State v. Rabe

Plaintiff-Appellant, Wisconsin, State Rabe, Defendant-Respondent. David W.

Supreme Court Argued February 7, May 6, No. 1980. Decided 1980. 79-1445-CR. (Also reported 809.) in 291 N.W.2d argued appellant by For the the cause was David J. Becker, attorney general, assistant on the whom Follette, general. attorney briefs was Bronson C. La respondent argued by For the the cause John E. was Tradewell, defender, public assistant state with whom on Bauer, public the brief was William F. assistant state defender.

HEFFERNAN, appeal, J. This on certification from appeals, prosecution the court from stems a criminal by filing complaint commenced of a criminal on February 27, 1979, charging defendant, David W. Rabe, by with four of homicide counts intoxicated use vehicle, contrary 940.09, a motor to sec. Stats. The state pretrial review seeks of a order of the trial court con- solidating charged the four counts in the information into single count. presented appeal. First, on

Two issues are was the appealable trial court’s consolidation order the state right order, pursuant either as matter of aas final to 974.05, Stats., permissive appeal sec. aas a non- 808.03(2). Second, final order sec. did the trial by ruling that, single negligence court err where a act of multiple deaths, charging causes the state is limited to single count under sec. Homicide In- toxicated User of Vehicle. regard issue, to the first we conclude that court jurisdiction present Although

has appeal. hear we agree with the defendant that the trial court’s order was appealable not a final right, as a matter of we may, nevertheless pursuant conclude that state 808.03(2), Stats., petition leave to file an in this criminal action. also ques- We resolve the second holding against multiple defendant, that, tion where negligent operation of deaths result a defendant’s a of an intoxi- motor vehicle under the influence while may charge cant, separate of homicide the state counts with under sec. 940.09 for each death. In accordance determinations, of the trial these we reverse order proceedings and remand court for further consistent opinion. this following give procedural steps rise to facts and appeal. defendant, evening February 23, 1979,

On the sign stop allegedly intoxicated, past while his a drove car county in rural intersection Dane and collided persons with a car driven Randall R. Four Chambers. Chambers, passenger killed in the were accident: car, passengers in the defendant’s Chambers’ and two car. complaint charging the defendant filed a state of a use ve-

with four counts homicide intoxicated Following preliminary hicle under sec. Stats. bindover, and amended examination and an information charged filed, four information were the latter counts homicide sec. 940.09. among motions,

The defendant has filed numerous counts a motion four which was to consolidate the granted the into count. The trial court information one negli- reasoning single motion, act of defendant’s not gently driving could his while intoxicated vehicle en- charged Thereafter, court as a offense. single consolidating four into a counts tered an order count. final or-

Concluding was a court’s order the trial right, filed no- appealable as a the state der matter protect were appeal. if order To itself tice of petition with also order, filed appealable final the state pur- appeals for leave the court (2), to sec. 808.03 Stats. suant appeals The court of jurisdiction case, took of the but parties directed the question to brief the of whether the trial appealable court’s by order was the state. After the filed, briefs were appeals the court of certified the case pursuant to this court (Rule) 809.61, to Stats., sec. stat- ing presented questions regarding the case novel procedure Wisconsin criminal appellate jurisdiction. and accepted This court the certification.

turnWe first to the defendant’s contention that appeals and, turn, court of jurisdic in this court1 lack tion over this matter because the trial court’s order was appealable by by right by permis state either prosecution’s sion. The appeal entitlement in to criminal cases, governed as a by 974.05, matter of right, sec. Stats., provides pertinent part in that: appeal. (1) “974.05 State’s days entry Within 45 judgment of the ner appealed or order to be and in the man- provided appeals for 809, civil under chs. 808 and an appeal may by be any: taken the state from “(a) judgment Final order or adverse to the state jeopardy made before has attached or there- after waiver of.. . .” parties disagree finality on the definition to be determining used in pretrial whether the trial court’s consolidation appealable order is an we final As order. recently Jenich, noted State v. (1980),

N.W.2d 114 and ex rel. A.E. Lake Green State County Ct., Cir. 98, 101, 94 Wis.2d N.W.2d (1980), determining purposes what final for orders are appellate poses recurring questions review of statu tory interpretation. regard right appeal The issues raised in to the state’s to regardless order they are identical of whether were raised appeals or, here,

court of following bypass this court 809.84, also, certification. Secs. 809.63 and Stats. See Barrett, 367, 371, 280 N.W.2d 114 final The defendant contends that the definition of a 808.03(1), Stats., applies in sec. to found rights appeal latter under sec. because state’s permits appeal “in provision to state final orders appeals provided for civil the manner chs. 808 that, . . .” if “manner” 809 . defendant reasons may governed which the state take specifically chapter, ch. then 808.03 sec. (1), final. what must used determine orders right ap- providing appeals as the court judg- 808.03(1) peals, a final order or final defines disposes in liti- entire matter ment as one “which gation parties, rendered as to one or more the whether special proceeding.” in an action or argues specific appeal The state the more state newer, 974.05, Stats., over provision, controls sec. the general, 808.03(1), appeal Under statute. more sec. but view, finality specific test set in sec. forth the in dispose matter 808.03(1) order the “entire —did litigation” incorporated by in sec. reference —is argues appeals state. state to criminal 974.05 order,” has term, in 974.05 “final as used sec. that the sufficiently interpretation expan- given judicial a been subject order. sive to cover the argument, support state cites State In of its (1973), and Bagnall, N.W.2d 61 Wis.2d 321-22, Antes, 246 N.W.2d grant- an Bagnall, order In the court held (1976). guilty plea final order was a ing withdraw a motion to 974.05, Similar- under sec. Stats. appealable state dismissing an in- held an order Antes, in ly, the court robbery, charging with armed the defendant formation charge to rob- granting leave to amend state but by the state. bery, appealable was general appeal decided when were These cases appealable, order part that, an provided in to be statute affecting had right to be a final order a substantial made special in a proceeding or a final in order which effect prevented judgment determined the action and appeal See, 817.33, could taken. sec. Stats. (1975). general, intermediate orders were reviewable judgment on an from a final a final special proceeding they when the merits “involv[ed] necessarily and appearing judgment, upon affect[ed] the record.” Sec. Stats. It clear that Bagnall decisions Antes as to what constituted appealable compatible orders under sec. 974.05 were general appealability definitions then effect.

