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SJC-11699

KEIAL KIMBROUGHTILLERY vs. COMMONWEALTH.

Suffolk. February 3, 2015. - May 26, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Practice, Criminal, Probation, Revocation of probation, 

Collateral estoppel. Collateral Estoppel.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on April 24, 2014.

The case was reported by Cordy, J.

Rebecca Kiley, Committee for Public Counsel Services, for 

the petitioner.

Shoshana E. Stern, Assistant District Attorney, for the 

Commonwealth.

SPINA, J. In this case, here on a reservation and report 

from a single justice of the county court, we consider whether 

principles of collateral estoppel bar a second probation 

revocation proceeding on the same charged misconduct that was 

litigated in an earlier probation revocation proceeding in a 

different county and was resolved in favor of the petitioner, 
2

Keial Kimbroughtillery. We conclude that principles of 

collateral estoppel bar the second proceeding.

1. Background. On February 28, 2013, the petitioner was 

charged by criminal complaint in the New Bedford Division of the 

District Court Department (New Bedford District Court) with 

unarmed robbery, G. L. c. 265, § 19 (b), and assault and 

battery, G. L. c. 265, § 13A (a) (new offenses). The complaint 

was based on allegations that on February 26, 2013, while the 

victim was sitting in the driver's seat of her vehicle, the 

petitioner leaned over her, grabbed an envelope containing $630 

from her right coat pocket, and fled the scene. At the time the 

complaint issued, the petitioner was serving probationary 

sentences imposed by the Dorchester Division of the Boston 

Municipal Court Department (Boston Municipal Court), the New 

Bedford District Court, and the Fall River Division of the 

District Court Department (Fall River District Court).

1 A notice 

 

1 On April 25, 2012, the petitioner pleaded guilty in the 

Dorchester Division of the Boston Municipal Court Department 

(Boston Municipal Court) to a complaint charging him with

assault and battery, G. L. c. 265, § 13A (a). On July 31, 2012, 

the petitioner pleaded guilty in the New Bedford Division of the

District Court Department (New Bedford District Court) to a 

complaint charging him with uttering a false check, G. L. 

c. 267, § 5, and forgery of a check, G. L. c. 267, § 1. That 

same day, he pleaded guilty in the New Bedford District Court to 

a separate complaint charging him with larceny of property over 

$250 by false pretenses, G. L. c. 266, §§ 30 (1), 34, and 

uttering a false check. On October 2, 2012, the petitioner 

pleaded guilty in the Fall River Division of the District Court 

Department (Fall River District Court) to a complaint charging 
3

of probation violation and hearing was issued to the petitioner 

from the Boston Municipal Court on March 4, 2013. Similar 

notices were issued to him from the New Bedford District Court 

on March 5, 2013, and from the Fall River District Court on 

May 15, 2013. Each notice alleged that the petitioner had 

violated the terms of his probation by committing the new 

offenses.2

The first probation revocation hearing was held in the 

Boston Municipal Court on June 12 and August 20, 2013. During 

the hearing, the petitioner's probation officer testified, as 

did the alleged victim of the new offenses and three witnesses 

called by the defense.3 Following closing arguments, a judge 

found "no violation of probation" with respect to the new 

offenses.4 However, he did find that the petitioner had violated 

 

him with two counts each of forgery of a check, uttering a false 

check, and larceny over $250.

2 The notice from the Boston Municipal Court also alleged 

that the petitioner had failed to pay an attorney's fee of $150 

and a victim witness fee of $50. In addition, the notice from 

the Fall River District Court alleged that he had failed to 

report to his probation officer on one occasion and had failed 

to pay restitution in the amount of $6,582.40.

3 One of the defense witnesses was Miriam Lopes, a caregiver 

for the petitioner who was employed by Beacon Adult Foster Care. 

She testified, among other things, that in early February, 2013, 

the petitioner had surgery, that he required constant care 

because he was "really sick," and that he did not leave the 

house on February 26.

4 As this court pointed out in Commonwealth v. Holmgren, 421 

Mass. 224, 225 (1995), a criminal prosecution and a subsequent 
4

his probation by failing to pay certain fees. See note 2, 

supra. Based on the agreement of the parties, the judge 

extended the petitioner's probation for nine months.

