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State v. Pacheco

Supreme Court of Rhode Island

June 16, 2017

State
v.
Francisco Pacheco.

         Associate Justice Brian Van Couyghen (P2/12-1403A) Associate Justice Brian Van Couyghen

          For State: Aaron L. Weisman Department of Attorney General

          For Defendant: Megan F. Jackson Office of the Public Defender

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Maureen McKenna Goldberg Associate Justice

         This case came before the Supreme Court on March 9, 2017, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. In 2014, the defendant, Francisco Pacheco (Pacheco or defendant), was before this Court on appeal from a judgment of conviction in the Superior Court; the basis of this appeal was that the doctrine of collateral estoppel should have barred the state from prosecuting a chemical breath test refusal under G.L. 1956 § 31-27-2.1. After the initial oral argument, on November 10, 2015, the case was remanded to the Superior Court for an evidentiary hearing on whether that issue was timely raised in Superior Court. On July 21, 2016, the Superior Court trial justice found that good cause had been shown for the delay. By order of this Court, the parties were permitted to file supplemental memoranda on the substantive issue of collateral estoppel. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. We affirm the judgment of the Superior Court.

         Facts and Travel

         On December 28, 2011, at approximately two o'clock in the morning, after failing to stop at a stop sign, Pacheco's vehicle nearly collided with Warren Patrolman Patrick T. Sarasin's (Officer Sarasin) police cruiser. Officer Sarasin, who was accompanied by Patrolman Christopher Perreault (Officer Perreault), observed Pacheco's vehicle turn onto Child Street in Warren, Rhode Island. When the officers began to follow Pacheco, he abruptly turned around in a parking lot, reversed direction, and sped away. Pacheco then failed to stop at a second stop sign and proceeded into the parking lot of the Portuguese Soccer Club, at which point a foot-chase ensued. Officer Sarasin was able to apprehend Pacheco after he tripped over a curb. Pacheco struggled with the officer.

         As Officer Sarasin attempted to restrain Pacheco, he detected a strong odor of alcohol and noted that Pacheco also was exhibiting slurred speech. After Pacheco refused to comply with requests to stop resisting, he was sprayed with oleoresin capsicum spray-commonly referred to as pepper spray-by Officer Perreault. Additional officers arrived, and Pacheco, who continued to resist, was taken into custody. At the scene, Pacheco was asked to take a field sobriety test and a preliminary breath test. He refused to do so.

         Pacheco was transported to the Warren Police Department (police department), where he was permitted to use a decontamination sink to wash his face and eyes. He was placed in a "breathalyzer room" and advised of his rights with respect to a request to undergo a chemical breath test.[1] Pacheco was uncooperative; he continuously stood up and attempted to walk away. On each occasion, Pacheco had to be forcefully returned to his seat, and he was ultimately handcuffed. Pacheco refused to take a chemical breath test and likewise refused to sign any related paperwork. The officers later located a small bag of marijuana in a pocket of Pacheco's pants. Pacheco was charged by criminal information with possession of marijuana in violation of G.L. 1956 § 21-28-4.01(c)(2)(ii), second offense; driving under the influence of alcohol in violation of G.L. 1956 § 31-27-2; simple assault in violation of G.L. 1956 § 11-5-3; resisting arrest in violation of G.L. 1956 § 12-7-10; and a second offense of refusing a chemical breath test (chemical refusal) in violation of § 31-27-2.1(b)(2). He was also cited with the following infractions: refusal to submit to a preliminary breath test (preliminary refusal)[2] in violation of § 31-27-2.3; failure to stop at a stop sign; and operating a motor vehicle without evidence of insurance.

         On July 15, 2013, Pacheco's traffic infractions were heard in the Rhode Island Traffic Tribunal; Pacheco appeared pro se, and the Town of Warren also was unrepresented by counsel. Officer Sarasin testified[3] that he pulled Pacheco over for failing to stop at a stop sign. He recounted that he pursued Pacheco on foot and apprehended him after a struggle. After being prompted by the magistrate, Officer Sarasin added that Pacheco also was charged with a preliminary refusal. This was the extent of the evidence presented against Pacheco in the Traffic Tribunal. The magistrate dismissed the preliminary refusal infraction, concluding that the appropriate evidentiary foundation had not been established.

