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No Collateral Estoppel in Canine-Killing Case

Deborah Elkins//November 1, 2013

No Collateral Estoppel in Canine-Killing Case

Deborah Elkins//November 1, 2013//

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Although two defendants were acquitted of misdemeanor charges related to the alleged shooting of dogs who were killing turkeys, a Dickenson County Circuit Court rejects defendants’ argument that their related felony prosecution is barred by collateral estoppel; the court denies defendants’ motion to quash the indictments.

Defendant Kermit Hill alleges dogs owned by Brandon Hill had attacked or were attacking the turkeys K. Hill owned. K. Hill contacted Dennis Taylor to have Taylor shoot to kill the dogs. This incident resulted in the death of three dogs owned by Brandon Hill. As a result, Kermit Hill and Taylor were charged with three separate criminal offenses. Of these charges, two were misdemeanors and one was a felony charge of destruction of property, Va. Code § 18.2-137. Both defendants were found not guilty on each of the misdemeanor offenses in Dickenson County General District Court on April 2, 2013. However, the felony charge was certified to the grand jury and returned as a true bill on April 16, 2013. Therefore, the felony destruction of property charge is the only charge at issue in the pending motion.

Upon review of the transcript from the GDC, it appears defendants presented Va. Code § 3.2-6552 as part of their defense. This section states that any person finding a dog committing (killing or injuring of livestock or poultry) shall have the right to kill such dog on sight. In that hearing, the commonwealth conceded § 3.2-6552 would be a legitimate defense to the charge under § 18.2-137 if the killing of the dogs had occurred at the time the dogs were attacking the turkeys. However, the commonwealth represented to the court “the turkeys were already dead … so under [these] facts, this is not a matter of defending property; this is a matter of retaliation after the property had already been destroyed.”

Ultimately, the judge stated “the Court has some different statements to deal with” as to the status of the turkeys when the dogs were shot. The judge recognized the court “has a couple of different standards to deal with.” As to the misdemeanor offenses, the court found defendants not guilty on a reasonable doubt standard. However, with the felony charge, the court said the standard was probable cause to believe defendants committed the felony offense with the more valuable dog, and the court certified the felony charges to the grand jury, “based on a different probable cause standard.”

This court rejects defendants’ claim of collateral estoppel and denies the motions to quash the indictments.

The parties to the prior hearing were the same. However, the issue was not “actually litigated.” The availability of a defense based on Code § 3.2-6552 potentially hinges upon the determination of the status of the turkeys when the dogs were shot. This determination was not made by the trier of fact in the GDC. The court there only determined reasonable doubt existed as to the status of the turkeys as related misdemeanor charges. Therefore, this determination was not “actually litigated” as to the felony charge currently before this court. The element is not satisfied. Nor is the test satisfied as to the element of being “essential to the prior judgment.”

Further, and perhaps most dispositive, no valid final judgment exists as to the facts of the related misdemeanor charges. The GDC was of the opinion that sufficient probable cause existed to certify this case to the grand jury. Therefore, no final judgment exists in this case.

Commonwealth v. Hill (Vanover) No. CR 13-113, Oct. 11, 2013; Dickenson County Cir.Ct.; Joe H. Short, Jim Wayne Childress for defendants; Gerald Gray, Ass’t Comm. Att’y. VLW 013-8-121, 6 pp.

VLW 013-8-121

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