State v. WarnerState v. Warner
On the application of the State of Louisiana, we grant certiorari in order to consider the validity of the trial сourt‘s judgment granting defendant‘s motion to quash.
We are called upon to decide whether the prosecution is prohibited under the double jeopardy clause from prosecuting the defendant for a violation of
We hold that the State is precluded from going forward with the subsequent prosecution for possession of cocaine.
BACKGROUND FACTS
On 4 October 1994, the defendant was arrested for possession of a .45 calibre pistol and possession of crack cocaine. On 2 November 1994, the State alleged in Bill of Information # 372-867 that the defendant on 4 October 1994 possessed a dangerous weapon, to wit: a handgun, while in possession of a controlled dangerous substance, to wit cocaine. (Emphasis supplied). On 8 November 1994, the defendant waived all his constitutional rights and plead guilty to that charge and was sentenced. Simultaneously with the filing of Bill of Information # 372-867 the State filed Bill of Information # 372-872, charging that the defendant on 4 October 1994 willfully and intentionally possessed a controlled dangerous substance, to wit: Cocaine (crack). This charge was transferred from Section “J” to Section “H” of Criminal District Court under the rules of court to follow case # 372-867. On 7 December 1994, a motion to quash Bill of Information #372-872 was filed alleging that the cocaine charge had been subsumed in the prosecution and plea in case # 372-867 and, therefore, ought to be prohibited under the double jeopardy clause. The trial court agreed and granted the motion to quash on the basis of double jeopardy. This writ of
THE LAW
Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial as to the charge in the second trial; or
(2) Based on part of a continuous offense for which offense the defendant was in jeopardy in the first trial.
Both the
APPLICABLE TESTS UNDER DOUBLE JEOPARDY1
a) The Blockburger Test
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) the U.S. Supreme Court established the distinct fact test:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each рrovision requires proof of an additional fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182.
This rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Knowles, 392 So.2d 651 (La.1980), writ granted, release ordered, 395 So.2d 678 (La.1981). The Blockburger test has nothing to do with the evidence presented at trial. It is concerned
b) The Same Evidence Test
Louisiana uses both the Blockburger test and the “same evidence test“. State v. Hayes, 412 So.2d 1323, 1325 (La.1982). When a defendant is charged with separate statutory crimes the crimes need not be identical in elements or in actuаl proof to be the same within the meaning of the constitutional prohibition. State v. Hayes, supra. Louisiana has followed a form of the “same evidence” rule, as stated in State v. Roberts, 152 La. 283, 286, 93 So. 95, 96 (La.1922) as follows:
(I)dentity of the offenses is an essential element in support of a plea of autre fois. By this is not meant formal, technical, absolute identity; the rule is that there must be only substantial identity, that the evidence necessary to support the second indictment would have been sufficient for the first.
The “same evidence test” is used in Louisiana. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (La.1972); State v. Didier, 263 So.2d 322, 326 (La.1972). If the evidence required to support a finding of guilt of one crime would also have supported conviction of another, the two are the same offense and support a plea of double jeopardy. The defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. The “same evidence test” is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of criminal conduct. The issue under the “same evidence test” is whether the evidence required to support a conviction of one crime would also have supported a conviction of the other crime. If so, then convictions violate double jeopardy. State v. Steele, 387 So.2d 1175, 1177 (La.1980); State v. Smith, 94-0621 (12/15/94 La.App. 4 Cir.), 647 So.2d 1321.
c) Collateral Estoppel
In the line of cases which claim “collateral estoppel” the succeeding prоsecution usually follows an acquittal or conviction on the first charge, and an allegation that the “ultimate fact to determined” was laid to rest in the first prosecution. In State v. Massey, 599 So.2d 889 (La.App. 4th Cir.1992), defendant was convicted of the crime of attempted possession of a firearm by a convicted felon. In a subsequent prosecution for possession of cocaine, he alleged that the “ultimate fact” of the possession of cocaine charge was the same one at issue in the possession of the firearm charge, i.e. the ultimate issue to be determinеd, according to Massey was, whether the cocaine and the firearm found in the trunk were in the defendant‘s possession. The argument of double jeopardy and collateral estoppel was found to be without merit because the evidence required to convict the defendant on each offense was different. Collateral estoppel did not apply. There was no single issue of ultimate fact which would resolve both charges. See in accord State v. Smith, 557 So.2d 403 (La.App. 4th Cir.1990). The doctrine of collateral estoppel does not bar prosecution for pеrjury, when the defendant was acquitted on a murder charge during which he allegedly lied. State v. Bolden, 93-1933 (7/5/94), 639 So.2d 721, certiorari denied ___ U.S. ___, 115 S.Ct. 724, 130 L.Ed.2d 629 (1995).
APPLICATION OF DOUBLE JEOPARDY TO WARNER‘S CASE
The defendant plead guilty under the following statute:
Section 95. Illegal carrying of weapons.
A. Illegal carrying of weapons is:
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E. If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of acontrolled dangerous substance the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less
than twenty years nor more than thirty years. (emphasis supplied).
The 1992 legislature, Act. # 1017, Sect. 1, added section (E) to
Turning to the statute under consideration, conviction for a violation of
The underlying felony enumerated in
(C) Possеssion. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in
R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.
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(2) Any person who violates this Subsection as to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenсed to pay a fine of not more than five thousand dollars.
When the gravamen of the second offense is essentially included within the offense for which the defendant was first tried, the second prosecution is barred because of former jeopardy. State v. Buckley, 344 So. 2d980 (La.1977). Under the Blockburger analysis, the elements of
CONCLUSION
While we were unable to obtain transcripts of legislative hearings establishing the intent of the legislature when
While
Accordingly, the trial court‘s grant of defendant‘s motion to quash is affirmed.
AFFIRMED.