            VIRGINIA:
                       In the Court of Appeals of Virginia on Tuesday          the 21st day of October, 2014.
PUBLISHED




            Ronald Taft Davis, III,                                                                             Appellant,

            against             Record No. 1873-12-2
                                Circuit Court Nos. CR08093 and CR10025

            Commonwealth of Virginia,                                                                           Appellee.


                                                        Upon Rehearing En Banc

                         Before Chief Judge Felton, Judges Frank, Humphreys, Kelsey, Petty, Beales, Alston,
                                               McCullough, Huff, Chafin and Decker

                           Charles C. Cosby, Jr. (Lawrence A. Drombetta, III, on brief), for appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   On February 25, 2014, a panel of this Court reversed the judgment of the trial court and dismissed the

            felony indictments against Ronald Taft Davis, III. See Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d

            533 (2014). A dissenting opinion was filed in the panel decision. We subsequently granted the

            Commonwealth’s petition for rehearing en banc, stayed the mandate of the panel decision, and reinstated the

            appeal on the docket of this Court.

                   Upon such rehearing en banc, the stay of this Court’s February 25, 2014 mandate is lifted, the

            judgment of the trial court is reversed, and the felony indictments are dismissed for the reasons stated in the

            panel’s majority opinion.

                   Chief Judge Felton, Judges Frank, Humphreys, Petty, Alston, Huff, Chafin, and Decker voted to

            reverse the judgment of the trial court and dismiss the felony indictments in accordance with the majority

            opinion of the panel.

                   Judges Kelsey, Beales, and McCullough voted to affirm the judgment of the trial court for the reasons

            stated in the dissenting opinion of the original panel decision.
       It is ordered that the trial court allow Charles C. Cosby, Jr., Esquire, court-appointed counsel for the

appellant, an additional fee of $200 for services rendered the appellant on the rehearing portion of this appeal,

in addition to counsel’s costs and necessary direct out-of-pocket expenses.

       Further, the matter is remanded to the Circuit Court of Surry County for the sole purpose of amending

its records to show the correct offense description of attempted capital murder. See id. at 48 n.1, 754 S.E.2d

at 535 n.1.

       This order shall be published and certified to the trial court.

                                          A Copy,

                                                  Teste:

                                                                         Cynthia L. McCoy, Clerk

                                                           original order signed by a deputy clerk of the
                                                  By:      Court of Appeals of Virginia at the direction
                                                           of the Court

                                                                         Deputy Clerk




                                                        -2-
            VIRGINIA:
                          In the Court of Appeals of Virginia on Tuesday        the 25th day of March, 2014.
PUBLISHED




            Ronald Taft Davis, III,                                                                              Appellant,

            against              Record No. 1873-12-2
                                 Circuit Court Nos. CR08093 and CR10025

            Commonwealth of Virginia,                                                                            Appellee.


                                                 Upon a Petition for Rehearing En Banc

                                                          Before the Full Court


                   On March 11, 2014 came the appellee, by the Attorney General of Virginia, and filed a petition

            requesting that the Court set aside the judgment rendered herein on February 25, 2014, and grant a rehearing

            en banc on the issue(s) raised in the petition.

                   On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s)

            raised therein, the mandate entered herein on February 25, 2014 is stayed pending the decision of the Court en

            banc, and the appeal is reinstated on the docket of this Court.

                   The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an

            addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the

            Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix

            previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies

            of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of

            this Court.
       The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe

Acrobat Portable Document Format (PDF).1



                                        A Copy,

                                               Teste:

                                                                     Cynthia L. McCoy, Clerk

                                                        original order signed by a deputy clerk of the
                                               By:      Court of Appeals of Virginia at the direction
                                                        of the Court

                                                                     Deputy Clerk




       1
       The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
                                                     -2-
                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Beales and Chafin
PUBLISHED


            Argued at Richmond, Virginia


            RONALD TAFT DAVIS, III
                                                                                         OPINION BY
            v.     Record No. 1873-12-2                                            JUDGE WILLIAM G. PETTY
                                                                                      FEBRUARY 25, 2014
            COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF SURRY COUNTY
                                             W. Allan Sharrett, Judge

                           Charles C. Cosby, Jr. (Lawrence A. Drombetta, III, on brief), for
                           appellant.

                           Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Ronald Taft Davis, III, appeals his convictions of first-degree murder and attempted

            first-degree murder.1 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




                   1
                      Davis was originally indicted for attempted murder, murder, use of a firearm in the
            commission of attempted capital murder, and two counts of attempted capital murder
            (erroneously listed as two counts of capital murder on the amended order of conviction dated
            June 27, 2012). Prior to the trial, the Commonwealth’s Attorney moved to nolle prosequi the
            indictments for attempted murder and one of the counts of attempted capital murder. The jury
            found Davis guilty of first-degree murder and attempted first-degree murder and found him not
            guilty of use of a firearm in the commission of attempted capital murder.
which he received a two-year sentence. For the following reasons, we reverse the judgment of

the trial court.2

                                         I. BACKGROUND

          “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

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.3 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




          2
        Because we hold that the Commonwealth is collaterally estopped from prosecuting
Davis on the felony charges, we need not consider Davis’s second and third assignments of error.
          3
        The arrest warrants for these charges were obtained by Surry County Deputy Sheriff
R.L. Sears without any apparent consultation with the Commonwealth’s Attorney.