         In the Superior Court, on the eve of trial, Pacheco sought to dismiss the second offense, chemical refusal charge on the basis of collateral estoppel, arguing that, "[b]ecause the government failed in its first attempt to prove by clear and convincing evidence that the defendant refused to submit to a chemical test at the time of the alleged incident, it is collaterally estopped from trying [Pacheco] again on the same issue." The defendant asserted that the state failed to establish the requisite reasonable belief necessary to prove the preliminary refusal by failing to present evidence that Officer Sarasin detected the odor of alcohol on defendant, observed bloodshot or watery eyes, or exhibited a staggered walk. The trial justice denied the motion, finding that it was untimely filed and that it lacked merit. The case proceeded to trial, [4]and Pacheco renewed his motion to dismiss at the conclusion of trial, where it was again denied. Pacheco was convicted by a jury of unlawful possession of marijuana and a chemical refusal.[5]On May 29, 2014, he was sentenced to five months to serve on the second offense, chemical refusal count. Pacheco appealed.

         On November 10, 2015, the case was remanded to the Superior Court by order of this Court. State v. Pacheco, 128 A.3d 867 (R.I. 2015). We directed the Superior Court to conduct an evidentiary hearing to determine whether defendant's motion to dismiss on grounds of collateral estoppel was timely under Rule 12(b)(2) and Rule 12(b)(3) of the Superior Court Rules of Criminal Procedure.[6] The Superior Court justice concluded that defendant's motion was untimely filed but that there was good cause for the delay because a new attorney had been assigned to defendant's case after the initial attorney suffered a medical emergency. Accordingly, on October 31, 2016, an order was entered in the Supreme Court assigning the case to the show cause calendar.

         Before this Court, defendant argues that the state was collaterally estopped from prosecuting the chemical refusal in the Superior Court because the facts at issue were decided in the Traffic Tribunal. The defendant contends that, although the charges arise out of different statutes, the state nonetheless must prove that the officer reasonably believed that the operator was operating a motor vehicle while under the influence of alcohol or drugs. The state, while conceding at oral argument that there was an identity of parties, contends that the question of Officer Sarasin's reasonable belief that defendant was operating under the influence was not "actually litigated and determined" in the Traffic Tribunal because the charge was dismissed based on a lack of evidentiary foundation. The state also notes that defendant twice refused a breath test, constituting two distinct offenses, and that observations which occurred after the first preliminary refusal, while certainly relevant to the second chemical refusal charge were unrelated to the first charge heard in the Traffic Tribunal. Finally, the state directs our attention to the procedural differences between the Traffic Tribunal and the Superior Court and suggests that collateral estoppel in this context may be the wrong road to travel.

         Analysis

         The issue before the Court involves two separate statutory enactments governing two discrete offenses allegedly committed by an operator who refuses to submit to a breath test examination. Section 31-27-2.3(a) governs preliminary refusals which are cognizable in the Traffic Tribunal:

"When a law enforcement officer has reason to believe that a person is driving or in actual physical control of any motor vehicle in this state while under the influence of alcohol, the law enforcement officer may require the person to submit to a preliminary breath analysis for the purpose of determining the person's blood alcohol content. The breath analysis must be administered immediately upon the law enforcement officer's formulation of a reasonable belief that the person is driving or in actual control of a motor vehicle while under the influence of alcohol, or immediately upon the stop of the person, whichever is later in time. Any chemical breath analysis required under this section must be administered with a device and in a manner approved by the director of the department of health for that purpose. The result of a preliminary chemical breath analysis may be used for the purpose of guiding the officer in deciding whether an arrest should be made. When a driver is arrested following a preliminary breath analysis, tests may be taken pursuant to § 31-27-2.1. The results of a preliminary breath test may not be used as evidence in any administrative or court proceeding involving driving while intoxicated or refusing to take a breathalyzer test, except as evidence of probable cause in making the initial arrest."

