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SJC-11699

              KEIAL KIMBROUGHTILLERY   vs.   COMMONWEALTH.



            Suffolk.    February 3, 2015. - May 26, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.


Practice, Criminal, Probation, Revocation of probation,
     Collateral estoppel. Collateral Estoppel.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 24, 2014.

    The case was reported by Cordy, J.


     Rebecca Kiley, Committee for Public Counsel Services, for
the petitioner.
     Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.


    SPINA, J.     In this case, here on a reservation and report

from a single justice of the county court, we consider whether

principles of collateral estoppel bar a second probation

revocation proceeding on the same charged misconduct that was

litigated in an earlier probation revocation proceeding in a

different county and was resolved in favor of the petitioner,
                                                                     2

Keial Kimbroughtillery.   We conclude that principles of

collateral estoppel bar the second proceeding.

     1.   Background.   On February 28, 2013, the petitioner was

charged by criminal complaint in the New Bedford Division of the

District Court Department (New Bedford District Court) with

unarmed robbery, G. L. c. 265, § 19 (b), and assault and

battery, G. L. c. 265, § 13A (a) (new offenses).   The complaint

was based on allegations that on February 26, 2013, while the

victim was sitting in the driver's seat of her vehicle, the

petitioner leaned over her, grabbed an envelope containing $630

from her right coat pocket, and fled the scene.    At the time the

complaint issued, the petitioner was serving probationary

sentences imposed by the Dorchester Division of the Boston

Municipal Court Department (Boston Municipal Court), the New

Bedford District Court, and the Fall River Division of the

District Court Department (Fall River District Court).1    A notice



     1
       On April 25, 2012, the petitioner pleaded guilty in the
Dorchester Division of the Boston Municipal Court Department
(Boston Municipal Court) to a complaint charging him with
assault and battery, G. L. c. 265, § 13A (a). On July 31, 2012,
the petitioner pleaded guilty in the New Bedford Division of the
District Court Department (New Bedford District Court) to a
complaint charging him with uttering a false check, G. L.
c. 267, § 5, and forgery of a check, G. L. c. 267, § 1. That
same day, he pleaded guilty in the New Bedford District Court to
a separate complaint charging him with larceny of property over
$250 by false pretenses, G. L. c. 266, §§ 30 (1), 34, and
uttering a false check. On October 2, 2012, the petitioner
pleaded guilty in the Fall River Division of the District Court
Department (Fall River District Court) to a complaint charging
                                                                   3

of probation violation and hearing was issued to the petitioner

from the Boston Municipal Court on March 4, 2013.   Similar

notices were issued to him from the New Bedford District Court

on March 5, 2013, and from the Fall River District Court on

May 15, 2013.   Each notice alleged that the petitioner had

violated the terms of his probation by committing the new

offenses.2

     The first probation revocation hearing was held in the

Boston Municipal Court on June 12 and August 20, 2013.   During

the hearing, the petitioner's probation officer testified, as

did the alleged victim of the new offenses and three witnesses

called by the defense.3   Following closing arguments, a judge

found "no violation of probation" with respect to the new

offenses.4   However, he did find that the petitioner had violated


him with two counts each of forgery of a check, uttering a false
check, and larceny over $250.
     2
       The notice from the Boston Municipal Court also alleged
that the petitioner had failed to pay an attorney's fee of $150
and a victim witness fee of $50. In addition, the notice from
the Fall River District Court alleged that he had failed to
report to his probation officer on one occasion and had failed
to pay restitution in the amount of $6,582.40.
     3
       One of the defense witnesses was Miriam Lopes, a caregiver
for the petitioner who was employed by Beacon Adult Foster Care.
She testified, among other things, that in early February, 2013,
the petitioner had surgery, that he required constant care
because he was "really sick," and that he did not leave the
house on February 26.
     4
       As this court pointed out in Commonwealth v. Holmgren, 421
Mass. 224, 225 (1995), a criminal prosecution and a subsequent
                                                                    4

his probation by failing to pay certain fees.   See note 2,

supra.   Based on the agreement of the parties, the judge

extended the petitioner's probation for nine months.

