Berkowitz, Application of

• Decision Date: 26 October 1979
• Docket Number: No. 50753,50753
• Citation: 3 Kan.App.2d 726,602 P.2d 99
• Parties: In the Matter of the Application of Robert M. BERKOWITZ for a Writ of Habeas Corpus.
• Court: Kansas Court of Appeals

Page 99

602 P.2d 99

3 Kan.App.2d 726

In the Matter of the Application of Robert M. BERKOWITZ for

a Writ of Habeas Corpus.

No. 50753.

Court of Appeals of Kansas.

Oct. 26, 1979.

Syllabus by the Court

1. Constitutional and statutory double jeopardy provisions protect an individual against both double punishments and being put to trial twice for the same offense.

2. Habeas corpus is an appropriate vehicle for challenging a trial court's pretrial denial of a claim of double jeopardy.

3. A motion to dismiss based on double jeopardy is timely if made prior to arraignment or within twenty days thereafter. There is no waiver of the defense unless the defendant pleads guilty or consents to go to trial without raising it.

4. A conviction of an included offense is an acquittal of the offense charged. If the conviction is later invalidated for any reason, the defendant cannot be retried for any higher degree of the crime for which the defendant was originally convicted.

5. The federal constitutional rule of double jeopardy has two aspects. Under the "same evidence" test two crimes are distinct if each requires proof of a fact which the other does not. Under the "collateral estoppel" rule an issue necessarily determined in the defendant's favor in one prosecution may not be relitigated in a later one.

6. In Kansas the legislature long ago added to the constitutional doctrine of double jeopardy the statutory "compulsory joinder" provisions now found in K.S.A.1978 Supp. 21-3108(2)(A ).

7. Under the Kansas compulsory joinder statute a prosecution is barred if the defendant was formerly prosecuted for a different crime if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely.

8. Under the Kansas compulsory joinder statute if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.

9. However, where the same evidence is common to two or more distinct offenses but standing alone does not substantially prove them, its use in one prosecution will not bar a subsequent prosecution for a different offense and its use therein.

10. Aggravated battery and abuse of a child are separate crimes which may be separately charged in the same information, even though they may arise out of the same episode or transaction.

11. When a conviction is set aside any new trial is limited to the crime originally charged or, if conviction was on a lesser included offense, the included crime for which the defendant was convicted. Other crimes proven in the first trial, and which could have been but were not charged or relied upon, may not be added as new charges in the new trial.

12. Petitioner was charged with aggravated battery and convicted of criminal injury to persons. On confession of error the conviction was vacated, based on the unconstitutionality of the criminal injury to persons statute. He was later charged with abuse of a child, based on the same acts which had been proven in the former prosecution. In an original habeas corpus proceeding it is Held : trial on the present charges is barred by K.S.A.1978 Supp. 21-3108(2) (A ), petitioner's present custody is "wrongful," and he is ordered discharged from that custody.

A. Jack Focht, of Smith, Shay, Farmer & Wetta, Wichita, for petitioner.

William Rex Lorson, County Atty., and Robert T. Stephan, Atty. Gen., for respondent.

Before FOTH, C. J., and ABBOTT and REES, JJ.

FOTH, Chief Judge:

This is an original proceeding in habeas corpus. Petitioner Robert M. Berkowitz stands charged in the district court of Saline County with two counts of abuse of a child. He contends that his present custody by the respondent sheriff is unlawful because trial on the pending charges would subject him to double jeopardy. ¹ The case presents a profound conflict between two important interests of our society: on the one hand that malefactors not escape their just deserts; and on the other that its individual members not have to "run the gantlet" of trial and potential punishment more than once for the same offense.

Petitioner was originally charged in November, 1975, with the aggravated battery of Golda Smolin. Golda was the ten-month-old daughter of Margaret Smolin, with whom petitioner was living at that time. Margaret Smolin was also charged with aggravated battery. She was separately tried, and convicted as an aider and abettor of a principal who was presumably the petitioner Berkowitz.

