Crozier v. State

• Decision Date: 12 October 1994
• Docket Number: 93-40,Nos. 93-39,s. 93-39
• Citation: 882 P.2d 1230
• Parties: Wesley Edward CROZIER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). The STATE of Wyoming, Appellant (Plaintiff), v. Wesley Edward CROZIER, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1230

882 P.2d 1230

Wesley Edward CROZIER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

The STATE of Wyoming, Appellant (Plaintiff), v. Wesley Edward CROZIER, Appellee (Defendant).

Nos. 93-39, 93-40.

Supreme Court of Wyoming.

Oct. 12, 1994.

Wyoming Public Defender Program, Leonard D. Munker, Wyoming State Public Defender, Deb Cornia, Appellate Counsel for Wyoming State Public Defender, and Tim Newcomb, Grant & Newcomb, for Crozier.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara Boyer, Sr. Asst. Atty. Gen., Dennis C. Cook, Sr. Asst. Atty. Gen., Georgia Tibbetts, Asst. Atty. Gen., and John D. Montgomery, Student Intern, for State of Wyo.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY and TAYLOR, JJ.

THOMAS, Justice.

The issue to be resolved in this case arises out of the creative effort of Wesley Edward Crozier (Crozier) to parlay a rather mundane double jeopardy defense into a bar to any retrial by invoking the due process of law and the equal protection of the law clauses of the state and federal constitutions. Crozier was convicted of two counts charging the violation of WYO.STAT. § 6-3-403(a)(i) (1988). The first count charged Crozier with possession and concealment of the stolen property on November 15, 1989, while the second count charged him with disposing of the identical stolen property on November 15, 1989. Crozier had previously been charged with disposing of the same stolen property on December 15, 1989, but that case was dismissed without prejudice after the jury was seated and the first witness was sworn when it became clear the wrong date had been charged, and Crozier had an alibi for December 15, 1989. After the jury in the second trial found Crozier guilty of both counts, the trial judge sentenced Crozier on Count I, later dismissing Count II. Crozier appeals, contending his rights were violated by the filing of an additional and subsequent charge after he had successfully exercised legally protected rights. The State of Wyoming (State) has prosecuted a cross-appeal from the dismissal of Count II. The judgment and sentence entered in the trial court are affirmed, and the dismissal of Count II is approved although better practice would be to dismiss such a charge prior to entry of the judgment and sentence. The cross-appeal taken by the State is dismissed because the State does not have statutory authority to appeal.

Crozier states the issues in this case in his Brief of the Appellant to be:

I. Did the government violate federal and state constitutional due process mandates by filing an additional and subsequent charge of "simultaneous possession and concealment of stolen property" only after the defendant successfully exercised legally protected rights?

II. Did the government violate federal and state constitutional equal protection mandates by filing an additional and subsequent charge of "simultaneous possession and concealment of stolen property" only after the defendant successfully exercised legally protected rights?

In its Brief of Appellee, the State defines the only issue in this way:

Whether the record supports a claim of either vindictive or selective prosecution?

As cross-appellant, the State articulates these issues in its brief:

I. Whether the trial court acted arbitrarily, without justification and without legal basis when it dismissed a charge upon which the jury had found the Defendant guilty.

II. Whether the Wyoming Supreme Court has jurisdiction to hear and decide a cross-appeal by the State in a criminal case.

Answering the State's appeal, Crozier filed a Brief of Cross-Appellee in which he defined the following issues:

1. Whether, under Wyoming law, the state may appeal an adverse ruling in a criminal case.

2. Whether Mr. Crozier's reprosecution on Count II violated the Double Jeopardy Clauses of the United States Constitution and the Wyoming Constitution.

3. Whether dismissal of the Information without prejudice violated Mr. Crozier's due process right to an alibi defense in violation of Article I, Section 6 of the Wyoming Constitution.

On December 30, 1991, Crozier was charged with one count of disposing of stolen property in violation of WYO.STAT. § 6-3-403(a)(i). ¹ At the trial on May 12, 1992, defense counsel, in the course of the opening statement, told the jury that Crozier had an alibi for the date of the crime which was charged in the information as having occurred on December 15, 1989. After completion of opening statements and the administration of the oath to the first witness, the State recognized the information contained the wrong date for the charged offense. The crime actually had occurred on November 15, 1989.