However, replaced by 808.03(1), those rules were sec. Stats., August 1, provision effective 1978. inwas This effect the trial when court entered its consolidation order on September 13, provision replaced new 1979. The long confusing appealable list of orders under ch. dichotomy: simple “[dispose] with a Orders which litigation” appealable by matter entire right; appealable only by permis- all other orders are sion.2 appealable The new of an definition final order obviously stringent predecessor. than more its Con- comitantly, however, appeal practice the new establishes appealing a uniform method and all criteria nonfinal See, 808.03(2) (criteria),3 (pro- orders. sec. 809.50 requires appealable Section 808.03 also that to be a final by provided being order must be entered filed in Rule 807.11 entry requirement complied was with in this case. Appeals by permission. (2) judgment “808.03 A or order appealable right (1) not may a ap as matter of under sub. be pealed appeals judgment to the court of in advance of a final or upon granted by order leave court the if it determines that an appeal will: “(a) Materially litigation advance the or termination of the clarify proceedings litigation; further in the “(b) petitioner irreparable Protect from substantial in- or jury; or “(c) Clarify general importance an of issue administra- justice.” tion of procedure cedure) ,4 the new behind Stats. The rationale (1977) to Legislative Note explained in the Council is 808.03 as follows: sec. for State the National Center “The of recommendation ‘interlocutory determinations trial cou'rt Courts is that should .’ . . of the discretion at the reviewable purpose appellate to avoid of the recommendation court. The delay in trial unnecessary interruptions and appeals to by multiple and proceedings

court caused dealing appeals with of on court of reduce the burden unnecessary appeals.” logic precedent supports state’s con- Neither nor sought appealed finality to be of orders that the tention by a standard 974.05, Stats., should be tested under sec. general final orders rigorous for definition than the less especially 808.03(1). This statement set forth that, as well as light in criminal conclusion true of our appealable judgment (Appeal not or order “809.50 Rule appeal right). (1) person to the court leave of as of A shall seek 808.03(1), right judgment appealable as of under s. or order judgment filing days entry or of the of the within 10 any. petition memorandum, must petition supporting if and contain: controversy; “(a) presented A the issues statement of understanding- necessary “(b) to A statement of the facts issues; showing judgment or order “(c) of the A review statement judgment appeal immediately from the final on an rather than materially proceeding the termination or will advance the case therein, protect litigation clarify proceedings further or clarify irreparable injury, party an issue from substantial importance justice. general in the administration response “(2) opposing party file a shall An in the trial court days memorandum, any, supporting if of the service within petition. appeal, procedures “(3) grants If leave the court proceed- appeals applicable judgments to further from final granting entry ings appeal, except of the order in the appeal.” filing notice has the effect of leave cases, party civil may permissive a avail itself of the appeal procedure 808.03(2). Moreover, set in forth whether in the order case this is tested under the new provision, provision, old or the asserted case-law definition, appealable it not an final order. appealed order this was from case labeled

Judge order, Boll as a consolidation which had the effect merging charged the four homicide counts in the in- single alleging formation into count four victims. The argues state that the consolidation order was final be- cause, although order, it was as a labeled consolidation it dismissing had the effect three of the counts. We do accept conclusion, significant not because there are evidentiary differences between a consolidation counts charges. and a dismissal of Under the order consolidat- ing single alleging the four counts into a count four victims, precluded proving the state would not any or actually all of the If four had deaths. counts three dismissed, been the state would have been limited to proving only charged death the undismissed count. Because each of the four victims’ deaths remained as liability charge, basis of under the consolidated we con- “ clude [dispose] did mat- not of the entire litigation” (sec. 808.03(1), ter in Stats.) and is there- by right fore appealable final order under sec. 974.05. supported

This conclusion is the definition of an appealable Appellate final order forth in set Wisconsin Practice, supra, sec. 402 at 21-2: requirement judgment order, “The final, that a or to be dispose litigation must entire matter means it dispute, precluding resolves the merits proceedings further proceed- special action ing. . . . “If precludes an order closes the matter and further hearing investigation, it is final. An order which

59 subject and dispose matter completely of the does not (Cita- . . rights parties is not final . settle of the the omitted.) tions final present would be at in the case The order issue litigation “dispose matter if it of the entire [d] accordingly, parties.” Tested as to one or more finality is fails the test consolidation order emphasized in both by right. appealable As we not “interlocutory piecemeal A.E., ex or rel. Jenich and State prosecu undesirable, criminal appeals especially in are A.E., supra, 79, 80; Jenich, supra, ex rel. at State tions.” at 102. that, if position even is state’s fallback

The sec. appealable final order under not an were ap permissive may Stats., nevertheless seek the state sec. in criminal cases under peals orders intermediate appeal provision. 808.03(2), general permissive hand, the state’s contends that defendant, on the other statutory strictly a right appeal in criminal cases 599, Beals, N.W. See, 191 right. e.g., 52 Wis.2d State v. that, since reasons defendant 221 2d cases, authorizing appeal in criminal the state statute the state express no statement 974.05, contains sec. order, no appeal a nonfinal may permissive from seek defend persuaded right We are such exists. argument. ant’s ap- right to where the

