State v. Canon

Plaintiff-Appellant,† Wisconsin, STATE

v. Defendant-Respondent. Philip Canon, M. Appeals Court September Submitted on No. 98-3519-CR. briefs 21, 1999. September 1999 . Decided (Also 316.) reported 602 N.W.2d granted. Petition to review † plaintiff-appellant, On behalf the cause was Doyle, attorney on submitted the briefs of James E. attorney general, Gansner, L. assistant and William general. defendant-respondent, the cause of the

On behalf Eisenberg D. oí Law on oíAlan the brief was submitted Eisenberg D. of Milwaukee. Alan Offices of Myse, P.J., Cane, C.J., Hoover, and Gordon Before Judge. Reserve appeals Wisconsin

MYSE, R.J. The State of dismissing charge Phillip M. order testimony relating previous trial to Canon's in a Canon prosecuting driving influence, him under the prohibited driving concentration, alcohol blood operating revocation, third offense, and after sixth drinking day trial, had the offense. At Canon admitted driving question in but that he had not been testified pickup friend the his truck and his was driver. This was Canon's defense. charges. jury acquitted However,

A Cannon on all subsequent had in evidencе indicated that Canon lied denying Consequently, the that he the driver. was prose- charged perjury. To in State cuting Canon with succeed prove perjury, must Canon for the State during giving the time rise to the Canon drove car already charges. has determined traffic Because driving, proof con- there insufficient Canon was we was preclusion, in clude that issue embodied guarantees jeopardy con- constitutional constitutions, the federal and state tained pursuant both (1970), U.S. 445 Swenson, tо Ashe v. precludes relitigating Furthermore, this factual issue. fact cannot be we conclude that an relitigated of ultimate obtained even when was testimony. Accordingly, the defendant's false we affirm judgment dismissing perjury charge. undisputed purposes are facts of this July appeal. companion, 4, 1996, On Canon and a Carey Pergande, traveling through Taylor were County they pickup stopped in Canon's truck when they stopped, the Taylor County police roadside urinate. While werе approached inquired officer and having any problems whether the two were with their vehicle. From the officer's observations and conversa- tion men, with the two the officer determined that pickup Canon was intoxicated and was the of his driver Although Pergande truck. Canon told officer that driver, was the the officer arrested Canon.

Pergande gave police a written statement to driving pickup the effect that it was Canon who was Pergande subpoenaed truck. was for trial but he did appear not court refused to his admit written hearsay. statement trial because was At Canon drinking admitted not did contest that his driver's single revoked; license issue, therefore, was was question. whether was he the driver at the time in Canon testified on his behalf own and asserted under driving pickup oath that he his truck on day question Pergande but that was the driver. The jury subsequently acquitted charges. Canon of all Pergande, trial, month

Within a a friend of Taylor County Que Sada, Antonio informed authoritiеs denying that Canon had admitted that he had lied Partially support- that he was the driver. based on this ing charged perjury. evidence, Canon was circuit court concluded that the issue of who was driv- ing by jury's the truck was decided in the verdict initial trial. Because there determined was driving, proof insufficient that Canon was the circuit 515 of the doctrine the State barred court found relitigating preclusion this issue. from issue for whether We must determine acquittal following of the three the defendant's principles charges driving-related of violates jeopardy preclusion clauses of double embodied constitutions. Whether the federal Wisconsin right from to be free double individual's constitutional jeopardy question law that this has is a been violated Anderson, 219 de See v. court reviews novo. State Wis. (1998). The 758, 329, 2d 580 332 double 739, N.W.2d jeopardy constitutions clauses of the federal and state scope purpose. n.7, See id. 746 are the same (citing Day State, v. 76 Wis. 2d 580 at 332 n.7 N.W.2d (1977)). 811, Therefore, 588, 591, 251 812-13 N.W.2d accepts of the Unitеd States this court decisions jeopardy controlling pro- Court as the double id. constitutions. See visions both jeopardy clauses have The federal and state double encompass separate three constitu- been construed to (1) against protection subsequent protections: tional (2) acquittal; prosecution for after the same offense subsequent prosecution protection for the (3) protection conviction; and same offense aftеr against multiple punishments same offense. See (1993); Dixon, 688, v. 509 U.S. State United States 696 341, 579 40 Vassos, 330, 35, v. 218 2d N.W.2d Wis. (1998). concluding

