocher and the other man

straddled Blickley.    Page took Kocher's wallet, containing

money, credit cards, and other items.    The other man took

Blickley's wallet, cigarette case, and keys.      After the men

left, Kocher and Blickley called the police.      Within minutes

after Kocher and Blickley described the robbers, police officers

in the area detained Page.    Kocher and Blickley then identified

Page as one of the robbers.

        A police officer testified that he and his tracking dog

searched the area where Page had been running and found several

items of clothing, Page's identification, and Kocher's and

Blickley's identifications and wallets.       The police did not

recover a gun from Page's possession or during the search of the

area.    Four days after the robberies, a person found a .9mm

Glock pistol near the place where the robbery occurred and

contacted the police.


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     The Commonwealth also offered as evidence a videotape of an

officer's interview of Page.   In that interview, Page said he

had contact with either Kocher or Blickley and described that

individual as "the shorter one."    Page said he was alone when

the contact occurred and the contact did not occur at the place

where the men said they were robbed.     During their trial

testimony, however, Kocher and Blickley both denied ever meeting

Page before the robbery.

     At the conclusion of the evidence, Page's attorney and the

prosecutor disagreed on a jury instruction concerning Page's

liability as a principal in the second degree for the robbery of

Blickley and use of a firearm in that crime because Blickley was

accosted by the other man.   The trial judge commented that the

disputed instruction would confuse the jury and refused to

instruct the jury on that theory.      During jury deliberations,

however, the foreperson asked the trial judge the following

question:

            In instructions 7 and 8 where [Page] is
            charged with the crime of robbery of Mr.
            Blickley and Mr. Kocher, the question in
            front of the jury is, does [Page] have to
            have actually taken the property from both
            individuals to be guilty of both? In other
            words if we were to find he only took
            property from one, do we only find for the
            one, or the fact that he's there while it's
            happening they can --

Page's attorney and the prosecutor disagreed as to the

appropriate response to the jury's inquiry.     The trial judge


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instructed the foreperson "to take the instructions that were

given to you back and just do the best you can with them" and "to

follow the instructions as the instructions are written."

     The jury acquitted Page of the robbery and firearm charges

relating to Blickley, but was unable to reach a verdict on the

robbery and firearm charges relating to Kocher.   When the trial

judge indicated his intention to enter an order directing a

mistrial as to the latter indictments, Page's attorney moved for

a judgment of acquittal, alleging collateral estoppel.   Following

a hearing and argument by both attorneys, the trial judge entered

an order declaring a mistrial and setting a new trial on the

Kocher indictments.

                           The Second Trial

     Prior to the second trial, Page's attorney renewed his

motion to dismiss and argued that a retrial was barred by

principles of double jeopardy and collateral estoppel.   The trial

judge denied the motion.    The evidence at the second trial was

substantially the same as at the first trial.   Both Kocher and

Blickley identified Page as one of the two robbers and as the

robber holding the gun.    The jury convicted Page of robbing

Kocher but acquitted him of using a firearm in the robbery.

                                II.

     Page contends the Commonwealth was barred (i) by the

doctrine of collateral estoppel from litigating in the second

trial whether Page was the gunman and (ii) by the guarantee

against double jeopardy from relitigating factual issues resolved

by the first trial.   The Commonwealth responds that no issue of

fact that was resolved in Page's favor in the first trial was at
                               - 4 -
issue in the second trial.

                        Collateral Estoppel

     The collateral estoppel principle is now well established.

             "Collateral estoppel" is an awkward
          phrase, but it stands for an extremely
          important principle in our adversary system
          of justice. It means 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.
          . . . [C]ollateral estoppel has been an
          established rule of federal criminal law
          . . . [for] more than [80] years. . . .

             [T]he rule of collateral estoppel in
          criminal cases is . . . to be applied . . .
          with realism and rationality. Where a
          previous judgment of acquittal was based
          upon a general verdict, as is usually the
          case, this 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 verdict upon an issue other
          than that which the defendant seeks to
          foreclose from consideration." The 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 case where the first judgment was
          based upon a general verdict of acquittal.

Ashe v. Swenson, 397 U.S. 436, 443-44 (1970) (citation and

footnotes omitted).

     Page contends the jury in the first trial determined that he

was not the gunman.   He argues that the acquittal established

that he did not rob Blickley and, therefore, necessarily

determined he did not use a firearm in committing either robbery.
                              - 5 -
That analysis overlooks, however, the view that the jury could

have taken of the circumstances surrounding the assaults on

Kocher and Blickley.

     Kocher and Blickley testified at the first trial that Page

straddled Kocher and took Kocher's personal items.   They also

testified that the other man straddled Blickley and took

Blickley's personal items.   The first jury could have concluded

that because Page was not the person who took Blickley's

possessions, the other man, not Page, robbed Blickley.   Indeed,

this is a rational interpretation of the verdict because the

first jury was not instructed concerning Page's liability as a

principal in the second degree or as an aider and abettor in the

commission of the offenses against Blickley.   When the record

establishes that the prior judgment could have been grounded

"upon an issue other than that which the defendant seeks to

foreclose from consideration," id. at 444, the doctrine of

collateral estoppel does not apply.

     Significantly, the first jury specifically did not exonerate

Page as the gunman in the Kocher robbery.   The jury's acquittals

of Page on the Blickley charges and the jury's inability to reach

a verdict on the Kocher indictments left open the possibility

that Page was present at the event and was the gunman in the

Kocher robbery.   We hold, therefore, that "viewed with an eye to

all the circumstances of the proceedings," id., the record does

not establish that the first jury's acquittals of Page on the

charges of robbing Blickley and using a gun in that robbery were

grounded in the jury's belief that Page was not one of the

robbers or did not use a gun in robbing Kocher.
                              - 6 -
                          Double Jeopardy

     Equally well established are the traditional double jeopardy

principles.

          [T]he Fifth Amendment guarantee against
          double jeopardy . . . has been said to
          consist of three separate constitutional
          protections. It protects against a second
          prosecution for the same offense after
          acquittal. It protects against a second
          prosecution for the same offense after
          conviction. And it protects against
          multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (citation and

footnotes omitted).   Applying these principles, the Supreme Court

of Virginia has consistently held that "[w]here the jury, after

due deliberation, is unable to agree, and the court, in its sound

discretion, dismisses the jury and declares a mistrial without

the defendant's consent, a plea of double jeopardy will not be

sustained."   Miller v. Commonwealth, 217 Va. 929, 933, 234 S.E.2d

269, 272 (1977) (citing Jones v. Commonwealth, 86 Va. 740, 10

S.E. 1004 (1890)).




                              - 7 -
     Page does not dispute that the jury in the first trial was

unable to reach a verdict on the indictments charging him with

robbery of Kocher and use of a firearm in the commission of that

robbery.   Therefore, we need only cite to the holding in Miller

to conclude that Page's double jeopardy plea is meritless.

     For these reasons, we affirm the robbery conviction.

                                                        Affirmed.




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