Crozier v. State

right аppeal as of for an not a substitute relief measures.

appropriate post-conviction affirm.

We CROZIER,

Wesley Edward (Defendant),

Appellant Wyoming,

The STATE of (Plaintiff). Appellee Wyoming,

The STATE of (Plaintiff),

Appellant CROZIER,

Wesley Edward (Defendant).

Appellee 93-39, 93-40.

Nos. Wyoming.

Supreme Court 12, 1994.

Oct.

THOMAS, Justice. case arises The issue to be resolved Wesley the creative effort of Edward out of (Crozier) parlay mundane a rather any defense into a bar double by invoking process of law retrial due equal protection of the clauses of law the state and federal constitutions. Crozier two was convicted of counts 6-3-403(a)(i) violation charged posses- first count Crozier with sion and concealment on November while the second charged him with of the iden- count property on 1989. tical stolen November previously charged Crozier had of the same stolen 15, 1989, but case was dis- December prejudice jury missed without after seated and the first witness was sworn when wrong clear the date had been became charged, had an alibi for Decem- and Crozier jury After the in the second ber counts, guilty both trial found Crozier on Count sentenced Crozier dismissing appeals, later Count II. Crozier by contending rights were his violаted charge filing subsequent and of an additional successfully legally after he had exercised protected rights. Wyoming The State of (State) cross-appeal prosecuted has judgment of Count II. The the dismissal are entered the trial court and sentence affirmed, II is of Count and dismissal although practice better would be approved prior entry of the such a dismiss Wyoming Program, Public Leon- Defender judgment sentence. The Munker, Wyoming D. Public De- ard State by the is dismissed because taken State Cоrnia, fender, Appellate Deb Counsel statutory authority to not have State does Defender, Tim Public State appeal. Newcomb, Newcomb, & for Crozier. Grant in his in this case Crozier states issues Gen., Meyer, Atty. Sylvia Lee Joseph B. Appellant to Brief of the be: Gen., Hackl, Atty. Boyer, Deputy Barbara government violate federal I. Did the Gen., Cook, Atty. Sr. Sr. Asst. Dennis C. process due mandates state constitutional Gen., Tibbetts, Atty. Georgia Asst. Asst. subsequent filing an additional and Gen., Montgomery, D. Atty. and John Stu- possession and сharge of “simultaneous Intern, dent State only property” after concealment legal- GOLDEN, THOMAS, successfully C.J., the defendant exercised Before CAEDINE,* TAYLOR, rights? ly protected MACY and JJ.

* July Retired counsel, opening in the course of the government violate federal defense

