State v. Vassos

Wisconsin, Plaintiff-Appellant, State Vassos, Defendant-Respondent. G. Prokopios

Supreme Court 5, 1998. argument March 97-0938-CR. Oral No. —Decided 27, 1998. May (On appeals.) from the court of certification

(Also 35.) reported in 579 N.W.2d argued plaintiff-appellant For the the cause was Magee, attorney general, Pamela assistant with (in Court) Supreme on the James whom brief was Doyle, attorney general. E. (in defendant-respondent there was a brief

For the argument by Appeals) the Court of and oral Edmund C. Cams, Oshkosh.

¶ ABRAHAMSON, SHIRLEY S. CHIEF JUS- 1. appeal by TICE. This is an the State from an order of Winnebago County, the Circuit Court for William E. Judge, dismissing jeopardy grounds Crane, on double Prokopios defendant, the State's battery charge following Vassos, on a misdemeanor his felony battery. charges acquittal of Both arose out of the same incident. appeals following

¶ court of certified issue a defendant is to this court: "When of 940.19(3), felony battery, § STATS., substantial do jeopardy protections prosecu- a successive double bar 940.19(1)?" battery, § tion for misdemeanor hold We battery following that the acquittal felony battery the defendant's is not barred 939.66(2m)(l995-96).1 by §§ Wis. Stat. 939.71 and We 1All further references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated. prosecution for misdemeanor bat- that the

further hold felony following tery the defendant's by battery the constitutional same-ele- is not barred States, United forth in ments test set (1932). Finally, we reverse the circuit 299, 304 284 U.S. court to remand the cause to the circuit court order and prosecution for misdemeanor determine whether battery under the constitutional collateral is barred estoppel Swenson, 397 in Ashe v. doctrine established 436, 444 U.S.

HH undisputed purposes of this 3. The facts are charged appeal. April 22, 1996, the defendant was On in violation of Wis. with 940.19(3).2 requested court the circuit The defendant Haase) (Judge include an instruction on A. Robert 940.19(1), battery, for the misdemeanor jury's The State concurred with consideration.3 request. defendant's motions, stat- court denied both 4. The circuit

ing exist between two that different elements battery not a is statutes and that misdemeanor August felony battery.4 On offense of lesser included 940.19(3) provides, causes "Whoever substan Wis. Stat. § done with intent to cause bodily harm to another an act tial guilty person or another is bodily harm to that substantial felony." D Class §940.19(1) bodily causes provides, "Whoever

3Wis. Stat. bodily harm intent to cause by an act done with harm to another person so the consent of the person or another without to that A guilty of a Class misdemeanor." harmed is refusing erred in agree that the circuit court parties The trial, jury should They argue that in the first requests. their battery and misde- felony instructed on both have been following jury trial, 13, 1996, the defendant was felony battery. September charged 25, 1996, the State 5. On (Wis. the defendant with misdemeanor 940.19(1)), upon on the same incident based which felony battery prosecution premised. had been guilty plea a not to dis- defendant entered moved battery charge miss the misdemeanor on double jeopardy grounds. (Judge The circuit court William E. Crane) granted the defendant's motion and dismissed battery charge. appealed the misdemeanor The State from the circuit court order of dismissal.

I—IHH ¶ 6. We first determine whether the battery following the defendant's acquittal of violates Wisconsin statutes. Statutory interpretation question law, is a which independently determines this court circuit benefiting analysis. court, its from See State v. Szulczewski, 494, 498, 2d 216 Wis. 574 N.W.2d 660 statutory provisions

¶ 7. are at in this Two issue § 939.71, case. The first statute is Wis. Stat. which prohibits a successive for a crime after a on the conviction merits unless each stat- setting "requires proof ute forth the substantive crime battery charges. The "[t]he meanor State notes that record is 939.66(2m) silent as to the trial court was aware of sec. whether However, ruling. when it made its it should be noted that the likely frequently situation herein is not which occurred to arise proper since instructions on offenses made lesser-includeds normally preclude problems." statute would such Brief for State at 14 n.4. does which the other not

of a fact for conviction require." The statute reads as follows: convic- Limitation on the number of

