MEMORANDUM OPINION∗ BY v. Record No. 0228-06-1 JUDGE ELIZABETH A. McCLANAHAN AUGUST 1, 2006 SEAN GREEN

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner, Judge

Michael T. Judge, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on briefs), for appellant.

Timothy G. Clancy (Moschel & Clancy, P.L.L.C., on brief), for appellee.

Relying on Code § 19.2-398(A)(1)(ii), the Commonwealth appeals the trial court’s order dismissing indictments against appellee, Sean Green, charging him with possession of cocaine with intent to distribute and possession of a firearm while possessing cocaine with intent to distribute. The Commonwealth challenges the dismissal order on the contention it was based on the trial court’s prior erroneous ruling that, pursuant to a general district court ruling on a suppression motion in a related case, the Commonwealth was collaterally estopped from introducing certain incriminating evidence against Green. Because we conclude this appeal is not authorized by Code § 19.2-398(A)(1)(ii), we dismiss the appeal without reaching the merits.

I. BACKGROUND

As a result of a traffic stop during which police searched Green and purportedly seized

cocaine and a firearm from his person, Green was indicted on illegal possession charges in ∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. violation of Code § 18.2-248 (possessing cocaine with intent to distribute), and Code

§ 18.2-308.4 (possessing firearm while possessing cocaine with intent to distribute). Green was also charged with possession of a concealed weapon in violation of Code § 18.2-308, a misdemeanor. Green was acquitted of the misdemeanor charge after the general district court granted his motion to suppress the seized evidence on the ground that the search and seizure were in violation of his Fourth Amendment rights. For the same reason, the general district court also suppressed that evidence during the preliminary hearing on the felony possession charges and, on that basis, found no probable cause sufficient to certify the felony possession charges to the grand jury.

Subsequently, in the instant case on the felony charges, Green filed a motion to suppress the seized evidence, again contending the search and seizure violated the Fourth Amendment.

Circuit Court Judge Wilford Taylor, Jr. denied the motion. Green later filed a motion in limine

in which he asserted that, based on the general district court’s ruling on his suppression motion, the Commonwealth was collaterally estopped from using the contraband seized from him as

evidence in the case. Circuit Court Judge Louis R. Lerner granted that motion. The Commonwealth filed a notice of appeal with this Court following the ruling, but the appeal was dismissed because the Commonwealth failed to file a timely petition for appeal and failed to file a timely motion for an extension of time.

The Commonwealth thereafter represented to the trial court, on the day set for trial, that it

had no evidence upon which to proceed to trial because of the court’s collateral estoppel ruling, and thus it “technically” was not “ready to go forward.” The Commonwealth also represented that it intended to again seek an appeal on that ruling but could not do so “unless the court dismisses the indictment[s].” Nevertheless, the Commonwealth requested that the court

“incorporate by reference” the “prior proceedings in this matter,” described as follows: The first one being the suppression hearing in front of Judge Taylor . . . . [T]hen . . . the testimony of the sworn witnesses, Officer Venable and Officer Frederick, who were involved in that case during the suppression hearing. They were both sworn at that time. [The Commonwealth] would like to ask the court to take into account that testimony.

Lastly, the Commonwealth requested that the court “incorporate by reference the motion in limine [upon which the court] granted the motion to keep out evidence of the firearm and possession of cocaine by the defendant . . . .” At that point, it concluded by stating: “the Commonwealth does not have any further witnesses” and “[t]he Commonwealth rests.” The trial court then asked Green if he had “any objection” to so incorporating that evidence “by reference,” and Green indicated that he agreed to make it “part of these proceedings.”

In response, Green moved to dismiss the indictments on the two charges and the trial

court granted the motion. In its dismissal order, the trial court expressly stated that the indictments were being dismissed upon the court “having heard the evidence presented by both sides.” Relying on Code § 19.2-398(A)(1)(ii), the Commonwealth filed this appeal.^[1]

II. ANALYSIS

The Commonwealth’s right of appeal in criminal cases is governed by Title 19.2, Chapter

25, of the Code (Code §§ 19.2-398 through 19.2-409), which is limited to an “appeal from a circuit court’s pre-trial rulings in a felony case” on matters specified by statute. In re Horan, 271 Va. 258, 265, ___ S.E.2d ___, ___ (2006) (citing Code § 19.2-398). Code § 19.2-398(A)(1)(ii), the Commonwealth’s basis for the instant appeal, provides:

In a felony case a pretrial appeal from a circuit court may be taken by the Commonwealth from . . . [a]n order of a circuit court dismissing a warrant, information or indictment, or any count or charge thereof on the ground that . . . (ii) the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Article I, Section 8 of the Constitution of Virginia . . . .2

To define a “pretrial appeal” under Code § 19.2-398, that statute must be read in conjunction

with Code § 19.2-400, which defines a pretrial appeal in relevant part as an appeal taken, “in cases to be tried without a jury, before the court begins to hear or receive evidence or the first witness is sworn, whichever occurs first.”

While Green acknowledges that application of the doctrine of collateral estoppel in criminal cases emanates from the Double Jeopardy Clause of the Fifth Amendment, Ashe v. Swenson, 397 U.S. 436 (1970),3 he contends the Commonwealth’s reliance on Code

§ 19.2-398(A)(1)(ii) is misplaced because this is not a pretrial appeal. Given the Commonwealth’s submission of evidence, including sworn testimony, immediately prior to the trial court’s ruling in Green’s favor on his motion to dismiss, we agree.

On the day set for trial, the Commonwealth advised the trial court that it was not

“technically” ready to proceed to trial because of the court’s collateral estoppel ruling. The Commonwealth further advised that it intended again to seek an appeal of that ruling but could only do so if the court dismissed the indictments. The Commonwealth, however, offered evidence “by incorporation” which the court accepted, after which the Commonwealth “rested” its case. At that juncture, the court had “hear[d] or receive[d] evidence,” including sworn

testimony, as provided in Code § 19.2-400. Consequently, the Commonwealth’s appeal of the dismissal order is not a pretrial appeal, as required under Code § 19.2-398.

For these reasons, the appeal is dismissed.

Dismissed.