    On September 25, 2013, the petitioner filed a motion in the

New Bedford District Court and the Fall River District Court to

hold the Commonwealth bound by the order of the Boston Municipal

Court.   The petitioner asserted that because the judge found no

violation of probation with respect to the new offenses, the

parties were bound by the judge's order under the doctrine of

collateral estoppel.   The Commonwealth opposed the motion.   The

parties then filed a joint motion to consolidate the probation

violation hearings, which was allowed by a judge in the New

Bedford District Court.   On February 18, 2014, the petitioner's

motion to hold the Commonwealth bound by the order of the Boston

Municipal Court was denied.   He thereafter filed a petition for

relief in the county court pursuant to G. L. c. 211, § 3,

contending that, because the issue whether he had violated the

terms of his probation by committing the new offenses already

had been decided by a valid and binding final judgment of the

Boston Municipal Court, collateral estoppel barred relitigation



probation revocation proceeding have different standards of
proof. "In a criminal case, of course, the Commonwealth must
prove the elements of each crime charged beyond a reasonable
doubt. In a probation revocation hearing, the Commonwealth
bears a lesser burden. . . . [I]t is proof by a preponderance
of the evidence." Id. at 225-226.
                                                                      5

of the issue.5   The Commonwealth opposed the petition.     On June

18, 2014, a single justice reserved and reported the case to the

full court.

     2.   Discussion.   The petitioner contends that once the

judge in the Boston Municipal Court found no probation violation

with respect to the new offenses, principles of collateral

estoppel barred a subsequent probation revocation proceeding in

a different county on the new offenses.   In its brief before

this court, the Commonwealth states that, "having considered at

length both the legal and policy issues inherent in the question

before the [c]ourt, [it] now substantially agrees with the

defendant."

     The doctrine of collateral estoppel, also known as issue

preclusion, provides 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."   Commonwealth v. Lopez, 383 Mass. 497, 499 (1981),

quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970).    See

Commonwealth v. Scala, 380 Mass. 500, 503 (1980).    "In a

criminal case, the applicability of the doctrine may derive

either from the common law, with roots in civil proceedings,


     5
       Because the petitioner's claim is so closely identified
with double jeopardy, a petition for relief under G. L. c. 211,
§ 3, is the appropriate avenue for review. Cf. Cepulonis v.
Commonwealth, 426 Mass. 1010, 1010 (1998); Costarelli v.
Commonwealth, 374 Mass. 677, 679-680 (1978).
                                                                     6

. . . or from the protection against double jeopardy of the

Fifth Amendment to the United States Constitution" (citations

omitted).    Commonwealth v. Stephens, 451 Mass. 370, 375 (2008).

See Commonwealth v. Williams, 431 Mass. 71, 74 (2000);

Commonwealth v. Ellis, 160 Mass. 165, 165 (1893).

     The double jeopardy clause of the Fifth Amendment consists

of three independent 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" (footnotes omitted).

Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, cert.

denied, 459 U.S. 864 (1982), S.C., 390 Mass. 438 (1983), quoting

North Carolina v. Pearce, 395 U.S. 711, 717 (1969).     See Krochta

v. Commonwealth, 429 Mass. 711, 713 (1999).    Unlike the United

States Constitution, the Massachusetts Declaration of Rights

does not include a double jeopardy clause, but our statutory and

common law have long embraced the same principles and

protections.    See Commonwealth v. Selavka, 469 Mass. 502, 509

n.8 (2014); Commonwealth v. Woods, 414 Mass. 343, 346, cert.

denied, 510 U.S. 815 (1993).     See also G. L. c. 263, § 7.

Jeopardy does not attach at a probation revocation proceeding.6


     6
       A probation revocation proceeding is not considered to be
a new criminal prosecution because the Commonwealth already has
"met its burden of proving beyond a reasonable doubt the
                                                                    7

See Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006); Krochta,

supra at 713-714.   Therefore, as the petitioner acknowledges,

collateral estoppel based on principles of double jeopardy is

not applicable in this case.   See Krochta, supra at 714.

    In the past, we have considered, without deciding, "whether

collateral estoppel protection between proceedings litigated

against the government is encompassed within the constitutional

right to due process, independent of the double jeopardy

clause."   Id. at 715.   See Williams, 431 Mass. at 73-74;

Commonwealth v. Dias, 385 Mass. 455, 460 (1982); Scala, 380

Mass. at 503.   Here, we again need not decide this issue because

the present case can be resolved by application of common-law

collateral estoppel principles.   See Williams, supra at 74.