                                               -2-
reckless handling of a firearm4 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,

                       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.5 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.6 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

       4
         Code § 18.2-56.1 provides, “It shall be unlawful for any person to handle recklessly any
firearm so as to endanger the life, limb or property of any person. Any person violating this
section shall be guilty of a Class 1 misdemeanor.”
       5
         A transcript of the preliminary hearing and a copy of the misdemeanor warrant were
introduced into evidence in the circuit court during the hearing on the motion to dismiss.
       6
        A general verdict is one “by which the jury finds in favor of one party or the other, as
opposed to resolving specific fact questions.” Black’s Law Dictionary 1696 (9th ed. 2009).
                                               -3-
guilty’ and ‘I ORDER the charge dismissed.’”7 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.

                                           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. 8 “It stands for [the]

       7
         While the district court did not have jurisdiction to enter final judgment on the felony
charges, it is without question that it did have jurisdiction to do so on the misdemeanor offense.
See Code § 16.1-123.1(1).
       8
          The dissent argues that “this case is largely about the proper limits of judicial power.”
In reality, the protections afforded by the Double Jeopardy Clause of the Fifth Amendment, and
the principle of collateral estoppel embodied in that guarantee, serve as a limit on prosecutorial
abuses by the government.

               The underlying idea, one that is deeply ingrained in at least the
               Anglo-American system of jurisprudence, is that the State with all
               its resources and power should not be allowed to make repeated
               attempts to convict an individual for an alleged offense, thereby
               subjecting him to embarrassment, expense and ordeal and
               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). Justice Oliver Wendell Holmes wrote of
the principle,

               The safeguard provided by the Constitution against the gravest
               abuses has tended to give the impression that when it did not apply
               in terms, there was no other principle that could. But the Fifth
               Amendment was not intended to do away with . . . a fundamental
               principle of justice, in order, when a man once has been acquitted
               on the merits, to enable the Government to prosecute him a second
               time.

United States v. Oppenheimer, 242 U.S. 85, 88 (1916) (citation omitted).
                                             -4-
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.”9 Ashe v. Swenson, 397 U.S. 436, 443

(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). “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).10

          As the Supreme Court stated in Jones v. Commonwealth, 217 Va. 231, 228 S.E.2d 127

(1979),

                 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

          9
          The dissent cites Standefer v. United States, 447 U.S. 10 (1980), in its argument that
Davis’s acquittal on the misdemeanor charge should not preclude his prosecution on the felony
charges. Standefer, however, involved a very different issue – “whether a defendant accused of
aiding and abetting in the commission of a federal offense may be convicted after the named
principal has been acquitted of that offense.” Id. at 11. The language quoted by the dissent is the
Court’s rationale for refusing to extend the doctrine of collateral estoppel to situations where
there is no mutuality of parties; it is not a justification for ignoring the long recognized doctrine
when, as here, mutuality clearly exists.
          10
         It is clear that Davis’s trial for murder and attempted murder was subsequent to, and
not concurrent with, his prosecution for reckless handling of a firearm. While the same charges
were heard at the preliminary hearing, they were dismissed by the district court. Thus, the
subsequent indictments in the circuit court constituted a new and separate prosecution. See
Wright v. Commonwealth, 52 Va. App. 690, 701, 667 S.E.2d 787, 792 (2008) (en banc)
(recognizing that when an original charge is terminated in the district court, a new indictment for
the same offense is a new charge, distinct from the original charge).
                                                 -5-
                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.’”

Id. at 233, 228 S.E.2d at 129 (alteration in original) (quoting Ashe, 379 U.S. at 444).

        Furthermore,

                [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 case where the first judgment was based on a
                general verdict of acquittal.

Ashe, 379 U.S. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).

        We find the Supreme Court’s decision in Lee controlling in this case. In that case, Lee

was acquitted for a misdemeanor driving under a revoked license charge, while two felony

charges—manslaughter and hit-and-run—were certified to trial. 219 Va. at 1109, 254 S.E.2d at

126. At the trial on the felonies, the parties stipulated that the prior acquittal rested on the

Commonwealth’s failure to prove that Lee had operated his vehicle on the day in question, an

ultimate fact on all three charges. Id. at 1110, 254 S.E.2d at 127. In determining whether

collateral estoppel precluded trial on the felonies, the Court analogized the United States

Supreme Court’s decision in Ashe, noting, “Here, . . . it appears from the express language of the

stipulation that the judgment of dismissal, like the jury’s verdict in Ashe, was based on

insufficiency of the evidence [that Lee operated his vehicle on the day in question], the particular

ground assigned by defendant in his motion to dismiss.” Id. at 1111, 254 S.E.2d at 127.