II. Did the statement, told that Crozier had an equal protection and state constitutional crime which was by filing and subse- alibi for the date mandates an additional the. having as oc charged in the information quent of “simultaneous 15,1989. only сomple property” curred on December After and concealment of stolen successfully opening after the defendant exercised statements and the adminis tion of witness, legally protected rights? the tration of the oath to the first recognized contained the information State Appellee, the defines the In its Brief of State wrong charged offense. The the date for the only way: issue in this actually had occurred on November crime supports a claim of Whethеr the record 1989. prosecution? or selective either vindictive eliciting testimony the first Prior to cross-appellant, the State articulates As witness, requested an offer defense counsel these in its brief: issues proof from the that Crozier had State the trial court acted arbi- I. Whether disposed property on December of the stolen justification trarily, without with- conducted a 1989. The trial court then legal a out basis when dismissed time, hearing in At that the State chambers. charge upon jury found whiсh the had an incor- conceded December 1989 was guilty. the Defendant date, rect and it moved to amend the infor- Wyoming Supreme II. the Whether judge that error. The trial mation to correct jurisdiction to hear and de- Court has denied the motion to amend. Counsel for in cide a the State the case Crozier then moved for dismissal of criminal case. prejudice. responded by re- with The State Answering appeal, the State’s Crozier filed questing preju- the case be dismissed without Cross-Appеllee in he defined Brief of which Invoking concept dice. the of “manifest ne- following the issues: cessity,” granted the court the motion of the Whether, law, Wyoming 1. under the prejudice and then State to dismiss without may appeal ruling in state an adverse prej- motion to dismiss with denied Crozier’s criminal case. Subsequently, refiled udice. State charges against Crozier. The second infor- reprosecution 2. Mr. Crozier’s Whether charged possession and concealment mation Jeopardy II on Count violated Double property in of the stolen violation Clauses of the United States Constitution 6-3-403(a)(i) § In in Count I. Count Stat. Wyoming and the Constitution. II, charged disposing the State ‍‌​‌‌‌‌‌‌‌​​​‌​‌​​‌​‌​​​‌​​​​​‌‌‌​​​​​‌​‌​​​‌​‌​​‍Crozier with 3. dismissal of the Information Whether property, on the of the identical stolen but prejudice without violated Mr. Crozier’s correct date November process right due alibi defense Wyo- of Article 6 of the violation Section II, Crozier filed a motion to dismiss Count ming Constitution. premised upon protection against double 30, 1991, § jeopardy found in Article 11 of the Con- On December Crozier was charged one count of stitution of the State of Wyo.Stat. § of the property in violation of 6-3- Fifth Amendment to Constitution avenue, 403(a)(i).1 12, 1992, May pursuing At the trial on United States.2 6-3-403(a)(i) (1988) provides, 2. Article Section 11 of the Constitution of pertinent part: Wyoming provides, pertinent part: State of receives, (a) buys, person A who conceals or any person put be twice [N]or shall knows, disposes of believes or for the same offense. obtained in has reasonable cause believe was of the The Fifth Amendment to the Constitution guilty violation of law is of: provides, pertinent United States of America (i) felony punishable by imprisonment A part: (10) years, more than ten a fine of not any person subject ($10,000.00), for the same [N]or more than ten thousand dollars both, put in or offense to be twice life if the value of the is five or * * * * ($500.00) *. more *. limb hundred dollars possession charge and federal an alter state and constitutions.3 As Crozier contended contentiоn, the same disposal both involved he has native Crozier asserts plan. subjected transaction and same scheme to selective ruling reserved on the his protection The equal rights of his articu violation presented until the evidence had been motion Wyo lated the Constitution of the State depend upon the the decision would because ming and the Fourteenth Amendment to the relating to that At the close facts issue. Constitution United States.4 trial, guilty found on only both counts. Crozier sentenced arguments intriguing, Crozier’s are concealment,, persuasive. but not essence of vindic charge of and later “imposition penal is the of a tive property was Crozier has stolen dismissed. ty successfully upon having for the defendant * * judgment from and appealed to this court the right pursued statutory appeal a of court, in the entered sentence 21, 25, Blackledge Perry, 417 v. U.S. 94 S.Ct. endeavored to State has (1974) 2098, 2101, (quoting 40 L.Ed.2d 628 charge disposing of the of the dismissal of Pearce, 711, 724, v. North Carolina U.S. рroperty. the stolen 2072, 2080, 23 89 S.Ct. L.Ed.2d 656 proposition the he had Relying upon prosecution is vio- perceived Vindictive to be respect in previously to process according of the lative of due law to disposing proper- of charge the of Supreme Court of the and is United States ty, that he appeal contends this Crozier inherently wrong to chill the because tends right his of re- exercised both constitutional rights of the The assertion of an accused. prove every to of quiring the State element proscription against of the rule vindictive property of and the crime prosecution evi is not invoked if substantial right his the defense alibi. Crozier to of the demonstrates acted dence that, a argues when the trial court declared good independent faith and for reasons or prej- and dismissed the case without mistrial intervening due to circumstances. udice, potential pen- enhanced the State the justifications discovery Those can include alty by refiling of of witnesses, of new evidence or a different pos- adding a of stolen prosecutor, a new a for approach wait proper- and concealment of the same session necessary prepara- information additional ty. wrongfully asserts he was re- missing of tion of the state’s the threat punish- quired charges face double and a to limitations, a of belief of statute or the ment double to that with which he had been sup- to state that sufficient evidence exists legаlly confronted before exercised his port charge. for a have a conviction new We protected rights. The his conten- thrust of adopted from the Court of that the actions of amounted Tenth Circuit tion is the State reviewing claims of Appeals of his this method to in violation vindictive right protected by prosecution: process to due both the vindictive context, probably clearly § of it is associat- Article 6 of the Constitution of the State most 1, 2,§ which Wyoming provides: ed an inherent sense with Article provides: life, deprived liberty person or No shall be life, right liberty process their inherent property without due of law. happiness, hu- pursuit members of the Amendment to the Constitution of all The Fifth equal. pertinent provides, America man race are United States of 1973). (Wyo. Cavanagh part: 505 P.2d 311 See * * * life, 1, § the State person deprived of Article Constitution of No provides, process laws of liberty, property, "[a]ll of law without due operation,” general have nature shаll a uniform invoked. could also be right equal protection has Amendment to the Constitution of the laws The Fourteenth The part: provides, pertinent provisions States to several of the Consti- of the United been attached ** * deny any person Wyoming, including Article No State shall tution of the State of 8, 11, 2, 3, 4, 6, 7, 34; jurisdiction equal protection §§ Article within its 14 and 3, 27; 10, 4, but, 1;§ § and Article the laws. Article after a trial court has charges are increased proof