    "The common-law doctrine of collateral estoppel is designed

to 'relieve parties of the cost and vexation of multiple

lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on adjudication.'"

Stephens, 451 Mass. at 375, quoting Massachusetts Prop. Ins.

Underwriting Ass'n v. Norrington, 395 Mass. 751, 756 (1985).

See Scala, 380 Mass. at 505 (describing collateral estoppel

policy considerations).    Our decision in Krochta, which


person's guilt on the underlying crime." Commonwealth v.
Wilcox, 446 Mass. 61, 65 (2006). See Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973) (probation revocation, like parole
revocation, not stage of criminal prosecution); Commonwealth v.
Durling, 407 Mass. 108, 112 (1990).
                                                                   8

concerned the preclusive effect of a determination made at a

probation revocation proceeding on a subsequent criminal

prosecution, set forth the prerequisites for a valid collateral

estoppel claim.     "Collateral estoppel is available to a

defendant as a shield against a subsequent attempt by the

government to litigate an issue necessarily decided in previous

litigation between the defendant and the government only where

there is (1) a common factual issue; (2) a prior determination

of that issue in litigation between the same parties; and (3) a

showing that the determination was in favor of the party seeking

to raise the estoppel bar" (footnotes omitted).7    Krochta, 429

Mass. at 715-716.    For collateral estoppel to apply, the two

proceedings sharing a "common factual issue" must be resolved

using the same standard of proof.8    See id. at 716-717.    The


     7
       For a discussion of the five requirements that must be met
for collateral estoppel to apply in the context of a motion to
suppress, see Commonwealth v. Cabrera, 449 Mass. 825, 829-831
(2007).
     8
       In Krochta v. Commonwealth, 429 Mass. 711, 711-712 (1999),
this court held that principles of collateral estoppel did not
bar criminal prosecution of a defendant on various larceny
charges, even though the same offenses had triggered an earlier
probation revocation proceeding that was resolved in the
defendant's favor. We explained that the essential components
of collateral estoppel had not been satisfied because common
factual issues were decided under different standards of proof
and under different procedural rules in the two proceedings.
Id. at 716, 718. See Holmgren, 421 Mass. at 225 (concluding
that, because of different burdens of proof in criminal case and
probation revocation proceeding, "[p]rinciples of collateral
estoppel do not bar the Commonwealth from revoking probation
based on evidence of a violation of law of which a probationer
                                                                   9

burden of showing the concurrence of these three collateral

estoppel requirements "is always on the person raising the bar."

Lopez, 383 Mass. at 499.

     In this case, the petitioner has satisfied the requirements

of collateral estoppel.    Following a hearing in the Boston

Municipal Court, a judge determined, based on a preponderance of

the evidence, that the petitioner did not violate the terms of

his probation with respect to the new offenses.    The

Commonwealth seeks to relitigate this same factual issue based

on the same standard of proof and the same procedural rules at

subsequent probation revocation proceedings on the new offenses

that have been consolidated in the New Bedford District Court.9

We conclude that principles of collateral estoppel bar the

Commonwealth from doing so.

     3.   Conclusion.   We remand this matter to the single

justice for entry of a judgment allowing the petition for relief

under G. L. c. 211, § 3, and reversing the February 18, 2014,


has been found not guilty"). Further, we stated in Krochta,
supra at 719, that "[i]f collateral estoppel bars a criminal
prosecution as a result of a probation revocation proceeding, a
conflict between the separate goals of the probation department
and the district attorney may result, frustrating the ability of
both to accomplish the ends assigned to them by the
Legislature."
     9
       With regard to two additional alleged probation violations
set forth in the notice from the Fall River District Court prior
to consolidation of the hearings, see note 2, supra, the
petitioner does not contend that the Commonwealth cannot proceed
on those alleged violations.
                                                                  10

order of the New Bedford District Court that denied the

petitioner's motion to hold the Commonwealth bound by the order

of the Boston Municipal Court that found no probation violation

with respect to the new offenses.

                                    So ordered.
