Daniel v. State

• Decision Date: 29 July 2008
• Docket Number: No. S-07-0191.,S-07-0191.
• Citation: 189 P.3d 859,2008 WY 87
• Parties: Alvah R. DANIEL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

189 P.3d 859

2008 WY 87

Alvah R. DANIEL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0191.

Supreme Court of Wyoming.

July 29, 2008.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk Allan Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Assistant Attorney General. Argument by Ms. Craig.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Alvah Daniel, Jr., was convicted of misdemeanor battery. He was later charged with felony aggravated assault and battery arising from the same incident after the State discovered that the victim's injuries were more severe than it originally believed. Mr. Daniel moved for dismissal of the felony charge on double jeopardy grounds. The district court denied the motion. Mr. Daniel challenges that decision in this appeal. We affirm.

ISSUE

[¶ 2] Mr. Daniel presents one issue:

Is the double jeopardy protection of the Wyoming and United States Constitutions violated when a defendant is convicted of aggravated assault and battery after he had previously pled guilty and been sentenced for a misdemeanor battery?

FACTS

[¶ 3] On Monday, May 15, 2006, at approximately 5:15 p.m., Officers Bruce Haston and John Earnshaw of the Cheyenne police department responded to a report of domestic violence at the apartment Mr. Daniel shared with his girlfriend, Lisa Ridge. At that time, officers observed that Ms. Ridge had sustained several injuries. The officers arrested Mr. Daniel and cited him for misdemeanor battery in violation of Wyo. Stat. Ann. § 6-2-501(b) (LexisNexis 2007).¹ After Mr. Daniel's arrest, Officer Earnshaw persuaded Ms. Ridge to go to the hospital for treatment of her injuries. Both officers discussed Ms. Ridge's condition with medical personnel at the hospital and Officer Haston was informed that Ms. Ridge would be treated and released. The officers then left the hospital. They had no further contact with Ms. Ridge or hospital personnel prior to Mr. Daniel's initial appearance.

[¶ 4] The initial appearance was held on Wednesday, May 17, 2006, at approximately 10:00 a.m. At the hearing, after being advised of his rights, Mr. Daniel requested that he be allowed to plead guilty to the charge. The prosecutor did not object, and Mr. Daniel pled guilty to simple battery and was released from custody.² Later that day, Carla Thurin, the executive director of Laramie County Safehouse, reported to the Cheyenne police that the injuries were more severe than originally thought and that Ms. Ridge had been transferred to a hospital in Denver. As a result of the new information, the State conducted further investigation and learned that Ms. Ridge had sustained severe and potentially life-threatening injuries as a result of the attack. The Denver physicians diagnosed a blood clot at the front of Ms. Ridge's brain, possible damage to the blood vessels in her neck, and damage to her larynx. The State filed a felony information on June 9, 2006, charging Mr. Daniel with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i).³

[¶ 5] Mr. Daniel filed a Motion to Dismiss, contending that the felony charge violated the double jeopardy provisions of the Wyoming and United States Constitutions. The State resisted the motion on several grounds, but, for the purposes of this appeal, only one is relevant. The State contended that the felony prosecution did not violate Mr. Daniel's double jeopardy protection because, at the time Mr. Daniel was charged and convicted, the State was unaware of the gravity of the injuries sustained by Ms. Ridge.

[¶ 6] The district court held a hearing on the motion. The primary issue to be decided was whether the State exercised due diligence in its investigation prior to Mr. Daniel's original guilty plea. At the conclusion of the testimony, the court found that the State had exercised due diligence and denied the motion. Mr. Daniel subsequently entered a conditional guilty plea, reserving his right to appeal the district court's denial of his Motion to Dismiss. The district court sentenced Mr. Daniel to 5-7 years imprisonment with 325 days credit for time served. He timely filed a notice of appeal.

STANDARD OF REVIEW

[¶ 7] This Court reviews de novo the question of whether a defendant's constitutional protection against double jeopardy has been violated. Meyers v. State, 2005 WY 163, ¶ 8, 124 P.3d 710, 714 (Wyo.2005).