A defendant has burden (1) mistrial, totality of the circum- actual vindictive- declared must establish either (2) charges ness, surrounding the enhanced is stances a realistic likelihood of vindic- there is a determine whether give presump- examined to which will rise to tiveness Thereafter, prosecutorial vindic- likelihood that realistic tion of vindictiveness. justify been shown. United States prosecution to tiveness has shifts to the burden Cir.1989). (10th Doran, articulable, F.2d 1511 legitimate, ob- its decision with jective If the does not reasons. defendant noted, the claim of vindic we have As however, proof, meet his burden upon rested an ac tive must be govern- not reach the district court need punishment. additional That tual hazard of justification ment issue. argument, but it is assumed Crozier’s is (Wyo. Whiteplume v. have no present not in his case. While we 1994) Raymer, (quoting States v. United pos holding involving offenses direct (10th Cir.1991) (citations 1031, 1040 F.2d and concealment of stolen session omitted)). property, disposition of the same we prosecutor’s interest in in connec have addressed a similar situation arising out offense for violations with intent dis additional tion with transaction, of, tribute, but which were controlled sub same and distribution filed, State, charge initial 1 E.g., included when the was v. 533 P.2d stances. Jackson State, against of an (Wyo.1975); Boyd must be the interest v. 528 P.2d 287 balanced denied, 871, any chilling effect (Wyo.1974), accused to free from cert. ‍‌​‌‌‌‌‌‌‌​​​‌​‌​​‌​‌​​​‌​​​​​‌‌‌​​​​​‌​‌​​​‌​‌​​‍423 96 U.S. 137, (1975); rights. v. upon his exercise of United States 46 L.Ed.2d 102 Jackson v. S.Ct. Mulherin, (S.D.Ga.1981), denied, State, F.Supp. (Wyo.1974), 916 529 522 P.2d 1356 cert. Cir.1983). (11th 637, 1055, In aff'd, 710 F.2d 731 42 L.Ed.2d 652 419 U.S. 95 S.Ct. 895, (1974); State, Whiteplume, (Wyo. 874 P.2d at we said: Dorador v. 520 P.2d 230 1974). instances, In we held there those prosecu analyzing In claims оf vindictive punishments two for the distri tion, could not be charg begin premise with the that we possession for the of the same bution and ing decisions within the discretion rest State, Jerskey State, v. 546 controlled substance. prosecutor, DeSpain v. 865 P.2d (Wyo.1976). permissible it State, P.2d 173 While is 584, (Wyo.1993); v. 845 591 Derksen charge separately and to submit those to 1383, 1388 prosecu (Wyo.1993), P.2d and a jury, if the separate offenses to the presumed good acted in faith tor is to have both, finding guilty they on then returns governmental and for reasons of sound merge purposes punishment. That policy filing charges. criminal in United (1st in ex Saade, 1126, would been true Crozier’s have F.2d 1135 States v. 652 cept previously for the fact that he had Cir.1981); P.2d see also Billis v. 800 charge disposing in on the 401, (Wyo.1990). charging “A deci 419-21 and, consequently, property he could same solely improper is not unless results sion for, of, neither be convicted nor sentenced protect of a from the defendant’s exercise that crime. legal right, prosecutor’s rather than the ed normal of the societal interest assessment fact, Because, upped,” in “the ante was not prosecution.” Phillips in any evi- it is not material whether there is 1062, (Wyo.1992); 1070 United States nor whether dence of actual vindictiveness 11], Goodwin, 368, 102 [n. 457 U.S. 380 pros- a realistic likelihood that the there was 74, n. 73 L.Ed.2d 84- S.Ct. 2492 retaliatory ecutor acted with a motive. We (1982). note, however, prosecutor that a new took do prosecu the case after a conflict was discovered a claim of vindictive over