The seminal case federal jeopardy clause includes doctrine collat- estoppel Swenson, is v. 397 U.S. ‍​​‌‌‌​‌​‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌​​​​​​​​‌‍eral Ashe (1970). Ashe, In the Court held that collateral government prosecuting Ashe barred robbery group players aof second member of a of card jury previously acquitted robbing after had him of group. different member of the See id. at 445-47. The jury issue faced at the defendant's initial trial appeal, was whether Ashe was one of the robbers. On by acquitting that, Court held him, the jury necessarily had found that there was insufficient evidence Ashe was one of the robbers. See id. at 446. This was ultimate fact and, issue of because the jury previously it, had considered the state could not relitigate by simply changing the name of the victim. See id. estoppel,

Under collateral therefore, an issue of ultimate fact determined a valid and full again litigated parties cannot be between same in a subsequent See lawsuit. id. at 443. When there has previous judgment acquittal upon been a based general subsequent prose- verdict, the circuit in a court prior proceeding, cution must of a "examine record taking pleadings, into account evidence, charge, matter, and other relevant and conclude grounded whether a rational could have its verdict upon an issue other than that which the seeks defendant (quota- consideration." Seе id. at 444 foreclose from omitted) added). (emphasis tion estoppel Wisconsin,

In collateral is also called preclusion." "issue See Jensen v. Milwaukee Mut. Ins. (Ct. Co., 231, 235, 204 Wis. 2d 554 N.W.2d 234 232, 1996). App. We must determine whether the doctrine of preclusion prevents relitigating the state from driving the factual issue of whether Canon was his truck. burden is on Canon to demonstrate that this actually proceeding. issue was decided in first See (citing Vassos, 218 343, Wis. 2d at N.W.2d 40 579 (1990)). Dowling States, v. United 493 U.S. supreme that the "Ashe Moreover, our court сautioned to an defense is not often available collateral especially determine, in a difficult to accused, for is acquittal, general fact in the the finder verdict of how any particular 344, 579 issue." Id. first trial decided (citing 2 R. LaFave Jerold H. Wayne 41 N.W.2d at And (1984); § 17.4, at 382 Israel, Procedure, Criminal (5th 1396, 1399 Cir. Brackett, 113 F.3d United States v. 1997)). jury "presumably" was The State concedes that driving.1 However, was not convinced that Canon argues not at the trial for it "will State prove instead, driver, was the but seek to that Canon [driv- he he not that he lied when testified that was ing]." This, however, is a distinction without preclusion. The context of issue difference technically argument different focuses on the State's driving perjury and the elements involved between charged original Blockburger in the trial. See offenses (1932). 299, States, 284 U.S. 304 match- v. United analysis Blockburger apply ing not elements does is because it the issue and a collateral claim charged not offense that determines the result. 1 argues that becausе the entire trial tran The State also script appeal, possible jury it is that the was not included other than whether Canon was based its verdict on issue However, day if this court to decide driving question. were jury may have substantial and uncontra- disbelieved not points on that Canon did dicted evidence of contest, namely he and that his license was that was intoxicated revoked, rejection preclu simply it would amount of issue used; general any sion in criminal case where verdict fоrm Swenson, contrary v. U.S. at 444 this is to Ashe. See Ashe 397 (1970). n.9 conducting analysis preclusion,

In our under issue the United Court has instructed that States [a] applied hypertechnical "is to be test not approach and archaic . . . but with realism and ration- ality. inquiry . Ashe, . 397 U.S. at 444. "The 'must be practical eye set in a frame and viewed with an to all proceedings.'" (quoting the circumstances of the Id. (1948)). v. States, United 332 U.S. At Sealfon jury drinking trial, Canon admitted alcohol and did driving privileges his contest that were revoked. relatively simрle Canon's defense was and was dis- attorney closed when his informed the court that the driving was who was car Canon's day. on that We consider this defense to be relevant in determining necessarily what factual issues were by jury's acquittal. determined verdict of argument Furthermore, the State's fails to offer any explanation proposes prove as to it how to lying relitigating Canon was when he testified without the ultimate factual issue of whether in Canon was fact day driving question. on the in The absence of this explanation is not It coincidental. is absent a because jury necessarily would have find that was Canon driving day question his truck on the for it to find guilty perjury. that Canon However, was of con- we previously clude that this ultimate issue of fact was litigated adversely and decided to the State. grounded rational