939.71 a crime If an forms the basis for act tions. statutory provi- punishable under than one more statutory provisionof a of this state or under state and the laws of sion jurisdiction, a another this pro- the merits under one or on conviction subsequent prosecution under the vision bars requires proof provision provision unless each other not the other does a fact for convictionwhich require. substantially 939.71 8. Wisconsin Stat. determining Blockburger whether test

enacts jeop- are offense" for double offenses the "same two Blockburger ardy purposes. test as states follows: "[WJhere a vio- or transaction constitutes the same act statutory provisions, to the test distinct lation of two applied there are offenses determine two whether proof provision requires only of a each one, is whether Blockburger, 284 U.S. at other not." fact does which parties agree, conclude, and we 9. The 940.19(1) 940.19(3) §§ not contain the do statutory as defined same elements 940.19(3) requires proof test.5 Section of substantial bodily bodily harm and intent to cause substantial 940.19(1). required § harm, elements two not under In 940.19(1) requires proof § addition, that the accused person did not have the consent of the harmed and that person the accused knew the consent, harmed did not 940.19(3). required § two elements not under comparison-of-the-statutory-ele- ¶ 10. Under a 940.19(3) 940.19(1) approach, §§ ments Wis. Stat. and do not constitute the "same offense" under the Block- burger Therefore, test. we conclude that the State's battery following of misdemeanor defendant's of is not barred statutorily adopted § Block- 939.71, the burger test.6 The issue in this case is second statute at provides "[u]pon prose- § 939.66, which Stat.

Wis. may either crime, a the actor convicted of cution for be charged crime, an but not both." the crime included statutory definitions statute lists different (1) (2m) 939.66 crimes. Subsections included case. 939.66 are relevant in this Wisconsin pertinent part as reads in follows: crime permit- Conviction of included 939.66 crime, may be Upon prosecution actor ted. charged or an of either the crime included convicted crime, may any An crime but not both. included following: (1) proof any require A crime which does not of proved must be for in addition to those which fact charged. the crime

(2m) crime equally A is a less serious or which charged. type battery than the one serious of (1) § like 939.66, of Stat. 12. Subsection Wis. § 939.71, codifies the same-ele- Wis. 494, Sauceda, 486, 168 Wis. 2d test. See State v. ments felony previously, 1 As N.W.2d we stated 485 battery satisfy battery the do not and misdemeanor Blockburger test. (2m) § 939.66 of Wis. Stat. 13. Subsection may "[a] crime included that an crime

declares battery equally type of a less serious is serious which 1955, 939.71 its enactment in original § Since renumbering. except revised has not been charged."7 par- than the conclude, one We as did the 939.66(2m), § ties, that under Wis. Stat. misdemeanor battery felony battery. is an included crime of question

¶ 14. The then is whether Wis. Stat. 939.66(2m) applies § to a

battery acquittal felony battery. after an of Section acquittals. only 939.66 does not refer to It refers to a prohibition multiple convictions of a crime and an crime, included and does not refer to the situation where an accused has been of an included 939.66(2m) legislative history supports § crime. The interpretation multiple that the subsection bars multiple punishments, convictions, that is for included battery apply crimes and does not to a fol- lowing an of a crime.8 See 144, phrase 1985 Wis. Act. 1. The equally § "or seri ous" added was 1993 Wis. Act 2.§ 939.66(2m) Wisconsin Stat. was in response enacted Richards, State v. 1, 11-12, (1985), 123 Wis. 2d 365 N.W.2d 7 charging which related to multiple battery single offenses prosecution.

The Richards court applied comparison-of-the-statu- 939.66(1) tory-elements test set forth in Wis. Stat. to hold that simple battery battery, requiring proof intermediate both nonconsent, the victim's are not lesser included offenses of aggravated battery, require which does proof not of nonconsent. Richards, See 123 Wis. 2d at 6. rendering decision,

In Richards court its explained legislature rectify problem could that an accused could be multiple battery convicted of by offenses at the same trial declaring either the batteries included revising offenses or the statutory elements make included offenses. See to the batteries Richards, 123 Wis. 2d at 12-13. (cid:127) legislature The adopted option by the first proposed the Richards court by creating 939.66(2m), Stat. declaring Wis. § certain batteries to be included offenses.

