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State v. Brunet5/10/2002
The question presented is whether collateral estoppel bars a criminal prosecution based on factual allegations decided adversely to the State in an earlier probation revocation proceeding. We hold that it does not. Accordingly, we affirm the judgment of conviction.
The material facts are undisputed. In November 1998, defendant was convicted of misdemeanor domestic assault, and sentenced to three to six months. The sentence was suspended, and defendant was placed on probation with the standard conditions of probation, as well as several special conditions, including requirements that he not contact the victim of the assault, and that he abide by any pending relief from abuse order.
On January 5, 1999, defendant was charged with a violation of probation and two new offenses, second degree aggravated domestic assault and violation of an abuse-prevention order, all arising out of a single incident. Following a bail review hearing on January 12, the court ordered that defendant be held without bail on the pending violation of probation. On January 26, the court held a probation violation hearing. The State alleged that defendant had violated the conditions that he not engage in "threatening, violent, or assaultive behavior," not have any contact with the victim, and abide by any pending relief from abuse order. In support of the allegations, the State called two witnesses. Bret Ward, a bartender/bouncer at Alley Cats, a Burlington bar, testified about an incident that had occurred during the late evening of December 23 or early morning of the 24th. He recalled observing the victim and another woman approach the bar, and moments later saw defendant strike the victim several times and kick her. Defendant's probation officer testified that defendant had called her on December 28 to report that the victim had "attacked" him.
Defendant called two witnesses. His current girlfriend testified that on the night in question, she and her two young children and defendant had parked across the street from Alley Cats to visit a friend of defendant who lived above the bar. She recalled that as defendant approached the bar, the victim came up behind him, pulled on his jacket, spun him around, blocked his path, and struck him several times. Defendant, in response, picked her up and put her on the ground in order to subdue her. Defendant also testified, essentially corroborating his girlfriend's account of the incident. He did not believe that Ward, the bartender, could have observed the altercation.
At the conclusion of the hearing, the court issued findings from the bench. The court found that defendant's meeting with the victim was accidental, that the victim initiated the altercation, and that defendant put her on the ground solely to subdue her. The court thus found that the physical contact between defendant and the victim "was the result of the Defendant trying to either protect himself or to extricate himself from the situation." Accordingly, the court ruled that there was no probation violation.
Defendant later moved to dismiss the criminal charges on several grounds, including collateral estoppel. The trial court denied the motion in a written decision, concluding that the State had not had a "full and fair opportunity to litigate the issues" in the revocation proceeding, and therefore was not collaterally estopped from proceeding with the criminal prosecution. The matter proceeded to trial, which resulted in a hung jury. At the retrial, the State called nine witnesses, including Ward (the bartender who had testified in the revocation proceeding), an acquaintance of defendant who stated that defendant was looking for the victim as he approached the bar on the evenin
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