No could have its verdict failed, upon prove a reason other than that the State driving day question. Accordingly, Canon was on the preclusion we conclude thаt the doctrine of issue jeopardy embodied in the double clauses of the state prevents and federal State constitutions from relit- igating this issue. pre- if issue contends that even

The State further normally relitigating preclude a clusion would subsequent prosecution, previously a in a decided issue carry preclusive weight its when full does defendant. The the fraud of the obtained (1966), Cal.Rptr. People Barnes, 49 cites v. State (Ariz. 1966), per- Noble, as 410 P.2d 489 and State v. authority a rule. for such suasive supreme nor the United States our court Neither directly Supreme as the issue addressed Court have fraudulently judgment retains its obtained whether initially estoppel. We confess force under collateral narrowly rule which would attraction for tailored judicially permit relitigation determined issue obtained as a claim, or that determination was when parties conduct of one result of the fraudulent not available and there is additional evidence that the determina- ‍​​‌‌‌​‌​‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌​​​​​​​​‌‍first trial thаt would demonstrate initially Such a rule would made were incorrect. tions protect integrity judicial process and foster of the justice. society's However, we note for truth and search persuasive authority the State cites as that both cases proposition decided before for this were fully did not decision in Ashe and therefore Court's preclusion. constitutional status of issue consider the analysis progeny, its our we After doctrine proposed exception must bе conclude that State's rejected. opinion of federal circuit courts as

We consider the persuasive authority interpreting in the constitutional preclusion. For of collateral and issue issue analysis, purposes circuits are in of our the federal actually agreement has been liti- that once gated relitigation decided, of the decided issue is by if barred even the was obtained the defen- perjured testimony. dant's government's

The Ninth Circuit considered attempt relitigate by charging a decided issue pеrjury defendant with in Hernandez, United States v. (9th 1978). 572 F.2d 218 Cir. In Hernandez, the defen originally charged overbilling dant was with Department United States Commerce. of After the dis acquitted charges, trict court Hernandez of these government charged him with for the testi mony gave he at the first trial. After a convicted perjury, argued appeal Hernandez of he on that the preclusion second trial was barred the issue doctrine encompassed guarantee in the Fifth Amendment jeopardy, pursuant id. Ashe. See agreed

The Ninth Circuit and, Hernandez reversing the conviction, concluded that in the first " 'necessarily' pass upon trial the court had to [Hernandez's theory defense]." truthfulness of Her nandez, 572 F.2d at 222. See also United States v. (9th 1997) (acquittal Stoddard, 111 F.3d 1450 Cir. marijuana conspiracy possession charges, on the ory government proven beyond had not by alleged reasonable doubt that the cash used cocon- spirator purchase drugs from an undercover officer belonged collatеrally estopped to the defendant, government asserting ownership defendant's this same cash to show that defendant made false returns). on statements his income tax Similarly, Nash, United States v. 447 F.2d 1382 (4th 1971), Cir. the defendant tried for mail theft. inspectors they Postal testified that had seen the envelope defendant from mail remove box an inspectors placed which had three marked quarters. They followed Nash into restroom and possession. quarters She in her the marked discovered envelope from that did not take testified she only quarters a from that she obtained mail box and jury acquitted change her of the dollar machine. prose- charge. Thereafter, the Government mail theft perjury that not and established she could cuted her for change quarters possibly have obtained After she had testified in first trial. machine as she perjury, appealed the Fourth Nash was convicted of Following Ashe, the Fourth Circuit held Circuit. by jeopardy. See her trial was barred there Nash, court concluded that 447 F.2d at 1385. The conflicting explanations posses- only her two were quarters jury that the to consider and sion the necessarily jury decided that ultimate factual had acquitting See id. issue in Nash. estoppel recognize rule the collateral