Except limited cases for those State, guaranteed (see, constitutionally Scheid peal is (on 583a, (1973) rehear- 458 575, 211 N.W.2d 60 Wis.2d only when permitted appeals ing) ), the rule litigants, wheth- applicable to all statutorily authorized Thomas/ criminal, prosecution defense.5 civil or er 5 procedure, were appeal defendants criminal old Under theory pre-judgment appeal orders on from generally unable to judgment reviewable merged and were orders that such Mor- judgment State v. of conviction. final on Dyken

Van Joint Dyken, 236, Venture v. Van (1979) ; Beals, N.W.2d State v. 52 Wis.2d 599, 605, (1971) ; Koopman, 191 N.W.2d 221 ; Fish, (1967) 148 N.W.2d In re 474, 476, Wis. (1945). Moreover, 17 N.W.2d 558 neither prosecution expressly nor the defense is authorized 808.03, Stats., permissive appeals. to seek We prosecution nevertheless conclude that may, 808.03(2), Stats., defense per- under sec. seek appeal missive provision of nonfinal ap- orders. That is plicable by to 972.11, criminal cases virtue of sec. which provides, part, in relevant that “rules of evidence and practice in civil applicable actions shall in all criminal proceedings unless context of a section rule mani- festly requires a different construction.” nothing

There in “manifestly is re- statutes quires” construing 808.03(2), Stats., applica- sec. to limit permissive appeal only. tion for chap- to civil cases discussing appeals Appellate ter criminal in Wisconsin Practice, Eisenberg, supra, by was written Howard B. the then State Public Defender and a member of rule- drafting unequivocally He committee. states that the new permissive procedure appeal applies to both civil and 27, Accord, criminal cases. sec. 2702 at 167. State Ch. Jenich, 74, 3, (1980) (n. 78, 94 114 Wis.2d 288 N.W.2d text). accompanying Barrett, State v. 89 280 114 Wis.2d N.W.2d (1979), argued right the defendant that the state had no by appeals to seek review of decisions the court of re- garding matters, express criminal there no because was statutory authorization for the state to do so. This court disagreed, holding VII, 3(3) that art. sec. Wiscon- deszewski, Withers, (1975); N.W.2d N.W.2d supreme sin to Constitution authorized the court review emphasized such cases. The court that: nothing is “There the rule to indicate that the party permitted petition who is a for review in a file criminal case is the accused.” 89 Wis.2d at 371. conclude, appeals We therefore, court of has jurisdiction by permissive appeals to entertain the state from nonfinal orders entered criminal actions. second, significant, by posited and more issue charge can whether the state four counts negligent operation

homicide while vehicle contrary intoxicant, under the of an influence although Stats., allegedly the defendant caused single negligence the four act driv- deaths when ing in its while intoxicated. The trial court concluded memorandum decision that the four-count information charged single multiplicitous was because offense it more than one count. charged

Multiplicity arises where the defendant single States more than one count for a offense.6 United Dreske, Free, (5th 1978); v. v. 574 F.2d 1221 Cir. 1979). 74, (Ct. Ap. we 60, 88 As Wis.2d 276 N.W.2d 324 George, 92, in 253 noted State v. 69 230 N.W.2d Wis.2d charges (1975), multiplicitous impermissible, be are they provisions the jeopardy the of cause violate double 8, I, and federal constitutions.7 Article state 6 .problem multiplicity; presents Duplicity du the inverse of joining plicity single distinct a count of more than one is the in 1978). (7th Pavloski, Cir. offense. United States 574 F.2d 933 v. 7 provision applicable jeopardy is The fifth amendment former Mary through Benton to the fourteenth amendment. the states similarity land, (1969). 784 Because of the between U.S. accepted, provisions, where federal this court has and Wisconsin gov Supreme applicable, of Court decisions the United States See, jeopardy provisions erning both constitutions. the double language nearly provides,

Wisconsin Constitution in Constitution, identical to that in the used United States “ person put that o the same shall be twice [n] offense for punishment.” jeopardy supplied.) in (Emphasis provision, present information, Under that charges against counts, escapes prohibition four multiplicity only person if the death of each caused State, 554, 546, (1979), Harrell v. N.W.2d 462 and cases cited therein. involving problems While the mul- resolution this and similar tiplicity jeopar- general have been cast in the framework double — — dy, States, 16, case, (April a recent Whalen v. United U.S. 1980), prohi- indicates some doubt that the federal constitutional against jeopardy implicated single bition prosecution double in a state multiple penalties sought imposed wherein to be are single for Blackmun, criminal Justice concur- transaction. ring opinion, stated: Jeopardy “The function the Double in cases Clause serves challenging multiple punishments prevent prosecutor bringing charges, impos- sentencing from more and the court ing greater punishments, Legislative than the Branch intended. serves, my view, nothing It consecu- considered more. ‘Where imposed trial, single tive sentences are the role at criminal guarantee assuring the constitutional is limited to that the court legislative by imposing does not its exceed authorization punishments Ohio, same offense.’ Brown v. 432 U.S. opinions suggested, “Dicta in recent of this Court at least have may wrongly, I Jeopardy now think Double Clause prevent imposition punishments cumulative in situations Legislative clearly multiple pen- which the Branch intended that imposed Simpson single alties be for a criminal transaction. See States, (1978); v. United 435 U.S. 11-13 United Jeffers States, (1977) (plurality opinion). 432 U.S. I believe that opportunity presented by Court should take the case repudiate squarely, clearly ques- those dicta and to hold punishments tion constitutionally permissible of what is not question punishments Legislative different from of what imposed.” Branch to be intended White, Rehnquist, Burger separate opinions Justices C. J. agreed with Justice Blackmun’s rationale. negligent operation of a motor vehicle defendant’s separate while intoxicated constitutes a offense Stats. appeals This court and court have considered the question multiplicity in Harrell several recent cases. State, supra; supra; v. Dreske, State, Austin v. v. 213, 222-24, (1978) ; 86 Wis.2d Blenski 271 N.W.2d 668 State, v. (1976). ap The N.W.2d 906 proach evaluating utilized in the Wisconsin courts charge multiplicitous whether a two-fold. has been regard First, question jeopardy, in of double have courts determined whether the offenses are severed Meter, “identical in the law and fact.” State Van in 754, 758, Wis.2d N.W.2d 206 Because charged present four offenses case are identical law, multiplicity test for “[t]he [freedom from] requires proof whether each fact count additional Dreske, the other count or counts do not.” State supra, 74, quoting State, at from Blenski v. supra, 73 Wis.2d at 693. component multiplicity second test legislative unit on to the

