Goodloe v. Parratt
| Decision Date | 26 June 1978 |
| Docket Number | Civ. No. 77-L-139. |
| Citation | 453 F. Supp. 1380 |
| Parties | Ronald F. GOODLOE, Petitioner, v. Robert PARRATT, Warden, Nebraska Penal and Correctional Complex, Respondent. |
| Court | U.S. District Court — District of Nebraska |
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Charles A. Nanfito, Omaha, Neb., for petitioner.
C. C. Sheldon, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for respondent.
On May 7, 1975, the defendant was driving a white and green Dodge automobile on the streets of Blair, Nebraska. An officer of that town's police department attempted to pull Goodloe's car over to the side of the road. His efforts were unsuccessful and a high speed chase took place before the petitioner was taken into custody.
Goodloe was subsequently charged with, inter alia, a third offense of willful reckless driving and operating a motor vehicle to avoid arrest. After a trial before a jury, the petitioner was found guilty of the two felony charges and was adjudged an habitual criminal. Goodloe was sentenced to two concurrent terms of ten to fifteen years in the Nebraska Penal Complex. On appeal, the Nebraska Supreme Court upheld the convictions but reduced the sentences to two concurrent terms of ten years each. State v. Goodloe, 197 Neb. 632, 250 N.W.2d 606 (1977).
Goodloe subsequently filed this petition for a writ of habeas corpus. Alleging violations of his constitutional rights to protection from double jeopardy and cruel and unusual punishment, as well as deprivation of his rights to a fair trial and due process of law, the petitioner seeks redress in this Court under 28 U.S.C.A. § 2254 (1977).
Before the legal contentions of Goodloe can be properly evaluated, a detailed review of the events surrounding the petitioner's arrest and trial is necessary. The record reflects that two separate complaints were filed in county court as a result of the petitioner's flight from the authorities. The first complaint charged a third offense of willful reckless driving in violation of Neb.Rev.Stat. § 39-669.06 (Reissue 1974). The second complaint charged Goodloe with operating a motor vehicle to avoid arrest and driving an automobile while his license was suspended. Since the latter charge in the second complaint was a misdemeanor, the county court had jurisdiction to try the petitioner. Subsequent to trial, Goodloe was found guilty of driving with a suspended license. On appeal, the state district court reversed that determination on the ground of insufficient evidence.
At the trial on the two felony charges, the petitioner raised the issue of double jeopardy. Goodloe argued that he could not be found guilty of operating a motor vehicle to avoid arrest unless the State proved a violation of law on the part of the defendant at the inception of the flight. Goodloe maintained that the prosecution had the additional burden of proving that the purpose of the attempt to escape was to avoid arrest for that particular violation. Referring to the language of the arrest warrant, Goodloe established the undisputed fact that the prosecution originally intended to prove that the pre-existing violation of law was the misdemeanor of driving on a suspended license.
The reversal of the county court's decision foreclosed the State from pursuing this theory. Forced to adopt another tack, the prosecution asserted that the defendant could be found guilty of fleeing to avoid arrest for the offense of willful reckless driving. Goodloe now argues that the state court's adoption of the prosecution's position violated his right to be free from double jeopardy.
Central to the prohibition against double jeopardy is the rule barring retrial for the same offense after acquittal. This doctrine has been extended to include the situation where a defendant is found innocent of a lesser included offense and is subsequently charged with a greater offense. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For one crime to be a lesser included offense of another, the greater crime must require the proof of every essential element constituting commission of the lesser offense. United States v. Bear Ribs, 562 F.2d 563, 564 (8th Cir. 1977), cert. denied, 434 U.S. 974, 98 S.Ct. 531, 54 L.Ed.2d 465 (1977).
The Court holds that this constitutional protection does not apply to the facts in the present case. The elements that must be established to prove the misdemeanor of driving on a suspended license are totally different from those included in a statute that makes it "unlawful for any person operating any motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this state." 1967 Neb.Laws ch. 390, § 1, p. 1214 (current version at Neb.Rev.Stat. § 60-430.07 (Supp. 1977)). The offense of driving on a suspended license is not incorporated into the unlawful flight law for double jeopardy purposes when a criminal defendant is charged with both. State v. Colgrove, 197 Neb. 375, 248 N.W.2d 780 (1977).
