Berry v. State, 77-550-CR

• Decision Date: 29 June 1979
• Docket Number: No. 77-550-CR,77-550-CR
• Parties: Kenneth BERRY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 204

280 N.W.2d 204

90 Wis.2d 316

Kenneth BERRY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 77-550-CR.

Supreme Court of Wisconsin.

Submitted on Briefs May 31, 1979.

Decided June 29, 1979.

Bronson C. LaFollette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., for defendant in error.

Richard L. Cates, State Public Defender, and Jack E. Schairer, Asst. State Public Defender, for plaintiff in error.

BEILFUSS, Chief Justice.

The main issue in the appeal is whether a criminal defendant may properly be convicted of attempted theft upon evidence establishing a completed theft. It requires us to consider whether failure is an essential element of a criminal attempt as defined in sec. 939.32, Stats. The court of appeals determined that failure to consummate the crime was a necessary element of criminal attempt and, finding sufficient proof of a completed theft in the present case, overturned the conviction. We reverse.

Kenneth Berry was charged with attempted theft in violation of secs. 943.20 and 939.32, Stats., in connection with an incident which occurred on the afternoon of January 31, 1976 at the Rupert Cornelius Clothing Store in Madison, Wisconsin. The criminal complaint alleged that Berry intentionally attempted to "take away" a brown leather coat valued at $230 without consent and with the intent to permanently deprive the owner of possession. ² After almost a year's delay occasioned by the defendant's disappearance, the defendant was tried by a jury; was found guilty of attempted theft as charged in the information; and sentenced to an indeterminate term of imprisonment of not more than one year, less credit for preconviction incarceration.

The state's principal witness was store employee David Radtke who related the details of the theft attempt and identified the defendant as the person involved. Radtke testified that at approximately 3:15 p. m., on January 31, 1976, he was working in the basement of the lower level sales floor of the Rupert Cornelius men's store. He walked into a rear room and saw a man facing the side wall. The man appeared to be trying to force something into his pants or under his coat. Radtke approached the man and noticed that there appeared to be a bulge under his parka. He suspected that there might be something concealed and asked the man if he had anything under his coat. The man said that he hadn't, but Radtke was still suspicious. Radtke opened the parka and saw a brown leather coat had been tucked into the pants. According to Radtke's testimony, the leather coat had been forced half-way into the pants; the part that could not fit into the pants was concealed by the jacket. Words were exchanged. A tug-of-war ensued and eventually Radtke was able to pull the coat free. The man gave Radtke a final shove and fled walking very fast. The defendant did not dispute the details of the incident recounted by Radtke, but maintained that Radtke's identification of him as the would-be thief was mistaken. Testifying himself and calling several witnesses on his behalf, the defendant relied on an alibi defense.

A writ of error to review the judgment of conviction and sentence was originally obtained from this court by the defendant, but the case was later transferred to the court of appeals for appellate review. The court of appeals reversed the conviction. The court's decision had three facets: first, without precising the standard of review employed, the court reviewed the evidence and concluded that Berry "unquestionably" took and carried away the leather coat; second, construing the language in the general attempt statute, the court concluded that failure to consummate a crime was a necessary element of criminal attempt as defined in sec. 939.32(2), Stats.; third, building on the first two propositions, the court reached the ultimate conclusion that proof that the theft was completed in the present case prevented the accused from being convicted of attempted theft. The court, recognizing that its analysis produced an anomalous result, noted that the defendant went free " 'not because he was innocent, but for the very strange reason, that he was too guilty.' " ³

A preliminary issue must be addressed regarding the right of the state to seek review of the court of appeals' decision in the present case. In the brief on review and in a separate motion to dismiss the state's appeal, defendant Berry asserts that review of the court of appeals' decision reversing his conviction on the ground that the evidence did not support the jury verdict is barred by the Double Jeopardy Clause of the federal constitution. ⁴ This contention misconceives the reach of the constitutional limitations inhibiting governmental appeals. It should be noted that the issue of this court's general jurisdiction to entertain a governmental appeal from a decision of the court of appeals in a criminal matter has already been decided. The necessary authority is found in the constitutional amendment and implementing legislation which established the court of appeals. ⁵ The narrow issue is whether, despite this general authority, the court is barred from undertaking a review of the court of appeals' decision under the particular facts of the present case.

The important policies which form the foundation of the Double Jeopardy Clause were eloquently described by the United States Supreme Court in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

"The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make 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, as well as enhancing the possibility that even though innocent he may be found guilty." See also Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975).

It has been observed that the common-law roots of the constitutional prohibition "suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial." United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).

In North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court noted that the Double Jeopardy Clause provided three related protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." These protections are implicated, however, only when the accused has actually been placed in jeopardy and where a government appeal presents a threat of successive prosecutions. United States v. Martin Linen Supply Co., 430 U.S. 564, 569-70, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

In this case review by this court involves no threat of either multiple punishment or successive prosecutions. A successful governmental appeal would not necessitate a second trial of "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged." See United States v. Jenkins, supra, 420 U.S. at 370, 95 S.Ct. at 1013. Since reversal of the court of appeals' decision overturning the conviction would merely reinstate the jury's verdict, review of the decision by this court is not barred by the Double Jeopardy Clause of the federal constitution. See United States v. Wilson, supra, 420 U.S. at 344-45, 95 S.Ct. 1013.

The defendant's reliance on the recent Supreme Court decision in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), is unfounded. There is nothing in Burks or in Green v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which applied the holding of Burks to state criminal proceedings, to suggest that the present review offends the Double Jeopardy Clause. In Burks the Court of Appeals for the Sixth Circuit reversed a judgment of conviction on the grounds that the evidence was insufficient to support the verdict and remanded the case to the district court to determine whether a directed verdict of acquittal should be entered or a new trial ordered. The Supreme Court reversed, declaring that the only "just" remedy available to the district court under the circumstances was the directed verdict of acquittal. Id. at 18, 98 S.Ct. 2141. Burks holds only "that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient." Id. at 18, 98 S.Ct. at 2150. Significantly, the majority opinion explicitly observed that the government had not cross-petitioned for review of the question whether the court of appeals was correct in holding that the state had failed to meet its burden of proof. Id. at 5, 98 S.Ct. 2141.

The key to invoking double jeopardy protection is not simply whether a defendant, as in the present case, can point to a prior verdict or judgment of acquittal, but whether the defendant might be subjected to multiple prosecutions. Cf. United States v. Wilson, supra, 420 U.S. at 347, 95 S.Ct. 1013. Review of the court of appeals' decision involves no such risk; it does not offend the Double Jeopardy Clause of the federal constitution. The defendant's motion to dismiss the state's appeal on double jeopardy grounds is denied.

The first issue raised by the state concerns the court of appeals' construction...