While respect original prosecutor to the pre-trial post-trial with tion can arise both defendant; approach a new settings, situation in which additional applied resting prosecu- the new trial more sus was within charges are levied after a is discretion; charge improper than the addi tor’s pect of motivation is been dismissed prior a trial. When had charges tion of contends he has been Crozier also case; certainly was and there prior in- prosecution victim of selective probability, even possibility, pertains when stance. Selective of the stolen per- prosecuted based on some an accused is in the second case because inappropriate was religion; characteristic such as race sonal trial. in the first jeopardy had attached right; a constitutional for the exercise of the new possibilities, all to cover order something the accused has response wisely charged both concealment filing society prior to the of the done in in the second disposition pros- are not charges, especially when others the trial recognize that We information.5 Supreme conduct. The ecuted for similar prior preju- without case dismissed equal held the of the United States has Court Wyo.Stat. § 7-1-205 dice accordance the Constitution of the protection clause of (1987) pertinent part: provides, prosecution. prohibits selective United States (a) discharged аny of the jury is If a States, 470 U.S. Wayte v. United reaching a ver- following reasons before Equal 84 L.Ed.2d S.Ct. preju- dict, discharge be without of the states vir- protection is demanded prosecution: to the dice Amendment to the tue of the Fourteenth n n ^{[*] [*] [*] [*]} Constitution of the United States. prose of a selective The elements (iii) due proceeding Dismissal encompass the demonstration cution defense complaint, information to a failure of similarly have not been situated that others charge the prоperly or indictment prosecuted is based offense. motive. United States v. impermissible statute, however, as read this We cannot (9th Cir.1989), cert. Aguilar, 883 F.2d 662 concept of double abrogating the denied, S.Ct. ‍‌​‌‌‌‌‌‌‌​​​‌​‌​​‌​‌​​​‌​​​​​‌‌‌​​​​​‌​‌​​​‌​‌​​‍498 U.S. and, correctly stat- certainly, the impermissible moti The L.Ed.2d 771 complaint, although the date prior ed in the showing by must be demonstrated vation was erroneous. deliberately on an charge was based that the have dismissed the trial court should While designed unjustifiable or to inhibit standard complaint prior of thе new the second count right by the a constitutional the exercise of sentence, no we can find imposition of may to the demonstrate accused. The accused regard. in this Crozier was error punish reversible biased or desired posses- only on Count protected right. sentenced What exercising his him for property. prose of stolen respect and concealment to vindictive sion said with we have application of the doctrine improper for the mo it not the claims Were cution addresses disposi- prosecution. conviction for prior jeopardy, respect to selective tive with valid, Furthermore, presented would be no evidence tion of punish- similarly prose no enhanced situated were there still would be that others but Wyoming the trial said the record does not state we have ment. The cuted. While equal protection dismissing charge of arena of for court’s reason Constitution robustly than people “more rights protects after the disposing of stolen ”* * * (John constitution it the federal guilty, but we assume does a verdict returned Office, Hearing Examiner’s 838 court concluded son v. State because the must have been eon- (Wyo.1992)), we cannot applied. P.2d jeopardy of double the doctrine disposal properly dismissed The trial court 808 P.2d v. 5. As we said McInturff original): does not state (Wyo.1991) (emphasis the record conviction. Since reason, 6-3-403(a)(i) conjecture dismissal was based we alternate defini- offers W.S. of, grounds. satisfying, If double the offense or means double tions wrongful case, taking property. The prosecu- an issue in this had not been by receipt act of or con- violated charged statute is dis- and tried both the have tion could disposal property accom- cealment or two convic- posal possession offenses but the knowledge. requisite Each such panied by the sentencing. merge purposes of tions would transaction, complete in a distinct act that is itself, (Wyo.1976). Jerskey v. 546 P.2d Cf. charged separate may as a offense. any statutory requirements must be met. elude there was violation of Crozier’s Ginther, equal protection rights. supra, and State ex rel. State Cornwell, supra. Gibson Finally, address the effort we State to cross-appeal. We conclude the ^[******] indirectly State cannot do what is foreclos exceptions arising All from bills of eases doing directly. ed from We have said: by filed criminal cases appeal purport [T]he state has not standpoint of the defen- are moot provisions of ed to have acted under the They dants in such cases. are not moot [predecessor the mentioned sections to the respect the determination of the Wyoming exceptions] current bill of but specified issues future cases. brought appeal has direct and insists Selig, (Wyo. State v. 635 P.2d 788-789 dismissing that the order of the trial court 1981). the defendant should be reversed and the authority legislative The for the use of a cause remanded. This view is incorrеct for, Ginther, exceptions is articulated in pointed as out in State v. 53 bill 77 P.2d ^[1988] “the pros §§ 7-12-102 to -104 (1987).6 In order for appeal ruling an adverse in a ecution in a criminal case in this state is State case, by specific legisla- criminal there must be given statute no method of review of rulings except through legislature tive has not adverse the medi authorization. appeal authorized the in a criminal um indicated in the four above cited sec State cross-appeal Wyoming appli and we conclude a is in exceptions tions bill of [the time], appeal. effect the same as an The cross- cable at that with the limitations appeal by challenging imposed.” there the State the dismissal II Count must be dismissed. might The state here have elected to proceed under the mentioned sections to summary, we hold Crozier failed to rulings per- secure the limited which these prose- either establish vindictive selective done, appeal mit. was not This by cution the State. The must bе dismissed. judg- State of is dismissed. The Benales, (Wyo. State v. ment and sentence entered the trial court 1961). dismissing and its order II of the Count information are affirmed. procedure haveWe identified the correct ruling a review of adverse to the State as

