State v. VassosState v. Vassos
- Reporters:
- , ,
- Before:
- Abrahamson
Lead Opinion
¶ 1. This is an appeal by the State from an order of the Circuit Court for Winnebago County, William E. Crane, Judge, dismissing on double jeopardy grounds the State‘s prosecution of the defendant, Prokopios Vassos, on a misdemeanor battery charge following his acquittal of felony battery. Both charges arose out of the same incident.
¶ 2. The court of appeals certified the following issue to this court: “When a defendant is acquitted of substantial felony battery, § 940.19(3), STATS., do double jeopardy protections bar a successive prosecution for misdemeanor battery, § 940.19(1)?” We hold that the prosecution for misdemeanor battery following the defendant‘s acquittal of felony battery is not barred by
HH
¶ 3. The facts are undisputed for purposes of this appeal. On April 22, 1996, the defendant was charged with felony battery in violation of
¶ 4. The circuit court denied both motions, stating that different elements exist between the two battery statutes and that misdemeanor battery is not a lesser included offense of felony battery.4 On August
¶ 5. On September 25, 1996, the State charged the defendant with misdemeanor battery (
I — I HH
¶ 6. We first determine whether the prosecution for misdemeanor battery following the defendant‘s acquittal of felony battery violates Wisconsin statutes. Statutory interpretation is a question of law, which this court determines independently of the circuit court, benefiting from its analysis. See State v. Szulczewski, 216 Wis. 2d 494, 498, 574 N.W.2d 660 (1998).
¶ 7. Two statutory provisions are at issue in this case. The first statute is
939.71 Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.
¶ 8. Wisconsin Stat.
¶ 9. The parties agree, and we conclude, that
¶ 10. Under a comparison-of-the-statutory-elements approach,
¶ 11. The second statute at issue in this case is
939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
(2m) A crime which is a less serious or equally serious type of battery than the one charged.
¶ 12. Subsection (1) of
¶ 13. Subsection (2m) of
¶ 14. The question then is whether
¶ 16. We next explore whether
¶ 17. The legislative history reveals that
¶ 18. We find nothing in the text of
I — I HH
¶ 19. Having concluded that the prosecution for misdemeanor battery in this case is not barred by the Wisconsin statutes, we next consider whether the subsequent prosecution violates the double jeopardy clauses of the federal and Wisconsin Constitutions. The double jeopardy prohibitions in the federal and Wisconsin Constitutions state that a person shall not be placed twice in jeopardy for the same offense.12
¶ 20. Whether prosecution for misdemeanor battery after an acquittal of felony battery violates constitutional protections against double jeopardy is a question of law, which this court reviews independently of the circuit court, benefiting from its analysis. See State v. Thierfelder, 174 Wis. 2d 213, 218, 495 N.W.2d 669 (1993).
¶ 21. The federal and Wisconsin double jeopardy clauses have been construed to encompass three separate constitutional protections: (1) protection against a subsequent prosecution for the same offense after acquittal; (2) protection against a subsequent prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. See United States v. Dixon, 509 U.S. 688, 696
¶ 22. In Kurzawa the court applied the Block-burger same-elements test to a successive prosecution after an acquittal and allowed the subsequent prosecution for the issuance of the same checks involved in the first prosecution. The first prosecution for theft by fraud ended in acquittal; the second prosecution was for uttering a forged writing. The court concluded that because the two offenses did not constitute the “same offense” under the Blockburger same-elements test, the subsequent prosecution did not violate the double jeopardy prohibition.
¶ 23. As we concluded above,
¶ 25. The collateral estoppel test “is not to be applied with [a] hypertechnical and archaic approach. . .but with realism and rationality. . . . The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ “Ashe, 397 U.S. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).14
¶ 27. In this case the State contends that the subsequent prosecution for misdemeanor battery following the defendant‘s acquittal of felony battery is not barred by the Ashe collateral estoppel test. According to the State, no factual issues were litigated in the first trial that would be litigated in the subsequent prosecution.
¶ 28. The record before this court does not contain the record of the first trial. Because the circuit court in this case did not determine whether the prosecution for misdemeanor battery is barred under the Ashe collateral estoppel test, we reversé the circuit
¶ 29. In sum, we hold that the prosecution for misdemeanor battery following the defendant‘s acquittal of felony battery is not barred by
By the Court. — The order of the circuit court is reversed and the cause is remanded.
Notes
All further references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.
The parties agree that the circuit court erred in refusing their requests. They argue that in the first trial, the jury should have been instructed on both the felony battery and misde meanor battery charges. The State notes that “[t]he record is silent as to whether the trial court was aware of sec. 939.66(2m) when it made its ruling. However, it should be noted that the situation which occurred herein is not likely to arise frequently since proper instructions on offenses made lesser-includeds by statute would normally preclude such problems.” Brief for State at 14 n.4.
[[Image here]]
Since its original enactment in 1955,
See 1985 Wis. Act. 144, § 1. The phrase “or equally serious” was added by 1993 Wis. Act 441, § 2.
Wisconsin Stat. § 939.66(2m) was enacted in response to State v. Richards, 123 Wis. 2d 1, 11-12, 365 N.W.2d 7 (1985), which related to charging multiple battery offenses in a single prosecution.
The Richards court applied the comparison-of-the-statutory-elements test set forth in
In rendering its decision, the Richards court explained that the legislature could rectify the problem that an accused could be convicted of multiple battery offenses at the same trial by either declaring the batteries included offenses or revising the statutory elements to make the batteries included offenses. See Richards, 123 Wis. 2d at 12-13.