338 § traced Stat. 939.66 can be to 15. Wisconsin comprehensive the in of criminal code ch. the revision (the pre- §to 1955. The comment 339.66 Laws of 939.66) Report Judiciary § in of the Committee cursor "[t]his permits on Criminal Code states section the charged of a crime included within the crime conviction The are included crimes. rea- and states what crimes this section is the state's son the rule of behind exactly determining difficulty in a trial what before degree upon crime it will able crime or be beyond prosecu- prove A reasonable trial to a doubt."9 multiple acquittal not tion after an does result multiple punishments.10 The text of convictions or application § therefore makes the of the statute 939.66 problematic. to this case explore whether Wis. Stat. 16. We next incorporates

§ same-elements 939.71 prosecution governing test a after an test as the sole acquittal, included crime or whether the definition of 939.66(2m) § read into set § in Wis. Stat. can be forth a after an to bar an 939.71 9 legislative history also states that Wis. Stat. 339.66 (1949). See Wisconsin 357.09 substantially restates Wis. Stat. § Council, Judiciary Report on the Legislative V Committee (Feb. 1953), provided that Code at 53. Section 357.09 Criminal part "[w]hen a defendant is tried for a crime and is thereof, charged of the residue of the crime and is convicted adjudged thereupon be may received and he shall verdict be substantially to appears crime which to court guilty of the residue of the indictment or information charged such legisla accordingly." For a discussion shall be sentenced Gordon, 939.66(1), see State v. history tive of Wis. Stat. § 133, 141, 330 Wis. 2d N.W.2d applies not it 939.66 does state whether Wisconsin an after a conviction of included successive address issue. need not and do not this offense. We 939.66(2m) grafted § § included If crime. 939.66 can be onto the definition of "same offense" contained in § 939.71, then the in this case for a misde- battery acquittal felony meanor after an of a misdemeanor would be barred. legislative history

¶ 17. The reveals that Wis. 939.66(1), § § 939.71, Stat. like Wis. Stat. was created part comprehensive as of the revision of the criminal Judiciary code 1955. Ch. Laws of 1955. The Report Committee on the Criminal Code comments on precursor § § 339.71, Wis. 939.71, to as fol- designed prevent harassing lows: "This section is subsequent prosecutions defendant with for the same acquittal crime whether the former conviction or country, occurred in state, this in another state or military under federal or law." The comment further provides prohibition against subsequent pros- that "the applies only prosecutions ecutions if both are based upon the same conduct and are for the same In crime. determining whether two crimes are the same, the test require proof is: Does each of a fact for conviction which require?"11 the other does not nothing ¶ 18. We find in the text of Wis. Stat. legislative § § history 939.66 or 939.71 or the of the two permits 939.66(2m), defining § statutes that included battery grafted crimes, § to be onto 939.71 so that an 939.66(2m) battery § included crime defined in is to be Accordingly read as the "same offense" in 939.71. we conclude that Legislative Council, Wisconsin Judiciary V Committee (Feb.

Report 1953), on the Criminal Code at 55. For a discussion legislative history section, Gordon, of this see 111 Wis. 2d at 140-41. is not the defendant's

after 939.66(2m). §or either 939.71 barred HH I—I prosecution Having ¶ for 19. concluded that by battery in not this case is barred misdemeanor next the sub- statutes, we consider whether Wisconsin jeopardy sequent prosecution violates the double The clauses of the federal and Wisconsin Constitutions. jeopardy prohibitions federal double in the and Wiscon- person not be sin Constitutions state that a shall placed jeopardy for twice in the same offense.12 prosecution

¶ 20. for misdemeanor bat- Whether tery acquittal after an of violates against jeopardy protections a double is constitutional question indepen- law, court which this reviews analysis. dently benefiting from court, its circuit 218, 2d 495 213, v. 174 Wis. Thierfelder, See State (1993). 669 N.W.2d jeopardy