Therefore, the Court held that a judgment of dismissal of the misdemeanor warrant of driving

under a revoked license collaterally estopped the Commonwealth from prosecuting Lee for

manslaughter and hit-and-run driving. Id.



                                                 -6-
       Here, Davis was convicted of two felonies—first-degree murder and attempted capital

murder—after the district court dismissed the misdemeanor charge of reckless handling of a

firearm.11 While there was no stipulation in this case, the judge announced his factual finding

that the Commonwealth had not “shown it reasonable to believe Mr. Davis was the one that fired

the weapon.” Furthermore, the district court judge’s very next statement was that he was

dismissing the misdemeanor charge because the Commonwealth had not proved its case beyond

a reasonable doubt with respect to that charge. The Commonwealth’s evidence established that

only one person fired the weapon. Thus, from the district court judge’s stated factual finding that

Davis did not fire the weapon, the only rational conclusion that can be drawn is that the acquittal

was based on the Commonwealth’s failure to prove “that the defendant was the criminal agent,

an essential element [of all] of the offenses.” Woodfin v. Commonwealth, 236 Va. 89, 95, 372

S.E.2d 377, 381 (1988).

       Moreover, to the extent the verdict noted on the back of the warrant for arrest was a

general verdict, we are required to “‘examine the record of a prior proceeding, taking into

account the pleadings, evidence, charge, and other relevant matter, and conclude whether a

rational [trier of fact] could have grounded its verdict upon an issue other than that which the

defendant seeks to foreclose from consideration.’” Jones, 217 Va. at 233, 228 S.E.2d at 129

(quoting Ashe, 379 U.S. at 444).

       The Commonwealth offered testimony of four witnesses. Of those four witnesses’

testimony, not one actually saw Davis shoot, or even handle, a gun on the night of the shooting.

The most incriminatory evidence the Commonwealth was able to offer was a witness’ statement


       11
         The deputy sheriff stated that he charged Davis with “maliciously shoot[ing] into an
occupied vehicle, first-degree murder, display in a threatening manner a firearm while
committing or attempting to commit murder, and reckless handling of a firearm” all at the same
time. Thus, it is apparent that the misdemeanor charge was part and parcel of the same incident
as the murder and attempted murder.
                                               -7-
that Davis was wearing mostly black clothes on the night of the shooting, and the person seen

shooting the gun was wearing black. Although the witness testified that he knew Davis, when

asked if the person he saw shoot the gun was Davis, he responded, “I can’t say. I don’t know if

it was him or not.” Although one witness testified that he had previously made a statement to the

police that Davis had told him that Davis had disposed of a gun, the witness denied the

legitimacy of that statement at the preliminary hearing and said that he did not see Davis with a

gun and did not know what gun Davis was referring to.12 Furthermore, one witness testified that

someone else, other than Davis, had a gun that night. Specifically, the witness testified that the

driver of the car in which the victim was sitting when he was killed pointed a gun from inside the

car at the witness’ sister and out the back of the car.

       Finally, the fact that it was the identity of the gunman that was the sole issue presented to

the district court judge is evidenced by the argument of counsel. The Commonwealth’s only

argument at the conclusion of the evidence was: “certainly we have linked the defendant by a

preponderance of the evidence to this murder, and I would ask that it be certified.”13 In response,

the defense attorney argued that

               the Commonwealth has not established by a preponderance of the
               evidence any criminal agency on the part of Mr. Davis in this
               matter. There hasn’t been any linkage of the criminal agency with
               that of Mr. Ronald Davis. And even at this juncture, we
               respectfully request the dismissal of the felony indictments, and we
               would request a dismissal of the reckless endangerment
               misdemeanor [charge] because the Commonwealth has not met its
               evidence on that matter as well.




       12
         Additionally, it is clear that this evidence was introduced for the limited purpose of
impeaching the witness, not to prove Davis’s culpability.
       13
          The Commonwealth’s Attorney did not address any of the other elements that would be
required to be proven in order to convict Davis of reckless handling of a firearm.

                                                 -8-
       Thus, the judge’s factual finding, when read in the context of the evidence presented by

the Commonwealth and the argument of counsel, simply does not support a conclusion that the

misdemeanor acquittal was based on any element of any of the offenses under consideration

other than the identity of the criminal agent. Simply put, based on the evidence presented at the

preliminary hearing, a finding that Davis did not fire the firearm means he did not handle the

firearm. Thus, any consideration of the reckless element of the offense would be superfluous.14

Therefore, it is abundantly clear that the verdict in the misdemeanor trial was grounded on the

very issue that Davis sought to preclude from reconsideration in the subsequent murder trial—

whether Davis was the gunman.