• The legislature adopted the first option proposed by the Richards court by creating
The legislative history also states that
Wisconsin Stat.
Wisconsin Legislative Council, V Judiciary Committee Report on the Criminal Code (Feb. 1953), at 55. For a discussion of the legislative history of this section, see Gordon, 111 Wis. 2d at 140-41.
The Fifth Amendment to the federal Constitution provides that no person “shall be subject for the same offence to he put twice in jeopardy of life or limb.” Article I, § 8 of the Wisconsin constitution provides that “no person for the same offense may be twice put in jeopardy of punishment.”
The collateral estoppel test set forth in Ashe v. Swenson, 397 U.S. 436 (1970), has been recognized and applied in Wisconsin. See, e.g., State v. Kramsvogel, 124 Wis. 2d 101, 121-23, 369 N.W.2d 145 (1985); State ex rel. Flowers v. Department of Health and Social Services, 81 Wis. 2d 376, 387-89, 260 N.W.2d 727 (1978); Hebel v. State, 60 Wis. 2d 325, 328-29, 210 N.W.2d 695 (1973); State v. Elbaum, 54 Wis. 2d 213, 219-20, 194 N.W.2d 660 (1972); State v. Jacobs, 186 Wis. 2d 219, 226, 519 N.W.2d 746 (Ct. App. 1994).
The Ninth Circuit Court of Appeals employs a three-step test to determine whether collateral estoppel applies:
(1) An identification of the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was “litigated” in the first case; and (3) an exami nation of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.
United States v. McLaurin, 57 F.3d 823, 826 (9th Cir. 1995).
The Fifth Circuit Court of Appeals has held that collateral estoppel may affect successive prosecutions in one of two ways. First, it will completely bar a successive prosecution if one of the facts necessarily determined in the former trial is an essential element of the subsequent prosecution. Second, while the subsequent prosecution may proceed, collateral estoppel will bar the introduction or argumentation of facts necessarily decided in the prior proceeding. See United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997).
Concurrence Opinion
¶ 30. (concurring). I write separately because although the majority opinion properly interprets the statutes and correctly applies existing double jeopardy jurisprudence, it results in the hollow protection of a fundamental constitutional right. The right to be free from double jeopardy deserves greater protection than that afforded by the inadequate test of Blockburger v. United States, 284 U.S. 299 (1932), and the incomplete response set forth in our state statutes.
¶ 31. The Double Jeopardy Clause of the Fifth Amendment declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
¶ 32. The majority is correct to point to the Block-burger “same elements” test, and its legislative incarnation at
¶ 33. However, allowing the defendant in this case to be tried for a second time based on a criminal charge which would otherwise have been precluded had the circuit court not erroneously excluded a jury instruction on the less serious offense at the first trial, seems to implicitly violate the principle of double jeopardy. The federal and state constitutional bans on
prevent[ ] the government from ‘makfing] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.’ The Clause addresses a further concern as well, that the government not be given the opportunity to rehearse its prosecution, ‘honing its trial strategies and perfecting its evidence through successive attempts at conviction‘....
United States v. Dixon, 509 U.S. 688, 747 (1993)(Souter, J. concurring in part and dissenting in part)(internal citations omitted).
¶ 34. I fail to see how the State is not gaining an advantage from what it learned in the first prosecution of the defendant. The very facts giving rise to the first battery charge on which the defendant was acquitted also give rise to the battery charge in the second prosecution. True, the legislature has chosen to include an element in each of the offenses not present in the other. But in this day and age of burgeoning criminal statutes, continued exclusive reliance on the “same elements” test seems to leave the double jeopardy clause as applied to successive prosecutions with little vitality.
¶ 35. I am not alone in my concern with the “same elements” test. While Blockburger currently enjoys the approval of the United States Supreme Court, it does so by a one vote majority — a majority which has disappeared in the past. See Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993). Indeed, the constitu
¶ 36. More importantly, both this court and the legislature have acknowledged the imperfections in the “same elements” test. In Kurzawa this court conceded that “Blockburger is not a perfect test,” but did not discover an alternative test more to the court‘s liking. See Kurzawa, 180 Wis. 2d at 525. The legislature in turn has also partially abandoned the “same elements” test for purposes of cases involving multiple punishments for the same offense. Under
¶ 37. Yet, while the legislative action better protects defendants from multiple punishments for the same offense under the Double Jeopardy Clause, the legislative action is incomplete. It fails to give defendants any additional protections from multiple prosecutions.
¶ 38. As I have indicated, the majority‘s decision today comports with current interpretations of the federal and state double jeopardy protections. The Blockburger “same elements” test is the sole test for the federal and state double jeopardy analysis. The test is simple and easily applied. Yet, it is inadequate. The simple formula seems to evade constitutional protections. Moreover, even though the legislature has acknowledged the problems with the “same elements” test in the statutory framework for multiple punishment cases, its response is incomplete. The legislature has yet to act in relation to multiple prosecutions. Such inaction seems directly contrary to the purposes of the multiple prosecution component of the Double Jeopardy Clause.
¶ 39. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, DONALD W. STEINMETZ, J., and JANINE P. GESKE, J. join this opinion.
Article I, § 8(1) of the Wisconsin constitution provides that “no person for the same offense may be put twice in jeopardy of punishment. . . .” The state and federal constitutional provisions, while similar, are not identical.