focuses intent as allowable prosecution question. under the statute charged in We conclude that the four counts this case separate and, related to distinct offenses for the below, multiplicitous reasons discussed the counts are not component under either of the test. uniformly test used Wisconsin to determine test,

multiplicity is the “additional fact” which examines requires proof fact “whether each count of an additional States which the other count counts do not.” United 64 Harrell, 1976); (E.D. s 1174, Leo, Supp.

v. 1178 Wis. 406 F. Supreme up by the United States at 556. Stated ra States, Blockburger 284 U.S. in v. United Court recently re fact test was (1932), additional 301-02 Ohio, v. 432 by in Brown applied the Court affirmed and States, 432 U.S. (1977), v. United 161 and U.S. Jeffers (1977). three Supreme identified Court has States United jeopardy protected the double and interests areas provision: “ prosecution same against for the protects a ‘It second against a second acquittal. protects It offense after And conviction. prosecution for offense after the same against protects multiple punishments for the same

it ” Wilson, U.S. offense.’ United States (1975). regard usually questions arise are two There above,8 protection protection third to the identified the voluminous to deal with at issue this case. protected protected identified above Stats., provides: The first two interests statute in Wisconsin. Sec. act forms the convictions. If an “Limitation on the number of statutory pro- punishable one basis for a crime under more than statutory provision and a of this state vision of this state or under acquittal jurisdiction, on the a the laws of another conviction prosecution provision subsequent under merits one bars proof provision provision requires fact other unless each require.” conviction which the other does statutory provision the landmark decision This stems from recog Swenson, (1970), Ashe v. the Court 397 U.S. 436 wherein estoppel aspect fifth nized the doctrine of collateral as against multiplicity. jeopardy protection Al amendment double though multiple involving Ashe victim case simultaneous was robbery players juggled poker rubric six the Court and inapposite test,” largely to the the “same evidence the decision is Elbaum, See, 194 N.W.2d issues at bar. question trials of successive The Ashe Court addressed the multiple victims, single produces issue of not the where a act together. counts tried authority dealing aspect jeopardy, with this it double necessary distinguish identify is first two these types present common cases one. prohibition against multiple punishments for the generally regard same offense is cases invoked charged committing where the defendant both greater the lesser included offense and the offense9 involving ongoing cases or offenses. continuous cases, question In the so-called offense continuous repeated turns on commission whether the defendant’s places the same at different or times consti offense ongoing See, separate tutes an crime or several offenses. e.g., Snow, (1887), progeny. re 120 274 U.S. its dealing Almost all the with the issue of Wisconsin cases multiplicity repeated problem have involved ongoing See, e.g., State, supra (hold crimes. Harrell v. ing two the de sexual intercourse between acts by twenty victim, separated fendant and the min same conversation, rapes utes of constituted two and was not unitary transaction); Nickel, continuous Madison v. 66 maga 71, (1974) (four 223 N.W.2d 865 obscene person zines sold the defendant to the same at the place time and or same held to be four violations of ; material) prohibiting printed dinance sale of obscene Melby State, 368, (1975) v. 234 634 70 Wis.2d N.W.2d (upholding two counts the conviction of a defendant for dangerous possession place at time and the same drugs drugs dif- based on two rationale were 9 See, e.g., (1977); Jeffers, Turner v. 432 137 United States U.S. State, also, (1977); v. see 76 Wis.2d State N.W.2d Ramirez, (1978) (uphold 153-54, 83 Wis.2d N.W.2d ing statutory provisions separate conviction three for violation of arising single incident). out of provides 939.65, Stats., Sec. that: punishable “If under more an act forms the basis crime for any statutory provision, may proceed prosecution than one provisions.” or all such

ferent) ; Elbaum, 194 N.W.2d Stats., (sec. 939.71, prohibits (1972) prosecutions successive if the same act forms the basis crime, prosecution than one does more not bar charge multiple required proof of an offenses since each fact). additional in these cases was whether The issue and time be “there was a sufficient break conduct separate tween the acts to constitute and distinct [crimi supra, Harrell, . .” 88 Wis.2d at 565. acts. . nal] was focus under evidence test in these cases the same charged prosecu by the whether the offenses unitary sprang tion from the same transaction. regard present case, question posed in

In the different, con- both sides the same evidence test is since charged allegedly four were caused cede that all offenses negligent single place. single act at a time and only significant fact between either law or distinction charged (1) they involve four offenses is that the four (2) four were victims and not all victims different vehicle; passengers in the riding in two were the same by the car, in the car and two were struck defendant’s car in the intersection. defendant’s Stats., application the respect to sec. where a defendant’s to additional fact test situations multiple double single deaths indicates that act causes by charging separate count is a jeopardy not offended requires proof of additional Each count for death. each namely, the death do counts facts that the other not— and particular named in each count victim negligent relationship the defendant’s between causal par- while intoxicated operation of his vehicle Moreover, where, here, victims death. ticular vehicle, questions riding difficult in the same not all were counts causation might the element of if as to arise If, instance, is able the defendant consolidated.