       In sum, from a review of the evidence presented and considering the specific factual

finding made by the district court judge, we conclude that this is “‘the rare case where it was

possible to determine with certainty what the [trier of fact] in the earlier prosecution had

decided.’” Jones, 217 Va. at 233, 228 S.E.2d at 128 (quoting United States v. Cioffi, 487 F.2d

492, 498 (2d Cir. 1973)). Since the district court judge, in acquitting Davis of the misdemeanor,

held that the Commonwealth had failed to establish that Davis was the gunman, the

Commonwealth was precluded from relitigating that fact in the prosecution of the crimes of

murder and attempted murder arising out of the same event.15 Therefore, we hold that Davis’s


       14
          The Commonwealth argues that a dismissal of a reckless charge, in itself, does not
preclude a later conviction of an intentional crime because a finding of an absence of
recklessness would not bar a later finding of an intentional act. This ignores the fact that the
element under consideration is not the way the firearm was used, but, rather, who used it.
       15
          We note, as Davis points out in his brief before this Court, that while it is arguable that
the misdemeanor dismissal would not serve as a bar to prosecute the defendant as a principal in
the second degree, the indictment and the jury instructions make it clear that Davis was
convicted as a principal in the first degree. Indeed, the Commonwealth conceded at oral
arguments before this Court that at no time throughout the proceedings against Davis did the
Commonwealth allege that Davis acted as a principal in the second degree. Thus, we do not
need to speculate whether collateral estoppel would bar prosecution under an alternative theory
of criminal responsibility.
                                                 -9-
convictions below must be reversed and the indictments dismissed based on the doctrine of

collateral estoppel.

       In doing so we note,

               “‘[I]t is well established that the choice of offenses for which a
               criminal defendant will be charged is within the discretion of the
               Commonwealth’s Attorney.’ Indeed, ‘the institution of criminal
               charges, as well as their order and timing, are matters of
               prosecutorial discretion.’”

Barrett v. Commonwealth, 268 Va. 170, 178, 597 S.E.2d 104, 107-08 (2004) (citations omitted)

(quoting Barrett v. Commonwealth, 41 Va. App. 377, 391, 585 S.E.2d 355, 362 (2003)).

However, that discretion must be exercised with the “‘thoroughness and preparation reasonably

necessary for the representation’ of his client, the Commonwealth.” Livingston v. Va. State Bar,

286 Va. 1, 12, 744 S.E.2d 220, 225 (2013) (quoting Va. R. Prof’l Conduct 1.1). That “includes

‘inquiry into and analysis of the factual and legal elements of the problem.’” Id. (quoting Va. R.

Prof’l Conduct 1.1 cmt. 5). The Supreme Court’s lament in Lee bears repetition in this case:

                       Our holding results in the reversal of two convictions
               which were fully supported by the evidence at trial. Yet, we
               believe the result is constitutionally mandated and illustrates the
               need for the Commonwealth to assess the evidence carefully and
               exercise selective discretion in the prosecution of multiple offenses
               arising from the same transaction.

Lee, 219 Va. at 1111, 254 S.E.2d at 127.

                                        III. CONCLUSION

       For the foregoing reasons, the judgment is reversed and the felony indictments are

dismissed. We remand to the trial court for the sole purpose of amending its records to show the

correct offense description of attempted capital murder for case numbers CR10025 and

CR10026.

                                                              Reversed, dismissed, and remanded.



                                              - 10 -
Beales, J., dissenting.

        I respectfully dissent. Twelve competent jurors considered all of the evidence and

argument presented in the circuit court. Those twelve jurors found Ronald Taft Davis, III, guilty

of first-degree murder and attempted first-degree murder beyond a reasonable doubt. Today’s

decision overturns the jury’s verdict – but not because of any defect that actually occurred at the

jury trial in the circuit court. Instead, applying the doctrine of collateral estoppel, the majority

holds that the result of prior proceedings in the general district court absolutely prevented the

circuit court jury from concluding that Davis was the triggerman who shot at an occupied vehicle

and murdered the victim in this case. Thus, the majority opinion reverses Davis’s convictions

and dismisses the indictments against him.

        A review of case law indicates that collateral estoppel is only rarely applied in such a

manner because the elements of collateral estoppel are seldom met. I respectfully disagree with

the majority’s conclusion that Davis has presented an appropriate case for invoking the doctrine

of collateral estoppel. Simply put, the record does not conclusively establish that the general

district court judge could and did necessarily render a final decision holding that Davis was not

the shooter.