         The preliminary breath test must be administered immediately after the officer forms his or her reasonable belief or immediately after the officer stops the individual, whichever is later. Section 31-27-2.3(a). A refusal to submit to a preliminary breath test gives rise to a traffic infraction. Section 31-27-2.3(b). Enacting the sections at different times, the Legislature carefully delineated that a preliminary refusal and a chemical refusal remain separate and distinct offenses. When an operator fails a preliminary breath test, this fact may serve as evidence of probable cause for the operator's arrest, but the results are not admissible on the question of whether the operator was driving while intoxicated. The results of the preliminary breath test "may not be used as evidence in any administrative or court proceeding involving driving while intoxicated or refusing to take a breathalyzer test, except as evidence of probable cause in making the initial arrest"; however, a chemical breath test may be administered pursuant to § 31-27-2.1 if a driver is arrested after a preliminary breath test analysis. Section 31-27-2.3(a). If the operator fails the preliminary breath test, the officer has probable cause to arrest and request a chemical breath test, but the preliminary results-whether the operator passed or failed-are inadmissible in a subsequent trial for the separate offenses of driving under the influence or a breathalyzer refusal. The state must prove all of the statutory criteria set forth for each of those offenses. Thus, a preliminary breath test, while an important tool for law enforcement's fight against drunk driving, is of little utility for the prosecution of operating under the influence and chemical breathalyzer refusal.

         Chemical breath test refusals are governed by § 31-27-2.1(a), the statute under which defendant was criminally charged.[7] That provision permits an officer to administer a chemical breath test if he or she has "reasonable grounds to believe [that a] person [has] been driving a motor vehicle within this state under the influence of intoxicating liquor, toluene, or any controlled substance * * *." Id. The officer is required to inform the person of his or her rights and the consequences of refusing to submit. Section 31-27-2.1(b). The defendant argues that dismissal of the preliminary refusal infraction in this case precludes a subsequent prosecution for refusal to take a chemical test because each statute requires that the officer have a reasonable belief that the operator of the motor vehicle was operating under the influence prior to requesting that the operator submit to a breath test. We disagree.

         When the Supreme Court is confronted with a motion to dismiss based on double jeopardy or collateral estoppel, we invariably "engage[] in a de novo review, 'with respect to questions of law and mixed questions of law and fact involving constitutional issues * * *.'" State v. Rodriguez, 917 A.2d 409, 413 (R.I. 2007) (quoting State v. Snell, 892 A.2d 108, 115 (R.I. 2006)). "The doctrine of collateral estoppel 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.'" State v. Gautier, 871 A.2d 347, 358 (R.I. 2005) (quoting State v. Werner, 865 A.2d 1049, 1055 (R.I. 2005)). In order for collateral estoppel to apply there must be: "(1) an identity of issues, (2) the previous proceeding must have resulted in a final judgment on the merits, and (3) the party against whom collateral estoppel is asserted must be the same or in privity with a party in the previous proceeding." Id. (quoting Werner, 865 A.2d at 1055). Nonetheless, "we will 'not apply the doctrine mechanically in situations in which it would lead to inequitable results.'" Id. (quoting Foster-Glocester Regional School Committee v. Board of Review, 854 A.2d 1008, 1017 (R.I. 2004)).

         This Court has had ample opportunity to address the application of the doctrine of collateral estoppel in a criminal prosecution in the context of probation-revocation hearings. An analysis of our case law in this analogous scenario is warranted. In State v. Chase, 588 A.2d 120 (R.I. 1991), we first considered whether a "finding of nonviolation at a probation-revocation hearing preclude[d] the state from relitigating" the same issues at trial.[8] Id. at 121-22. Although we noted that "a probation-revocation hearing is not part of a criminal prosecution and therefore does not give rise to the full panoply of rights that are due a defendant at trial, " we held that the state was collaterally estopped from litigating an issue that had been fully litigated during a probation-revocation hearing. Id. at 122, 123. Nonetheless, we limited our holding in Chase and declared that:

"[O]nly a specific finding on a material matter of fact fully litigated at the probation-revocation hearing will collaterally estop the state from attempting to prove the same fact at trial. A general finding will not suffice, nor will a specific finding that was not fully litigated unless the state had notice that the issue was to be litigated fully at the hearing and had a fair opportunity to do so." Id. at 123 (emphasis added).