67 to show that driver of the other vehicle involved negligent regard lookout, speed accident was to thought might jury de- situation arise where the only regard vic- fendant’s conduct was causal to the passengers in tims who were own his vehicle.10 Obvi- ously necessary prove the facts to each the death of negligent victim was conduct caused the defendant’s could be different: “In cases commits one criminal where the defendant victims, act which courts have the ‘same has several used separate prosecution allow a for each

evidence’ test victim. Because the is Blockburger evidence’ test ‘same provision requires proof fact if satisfied each multiple not, always it will sanction which the other does identity if there are victims since trials proof case.” fact in each the victim is an additional Multiple Jeopardy: Prose- (Citations omitted.) Double Transaction, Arising American cutions Same 15 L. Crim. Rev. States, language United

To use of Gavieres v. Blockburger, (1911), upon a case U.S. relied apparent that evidence sufficient for conviction “[I]t charge under the first would not have convicted the second indictment.” directly point Austin Wisconsin case on (1978),

State, wherein N.W.2d stated, general different this court “As a rule when involved, corresponding number victims are there is a Austin, Id. 223. In the defend- of distinct crimes.” at single shotgun injured killed victim and ant’s blast one presents Consolidating multiple also counts in such case joinder the defendant’s and severance difficult issues as problem protecting jury right verdict. As to the to a unanimous generally, jury verdict, right see to unanimous the defendant’s 1977) Gipson, (5th ; Holland v. v. States 553 F.2d 453 United Cir. 134, State, 91 280 288 N.W.2d

68 Although distinguishable another. Austin is from the present charged case because the offenses there were (murder attempted different statutes mur der) , reasoning regarding multiple victims is sound. great weight In accord authority, with the we hold that, against persons where the crime is rather than property, are, general rule, many as a there offenses See, e.g., State, as individuals affected. v. Adams 598 (Alaska ; 1979) People P.2d 503 Lovett, App. v. 90 Mich. 169, ; (1979) Callaghan, 283 N.W.2d 357 State v. 33 Ore. App. 49, ; (1978) Dirks, 576 P.2d 14 v. State 35 Ore. App. 33, (1978) ; Vigil 581 State, P.2d 85 v. 563 P.2d (Wyo. ; People 1977) Wieckert, v. 554 P.2d 688 (Colo. 1976) ; Chapple, v. 197 Neb. 246 N.W.2d (1976) ; Prudhomme, State v. 303 Minn. (1975).11 general N.W.2d 243 equally ap This rule is plicable negli where deaths are caused gent operation operation of a vehicle while intoxicat ed. argues proper defendant test deter-

mining multiplicity is not the additional fact test but is acquittal “whether a conviction on one count and an bring on another would about a contradiction on the face of the Marzani, verdict.” United States 71 F. Supp. 615, (D.D.C. 1947); applied also in Harrell Isreal, Supp. (denying (E.D. 1979) 478 F. Wis. request corpus; see, State, for writ of habeas Harrell v. supra). accept It is difficult the defendant’s conclu- application sion that of the Marzani test would lead to a regarding multiplicity. different conclusion in this case requires proof If each of four counts of an additional fact —the test —a conviction on one count and Wisconsin 1 1 concurring Judge theme is also reflected in Leventhal’s This opinion Irby States, (D.C. v. United 390 F.2d Cir. among 1967), he where advocated the factors be considered determining multiplicity sought is the societal interest to be protected by question. statute(s) Id. at 437-39.

69 acquittal on contradictory. another would not be Doubt about provide the additional fact would a reason- explanation able jury’s for the different verdicts. Under either the additional urged, fact test or the test the de- jeopardy arguments fendant’s double are without merit. Charging multiple counts, although not violative jeopardy, may double multiplicitous nevertheless be contrary public policy legislative if the intent behind 940.09, Stats., indicates that unit allowable prosecution Blenski, supra, shall but one count. 73 Wis.2d at Miranda, 694. As stated State v. 3 Ariz. App. 550, 557, (1966) 416 P.2d : authority “Pertinent establishes that it is the intent legislature which no controls and that there is prohibition legislation against pro- constitutional arising single against vides crimes acts multiple victims.” 940.09, Stats., provides

Sec. that: “Homicide intoxicated of vehicle or firearm. user negligent operation handling Whoever of a or vehicle, airgun firearm or and while under the influence guilty of an intoxicant causes the death of another is felony. may of this section person D Class No be convicted except upon negligence proof of causal operation handling addition to such under the while of an influence intoxicant.” argues legislative The defendant intent as to permissible prosecution unit of under sec. Stats., ambiguous therefore be the statute should interpreted “lenity” Al the defendant’s favor. though lenity primarily concept the rule of a federal applied interpretation (Bell v. to the of federal statutes States, ; United (1955) United States U.S. (1952)), Corp., Universal C.I.T. Credit 344 U.S. concept in the familiar rule is echoed Wisconsin generally strictly to “penal construed safe statutes are supra, rights.” guard State, Austin v. a defendant’s statutory interpretation of Wis.2d at 223. rules These 940.09, however, inapplicable, where, sec. as under are of legislative respecting permissible unit the intent Batchelder, unambiguous. prosecution United States is ; (1979) 114, 119-121, 2202-03 99 S. Ct. U.S. supra, The rule of State, at 223. Austin v. lenity inapplicable when its use would contravene is also Culbert, legislative purpose. 435 U.S. States v. United ; Tronca, 267 N.W. (1978) Wis.2d (1978). in Austin: noted 2d 216 As “ ‘ penal statutes] he rule of strict construction [of [T] by taking of the the common-sense view is not violated statute as giving object a whole and effect to words legislature, permits Wis. when of the if a construction reasonable Co., 244 Axle v. Timken-Detroit it.’ Zarnott general 596, 600, rule As a 13 N.W.2d involved, there is a corre- different victims 223. sponding at distinct crimes.” Wis.2d number of language analysis statutory