follows: MACY, J., concurring opinion files an part dissenting part. and exceptions

A bill of is the exclusive prosecution means for the to seek review MACY, Justice, concurring part and ruling during of an adverse made the trial. dissenting part. Heberling, Wyo., State v. 553 P.2d 1043 (1976); Benales, Wyo., agree majority’s State v. 365 P.2d I with the conclusion that (1961); Ginther, 17, Wyo. 811 State v. 53 not a victim of Crozier ‍‌​‌‌‌‌‌‌‌​​​‌​‌​​‌​‌​​​‌​​​​​‌‌‌​​​​​‌​‌​​​‌​‌​​‍was vindictive or (1938); prosecution. 77 agree P.2d 803 State ex rel. Gibson v. selective I do not with Cornwell, majority’s analysis regard- 14 85 P. 977 the or conclusion issue, statutory proceeding, ing jeopardy It is now a the double there- governed by (1987) Wyo.Stat. tions shall be rules as shall be § 7-12-102 provides: by promulgated Wyoming supreme the court. attorney may exceptions The district take 7-12-104(b) (1987) any opinion provides: or decision of the court made during the of criminal case. Be- supreme The decision of the court shall de- court, being supreme fore filed in the the bill of govern any termine the law to similar case presented exceptions shall be to the trial court may pending which be at the time the decision certify which shall whether the contents of the rendered, may is afterwards arise in certified, bill are correct. If the trial court state, any the not but shall reverse nor sign containing exceptions the bill the judgment manner affect the court in the and affix the seal of the court and the bill shall exceptions case in which the bill of was taken. part excep- be made the record. The bill of