We necessarily applies actu the issue has when previous litigation. ally When the been determined in necessarily litigation previous does not determine precluded subsequent question, issue in perjury we will chargе. e.g., See, Haines, United States v. (7th 1973) (defendant's subsequent per Cir. F.2d 564 by ‍​​‌‌‌​‌​‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌​​​​​​​​‌‍preclusion jury was not barred robbery regardless acquittal on of his claim that bank charge prior determination of truth constituted testimony, jury where the could fulness of his alibi testimony have discredited the defendant's alibi prove his failed to still concluded that the Government (9th guilt); Dipp, 581 F.2d 1323 Cir. United States v. 1978) (perjury prosecution not barred collateral impossible to determine what because was proof previous jury lacking elеment the found to be acquittal). judgment of

Here, however, the in the initial trial necessa- rily prove concluded that the state failed to Canon was the driver because this was the rational to basis acquit him. Therefore those cases where has necessarily previous litigation not been decided in are inapposite. glean support rejecting fraudulently

We also for judgment exception obtained to Fifth Amendment language from the Wisconsin Court's remanding the Vassos, cаse in 344-45, Wis. 2d at There, 579 N.W.2d at 41. the court remanded the case the trial court for a determination of whether the subsequent prosecution necessarily require would relitigation already anof issue of fact decided, ultimate question the court was unable answer that case without the full trial record. id. See We consider significant supreme upon that our court stated that trial court's determination that the same issue was previously precluded decided, the State would be from subsequеnt prosecution any exception without noted. The court did not remand determination toas whether the defendant influenced the initial trial testimony. result with false overwhelming Based on the federal circuit author- ity supreme interpretation and our own Ashe, court's we conclude that an issue of ultimate fact be cannot relitigated necessarily where that issue has been liti- gated regard without to whether the testimony. influenced false defendant's We correctly thereforе conclude that the circuit court dis- charge perjury missed the because the issue as to already whether Canon was the driver of the car had judicially may relitigated been determined and not be subsequent proceeding. criminal in a

By affirmed. the Court.—Order respectfully (dissenting). dissent I CANE, C.J. majority's barred conclusion that State is from prosecut- jeopardy principle of from under ing perjury. relies on "collateral Canon Canon barring prosecu- estoppel" as basis for quеstion jurisdictions this are divided on tion. The major- opinions range applying the various outright rejection ity's of this in this case to rationale perjury prosecutions. principle applied See 21 Am. as (1998). § 438 2d Criminal Law Jur. agreed argued majority and the

Canon controlling Swenson, 397 this area is Ashe v. case in (1970), Supreme held that Court U.S. in which in was embodied the doctrine of collateral jeopardy. guarantee Amendment Fifth keep however, Ashe, in mind, We must properly pro- Supreme Court was сoncerned tecting multiple prosecutions defendants arising single In of a criminal transaction. crimes out single episode and since words, the criminal was other party adjudicated not a to the had been the defendant subjected robbery not to a trial, the first he could be at involving contrary the same at another trial verdict incident. See id. at 446. addressing separate

The not criminal Court was episode as at the trial of the such committed applied Rather, the Cоurt the collateral first offense. acquit- estoppel principle who had to defendant been robbing group of card ted of one member six robbery players. question no that an armed There was only question id. 445. The at had occurred. See at rob- trial whether he was one Ashe's first was By acquitting trial, bers. at him the first Court concluded had determined that Ashe not one of was the robbers and further concluded merely opportunity that a second trial was for the relitigate question State to ofhis status as a robber. Essentially, attempts try See id. the State's to Ashe for robbery players the armed of another one the six at poker game nothing the same more than a second attempt prove guilty Ashe of the same crime. This holding concern was central to the Court's in Ashe when it stated:

In this case the State in its frankly brief has following conceded that petitioner's acquittal, treated the first trial as a dry no more than run prosecution: second prosecutоr "No doubt the felt the state a provable had case on ‍​​‌‌‌​‌​‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌​​​​​​​​‌‍charge the first and, lost, every when he he did what good attorney would do—he presentation refined his in light of the turn of events the first trial." Id. at 447. circumstances Canon's case are far differ- attempting First,

ent. it is clear that the State is not rehash or refine the evidence used first trial in order to take a "second shot" at Rather, Canon. State obtained new and additional evidence that was previously indicating availablе that Canon testified falsely charges. under oath at his on trial the traffic Second, unlike the situation in Ashe where the Court prohibited prosecuting the State from Ashe a second episode, alleged time for the same criminal Canon's perjury separate occurring ais crime under different being circumstances and at a different He time. is not prosecuted for the same criminal act. appreciate apply