On September 25, 2013, the petitioner filed a motion in the 

New Bedford District Court and the Fall River District Court to 

hold the Commonwealth bound by the order of the Boston Municipal 

Court. The petitioner asserted that because the judge found no 

violation of probation with respect to the new offenses, the 

parties were bound by the judge's order under the doctrine of 

collateral estoppel. The Commonwealth opposed the motion. The 

parties then filed a joint motion to consolidate the probation 

violation hearings, which was allowed by a judge in the New 

Bedford District Court. On February 18, 2014, the petitioner's 

motion to hold the Commonwealth bound by the order of the Boston 

Municipal Court was denied. He thereafter filed a petition for 

relief in the county court pursuant to G. L. c. 211, § 3, 

contending that, because the issue whether he had violated the 

terms of his probation by committing the new offenses already 

had been decided by a valid and binding final judgment of the 

Boston Municipal Court, collateral estoppel barred relitigation 

 

probation revocation proceeding have different standards of 

proof. "In a criminal case, of course, the Commonwealth must 

prove the elements of each crime charged beyond a reasonable 

doubt. In a probation revocation hearing, the Commonwealth 

bears a lesser burden. . . . [I]t is proof by a preponderance 

of the evidence." Id. at 225-226.
5

of the issue.5 The Commonwealth opposed the petition. On June 

18, 2014, a single justice reserved and reported the case to the 

full court.

2. Discussion. The petitioner contends that once the 

judge in the Boston Municipal Court found no probation violation 

with respect to the new offenses, principles of collateral 

estoppel barred a subsequent probation revocation proceeding in 

a different county on the new offenses. In its brief before 

this court, the Commonwealth states that, "having considered at 

length both the legal and policy issues inherent in the question 

before the [c]ourt, [it] now substantially agrees with the 

defendant."

The doctrine of collateral estoppel, also known as issue 

preclusion, provides 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." Commonwealth v. Lopez, 383 Mass. 497, 499 (1981), 

quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970). See 

Commonwealth v. Scala, 380 Mass. 500, 503 (1980). "In a 

criminal case, the applicability of the doctrine may derive 

either from the common law, with roots in civil proceedings, 

 

5 Because the petitioner's claim is so closely identified 

with double jeopardy, a petition for relief under G. L. c. 211, 

§ 3, is the appropriate avenue for review. Cf. Cepulonis v. 

Commonwealth, 426 Mass. 1010, 1010 (1998); Costarelli v. 

Commonwealth, 374 Mass. 677, 679-680 (1978).
6

. . . or from the protection against double jeopardy of the 

Fifth Amendment to the United States Constitution" (citations 

omitted). Commonwealth v. Stephens, 451 Mass. 370, 375 (2008). 

See Commonwealth v. Williams, 431 Mass. 71, 74 (2000); 

Commonwealth v. Ellis, 160 Mass. 165, 165 (1893).

The double jeopardy clause of the Fifth Amendment consists 

of three independent constitutional protections. "It protects 

against a second prosecution for the same offense after 

acquittal. It protects against a second prosecution for the 

same offense after conviction. And it protects against multiple 

punishments for the same offense" (footnotes omitted). 

Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, cert. 

denied, 459 U.S. 864 (1982), S.C., 390 Mass. 438 (1983), quoting 

North Carolina v. Pearce, 395 U.S. 711, 717 (1969). See Krochta

v. Commonwealth, 429 Mass. 711, 713 (1999). Unlike the United 

States Constitution, the Massachusetts Declaration of Rights 

does not include a double jeopardy clause, but our statutory and 

common law have long embraced the same principles and 

protections. See Commonwealth v. Selavka, 469 Mass. 502, 509 

n.8 (2014); Commonwealth v. Woods, 414 Mass. 343, 346, cert. 

denied, 510 U.S. 815 (1993). See also G. L. c. 263, § 7. 

Jeopardy does not attach at a probation revocation proceeding.6 

 

6 A probation revocation proceeding is not considered to be 

a new criminal prosecution because the Commonwealth already has 

"met its burden of proving beyond a reasonable doubt the 
7

See Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006); Krochta, 

supra at 713-714. Therefore, as the petitioner acknowledges, 

collateral estoppel based on principles of double jeopardy is 

not applicable in this case. See Krochta, supra at 714.

In the past, we have considered, without deciding, "whether 

collateral estoppel protection between proceedings litigated 

against the government is encompassed within the constitutional 

right to due process, independent of the double jeopardy 

clause." Id. at 715. See Williams, 431 Mass. at 73-74; 

Commonwealth v. Dias, 385 Mass. 455, 460 (1982); Scala, 380 

Mass. at 503. Here, we again need not decide this issue because 

the present case can be resolved by application of common-law 

collateral estoppel principles. See Williams, supra at 74.