                      I. COLLATERAL ESTOPPEL REQUIRES A FINAL DECISION

        To establish the defense of collateral estoppel, which has certainly been recognized as a

method of protecting a defendant from double jeopardy, a criminal defendant must “demonstrate

that the issue whose relitigation he seeks to foreclose was actually decided in the first

proceeding.” Dowling v. United States, 493 U.S. 342, 350 (1990); see Ashe v. Swenson, 397

U.S. 436, 445 (1970) (holding that the defense of collateral estoppel “is embodied in the Fifth

Amendment guarantee against double jeopardy”). “Suffice to say, the numerous attempts to

invoke the doctrine have met with little success, a result that was easily predictable.” Jones v.

                                                - 11 -
Commonwealth, 217 Va. 231, 233, 228 S.E.2d 127, 129 (1976). Simply put, it is very difficult

to establish the level of specificity that the doctrine of collateral estoppel requires. “An acquittal,

‘standing alone, does not permit a conclusion with respect’ to a court’s findings or rationale.”

Rice v. Commonwealth, 57 Va. App. 437, 442, 703 S.E.2d 254, 258 (2011). Collateral estoppel

does not bar a disputed issue of fact from further criminal litigation “unless the record establishes

that the issue was actually and necessarily decided in the defendant’s favor” in the earlier

criminal proceeding. Schiro v. Farley, 510 U.S. 222, 236 (1994) (emphasis added); see also

Rhodes v. Commonwealth, 223 Va. 743, 749, 292 S.E.2d 373, 376 (1982).

       Here, the General District Court of Surry County held a consolidated proceeding on

December 16, 2008, when the general district court judge conducted a preliminary hearing of

felony charges against Davis (including first-degree murder) and also conducted a trial on the

merits of a misdemeanor charge against Davis of reckless handing of a firearm. At the

conclusion of this proceeding, the general district court judge decided not to certify the felony

charges to a grand jury, commenting that he did not consider “it reasonable to believe Mr. Davis

was the one that fired the weapon” that killed the victim. The general district court judge also

acquitted Davis of misdemeanor reckless handling of a firearm. However, the general district

court judge made no findings or statements pertaining to his decision to acquit Davis of that

misdemeanor charge. The general district court judge only stated, “On the misdemeanor charge

as to whether or not you’ve proven the case beyond a reasonable doubt, I would find that you

have not.” On the back of the misdemeanor warrant, the general district court judge simply

indicated that Davis was not guilty of the reckless handing of a firearm charge.

       Virginia law is clear – abundantly clear – that the general district court judge’s decision

not to certify the felony charges to a grand jury could not preclude further prosecution of those

charges in the circuit court if the Commonwealth successfully obtained a direct indictment from

                                                - 12 -
a grand jury, as occurred here. Davis cannot and has never contested this point. The law is

settled in Virginia that “a general district court is without jurisdiction to try felony cases or

accept pleas to felony charges.” Peterson v. Commonwealth, 5 Va. App. 389, 397, 363 S.E.2d

440, 445 (1987) (citing Code § 16.1-123.1, which defines the jurisdiction of general district

courts to adjudicate misdemeanor criminal offenses and traffic violations); see also Painter v.

Commonwealth, 47 Va. App. 225, 233, 623 S.E.2d 408, 412 (2005). Instead, a general district

court judge conducts preliminary hearings of felony charges solely to assess, in that judge’s

view, whether those felony charges are sufficiently supported by probable cause. See Moore v.

Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977). To that end, Code § 19.2-186

simply authorizes the general district court judge to “discharge the accused if [the judge]

considers that there is not sufficient cause for charging him with the offense.”

        According to the case law interpreting Code § 19.2-186, “a mere dismissal of a felony

warrant at a preliminary hearing indicates only a finding of lack of probable cause” and

“discharge cannot operate as an acquittal, or finding of not guilty,” of that charge or charges.

Moore, 218 Va. at 393, 237 S.E.2d at 191. It does not matter if the general district court judge

explains why sufficient cause is lacking (as here) or provides no explanation at all. The effect is

the same. In either event, the Commonwealth still has the opportunity to demonstrate sufficient

cause to a grand jury by way of obtaining a direct indictment. Id.

        Regardless of whether and why the general district court believed there was not sufficient

probable cause for the felony charges, a grand jury still could – and did – override that view and

indict Davis on those same felony charges. If a general district court judge’s basis for rejecting

sufficient cause to support felony charges cannot prevent a grand jury from later indicting the

defendant on those same felony charges, then a general district court judge’s view on that issue

surely cannot prevent a jury from convicting the defendant of those same offenses beyond a

                                                 - 13 -
reasonable doubt. Yet Davis’s argument on appeal, boiled down to its essence, directly

contradicts this common sense.

                  II. THE GENERAL DISTRICT COURT ISSUED A GENERAL VERDICT

        Davis identifies only one charge that the general district court judge actually had

authority to decide in a final judgment – the misdemeanor reckless handling of a firearm charge.