         What became known as the "Chase doctrine" began its road to abrogation in the case of State v. Godette, 751 A.2d 742 (R.I. 2000) when the Court was called upon to examine the differences in the two proceedings. In Godette, the defendant was notified pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure that he was being presented as a probation violator, the basis of which was a charge of driving a vehicle without the consent of the owner. Godette, 751 A.2d at 744. At the probation-revocation hearing, the prosecutor indicated that he had amended the underlying offense to possession of a stolen vehicle. Id. The trial justice erroneously refused to consider the amended charge, finding that the state did not comply with Rule 32(f) in amending the notice. Godette, 751 A.2d at 744. The justice then concluded that there was insufficient evidence to declare the defendant a probation violator because the state did not prove that the defendant was driving the motor vehicle. Id. The same Superior Court justice refused to dismiss the criminal charges against the defendant based on collateral estoppel, declaring that the charge of possession of a stolen motor vehicle was different from the offense set forth in the Rule 32(f) notice, driving without the consent of the owner, and therefore, collateral estoppel did not apply. Godette, 751 A.2d at 745. The defendant appealed from the denial of the motion to dismiss, and this Court declared that there was not an identity of issues because "three additional factors must be considered: 'first, the issue sought to be precluded must be identical to the issue decided in the prior proceeding; second, the issue must actually have been litigated; and third, the issue must necessarily have been decided.'" Id. at 746 (quoting State v. Hie, 688 A.2d 283, 285 (R.I. 1996)). We further recognized that the standard at a probation-violation hearing is "whether a defendant has failed to keep the peace and to remain on good behavior, which he or she must do in order to stay on probation." Id. at 745 (quoting Hie, 688 A.2d at 284). A few months later, we reaffirmed our holding in Godette in State v. Znosko, 755 A.2d 832 (R.I. 2000). Id. at 835 ("[A] showing that the defendant has failed to keep the peace and to remain on good behavior is sufficient to establish a probation violation." (citing Godette, 751 A.2d at 745)).

         In Gautier, 871 A.2d at 357-60, the Chase doctrine was laid to rest. The Court carefully examined the differences between violation hearings and criminal trials, explaining that "a 'probation revocation hearing is not part of a criminal prosecution and therefore does not give rise to the full panoply of rights that are due [to] a defendant at trial.'" Id. at 358-59 (quoting Chase, 588 A.2d at 122). Critically, we found that probation-revocation hearings are less formal than a criminal trial-hearings are held without detailed preparation and evidence rules are less stringently applied-resulting in defendants being "afford[ed] considerably less due process protection than that to which they are constitutionally entitled in a full-blown criminal trial." Id. at 359. We noted that the continued application of collateral estoppel in this context would "'undesirably alter the criminal trial process by permitting informal revocation determinations to displace the intended factfinding function of the trial'" and "forc[e] the state to expedite discovery and present any and all of its evidence and witnesses well in advance of trial." Id. at 360 (quoting Lucido v. Superior Court, 795 P.2d 1223, 1229 (Cal. 1990) (en banc)).

         Identity of Issues

         Although we acknowledge that the circumstances in the case at bar differ from the cases discussed, we are nonetheless persuaded by their rationales. In the case before us, we are confronted with two discrete offenses such that, as in Godette, there is not an identity of issues. An identity of issues requires "first, [that] the issue sought to be precluded must be identical to the issue decided in the prior proceeding; second, the issue must actually [have been] litigated; and third, the issue must necessarily have been decided." Godette, 751 A.2d at 746 (quoting Hie, 688 A.2d at 285). The requirements set forth in §§ 31-27-2.3 and 31-27-2.1 do not meet this three-part analysis.