A common-sense Stats., 940.09, creating by legislature in sec. used provision’s placement conjunction with the viewed code, criminal which enumerates ch. 940 of the clearly against bodily un- security, and crimes life legislature ambiguously intended each that the manifests by negligent operation ve- of motor death caused chargeable as a to be an intoxicated driver hicle legislature to the separate as intent of offense. The “though explicit prosecution unit of allowable Harrell, supra, 88 at 561. often obvious.” vigorously dispute what parties The to this they perceive nuances sec. to be critical semantic legislative as to 940.09, Stats., intent indicative of the prosecution. unit of the allowable argues defendant law The that Wisconsin ties chargeable statutory pro- number of under one offenses prohibited vision to the “conduct” that section go severity that of the the results the conduct to the penalty, support not to the number of offenses. argument, points his the defendant out that crime 939.12, conduct, Stats.,12 defined not the re- sulting consequences of conduct. defendant reasons was, only type opinion, there in his one since episode culpable driving conduct the vehicle here — charge- negligently while intoxicated —there is one regardless offense, able number of resultant deaths. state, hand, use on the other contends verb, “causes,” Stats., in sec. indicates legislature consequences

that the was concerned with the grava- urges of the conduct. that the The state therefore causing another, with men of the is death of offense the constituting separate each death a offense. The state stronger recognizes have that the defendant would operates read, negligently if case the statute “Whoever causing or intoxicated handles a or firearm while vehicle that, because the death of another.” state reasons The however, legislative provision does, reads it as causing proscribe death of another.13 intent was to provides: section That punish- prohibited by “A conduct state law and crime is which is (Emphasis supplied.) imprisonment able .” fine or or both . . . jurisdictions The state refers to various cases from other gravamen of the simi that offense statutes hold negli operating lar vehicle to sec. 940.09 is not the act of motor gently killing intoxicated, rather, a human or but it is the of while being. Murray Perhaps persuasive the most of these decisions is (D.C. States, App. 1976), the District United 358 A.2d 314 where Appeals of Columbia Court stated: of. unambiguously negligent was “We homicide statute believe the protect gravamen designed of . . . The individual victims. negligently; operating a vehicle crime the act of motor

Although agree that we with the conclusion state’s legislative unambiguously statute intent manifests the separate every prosecution to allow offenses for death caused, what we that conclusion on the basis of reach interpretation of the stat- we deem to be tortured less proscribed provision is ute. conduct under the more The negligent operation ... of a vehicle than either “the (the an intoxicant” . . . while under the influence of “caus[ing] position) anoth- or the death of defendant’s position). proscribed conduct en- (the er” state’s compasses phrases. both Austin, supra 223, a

Taking, at as we advocated whole,” con- statute as a we “common-sense view the proscribed under sec. clude that the conduct Stats., is, provides causing the death as the section — by negligent This intoxicated.14 conduct while another in the second reminder conclusion is bolstered 940.09 that: sentence ex- person this section “No shall convicted under negligence

cept upon proof operation in addition to such causal handling of an influence while under the intoxicant.” gravamen emphasizes above sentence just negligent operation aof than more

the offense authority killing being. rather, of a human On it is the apply lenity Ladner, therefore, does not the rule of we hold where, here, involving both the victims as to situations legislature’s logic intent language of the statute reflect safeguard 358 A.2d at of its constituents individuals.” lives 320-21. pro defining By terms of conduct crime in sec. 939.12 in previous legislature departed by law, the more from scribed the “be limited criminal “acts” which could definition based on limited Remington singular meaning muscular contraction . . . .” in to a Multiple Sentencing Charging, Convicting, Joseph, the and Offender, L. Rev. 530. 1961 Wis. Criminal intoxicated, while as vehicle the defendant contends. necessary additional fact Where there is an to establish completed offense, in a this case the defendant’s causal negligence regard victim, separate in to each offenses may charged.15

Although question, place- dispositive the legislature 940.09, Stats., in the ment of the concerning bodily portion code life and of the criminal code, security, in rather than the vehicle corroborates legislature was with the that the concerned conclusion protecting provisions set in the lives. forth Various driving have, dealing with drunk their vehicle code deterring object purpose, drunks the of manifest driving. By placing sec. See, secs. 343.305 and 346.63. proof components of 1185 details I — ’Criminal 15 Wis J necessary instruction, addition a That in to sustain conviction. negli intoxication, emphasizing- of factors the defendant’s showing gent operation, respects in also stresses need other of negligence of the death a cause that of defendant was particular a victim. provides part: The in instruction of requires that the relation “The element of offense fourth driving cause between the death of-and and effect exists negligent You in a defendant. of his vehicle manner between such a and effect exists that relation cause instructed - negligence negligence when was and the death such may cause of death. cause of be more than one death. There person produce rela- negligence might such Before of one alone it. however, exist, it must can be found tion cause and effect appear substantial negligence consideration was that say, producing factor that it was factor the death. That is to producing actually operating effect and which had substantial the death as a natural result.” the circum- emphasis upon it “cause” This demonstrates statutory victim stances the demise each prohibition clear concerned. The instruction makes death, may respect to each element, not be identical cause of approve, instruction, multiple shows that which we victims. although multiple stem all result counts deaths will from the same conduct.