See Code § 16.1-123.1(1)(b) (granting the general district courts exclusive original jurisdiction to

adjudicate misdemeanor criminal offenses). However, the record shows that the general district

court issued the type of generalized, non-specific acquittal that cannot alone establish collateral

estoppel. See Rice, 57 Va. App. at 443, 703 S.E.2d at 258. Nevertheless, Davis claims that the

circuit court jury (which ultimately convicted Davis of first-degree murder and attempted

first-degree murder) was prevented from even considering whether Davis could have been the

shooter. In support of this claim, Davis seeks to piggyback on the general district court judge’s

comments explaining why the felony charges were not certified to a grand jury. The general

district court judge stated:

                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 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 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.

(Emphasis added). However, the general district court judge’s view concerning probable cause

was not a final decision for purposes of achieving the bar of collateral estoppel against any

further prosecution on the theory that Davis was the triggerman.




                                               - 14 -
       Davis relies on the fact that the preliminary hearing for the felony charges and the trial on

the merits for the misdemeanor reckless handling of a firearm charge were consolidated in the

same proceeding in the general district court. As the Supreme Court has explained, however, “a

preliminary hearing is essentially a screening process” – not an actual trial. Moore, 218 Va. at

391, 237 S.E.2d at 191. The general district court judge’s function in the misdemeanor trial was

different than his function in the preliminary hearing. Clearly, the general district court judge

made his lone comment describing the evidence in this case while addressing the issue of

probable cause – i.e., the preliminary hearing portion of its bench ruling. The general district

court judge never repeated or even referenced this comment when it acquitted Davis of

misdemeanor reckless handing of a firearm.

       In short, this case is largely about the proper limits of judicial power, particularly with

regard to a court not of record. Indisputably, a judge of a court not of record (such as the general

district court judge here) lacks jurisdiction to render a verdict on felony charges. See Code

§§ 16.1-123.1 and 19.2-186. However, the doctrine of collateral estoppel potentially supplies a

judge of a court not of record with de facto power to decide a felony case and essentially acquit a

felony defendant – if that judge makes certain findings in a final decision in a misdemeanor case

that then serve to preclude factual issues being considered by the factfinder in a later felony trial.

Viewed from this perspective, the findings of judges of courts not of record potentially can have

broad, far-reaching, and perhaps unforeseen consequences on later proceedings.16 This de facto


       16
           For example, a defendant is charged with misdemeanor trespass and is prosecuted and
acquitted in general district court, where (as here) the proceeding happens to be transcribed.
Later, a dead body is discovered on the property, evidence establishes that the victim was on the
property at the same time that the defendant previously had been alleged to be there in the
trespassing case, and DNA evidence connects the defendant with the murder. However, if
today’s decision were applied to those facts, a murder prosecution could forever be barred under
collateral estoppel due to the misdemeanor trespassing acquittal in the general district court –
even if the general district court judge did not clearly state, while rendering the final judgment of
acquittal on the trespassing charge, that the specific basis for the misdemeanor acquittal was a
                                                 - 15 -
extension of the power of judges of courts not of record certainly should not be extended even

further to include their rulings addressing probable cause for felony charges – where courts not

of record have no authority to issue final decisions. See Restatement of Judgments (Second)

§ 28(3) (explaining that an issue should not be precluded from further litigation when “[a] new

determination of the issue is warranted by differences in the quality or extensiveness of the

procedures followed in the two courts or by factors relating to the allocation of jurisdiction

between them”).

       In addition, the United States Supreme Court has further explained that collateral

estoppel, which it noted had originated as a civil law doctrine, should be applied cautiously in the

context of criminal law. See Standefer v. United States, 447 U.S. 10, 21-22 (1980). Even

though the facts in Standefer are certainly different than in this case, the Supreme Court

explained that the unavailability of an appeal of an acquittal in a criminal case – unlike either

party’s ability to appeal an adverse judgment in a civil case – is a factor that “strongly militates

against giving an acquittal preclusive effect.” Id. at 23. Given the significant consequences of a

collateral estoppel defense on a felony criminal prosecution (such as this case), I would certainly

require that the record show that the precise issue the defendant seeks to bar has been clearly and

manifestly decided with a final decision in the prior proceeding. Case law governing collateral

estoppel already requires no less. See Schiro, 510 U.S. at 236 (requiring a showing that the issue

that the defendant seeks to preclude “was actually and necessarily decided in the defendant’s

favor” in the prior proceeding). Consistent with this standard, I would not hold that collateral

estoppel applied in this case to the issue of Davis being the triggerman unless: (1) the general

finding that the defendant was not present on the property at the time alleged in the trespassing
warrant. Because of the far-reaching consequences of the collateral estoppel doctrine in a
criminal case, I would (1) require judges of courts not of record to state such preclusive findings
– in order for collateral estoppel to apply – while rendering a final decision in a misdemeanor
case or (2) otherwise require that the record be manifest that there could be no other possible
basis for the general acquittal.
                                                - 16 -
district court judge found while actually rendering the verdict in the misdemeanor case that the

precise basis for the acquittal was that Davis did not handle the firearm, or (2) the record was

manifest that there could be no other possible basis for a general acquittal in the misdemeanor

case. As neither of those circumstances is apparent from the record here, I would hold that

collateral estoppel does not apply in this case.

