Bryan Keith Page v Commonwealth

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
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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.
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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.
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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)).
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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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