I dilemma can whether to the of doctrine collateral when a defendant has ultimately allegedly perjured a trial that himself at acquittal. hand, is a con- On one there in his resulted allowing acquittal to insulate an that cern give perjury will a defendant license to defendant resulting testify falsely, to the relia- a detriment justice system. bility On the and the of the evidence allowing apprehension hand, is that there other give perjury the State "second will wrong, or allow an for the same at the defendant shot" retry perjury prosecutor trial to to use overzealous already favor. in the defendant's determined issues prohibition applying However, when underlying jeopardy, emphasis should be on primary policies consid- rather than technicalities. fulfillment of be fairness and erations should light expectations in the constitu- reasonable goals. and common tional law strongly justice very we cannot have I believe system can be assured that a our court unless we upon testimony. Any jury's findings are based truthful encourage giving testi- of false rule that tends to mony very of the reasons for threatens core system, namely peaceable judicial existence of our and commendable settlement controversies escape persons proposition that allows courts. A they punishment because succeeded testimony inducing jury accept false is unrea- their our so, If it then follows that laws sonable. were persons encourage as defendants in crimi- would such perjure is to the themselves. It essential nal cases judicial process integrity our that court and fabric proceedings judgments fraud, and be free from encouraged litigants to tell the witnesses be very punished they if do not. The founda- truth and be any judicial proceeding tion of is that our decisions rest upon testimony. truthful recognized proceed- Wisconsin,

In we have that a ing upon based fraud does not abar second of a defendant for the same offense. In v. Reid, State (Ct. 1991), App. 139, 166 Wis. 2d 479 N.W.2d 572 trial court declared a mistrial because of a defense wit- perjury. ness's We held that his retrial was not barred by jeopardy right and observed that to have a trial continued to must sometimes be sub- public's designed ordinated to in fair interest trials just judgments. Importantly, emphasized to end in we public's just judg- that the interest in fair trials and ments will not nor tolerate allow a defendant to benefit defrauding from the court. Id. at 479 N.W.2d at 575.

Here, it is clear that the ultimate issues of fact (traffic proceedings involved in the two violations ver- entirely perjury) Apart sus are fact, different. this justice equity require upon and that we insist honest testimony judicial proceedings. under oath our To accept argument concept Canon's would tobe allow the estoppel, designed protect of collateral which is to prosecutorial accused from harassment, used as a be wrongdoing shield to insulate a defendant from his own fraudulently obtaining a favorable result in a crimi- preserve nal case. It is much better the sanction against perjury, always wrong unaccept- which is judicial system, able in the than be moved opportunity by renegade prosecutor. mere for abuse prohi- I conclude that the Fifth Amendment would person putting jeopardy bition twice "for apply the same offense" does not where the "offenses" separate involved are different and arise out of crimi- episodes. charged separate nal Canon is with a episode the traffic criminal acquitted. he ultimate for which violations lied under oath at is whether he issue at this trial fact traffic not he committed the trial, whether his former violations.

Additionally, as tes- even where here defendant's timony and his to main facts relates necessarily import perjury a con- for would conviction charge, guilty not former of the verdict tradiction policy public I as a conclude that matter would prosecution perjury acquittal is no bar to former the State has new at the former triаl. Where committed previously to it available and additional evidence falsely indicating testified under oath dur- that Canon may ing perjury trial, not be characterized his trial disgruntled or a the defendant as a "second shot" at guise attempt retry prosecutor's the case under the perjury prosecution. of a estoppel apply facts

To to these serves collateral separate independent Canon from the immunize Thus, the and reward his falsehood. crime should not be available doctrine ‍​​‌‌‌​‌​‌‌​​‌‌​‌‌‌​‌​‌‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌​​​​​​​​‌‍of collateral Accordingly, perjury. I a defendant in a dismissing perjury charge would reverse the order the matter for trial. and remand

Case Details

Case Name: State v. Canon

Court Name: Court of Appeals of Wisconsin

Date Published: Sep 21, 1999

Citation: 602 N.W.2d 316

Docket Number: 98-3519-CR

Court Abbreviation: Wis. Ct. App.