Timms v. Cupp , 38 Or. App. 339 ( 1979 )

TANZER, J.

This is an appeal by the state from an order granting post-conviction relief on the ground of denial of effective representation of counsel because petitioner’s trial attorney failed to assert the doctrine of collateral estoppel as a ground for suppression of evidence.

In 1973, two policemen stopped and searched petitioner’s automobile. Petitioner was driving and one Gerald Woods was a passenger. The officers found two loaded revolvers, one under each seat, and dangerous drugs.

Woods was charged with a weapons offense. The trial court granted his motion to suppress, holding that the police did not have probable cause to search the automobile. The state did not appeal.

Petitioner was charged with drug and weapons offenses. His attorney moved to suppress the fruits of the automobile search on the ground of lack of probable cause. The attorney was aware that Woods’ motion had previously been granted, but he did not urge collateral estoppel as a ground for suppression. The motion was denied. The evidence was admitted in petitioner’s trial. He was found guilty and it is this conviction from which he seeks relief.

The failure of counsel to assert a defense in the trial court entitles the client to post-conviction relief only if the raising of the issue would have affected the result. Barzee v. Cupp, 29 Or App 705, 564 P2d 1366 (1977). Therefore, assuming for argument that failure to raise a sophisticated issue is incompetence of such a degree as to render counsel ineffective in a constitutional sense, see Rook v. Cupp, 18 Or App 608, 526 P2d 605 rev den (1974), and further assuming for argument that a preliminary evidentiary ruling is the type of ruling to which collateral estoppel would apply in a civil case, we look to whether interposition of the defense of collateral estoppel would have prevailed and required suppression in petitioner’s trial.

The doctrine of collateral estoppel as it applies to criminal cases has developed in pieces. In State v. George, 253 Or 458, 455 P2d 609 (1969), the Supreme Court barred a trial for the murder of the second victim where the same defendant had been acquitted of murdering the first victim with the same bullet. The court made no constitutional pronouncement, but, rather, applied the civil rule of collateral estoppel. The doctrine, however, was not necessarily transferred to criminal law in all of its particulars.

Thereafter the United States Supreme Court decided the cases of Harris v. Washington, 404 US 55, 92 S Ct 183, 30 L Ed 2d 212 (1971), and Ashe v. Swenson, 397 US 436, 90 S Ct 1189, 25 L Ed 2d 469 (1970), holding that collateral estoppel was applicable to criminal prosecutions as an aspect of the constitutional protection against double jeopardy. Because the protection against double jeopardy cannot be claimed by a person other than the person who was placed in prior jeopardy, it follows strictly as a matter of constitutional law that the protection of collateral estoppel cannot be asserted by a person other than the defendant in the original prosecution. Hence, Ashe v. Swenson, 397 US at 443, defines the doctrine as follows:

" 'Collateral estoppel’ * * * 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. Hi * H«”

See also, Harris v. Washington, 404 US at 56. The "same parties,” of course, Eire the defendant and the state.

Thereafter, in State v. Mozorosky, 277 Or 493, 561 P2d 588 (1977), the Supreme Court of Oregon acknowledged that the doctrine of collateral estoppel had not theretofore been applied as a matter of constitutional law citing several cases including State v. George, supra, but proceeded to do so in the case before it in view of the decisions in Ashe v. Swenson and Harris v. Washington by the United States Supreme Court. In adopting a constitutional rationale, however, the Supreme Court did not expressly abandon the nonconstitutional rationale of George. Thus, the possibility that the Supreme Court will in future cases apply collateral estoppel in the broader nonconstitutional sense as in civil cases has not been logically excluded.

The doctrine of collateral estoppel in criminal cases, whether founded in common law, statutes or the constitution, has been consistently applied by the Oregon and United States Supreme Courts in the manner of res judicata for the benefit of the same litigant regarding the same criminal episode and has never been applied as in civil law for the benefit of other litigants. The failure of the Supreme Court in Mozorosky to expressly abandon the George rationale suggests that the Supreme Court may in a proper case wish to apply the doctrine more expansively, but this case presents no reason to do so. Accordingly, we conclude that had petitioner’s attorney urged collateral estoppel as a basis for suppression, he would not have succeeded. Hence, petitioner has not shown that he was denied the effective assistance of counsel.

Reversed.