940.09 ch. principal purpose which has as its protection bodily security, legislature of life negligent may manifested its intent that a drunk driver properly charged separate be with a offense under sec. resulting for 940.09 each death. argument, final

As a that, the defendant contends regard to prosecution, the allowable unit of distinction negligent involving exists between offenses conduct and involving Citing Remington ones intentional conduct. Joseph article, Rev., law supra review 1961 Wis. L. 549-50, at the defendant that the drunk driver reasons negligence multiple whose causes deaths should not be exposed punishment. multiple Multiple punishment according no purpose, defendant, serves useful to the intent, when there no is actual constructive such since designed negligence, protect a statute to deter lives. it argu-

While must be admitted that defendant’s legis- plausibility, ment has at some it odds with that lature’s manifested intent death constitutes a each separate defining offense Stats. against legislature the crimes life in ch. used language to the same describe the essential nature of crime, every intentional and non-intentional alike: ones legis- “Whoever death of . causes the another. . .” The regard has made lature no distinction in to the allowable prosecution killings, unit of between intentional charged may multiple the defendant concedes counts killings. victims, and non-intentional Finally, by way we conclusion, note our hold- ing overwhelming weight is in accord with of mod- authority.16 by ern As noted court one after an extensive review of the law in this area: contrary The few eases to the cited defendant all and, quite opinion, growing old in our out of touch menace posed bodily citizenry’s security. drunk drivers our life and killing by culpable many holding “There are cases negligence beings ac- human in one automobile several many as there separate cident as offenses constitutes State, (Wyo. 1344, Vigil v. P.2d 1352 victims.” 563 are 1977).17 imposing responsibility on The defendant that asserts count be based him for more than one of homicide would That culpability, of on his but on “the roll the dice.” not foreseeability of supposed is lack statement based on might regarding from arise of which number deaths argument driving regard as while intoxicated. We specious. ve- a motor that use

It is foreseeable intoxicated of causing multiple poses deaths. hicle risk substantial of presented present case serves fact situation in the body law The entire of modern Wisconsin case which deals recognition of problem driving is characterized drunk prompt problem need its the serious nature of the See, 191, e.g., Neitzel, N.W.2d v. 95 Wis.2d 289 eradication. State 485, (No. State, (1980) 77-119, slip op.); 828 Scales v. (1974). 219 N.W.2d 286 17 single negligent holding act of that, For other cases when multiple fatalities, operating produces there a motor vehicle Miranda, 3 many deaths, see, State v. as offenses are there are App. 444, (1966); Whitley, 550, v. 557, Ariz. P.2d 451-52 State 416 288, (Mo. Lowe, 665, 1964); v. 130 So.2d 382 S.W.2d 667 State, 31, 35, (Fla. 1961); App. v. Miss. Dist. Burton 226 289 Ct. 768-69, 765, 242, Jeppesen State, (1955); v. 154 79 249 Neb. P.2d 539, Martin, (1951); 611, St. State v. 154 Ohio 49 N.W.2d 613-14 823, State, (1951); McHugh Fla. 541, 776, v. 160 96 N.E.2d 778 379, Allen, 368, (1948); People 824, 786, v. 368 Ill. 36 So.2d 787 Ky. Commonwealth, 397, Fleming 284 (1937); 14 N.E.2d 405 v. Fay Cr. 210, 220, (1940); State, v. 209, Okla. 144 221 62 S.W.2d 357, 768, 350, 71 P.2d 771 descriptions given other these It clear in cases from the majority general holdings reflect more authorities these 451 Miranda, App. at v. 416 view. State 3 Ariz. at P.2d (“majority McHugh State, at at So.2d view”); 160 Fla. 36 State, Fay at (“great weight authority”) ; Cr. Okla. authorities”); respectable (“greater weight at P.2d example. excellent When one considers that passengers car, had defendant three in his two of whom that, deciding accident, killed it were evident intoxicated, knew, to drive while the defendant or should known, putting have that he at was risk the lives persons. Murray States, several The court v. United 321-22, rejecting A.2d at a similar claim of lack foreseeability might deaths arise driving intoxicated, while noted: appellant’s “That conduct would have resulted in the tragedy but, unhappi- occurred was fortuitous ly, was almost inevitable. The combination of an undue ingestion mishandling of alcohol and the resultant carnage highways automobiles causes awesome on our daily. it appellant can be fairness said that could hardly likely a. have chosen means which would more have been injury many persons.” to in result to Murray driving recited,

As the court drunken “causes carnage highways daily.” awesome our on Id. who One drives while may under the influence of intoxicants well expect carnage” and, to contribute to “awesome under statutes, may result, multiple the Wisconsin when deaths expect multiple consequences. awesome and

Nevertheless, it should be remembered that fact may multiple charged multiple counts be for does deaths multiple charges not mean that in all such cases will be that, upon conviction, separate filed or and consecutive imposed. right sentences will be to state so charge subject prosecutorial charg in all cases is to the ing (see, Cannon, rel. discretion State ex Kurkierewicz v. 368, judicial 42 (1969)) 166 N.W.2d 255 and the sentencing upon McCleary (see, discretion in conviction State, (1971)). 512 N.W.2d On here, explore the state record we have no reason to State, (“majority Burton 226 Miss. at at So.2d courts”); 2d, Highway Traffic, Am. Jur. Automobiles and sec. p. (1963) (“[m]ost courts”). judges. It prosecutors and the latitude to be afforded however, clear, in all fear that the defendant’s that charge multiple legal right counts cases the of the state to 940.09, Stats., arising will deaths under several disproportionate penalties unwar- in criminal result To the existence reasonable ranted. so assert denies Clearly, just prosecutorial judicial be- discretion. charged require may not multiple does cause counts legally charge every prosecutor case where to so compelled judge every possible case do Nor is a to so. legally By impose maximum sentences. consecutive right charge multiple recognizing offenses occur, prosecutorial sec. 940.09 where deaths con- in a manner judicial can be exercised discretion prosecution. particular context of the sistent appeal again make emphasize that we do not on We appropriateness any appraisal exercise charges. bringing multiple prosecutorial discretion charge. legal right merely to so opinion affirms the This vacated, and cause remanded By the Court. —Order proceedings. for further part). with the (concurring I concur