¶ 21. and double The federal Wisconsin encompass sepa- have been construed to three clauses (1) against protections: protection a rate constitutional subsequent prosecution offense after for the same (2) against subsequent protection prosecu- acquittal; a (3) conviction; and tion for same offense after against multiple protection punishments for the same Dixon, 696 See States U.S. offense. United pro Amendment Fifth to the federal Constitution to he person subject for the same offence that no "shall be vides I, 8 jeopardy life or Article of the Wiscon in limb." put twice for offense person the same provides sin constitution "no punishment." may put jeopardy twice (1993); State v. Kurzawa, 502, 515, 180 Wis. 2d N.W.2d 712 applied In Kurzawa the court the Block-

burger prosecution same-elements test to a successive subsequent prosecu- after an and allowed the tion for the issuance of the same checks involved in the prosecution. first The first for theft acquittal; fraud ended in the second was uttering forged writing. The court concluded that because the two offenses did not constitute the "same offense" under the subsequent prosecution test, same-elements jeop-

did not violate the double ardy prohibition. above, 23. As we concluded 940.19(3) 940.19(1)

§§ do not constitute the "same Blockburger offense" under the same-elements test. prosecution after an acquittal therefore does not violate jeopardy double Nevertheless, test. an acquittal prosecution may subsequent in the first bar estoppel under the collateral doctrine. The estoppel given collateral doctrine was constitutional Ashe, status in 445, 397 U.S. at in which the United Supreme estoppel States Court held that the collateral guaran- doctrine is embodied in the Fifth Amendment against jeopardy. tee protects double The Fifth Amendment

an accused "who has been from hav- ing gantlet' to 'run the a second Ashe, time." 397 U.S. at (quoting 446 States, Green v. United 335 U.S. 190 (1957)).13

13The collateral Swenson, test set forth in Ashe v. estoppel (1970), recognized 397 U.S. 436 applied has been and in Wiscon See, e.g., Kramsvogel, State v. sin. 101, 121-23, 124 Wis. 2d 369 Department State ex rel. Flowers v. (1985); Health N.W.2d 145 Services, and Social 376, 387-89, 81 Wis. 2d 260 727 N.W.2d estoppel doctrine an collateral Under the and determined a valid fact that is of ultimate issue litigated again judgment full cannot between subsequent parties Ashe, 397 lawsuit. See in a same previous judgment a there has been at 443. When U.S. upon general verdict, the trial based subsequent must" 'examine in a court taking prior proceeding, into account of a record pleadings, charge, and other relevant evidence, jury a rational could whether matter, and conclude upon grounded than an issue other its verdict have con- to foreclose from the defendant seeks that which " is on at 444. The burden Ashe, 397 U.S. sideration.' that the issue about which demonstrate the accused to actually relitigation was to foreclose he or she seeks Dowling proceeding. v. United See first decided in the 342, 350 States, 493 U.S. estoppel to be test "is not collateral 25. The hypertechnical [a]

applied archaic with rationality. . . The approach. . realism and . .but with practical inquiry frame and viewed set in a 'must be proceed eye circumstances to all the an with (quoting Sealfon United ings.' U.S. at 444 "Ashe, 397 (1948)).14 575, 579 States, 332 U.S. 325, 328-29, 210 N.W.2d State, 2d

