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March 6, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)

Before Rogers, Chief Judge, Ferren, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Appellant is currently detained under a pretrial detention order originally issued on April 5, 1989, pursuant to D.C. Code § 23-1325 (a) (1989) ("Release in first degree murder cases or after conviction"). *fn1 After unsuccessfully filing in the trial court both a motion for reconsideration and a motion for review of the order, as well as filing in this court two motions for summary reversal and a petition for rehearing, pro se appellant now directly appeals the detention order. Appellant claims that: (1) § 23-1325 (a) is unconstitutionally vague as applied to him; (2) the trial court failed to give the required statutory consideration to conditions of release; and (3) the trial court ordered detention under an incorrect standard. We agree with appellant's third contention. We therefore order vacation of the trial court's pretrial detention order and remand with specific instructions to hold a new pretrial detention hearing immediately. *fn2


On July 1, 1975, appellant was indicted for first ]degree murder while armed, first degree murder, and carrying a pistol without a license (CPWOL). His first trial in 1976 resulted in a hung jury on the murder charges and in a conviction for CPWOL. This court reversed the CPWOL conviction because appellant's right to a public trial had been violated. Kleinbart v. United States, 388 A.2d 878 (D.C. 1978) (Kleinbart I). When retried, appellant appeared pro se with stand-by counsel, was convicted of first degree murder while armed, and was sentenced to a term of twenty years to life in prison. Appellant claimed on appeal that he had been denied his right to conduct his own defense at trial because the trial Judge had preferred to have the stand-by counsel, rather than appellant, attend bench conferences, including those held during voir dire. This court did not reverse on that ground, but we did remand the case for both a Brady *fn3 inquiry and a bifurcated trial on appellant's insanity defense. Kleinbart v. United States, 426 A.2d 343 (D.C. 1981) (Kleinbart II). While those proceedings were still pending, this court decided Robinson v. United States, 448 A.2d 853 (D.C. 1982), reh'g denied, 456 A.2d 848 (1983), holding it was reversible constitutional error for a trial Judge to prohibit a pro se criminal defendant from participating in bench conferences during voir dire. In 1989, because of Robinson, this court granted appellant's motion to recall the court's mandate in Kleinbart II, reversed appellant's conviction, and remanded for a new trial. Kleinbart v. United States, 553 A.2d 1236 (D.C. 1989) (Kleinbart III).

On April 5, 1989, Judge Kessler ordered appellant detained without bond. At a status hearing on August 31, 1989, she denied appellant's motion for pretrial release, and on November 29, 1989, she denied appellant's motion for reconsideration. At a hearing on January 19, 1990, Judge King denied appellant's motion for review of the detention order, relied upon Judge Kessler's findings in making his own, and again ordered appellant held without bond. In March, appellant filed a motion for summary reversal of Judge King's order, and on March 23, 1990, this court issued an order denying appellant's motion: "ORDERED that the motion for summary reversal is denied. It is FURTHER ORDERED AND ADJUDGED that the order of pretrial detention is summarily affirmed." Kleinbart v. United States, No. 90-146. On June 22, 1990, we denied appellant's petition for rehearing.

Meanwhile, appellant had filed a second motion to vacate the order with Judge King on April 23, 1990. Judge King denied that motion to vacate on July 13, 1990 and ordered appellant's continued detention. On August 3, 1990, appellant filed with this court his second motion for summary reversal, which the clerk captioned as appeal No. 90-979, and raised additional arguments as to why appellant's detention was unlawful. We denied that motion on March 1, 1991, stating: "On consideration of the motion of appellant for summary reversal the opposition thereto . . . it is . . . ORDERED that the motion of appellant for summary reversal is denied." Kleinbart v. United States, appeal No. 90-979. Unlike our March 23, 1990 order in appeal No. 90-146, our March 1, 1991 order denying summary reversal in this appeal, No. 90-979, was not a summary affirmance. This appeal followed.



The government argues that the doctrine of res judicata prevents us from reaching the merits of appellant's claims because appellant's second motion for summary reversal, which we denied on March 1, 1991, contained the same substantive arguments he raises here. We cannot agree. "While we recognize that res judicata . . . may be applied to criminal cases," Burrell v. United States, 252 A.2d 897, 900 (D.C. 1969); see Laughlin v. United States, 120 App. D.C. 93, 95-96, 344 F.2d 187, 189-90 (1965), the doctrine has only limited applicability in the context. Cf. RESTATEMENT (SECOND) OF JUDGMENTS (1982), at ch. 1 (explaining that law of res judicata derives from common law and law of civil procedure).

Under the doctrine of res judicata, a prior judgment on the merits precludes relitigation of the same cause of action between the original parties or those in privity with them. E.g., Goldkind v. Snider Bros., Inc., 467 A.2d 468, 473 (D.C. 1983). The government urges us to consider this court's March 1, 1991 denial of appellant's August 3, 1990 (his second) motion for summary reversal as a "final judgment" which this court may not reconsider. *fn4 According to the RESTATEMENT (SECOND) OF JUDGMENTS § 13 (1982), however, "final judgment" is "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be afforded conclusive effect." (Emphasis added.) A preclusive effect should not be given to "a judgment which is considered merely tentative in the very action in which it was rendered." Id. at comment a (emphasis added). *fn5 According to the appellate record, our March 1, 1991 summary denial of appellant's August 3, 1990 motion for summary reversal was not "another action" but was an earlier motion arising out of the same criminal prosecution, and in this sense, involved this same appeal, No. 90-979. We conclude, therefore, that the doctrine of res judicata -- as a technical matter -- does not apply to the procedural facts of this case. *fn6

In , the issue of finality is generally dealt with under the double jeopardy clause of the Fifth Amendment of the Constitution. Collateral estoppel, a doctrine related to (and often considered part of) res judicata, is one component of the double jeopardy clause. See United States v. Felder, 548 A.2d 57, 65 (D.C. 1988). 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.'" Id. (quoting Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970)). Collateral estoppel, however, generally applies only when a verdict has been reached and either the government attempts to relitigate a factual issue in a second criminal action, e.g., Felder, 548 A.2d at 65-67; United States v. Jackson, 528 A.2d 1211, 1221-22 (1987); Copening v. United States, 353 A.2d 305, 309 (D.C. 1976), or the defendant attempts to relitigate a factual issue in a related civil action, e.g., Napoleon v. Heard, 455 A.2d 901, 903 (D.C. 1983); Ross v. Lawson, 395 A.2d 54, 57 (1978). See United States v. Lima, 424 A.2d 113, 116 (D.C. 1980). Because this case deals with a detention order and not with a verdict, and because appellant raises questions of law rather than of fact, we conclude that the preclusion doctrine of collateral estoppel is also not applicable. *fn7

We conclude, therefore, that our previous orders denying summary reversal were not "sufficiently firm to be afforded conclusive effect," RESTATEMENT, supra, at ยง 13, and did not constitute "the 'last word' of the rendering court -- a 'final' judgment," id. at comment a, for purposes of ...

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