COFFEY, J. holding majority’s disagree with the result but 974.05(1), within sec. not final appealed from is order holding majority’s disagree with I Stats. nonfinal of a to seek state is authorized disagree with the I also 974.05. in sec. enumerated may permissive seek stating that the defendant dictum case. in a criminal order appeal nonfinal of a contention support the state’s logic precedent Both sought be reviewed to finality of orders the differ- a standard Stats., tested should sec. appeal finality purposes of for of definition from ent the 808.03(1), The Stats. in sec. forth cases set in civil final clearly that a establish court this precedents of 974.05 appeal under sec. a state order, purposes of Stats., (1), special is one which terminates a criminal proceeding adversely state, though to the even the un derlying may criminal action not be terminated. In v. Bagnall, 297, (1973), 212 N.W.2d 122 proceeding hearing was a aon motion to withdraw guilty plea. In Antes, State v. (1976), proceeding N.W.2d 671 to was a motion charging robbery. dismiss an information armed In appealed prevent judg neither case did appeal might ment Bagnall, from which an In be taken. proceeded the case would have to trial with the state retaining any rights might it if have had guilty plea Antes, had not been In entered. the state charging was free simple to refile information rob bery. Bagnall, only prejudice As in if state appealable the order oppor were not was the of an loss tunity hearing to contest issue decided at the on defendant’s motion.

Chapter 187, Laws of which created ch. Stats., change made one the substance sec. 974.05(1) following 974.05. It (a), added to sec. underlined words: “(a) Final judgment order or to the state adverse jeopardy made before has attached or after waiver there- setting guilty of or after the aside of a verdict of finding guilty, following plea whether a trial or a

guilty or no (Emphasis supplied.) contest.” amending In 974.05(1) Stats., (a), in- it was the legislature tention codify Bagnall, an intention overruling majority’s which has been frustrated Bagnall. Bagnall longer final; order is no there- appealable by fore it is not the state under sec. 974.05. logic supporting finality concept a different appeals for state in criminal cases is that the state’s right to seek disappears review of an intermediate order jeopardy case, when attaches. if the had state appealed the defendant would have been tried on one driving alleged count of homicide when intoxicated his four deaths. have caused He could been convicted only count, appealed, on sentenced one if the state had not leaving unpunished. three homicides would state attempts prosecute further be barred from jeopardy. Thus, “con- order doctrine of double effectively homi- three of four solidation” dismissed nothing appeal I the new laws cide counts. find reviewing leaving of a court the state to discretion appeal can these as to whether an be maintained under circumstances. Barrett, 280 N.W.2d right

(1979), we held is no to seek that there state affirmatively granted unless review in a criminal matter legislative by legislative enactment enactment. The right crimi affirmatively granting review in a a state made Some of the orders nal case is sec. Stats. discretionary subject to appealable therein would also be 808.03(2), suppressing e.g., evi orders review orders, holding made majority these dence. Is 974.05, Stats., right are never appealable under sec. reviewing subject court to the discretion theless in appeal? not be should whether to hear the Statutes provi promote their terpreted conflict between so as to means exclusive I that sec. 974.05 is the would hold sions. I also appeal case. would in a criminal state for the mean question within the is final hold 974.05(1) (a). ing of sec. public de- state persuaded that former

I am not authority application new on the is an fender crimi- Traditionally, in a the defendant appeal statutes.1 public defender drafted the former state The rules appeal rights creating 809, not the statutes in ch. of this court rules 809.30(1) (h) (i), provides (rule) follows: & Sec. 808. ch. judgment of “(h) from the shall file The defendant and, necessary, from the order if and sentence conviction days postconviction relief within the motion for court on trial postconviction entry motion. of the order on nal appeal rights case has by been limited to afforded error, writ of which lies to review final orders judgments. 972.11, Stats., Sec. was not construed to defendants, right extend appeal to criminal to interlocutory Beals, orders as in civil in State v. cases ; Withers, (1971) Wis.2d 199 N.W.2d 221 State v. (1973) ; 211 N.W.2d 456 v. Mor or State deszewski, N.W.2d changed. interpreta not statute has Neither should its tion. appeals

The court of is authorized to issue a writ of by nothing appeal error I Stats. find in the indicate that criminal statutes to defendants are entitled greater rights any they appeal prior to than had to the thing creation 808. There is of ch. no such discre- tionary Therefore, I writ of error. would hold that the appeal permission provisions 808.03(2), Stats., of sec. contrary holding, applicable are not in criminal A cases. majority case, as the made will seems to have gates open attempted appeals the flood to criminal every pretrial ap- order. The court of defendants from enough considering peals has to do without flood of discretionary holding appeals in criminal cases. The majority criminal defendants entitled are by permission policy, appeals bad seek is bad makes for administration, judicial required by and is new appeal statutes. Subsequent governed by “(i) proceedings in the are

procedures appeals.” (Emphasis supplied.) for civil any nothing suggest rule this court that discre- There is appeals tionary cases. civil available criminal

Case Details

Case Name: State v. Rabe

Court Name: Wisconsin Supreme Court

Date Published: May 6, 1980

Citation: 291 N.W.2d 809

Docket Number: 79-1445-CR

Court Abbreviation: Wis.