"The common-law doctrine of collateral estoppel is designed 

to 'relieve parties of the cost and vexation of multiple 

lawsuits, conserve judicial resources, and, by preventing 

inconsistent decisions, encourage reliance on adjudication.'" 

Stephens, 451 Mass. at 375, quoting Massachusetts Prop. Ins. 

Underwriting Ass'n v. Norrington, 395 Mass. 751, 756 (1985). 

See Scala, 380 Mass. at 505 (describing collateral estoppel 

policy considerations). Our decision in Krochta, which 

 

person's guilt on the underlying crime." Commonwealth v. 

Wilcox, 446 Mass. 61, 65 (2006). See Gagnon v. Scarpelli, 411 

U.S. 778, 782 (1973) (probation revocation, like parole 

revocation, not stage of criminal prosecution); Commonwealth v. 

Durling, 407 Mass. 108, 112 (1990).
8

concerned the preclusive effect of a determination made at a 

probation revocation proceeding on a subsequent criminal 

prosecution, set forth the prerequisites for a valid collateral 

estoppel claim. "Collateral estoppel is available to a 

defendant as a shield against a subsequent attempt by the 

government to litigate an issue necessarily decided in previous 

litigation between the defendant and the government only where 

there is (1) a common factual issue; (2) a prior determination 

of that issue in litigation between the same parties; and (3) a 

showing that the determination was in favor of the party seeking 

to raise the estoppel bar" (footnotes omitted).7 Krochta, 429 

Mass. at 715-716. For collateral estoppel to apply, the two 

proceedings sharing a "common factual issue" must be resolved 

using the same standard of proof.8 See id. at 716-717. The 

 

7 For a discussion of the five requirements that must be met 

for collateral estoppel to apply in the context of a motion to 

suppress, see Commonwealth v. Cabrera, 449 Mass. 825, 829-831 

(2007).

8 In Krochta v. Commonwealth, 429 Mass. 711, 711-712 (1999), 

this court held that principles of collateral estoppel did not 

bar criminal prosecution of a defendant on various larceny 

charges, even though the same offenses had triggered an earlier 

probation revocation proceeding that was resolved in the 

defendant's favor. We explained that the essential components 

of collateral estoppel had not been satisfied because common 

factual issues were decided under different standards of proof 

and under different procedural rules in the two proceedings. 

Id. at 716, 718. See Holmgren, 421 Mass. at 225 (concluding 

that, because of different burdens of proof in criminal case and 

probation revocation proceeding, "[p]rinciples of collateral 

estoppel do not bar the Commonwealth from revoking probation 

based on evidence of a violation of law of which a probationer 
9

burden of showing the concurrence of these three collateral 

estoppel requirements "is always on the person raising the bar." 

Lopez, 383 Mass. at 499.

In this case, the petitioner has satisfied the requirements 

of collateral estoppel. Following a hearing in the Boston 

Municipal Court, a judge determined, based on a preponderance of 

the evidence, that the petitioner did not violate the terms of 

his probation with respect to the new offenses. The 

Commonwealth seeks to relitigate this same factual issue based 

on the same standard of proof and the same procedural rules at 

subsequent probation revocation proceedings on the new offenses

that have been consolidated in the New Bedford District Court.9 

We conclude that principles of collateral estoppel bar the 

Commonwealth from doing so.

3. Conclusion. We remand this matter to the single 

justice for entry of a judgment allowing the petition for relief 

under G. L. c. 211, § 3, and reversing the February 18, 2014, 

 

has been found not guilty"). Further, we stated in Krochta, 

supra at 719, that "[i]f collateral estoppel bars a criminal 

prosecution as a result of a probation revocation proceeding, a 

conflict between the separate goals of the probation department 

and the district attorney may result, frustrating the ability of 

both to accomplish the ends assigned to them by the 

Legislature."

9 With regard to two additional alleged probation violations 

set forth in the notice from the Fall River District Court prior 

to consolidation of the hearings, see note 2, supra, the 

petitioner does not contend that the Commonwealth cannot proceed 

on those alleged violations.
10

order of the New Bedford District Court that denied the 

petitioner's motion to hold the Commonwealth bound by the order 

of the Boston Municipal Court that found no probation violation 

with respect to the new offenses.

So ordered.