(1978); 60 Wis. Hebel v. 213, 219-20, Elbaum, 194 N.W.2d 2d (1973); 54 Wis. State v. 219, 226, N.W.2d Jacobs, 2d (1972); 186 Wis. State v. 1994). (Ct. App. 746 14 three-step employs a Appeals of Circuit Court The Ninth estoppel applies: collateral test to determine whether pur- (1) for the the two actions of the issues in An identification sufficiently and determining are similar the issues pose whether invoking justify the doc- sufficiently actions to material in both (2) prior case to decide trine; the record of an examination (3) case; "litigated" an exami- in the first the issue was whether estoppel ¶ 26. The Ashe collateral defense is not accused, often to an it available is difficult to deter especially general acquittal, mine, in a verdict of how any particular the fact finder in the first trial decided Wayne issue. Israel, See R. LaFave & Jerold H. Crim (1984); Procedure, 17.4, inal at 382 United States v. (5th 1997). trying Brackett, 1396, 1399 113 F.3d Cir. In particular to determine whether factual matter has adversely prosecution, been determined to the trial legal theory underlying courts must consider Israel, first trial. See LaFave & 17.4 at 383. ¶ 27. In this case the State contends that the sub- sequent prosecution battery following felony battery the defendant's by is not barred estoppel According the Ashe collateral test. to the litigated State, no factual issues were in the first trial litigated subsequent prosecution. that would be in the ¶ 28. The record before this court does not con- tain the record of the first trial. Because the circuit prose- court in this case did not determine whether the cution for misdemeanor is barred under the estoppel test, Ashe collateral we reversé the circuit prior proceeding nation of the record of the to ascertain whether necessarily the issue was decided in the first case. (9th 1995). McLaurin, United States v. 57 F.3d Cir. Appeals The Fifth Circuit Court of has held that collateral estoppel may prosecutions ways. affect successive in one of two First, it completely will bar a successive if one of the necessarily facts determined the former trial is an essential Second, element subsequent prosecution. while the subse quent prosecution may proceed, estoppel collateral will bar the argumentation introduction necessarily of facts decided in prior proceeding. Brackett, See United States v. 113 F.3d (5th 1997). 1396, 1398 Cir. to the circuit court to and remand the cause

court order make this determination. prosecution

¶ for sum, In hold that the we following acquit- battery the defendant's misdemeanor by felony battery is not barred Wis. tal of 939.66(2m). §§ further hold that the We 939.71 following battery prosecution the for misdemeanor by is not barred defendant's Finally, Blockburger we test. the same-elements remand the cause to circuit court order and reverse the prosecution circuit court to determine whether the Ashe col- is barred under estoppel test. lateral

By court is order of the circuit the Court.—The and the cause is remanded. reversed (concurring). BRADLEY, J. 30. ANN WALSH majority opin- although separately I because write correctly interprets properly statutes and ion jurisprudence, existing jeopardy applies it double protection con- of a fundamental in the hollow results right right. double to be free from stitutional greater protection jeopardy than deserves inadequate test of afforded (1932), incomplete and the States, 284 U.S. 299 United response statutes. set forth in our state Jeopardy Fifth Clause of the 31. The Double subject person Amendment shall "be declares that no jeopardy put in of life or twice the same offence to be Const, "protects V.1 This clause U.S. amend. limb." 8(1) provides that I, constitution Article of the Wisconsin may jeopardy put twice person for the same offense "no provi and federal constitutional punishment. . . ." The state similar, sions, are not identical. while against a second for the same offense after acquittal, against a second for the same against multiple punish- conviction, offense after and ments for the same offense." Justices Boston Lydon, Municipal 294, v. Court 466 U.S. 306-307 (1989). (1984); Thomas, v. Jones 491 U.S. 380-381 presently The case before the court concerns the first of protection these, from second for the acquittal. after an "same offense" majority point ¶ 32. The is correct to to the Block- burger legislative test, "same elements" and its purposes § 939.71, at incarnation applying federal constitutional and Wisconsin statu- tory jeopardy protections double to successive "Generally, cases such as the at one hand. prohibition this court's construction of Wisconsin's against jeopardy guided by rulings double is Supreme Kurzawa, United States Court." State v. 502, 522, Wis. 2d N.W.2d "same prosecutions elements" test indicates that successive may statutory jeop- avoid all constitutional and double ardy prohibitions long charged so as the offenses at prosecutions serial do not have the same elements. See Blockburger, majority at 284 U.S. 304. As the demon- prosecuted strates, case, crimes in this while extremely arising similar and from the same alterca- tion, do not have the same elements. allowing However, the defendant in this

case to be tried for a second time based on a criminal charge precluded which would otherwise have been erroneously jury had circuit court not excluded a instruction on the less at the trial, serious offense first implicitly principle jeop- seems to violate the of double ardy. The federal and state constitutional bans on prosecutions subsequent for the after an "same offense:" 'makfing] repeated from government

prevent[ ] alleged individual for an to convict an attempts embarrassment, him to offense, thereby subjecting him to live in a compelling and expense and ordeal insecurity.' The anxiety and continuing state well, that the further concern as Clause addresses a opportunity given not be government strategies its trial 'honing prosecution, rehearse its through successive its evidence perfecting and at attempts conviction'.... (1993)(Sou 688, 747 Dixon, 509 U.S.