1237 wrong date majori- charged the information fore, portion from dissent the crime. Crozier was aware commission of ty opinion. up” before trial but “set of the mistake in- majority applied an that the I believe by failing notify jeopardy problem double reaching analytical approach correct judge before the or the triаl majority After the jeopardy issue. double opening arguments were was sworn cross-appeal, the had dismissed State’s statement, opening presented. In his Crozi- properly this Court were only issues before entire defense on the er chose to base his appeal— in his direct those raised Crozier for the fact that he had an “alibi” date vindictive and selective charged. fully brief or parties did not claims. jeopardy issue. When argue the double briefing necessary in or- Supplemental going to reach the decided that it was Court make informed deci- der for this Court to issue, it should have re- double acquiesced to the sions as to whether Crozier briefing par- supplemental both quested prejudice and whether dismissal without ties. necessity supported the district manifest that Crozier’s constitu- I am not convinced to declare a mistrial. court’s decision he was tried rights were violated when tional disposal count. second time on for the judicial faith or prosecutoriаl or bad

Absent pro-

overreaching, double does in a reprosecution after a trial ends

hibit requests when the defendant

mistrial acquiesces it. Peterson v. See

mistrial (Wyo.1978), over- P.2d 148 586 State, 723 grounds, Crozier v.

ruled on other (Wyo.1986); and Nowack v.

P.2d 56 (Wyo.1989) (quoting n. 6 States, SPEAR; Holmes; U.S. Nancy Garrett United N. Elisabeth (1985) 2407, 2420, L.Ed.2d 764 Nicholson, III, 105 S.Ct. Guthrie G.J. J., (O’Connor, concurring)). Even when (Plaintiffs), Appellants mistrial, may objects to the defendant necessity” if “manifest warrants retried Kennedy, 456 Oregon v.

mistrial decision. individually NICHOLSON, Klara W. 2083, 2087, 667, 672, 102 S.Ct. U.S. Nichol- of the G.J. Guthrie as co-trustee Peterson, (1982); P.2d at L.Ed.2d Koerwitz, son, Trust; L. as co- David Jr. Nicholson, ‍‌​‌‌‌‌‌‌‌​​​‌​‌​​‌​‌​​​‌​​​​​‌‌‌​​​​​‌​‌​​​‌​‌​​‍Jr. trustee of G.J. Guthrie certainly question exists In this Ranch, Wyo- Trust; Little Four Bear acquiesced to regard to whether Baumgartner; ming partnership; Adrian to dismiss the first the trial court’s decision Terry Freeman; Wong; K. Josefine Although sought prejudice. case without Tracey Market; Brentlinger; Herb request prejudice, he did not a dismissal Asay; Goodman; Norma Col- Charmain the district trial continue when first County Morris; Springs Senior leen Hot prejudice. to dismiss without court decided Center, Inc.; American Power Citizens Washington corporation; Dispatchers, a acquiesce, ques- did not Even if Crozier Mary’s Church, a Rhode Island cor- necessi- St. to whether manifest tion remains as Crip- Hospitals poration; For Shriners The trial ty required the dismissal. corporation; Children, pled a Colorado finding that manifest necessi- specific made a Atonement, a New Franciscan Sisters The determina- ty for the dismissal. existed Schneider; Troy corporation; necessity gen- York manifest exists of whether tion West; Schneider; Mary Bob William sound discretion of erally rests within the Kovash; Kovash; Keough; Bonnie Peterson, David 586 P.2d at 148. judge. Lee; Hawkins; Bonnette; Ken Don Don trial was that the problem in the first sole

Case Details

Case Name: Crozier v. State

Court Name: Wyoming Supreme Court

Date Published: Oct 12, 1994

Citation: 882 P.2d 1230

Docket Number: 93-39, 93-40

Court Abbreviation: Wyo.