Nor is the petitioner's collateral estoppel argument tenable. Goodloe relies upon the Supreme Court decision in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), where the doctrine of collateral estoppel is explained as meaning "simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." What the petitioner fails to realize is that the estoppel issue does not arise in the present case because the suspended license charge was never brought to the attention of the jury during the presentation of evidence on the felony counts. No common issue of ultimate fact existed in these separate trials.
In so holding, the Court notes that prosecutors have been criticized, with some justification, for offending the intent of various legislative bodies and the spirit of the double jeopardy clause by charging a defendant with multiple statutory violations, all of which arose out of a single physical act. See, e. g., Gore v. United States, 357 U.S. 386, 394, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (dissenting opinion by Warren, C. J.); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 304-08 (1965-66). However, since the petitioner's counsel does not raise the question of prosecutorial abuse of power, the Court does not feel compelled to address the issue.
As the petitioner does not argue that the felonies of third offense willful reckless driving and flight to avoid arrest are sufficiently identical to fall within the "same evidence" test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court does not reach the question. Nor does the petitioner allege that since the two felonies arose out of the same transaction or event, the filing of two separate felony charges was constitutionally impermissible in light of double jeopardy principles. See generally Sanabria v. United States, ___ U.S. ___, ___, n.24, 98 S.Ct. 2170, 2181, n.24, 57 L.Ed.2d 43 (1978). Accordingly, the Court will not examine the merits of this potential contention.
Goodloe maintains that his constitutional right to be free from double jeopardy was further violated by the use of his third conviction of willful reckless driving for purposes of sentence enhancement under Nebraska's habitual criminal statute.
A first offense of willful reckless driving is a misdemeanor under Nebraska law. Neb.Rev.Stat. § 39-669.04 (Reissue 1974). A third or subsequent conviction of reckless or willful reckless driving is considered felonious. Neb.Rev.Stat. § 39-669.06 (Reissue 1974). After a verdict of guilty was returned against Goodloe by a jury on a charge of willful reckless driving, the Court held a separate hearing on the issue of the number of the petitioner's previous convictions. As part of the final punishment imposed, the state court sentenced Goodloe for a third offense of willful reckless driving under Nebraska's habitual criminal statute.
The petitioner now argues that the protection from double jeopardy, as incorporated into the Fourteenth Amendment due process clause, forbids the use of a single conviction to elevate a misdemeanor to the status of a felony as well as the use of that felony for sentencing purposes under the habitual criminal law.
The Supreme Court has consistently upheld habitual criminal statutes in the face of attacks based upon double jeopardy grounds. See, e. g., Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). These decisions have uniformly recognized legislative power to provide for a greater punishment for a recidivist. Graham v. West Virginia, 224 U.S. at 623-24, 32 S.Ct. 583.
The factual situation at bar is not significantly different from those addressed in this line of authority. The petitioner does not question the power of the Nebraska legislature to proportionally increase criminal penalties as the number of convictions mount. It is the legislative branch, and not the prosecuting attorney, which defines a criminal offense. Sanabria v. United States, ___ U.S. at ___, 98 S.Ct., at 2181; Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. 2221. Application of the principle that the double jeopardy clause does not act as a limitation upon the legislature yields the conclusion that Goodloe's constitutional rights have not been violated. A legislative body can properly pass a statute that allows courts to refer to past misdemeanor convictions for the purpose of punishment enhancement. State v. Deer, 129 N.E.2d 667 (Ohio Ct. of Pleas 1955); People v. Bockman, 234 App.Div. 494, 255 N.Y.S. 691 (1932). If this sort of enactment is permissible, the Court cannot see how Nebraska's statutory scheme offends the...
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...for there to be willful reckless driving, it is not necessary for there to be property damage or injuries inflicted. Goodloe v. Parratt, 453 F.Supp. 1380 (D.Neb.1978), rev'd on other grounds 605 F.2d 1041 (8th The trial court found beyond a reasonable doubt that the defendant was guilty of ......
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