United States dissenting concurring part in ter, J. omitted). part)(internal citations gaining is not an I fail to see how the State 34. advantage in the first from what it learned very giving rise to the first The facts of the defendant. battery charge defendant was on which the battery charge prose- give in the second rise to the also legislature to include an True, has chosen cution. the present in the other. in each of the offenses not element day age burgeoning criminal stat- But in this the "same reliance on utes, continued exclusive jeopardy leave the double test seems to elements" prosecutions applied with little to successive clause as vitality. my the in concern with I am not alone currently Blockburger test. While elements"

"same Supreme enjoys approval of the United States the majority majority vote Court, it does so one —a Grady past. disappeared See v. in the has which (1990), by United States overruled Corbin, 495 U.S. 508 (1993). Indeed, constitu- Dixon, U.S. 688 v. 509 protection provided tional under analysis proven has so tenuous that at least one state supreme rejected purposes interpret- court has it for ing its own identical state constitutional double jeopardy provisions. Lessary, See State v. 865 P.2d 150, (Haw. 1994) ("When Supreme the United States interpretation provision present Court's of a in both the United States and Hawai'i Constitutions does not ade- quately preserve rights sought and interests to be protected, recognize appro- we will not hesitate to priate protections as a matter of state constitutional law.") importantly,

¶ 36. More both this court and the legislature acknowledged imperfections have in the "same elements" test. In Kurzawa this court conceded "Blockburger perfect is not a test," but did not liking. discover an alternative test more to the court's legislature Kurzawa, See 180 Wis. 2d at 525. The partially turn has also abandoned the "same elements" purposes involving multiple punish test for of cases ments for the same offense. Under Wis. Stat. 939.66(2m) a defendant cannot be convicted of both a equal battery, regardless and an or lesser particular existing charged. element for the count See 939.66(2m). legislature took such response potential action in direct to a "same elements" problem arising in State Richards, 1, 365 Wis. 2d N.W.2d legislative

¶ pro- Yet, 37. while the action better multiple punishments tects defendants from for the Jeopardy same offense under the Double Clause, the legislative incomplete. give action is It fails to defend- any protections ants multiple additional from 939.66(2m) prosecutions. currently indi- purposes cates that the term "same offense" for battery punishments multiple the is to be for same equally serious" bat- to include all "less serious read offered those However, similar treatment is not teries. yet facing battery count, a of one defendants subsequent prosecution on another "less serious or charge arising battery equally from the same serious" repeatedly to Instead, the State is allowed occurrence. prosecute offense the defendant for an included of included State either exhausts the list until the 939.66(2m), subject to or obtains offenses Wis. conviction, occurs first. whichever majority's indicated, I decision 38. As have today comports interpretations of the fed- with current jeopardy protections. The and state double eral elements" test is the sole test for "same analysis. jeopardy The test is federal and state double inadequate. simple easily applied. Yet, it The is protec- simple to evade constitutional formula seems legislature though has Moreover, tions. even acknowledged problems elements" with the "same statutory multiple punish- test in the framework incomplete. legislature response cases, ment its is prosecutions. yet multiple Such has to act in relation to directly contrary purposes inaction seems Jeop- multiple prosecution component of the Double ardy Clause. S. to state that SHIRLEY I am authorized JUSTICE, DONALD W.

ABRAHAMSON, CHIEF join GESKE, P. J. this STEINMETZ, J., and JANINE opinion.

Case Details

Case Name: State v. Vassos

Court Name: Wisconsin Supreme Court

Date Published: May 27, 1998

Citation: 579 N.W.2d 35

Docket Number: 97-0938-CR

Court Abbreviation: Wis.