DISCUSSION

[¶ 8] The Fifth Amendment to the United States Constitution states that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." Article 1, § 11 of the Wyoming Constitution contains a similar provision, stating that "[n]o person shall ... be twice put in jeopardy for the same offense." Though the language differs slightly, we have recognized that the two provisions "have the same meaning and are coextensive in application." Longstreth v. State, 890 P.2d 551, 553 (Wyo. 1995). The double jeopardy clause prohibits prosecution of a defendant for a greater offense when he has been previously convicted of the lesser included offense. Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The State concedes that Mr. Daniel's battery conviction is a lesser included offense of aggravated assault and battery and that his second conviction would ordinarily be barred.⁴ Nevertheless, the State contends that the second prosecution is permissible because of a long-recognized exception to the double jeopardy rule.

[¶ 9] In Diaz v. United States, the Supreme Court held that a defendant previously convicted of misdemeanor assault and battery could be charged with homicide when the victim later died from the injuries inflicted during the assault. 223 U.S. 442, 448-49, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912). Many years later, Justice Brennan remarked in a concurring opinion that a separate prosecution should be permitted "where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction." Ashe v. Swenson, 397 U.S. 436, 453 n. 7, 90 S.Ct. 1189, 1199 n. 7, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring). The Court later drew upon both these sources in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. In Brown, the defendant was first convicted and sentenced for joyriding. 432 U.S. at 162-63, 97 S.Ct. at 2223-24. After his release from jail, he was indicted for theft of the same car and a second charge of joyriding. Id. The Court held that the latter two charges were barred on double jeopardy grounds pursuant to the elements test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Id. at 168-69, 97 S.Ct. at 2226-27. In a footnote citing both Diaz and Justice Brennan's concurrence in Ashe, the Court stated: "An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Id. at 169 n. 7, 97 S.Ct. at 2227 n. 7.

[¶ 10] The policy justification for this exception is clear. As Justice O'Connor recognized, "the finality guaranteed by the Double Jeopardy Clause is not absolute, but instead must accommodate the societal interest in prosecuting and convicting those who violate the law." Garrett v. United States, 471 U.S. 773, 796, 105 S.Ct. 2407, 2420, 85 L.Ed.2d 764 (1985) (O'Connor, J., concurring). The Supreme Court of Ohio has articulated this principle as follows:

The general rule banning multiple prosecutions for offenses arising out of the same course of conduct is intended to protect the defendant and the general public from the prosecution's misconduct. It insures that neither the defendant nor the public will be subjected to an unnecessary multiplication of legal expenses by conducting multiple trials when only one is necessary. It further insures that the accused will not be unduly harassed by being forced to "run the gauntlet" more times than is necessary. However, these considerations pale when a new offense matures only after the first trial is concluded. When it is impossible for the state to join all substantive offenses at one trial, the inconvenience to the defendant is clearly outweighed by the public's interest in assuring that the defendant does not fortuitously escape responsibility for his crimes. A second trial, under such circumstances, cannot be characterized as harassment, but must be considered as reasonably serving the public need.

State v. Thomas, 61 Ohio St.2d 254, 400 N.E.2d 897, 904 (1980), overruled on other grounds by State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353, 1355 (1990).

[¶ 11] As the Thomas court's use of the word "impossible" implies, the most obvious use of the Brown exception occurs when the facts constituting the greater offense do not yet exist at the time the defendant is convicted of a lesser offense arising from the same incident. For example, in Diaz, the victim sustained injuries during the commission of the crime, but died after the defendant was convicted for the lesser offense of misdemeanor assault and battery. E.g., Thomas, 400 N.E.2d at 904; People v. Harding, 443 Mich. 693, 506 N.W.2d 482, 486-87 (1993); State v. Mitchell, 682 S.W.2d 918, 920 (Tenn. 1984). Courts, however, have also applied the exception when the evidence of the greater offense existed at the time of the original conviction but the government was unable to discover the evidence despite the exercise of due diligence.

...