         To be sure, both statutes require that the officer have a reasonable belief or reasonable grounds to believe that the operator was operating a motor vehicle while under the influence of alcohol or other substances before requesting that the operator submit to a particular test. Importantly, the issue is unrelated to whether there was a lawful stop or probable cause to arrest the operator. Reasonable belief is merely the grounds upon which the officer based a request that the operator submit to each test. Reasonable belief that the operator was operating under the influence may be established up until the point when the officer requests that the operator submit to a preliminary breath test. Accordingly, the operator's post-arrest behavior, while irrelevant to an infraction under § 31-27-2.3, is highly relevant to a charge under § 31-27-2.1. These factors, coupled with the observations made by the officer from his or her initial interaction with the operator-which constitute relevant and admissible evidence-may satisfy the reasonable grounds to believe the operator was driving while under the influence. A chemical refusal can be supported by evidence that is not relevant to an operator's refusal to submit to a preliminary test. See State v. Jenkins, 673 A.2d 1094, 1097 (R.I. 1996) (holding that a finding that the motorist was arrested without probable cause was unrelated and irrelevant to the issue of reasonable grounds to believe that the operator was driving under the influence in a prosecution for refusal, because the defendant was charged under two separate statutes with distinct elements); see also Gautier, 871 A.2d at 358, 360 ("Thus, even assuming, arguendo, that the hearing justice made additional findings of fact relieving the defendant of criminal responsibility [in the probation-revocation context] * * * it would in no way preclude the state from indicting and prosecuting [the] defendant for the alleged [crime]" "[b]ecause it is not appropriate for a hearing justice in probation-revocation proceedings to make factual determinations of guilt or innocence[.]"). As noted, the results of a preliminary breath test are not admissible in a trial for the more serious criminal offenses of driving under the influence and refusing to submit to a chemical breath test. We are hard-pressed to state that a determination on a preliminary refusal infraction could collaterally estop the state from pursuing the more serious chemical refusal charge when results from a preliminary breath test analysis would not even be admissible in such a subsequent proceeding.

         We conduct a de novo review when confronted with a motion to dismiss on collateral estoppel grounds. See Rodriguez, 917 A.2d at 413. In the case at bar, we are confronted with a chaotic, 2 a.m. near-collision with a police cruiser, a motorist driving through two stop signs, followed by a foot chase, a pepper spray takedown, preliminary refusal, struggle, and uncooperative behavior at the police department. Viewed in its entirety, this conduct provided Officer Sarasin with the requisite reasonable grounds to request a chemical breath test. We note that, at trial, Officer Sarasin testified that, before the stop, based on defendant's driving-which he described as erratic and involved two stop-sign violations at 2 a.m.-he suspected that defendant was driving under the influence. Furthermore, after the preliminary refusal, [9] Officer Sarasin found two unopened sixteen-ounce beer bottles in defendant's vehicle, and he testified that defendant was belligerent and uncooperative at the police department. The defendant ignored the officers' commands and repeatedly rose from his chair and attempted to walk away while being read his rights at the police department. He was physically restrained by officers each time and eventually handcuffed to the chair. Accordingly, we are of the opinion that identity of issues is lacking because there are two separate offenses and evidence which is relevant to the second offense was irrelevant to the first refusal.

         Actually Litigated

         Furthermore, we are not convinced that the issue to which defendant now seeks application of collateral estoppel was fully litigated in the Traffic Tribunal. The preliminary refusal was dismissed by the magistrate for lack of "evidentiary foundation." Although the application of collateral estoppel in the probation violation context has been abrogated, it nonetheless is useful to look to Chase, because we declared that "only a specific finding on a material matter of fact fully litigated at [a] * * * hearing will collaterally estop the state from attempting to prove the same fact at trial. A general finding will not suffice * * *." Chase, 588 A.2d at 123 (emphasis added). Here, the magistrate did not make a specific finding. He simply noted that the foundational requirements necessary to prove a preliminary refusal had not been met, and he did not make "a specific finding on a material matter." Id. Before the magistrate, the officer failed to offer any testimony about his reasonable belief that defendant was driving while intoxicated. In rendering his decision, the magistrate informed Officer Sarasin that the "evidentiary foundation" that he was required to put forth is one based on contact with the motorist-"that you smelled alcohol or saw bloodshot, watery eyes or a staggered gait or motor skills * * *[.]" Critically, however, none of these observations is statutorily mandated, nor are they elements of the offense, such that collateral estoppel should operate. The magistrate also declared that Officer Sarasin should have testified that:

"[he was] certified * * * through the academy * * * in DUI investigation and that based upon all of these observations, it was leading * * * [him] down the path to conclude that [defendant] was operating under the influence of alcohol and/or drugs and that in furtherance of this investigation, [he] asked [defendant] to submit to the preliminary breath test, that [he was] certified ...

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