Her conviction was affirmed in State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976). The opinion in that case contains a description of the factual basis for the charges against both Margaret and Berkowitz. For our purposes it is enough to note that there was alleged a pattern of severe mistreatment of the infant Golda over a period extending from at least July 17 through July 26, 1975.

As stated, petitioner was separately tried for aggravated battery as defined in K.S.A. 21-3414. Over his objection the jury was instructed on criminal injury to persons under K.S.A. 21-3431 as a lesser included offense. The jury convicted him of the lesser offense, and he appealed to the Supreme Court.

While that appeal was pending the Supreme Court decided State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), holding the criminal injury to persons statute (21-3431) to be unconstitutionally vague and therefore void. The state thereupon filed a confession of error in petitioner's case, since it was obvious his conviction under a void statute could not stand. On July 25, 1977, the Supreme Court entered its order:

"Upon confession of error by the Appellee, the Appellant's conviction, judgment and sentence is vacated and the Appellant is discharged with costs charged to the Appellee."

In the meantime, substantially simultaneously with the filing of its confession of error, the state filed new charges against petitioner in Saline County. The complaint was originally in three counts, all charging abuse of a child under K.S.A. 21-3609. One was dismissed by the state and after a preliminary examination petitioner was bound over for trial on the presently pending two counts. One charges abuse of Golda Smolin between July 15 and July 18, 1975; the other, abuse of the same child on July 25, 1975.

Prior to his arraignment petitioner filed a motion to dismiss, raising the defense of double jeopardy. The motion was overruled and petitioner attempted to appeal to this court. On motion of the state we dismissed the appeal on August 24, 1978. The Supreme Court denied review of our order on November 8, 1978. Petitioner thereafter commenced this proceeding. Pursuant to Rule No. 9.01(A ), 224 Kan. xlix, this court determined that the district court's prior denial of relief was sufficient reason why the action should be brought in an appellate court. Accordingly we stayed the impending trial and directed a response by the state, called for briefs, and heard oral argument.

I.

Our dismissal of petitioner's appeal from the order denying his pretrial motion to dismiss was for lack of jurisdiction based on State v. Fisher, 2 Kan.App.2d 353, 579 P.2d 167, Rev. denied 225 Kan. 846 (1978). That case held that a pretrial denial of a claim of double jeopardy could not be separately appealed under Kansas statutes and Kansas case law, including State v. Hickerson, 184 Kan. 483, 337 P.2d 706 (1959) and State v. Wallace,172 Kan. 734, 243 P.2d 216 (1952). Appellate review is available only after trial and conviction, on appeal from the final judgment against the defendant.

In Fisher the court discussed at some length Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In Abney the Court held that a pretrial order denying a claim of double jeopardy was a "final decision" on that issue within the meaning of the federal statute permitting appeals only from final decisions. The Court there applied the federal "collateral order" doctrine because, among other reasons, to deny appellate review until after the trial would be to deny a substantial element of the constitutional right. As the Abney Court put it "To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to Trial for the same offense." 431 U.S. 660-61, 97 S.Ct. 2041. Emphasis in original.

In Fisher this court dismissed the appeal "with considerable reluctance," implicitly inviting our own Supreme Court to adopt a construction of our statutory term "judgment" similar to the federal construction of "final order." By its denial of review our court declined the invitation. The result is that unless habeas corpus is available a defendant would have no appellate forum available in the Kansas courts to vindicate a valid double jeopardy claim before he is in fact subjected to such jeopardy. Under those circumstances the federal courts would reluctantly but unhesitatingly step in to fill the void. ²

Previous Kansas case law, though scarce, indicates that habeas corpus is a proper vehicle to raise the defense of double jeopardy. In Kamen v. Gray, 169 Kan. 664, 220 P.2d 160 (1950), defendant's first trial ended in a mistrial and he was recharged. Defendant then filed a writ of habeas corpus raising the double jeopardy issue. On appeal, the propriety of habeas corpus in such...