       Here, the general district court judge could have explained why he was acquitting Davis

of misdemeanor reckless handling of a firearm. However, he did not. The general district court

judge also could have incorporated his comments on felony probable cause by reference when

delivering his verdict on the misdemeanor charge, but, again, he did not.

       If the general district court judge (a judge of a court not of record) was deciding the

misdemeanor charge on the specific basis that Davis did not handle the firearm in question and

was not the shooter, then the judge easily could have – and should have – said, while actually

rendering the verdict on the misdemeanor offense, that this was the precise factual basis for

rendering his not guilty verdict. Since the general district court did not actually do so, I would

hold that the transcript of the general district court proceedings establishes nothing more than a

general verdict and that the record supports a possible basis for acquittal other than a conclusion

that Davis was not the triggerman.

                           III. COLLATERAL ESTOPPEL DOES NOT APPLY

       The United States Supreme Court has held:

               [W]here a previous judgment of acquittal was based on a general
               verdict, courts must “examine the record of [the] prior proceeding,
               taking into account the pleadings, evidence, charge, and other
               relevant matter, and conclude whether a rational jury could have
               grounded its verdict on an issue other than that which the
               defendant seeks to foreclose from consideration.”

Dowling, 493 U.S. at 350 (quoting Ashe, 397 U.S. at 444). Thus, if it appears that a rational

factfinder could have based its verdict in the prior proceeding on resolution of an issue other than
                                                   - 17 -
the issue that the defendant seeks to foreclose from consideration in the later proceeding, “then

collateral estoppel does not apply.” Rice, 57 Va. App. at 443, 703 S.E.2d at 258.

       At the December 16, 2008 hearing in the general district court, witness T.J. testified that

he was present when the shooting occurred during the early morning hours of November 8, 2008.

T.J. testified that the shooter wore black, held a gun about fifteen or twenty feet away from the

vehicle that was occupied by the murder victim and others, and began firing at that vehicle.

Although T.J. testified that he could not identify Davis (or anyone else) as the shooter, T.J. also

testified that he quickly ducked and began to flee the scene as soon as the shooting began.

Davis’s co-defendant J.G. also testified at the general district court hearing. According to J.G.,

Davis was dressed in a “black label shirt,” “black jeans,” and “black shoes” when the shooting

occurred.

       Viewing the evidence in the light most favorable to the Commonwealth, “as we must

since it was the prevailing party” below, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d

555, 574 (2004), a rational factfinder could consider the combined strength of T.J.’s and J.G.’s

testimony and conclude that Davis was the shooter. Those witnesses’ testimony establishes that

the shooter was wearing black and that Davis was wearing black – creating a reasonable

inference that Davis was the shooter. This inference draws further support from the testimony of

another witness J.B. (the mother of Davis’s child), who testified that several individuals

associated with Davis were near the occupied vehicle and were beating on it shortly before the

shooting began – but that Davis apparently was not. J.G. actually confirmed this testimony,

explaining that Davis was not among those people who were positioned near the vehicle at that

time. The fact that Davis was not observed beating on the vehicle reinforces the inference that




                                               - 18 -
Davis was the shooter in black, standing about fifteen to twenty feet from the occupied vehicle –

or so a rational trier of fact could find.17

        On this record, the general district court’s general acquittal of Davis on the misdemeanor

reckless handing of a firearm charge does not mean that a rational factfinder in the general

district court judge’s shoes would actually and necessarily decide that Davis simply was not the

shooter. See Schiro, 510 U.S. at 236; Rhodes, 223 Va. at 749, 292 S.E.2d at 376. Instead, a

rational factfinder with knowledge of the law could find more narrowly that the elements for the

specific offense of misdemeanor reckless handling of a firearm had not been satisfied.18

        I disagree with the majority’s conclusion that the Supreme Court’s decision in Lee v.

Commonwealth, 219 Va. 1108, 254 S.E.2d 126 (1979), is controlling on the facts in this case.