Prior to eliciting testimony from the first witness, defense counsel requested an offer of proof from the State that Crozier had disposed of the stolen property on December 15, 1989. The trial court then conducted a hearing in chambers. At that time, the State conceded December 15, 1989 was an incorrect date, and it moved to amend the information to correct that error. The trial judge denied the motion to amend. Counsel for Crozier then moved for dismissal of the case with prejudice. The State responded by requesting the case be dismissed without prejudice. Invoking the concept of "manifest necessity," the court granted the motion of the State to dismiss without prejudice and then denied Crozier's motion to dismiss with prejudice. Subsequently, the State refiled charges against Crozier. The second information charged possession and concealment of the stolen property in violation of WYO.STAT. § 6-3-403(a)(i) in Count I. In Count II, the State charged Crozier with disposing of the identical stolen property, but on the correct date of November 15, 1989.

Crozier filed a motion to dismiss Count II, premised upon the protection against double jeopardy found in Article 1, § 11 of the Constitution of the State of Wyoming and the Fifth Amendment to the Constitution of the United States. ² In pursuing this avenue Crozier contended the possession charge and the disposal charge both involved the same transaction and the same scheme or plan. The trial judge reserved his ruling on the motion until the evidence had been presented because the decision would depend upon the facts relating to that issue. At the close of the trial, the jury found Crozier guilty on both counts. Crozier was sentenced only on the charge of possession and concealment, and later the charge of disposing of the stolen property was dismissed. Crozier has appealed to this court from the judgment and sentence entered in the trial court, and the State has endeavored to cross-appeal from the dismissal of the charge of disposing of the stolen property.

Relying upon the proposition that he had previously been in jeopardy with respect to the charge of disposing of the stolen property, Crozier contends in this appeal that he exercised both his constitutional right of requiring the State to prove every element of the crime of disposing of stolen property and his right to the defense of alibi. Crozier argues that, when the trial court declared a mistrial and dismissed the case without prejudice, the State enhanced the potential penalty by refiling the charge of disposing of the stolen property and adding a charge of possession and concealment of the same property. Crozier asserts he wrongfully was required to face double charges and a punishment double to that with which he had been confronted before he exercised his legally protected rights. The thrust of his contention is that the actions of the State amounted to vindictive prosecution in violation of his right to due process protected by both the state and federal constitutions. ³ As an alternative contention, Crozier asserts he has been subjected to selective prosecution in violation of his equal protection rights articulated in the Constitution of the State of Wyoming and the Fourteenth Amendment to the Constitution of the United States. ⁴

Crozier's arguments are intriguing, but not persuasive. The essence of vindictive prosecution is the "imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal * * *." Blackledge v. Perry, 417 U.S. 21, 25, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628 (1974) (quoting North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). Vindictive prosecution is perceived to be violative of due process of law according to the Supreme Court of the United States and is inherently wrong because it tends to chill the assertion of the rights of an accused. The proscription of the rule against vindictive prosecution is not invoked if substantial evidence demonstrates the prosecutor acted in good faith and for independent reasons or due to intervening circumstances.

Those justifications can include discovery of new evidence or witnesses, a different approach by a new prosecutor, a wait for additional information necessary for preparation of the state's case, the threat of missing a statute of limitations, or the belief of the state that sufficient evidence exists to support a conviction for a new charge. We have adopted from the Tenth Circuit Court of Appeals this method for reviewing claims of vindictive prosecution A defendant has the burden of proof and must establish either (1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness. Thereafter, the burden shifts to the prosecution to justify its decision with legitimate, articulable, objective reasons. If the defendant does not meet his burden of proof, however, the district court need not reach the government justification issue.

Whiteplume v. State, 874 P.2d 893, 896 (Wyo.1994) (quoting United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir.1991) (citations omitted)).

The prosecutor's interest in charging an additional offense for violations arising out of...