Find Legal Information

                                                                                                                                       THIRD DIVISION
                                                                                                                                       October 25, 2000

No. 1-99-2561

In People v. Krstic, 292 Ill. App. 3d 720, 723, 686 N.E.2d692 (1997), we held the collateral estoppel doctrine did not barthe State from prosecuting a domestic battery charge after atrial judge had dismissed a pro se petition for an order ofprotection, "because the State was not a party to the initialcivil proceeding."

In this case, we now confront the question left unansweredin Krstic: Does collateral estoppel prevent the State fromprosecuting a domestic battery charge after a hearing judgedismisses an order of protection petition brought and tried bythe State? Our answer is no, and we affirm the defendant'sconviction.

FACTS

During acrimonious divorce proceedings, Paul Wouk (Paul) wascharged with domestic battery against his ex-wife Sandra Wouk(Sandra) following an incident on August 11, 1998.

Before trial, the prosecution filed a petition seeking anorder of protection for Sandra. At the hearing on this petition,Sandra testified Paul arrived at the marital residence on August11: "He went to use the phone and I asked him not to. I justswitched it in my name, and I went to hang up the phone, and hehit me." Sandra said Paul hit her in the arm. Sandra alsotestified about a prior, unreported incident of domestic violencethree years earlier, shortly before the divorce. Sandra believedPaul would commit further acts of domestic violence if the courtdid not issue an order of protection.

Paul testified he arrived at the marital residence on August11 and immediately went to the kitchen to use the telephone, whenSandra entered the room: "She said not to use the phone. That itwas hers." Paul resumed dialing and turned toward the wall, awayfrom Sandra:

"As I was talking on the phone, I had my head down***, and I heard her come up behind me. And as Istarted to look up, I saw an arm coming over my leftshoulder.

* * *

I reacted by trying to block it by my arm goingup. As my arm went up and my head went up, I saw shewas reaching to turn the phone off."

According to Paul, he did not punch or hit Sandra. He sawher reaching over his shoulder to shut off the telephone andmerely blocked her arm, making contact with her.

The judge denied the petition, saying to Sandra: "Yourtestimony, ma'am, is that when he came home from work, he came inthere to use the phone. And you told him not to use the phone. And either hung it up or tried, and he hit you on the arm. *** Ithink his story makes more sense to me than yours."

The judge, who earlier had noticed "a bruise on [Sandra's]inner, lower arm, between the elbow and the wrist," thenaddressed the assistant state's attorney:

"***[I]n any case I don't believe her. And Ihave to make a decision. Her testimony about she toldhim now [sic] to use the phone, he couldn't use thephone. This is a lot of hooey. Unless there issomething in the divorce decree that says he cannot nowuse the phone in a house they both have.

He states the phone was in his name prior to the11th. That she changed the phone. And now I tell youwhat seems strange. The bruise on her arm is under theunder portion of her arm. As she came over and heblocked her, that is where a bruise would be.

If you hit somebody you don't hit them on theunderside of the arm. I just don't find your[Sandra's] testimony to be credible. The [order ofprotection] is denied."

Paul then filed a motion to dismiss his domestic batterycharge, contending the hearing judge's order collaterallyestopped the prosecution. Another judge heard and denied Paul'smotion.

The case proceeded to a bench trial. It was a virtualcarbon copy of the hearing.

Sandra testified Paul entered the marital residence onAugust 11 and stormed into the kitchen to use the telephone. Paul did not respond when she asked him not to use the telephone. According to Sandra, when she tried to hang up the telephone, hehit her in the middle of her right arm.

Officer Collins of the Palos Hills Police Departmenttestified he spoke with Sandra at the Wouk residence on August11. Officer Collins observed "redness" on her right arm.

Paul testified he entered the marital residence on August 11and went into the kitchen to use the telephone. As Paul wasdialing, Sandra came into the kitchen and told him not to use hertelephone. Paul continued:

"*** I was facing the wall with my head kind ofdown and I was talking on the phone and then I heardher come up.

She was still saying things--I don't rememberwhat--and then I heard her come up from behind me andthen what happened after that, as I heard her coming upfrom behind me, I started to look up and I saw an armcoming over my left shoulder and I reacted by moving myarm up."

Paul said he did not intend to hit Sandra; he raised his arm as areaction, "a protective instinct."

The judge found Paul guilty of domestic battery. Paul fileda post-trial motion, again contending the civil order precludedhis criminal prosecution. The trial court denied the post-trialmotion. This appeal followed.

DECISION

We review the legal question presented in this case de novo. People v. Saunders, 288 Ill. App. 3d 523, 525, 680 N.E.2d 790(1997).

Under the equitable doctrine of collateral estoppel, avalid, final judgment which determines an ultimate fact issueprecludes the same parties from relitigating that issue in afuture case. See People v. Pawlaczyk, 189 Ill. 2d 177, 189, 724N.E.2d 901 (2000). Collateral estoppel can apply when the firstcase is civil and the second case is criminal. See People v.Moore, 138 Ill. 2d 162, 166, 561 N.E.2d 648 (1990); see generallyS. Brenner, "Crossing-Over:" The Issue-Preclusive Effects of aCivil/Criminal Adjudication upon a Proceeding of the OppositeCharacter, 7 N. Ill. L. Rev. 141 (1987).

Our Supreme Court has defined the minimum, thresholdrequirements for applying collateral estoppel:

"(1) the issue decided in the prior adjudication isidentical with the one presented in the suit inquestion, (2) there was a final judgment on the meritsin the prior adjudication, and (3) the party againstwhom estoppel is asserted was a party or in privitywith a party to the prior adjudication." Talarico v.Dunlap, 177 Ill. 2d 185, 191, 685 N.E.2d 325 (1997).

Additionally, "[f]or collateral estoppel to apply, adecision on the issue must have been necessary to the judgment inthe first litigation, and the person to be bound must haveactually litigated the issue in the first suit." Talarico, 177Ill. 2d at 191; In re Marriage of Connors, 303 Ill. App. 3d 219,227, 707 N.E.2d 275 (1999); see Restatement (Second) of Judgments