On the contrary, the Supreme Court expressly stated in Lee that its holding “is strictly confined

to the facts as detailed in the stipulation filed” by the parties in that case. Id. at 1111, 254 S.E.2d

at 127-28. There, the parties stipulated that the general district court granted Lee’s motion to

        17
         There was considerably more evidence of Davis’s guilt as the triggerman in these
crimes produced at the trial in circuit court. This analysis relies only on such evidence that was
presented in the general district court proceeding.
        18
           The Commonwealth, after all, presented no evidence at the December 16, 2008 hearing
concerning how the shooter handled the firearm – other than T.J.’s testimony that the shooter
held the firearm in a manner that T.J. demonstrated to the general district court judge and then
fired “[a] lot of shots.” Viewing the evidence in the light most favorable to the Commonwealth
(as we must since it prevailed below), a rational factfinder could conclude that Davis shot and
killed the murder victim in a manner that was premeditated – but was not necessarily reckless.
See Darnell v. Commonwealth, 6 Va. App. 485, 491, 370 S.E.2d 717, 720 (1988) (defining
conduct as “reckless” when it occurs “‘although no harm was intended’” (quoting Black’s Law
Dictionary 1142 (5th ed. 1979))); see also Mangano v. Commonwealth, 44 Va. App. 210, 217,
604 S.E.2d 118, 121 (2004) (“The culpable conduct necessary for reckless conduct falls between
the criminal negligence necessary for involuntary manslaughter and ordinary negligence.”).
Here, Deputy R.L. Shears testified at the hearing in the general district court that, when he
arrived on the scene, he observed “several bullet holes to the rear of the vehicle, to the driver’s
side of the vehicle, and bullet holes to the passenger side of the vehicle.” Contra Bailey v.
Commonwealth, 5 Va. App. 331, 336, 362 S.E.2d 750, 752 (1987) (where the defendant, while
“horseplaying,” pointed his gun at the victim – accidentally killing the victim when the gun
fired). In short, here there were many bullets fired at the vehicle and its occupants.

                                                - 19 -
strike in a misdemeanor case on the precise factual issue that Lee later sought to foreclose in the

circuit court under the doctrine of collateral estoppel. Id. at 1109-10, 254 S.E.2d at 127. Here,

by contrast, no such stipulation exists – and nothing stated by the general district court judge in

his verdict on the misdemeanor charge actually and necessarily forecloses the allegation that

Davis was the shooter in question.19 Accordingly, I would hold that collateral estoppel is not

available to Davis – neither under the holding in Lee nor under the holding in any other decision

that is binding on this Court.

                                         IV. CONCLUSION

       In this case, the general district court judge issued a general verdict acquitting Davis of

misdemeanor reckless handling of a firearm. The general district court judge did not explain

why he was acquitting Davis of that charge when he acquitted him. That judge’s comments

explaining why he also was not certifying felony charges to a grand jury cannot support Davis’s


       19
           Davis’s counsel did not even cite any specific ground in support of his motion to
dismiss the misdemeanor reckless handling of a firearm charge. Indeed, the argument made by
Davis’s counsel in the general district court for dismissing the misdemeanor reckless handling of
a firearm charge was no more specific than the general verdict announced by the general district
court judge in acquitting Davis on that charge. While Davis’s counsel asserted that the felony
charges should not be certified to a grand jury because the Commonwealth’s evidence as to those
charges did not establish Davis’s criminal agency, Davis’s counsel only stated a general
argument pertaining to the misdemeanor charge. Davis’s counsel merely argued that the
misdemeanor reckless handling of a firearm charge should be dismissed “because the
Commonwealth has not met its evidence on that matter as well.” The circumstances of this case
are different than those in Lee, where the record established “the express language of the
stipulation that the judgment of dismissal” rendered by the general district court judge in that
case “was based on insufficiency of the evidence, the particular ground assigned by defendant in
his motion to dismiss.” Lee, 219 Va. at 1111, 254 S.E.2d at 127 (emphasis added); see also
Simon v. Commonwealth, 220 Va. 412, 419, 258 S.E.2d 567, 572 (1979) (where, in a
misdemeanor DUI case, a transcript of the general district court proceedings showed that
Simon’s counsel moved to strike the Commonwealth’s evidence on the specific basis that the
evidence “was insufficient, as a matter of law, to establish that [Simon] was intoxicated while
operating a motor vehicle” and the general district court judge granted the motion to strike on
this specific basis). Thus, unlike in this case, in Lee it was clearly established that the general
district court judge specifically issued a final decision on the precise issue for which Lee sought
the preclusive effect of collateral estoppel.

                                               - 20 -
claim of collateral estoppel – given that a judge of a court not of record cannot render final

decisions on felony charges. Based on the record in this case, a rational factfinder could have

acquitted Davis of misdemeanor reckless handing of a firearm without also finding that Davis

was not the shooter. Therefore, Davis fails to satisfy the burden of a collateral estoppel defense

– and the Supreme Court’s decision in Lee is not controlling here because the Supreme Court

limited that decision to the facts of that case, in which the general district court judge acquitted

Lee of the misdemeanor charge for the specific reason on which collateral estoppel in the circuit

court was based. Accordingly, for the foregoing reasons, I respectfully dissent from the majority

opinion and would affirm the circuit court jury’s convictions of Davis for first-degree murder

and attempted first-degree murder.20




       20
         As I would hold that Davis’s second and third assignments of error have no merit, I
would also affirm the judgment of the circuit court as to those assignments of error.
                                              - 21 -
