Goodloe v. Parratt, 78-1560

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation605 F.2d 1041
Docket NumberNo. 78-1560,78-1560
PartiesRonald F. GOODLOE, Appellant, v. Robert PARRATT, Warden, Nebraska Penal & Correctional Complex, Appellee.
Decision Date28 August 1979

Nanfito & Nanfito, Omaha, Neb., Charles A. Nanfito and James A. Nanfito (argued), Omaha, Neb., on brief, for appellant.

Paul L. Douglas, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen. (argued), Lincoln, Neb., on brief, for appellee.

Before LAY and HENLEY, Circuit Judges, and WANGELIN, * District Judge.

LAY, Circuit Judge.

This unusual state habeas corpus case is an extremely perplexing one with a harsh result. The petitioner, Ronald F. Goodloe, was driving his automobile on the evening of May 7, 1975, when a police officer in the community of Blair, Nebraska saw him and suspected he was driving with a suspended driver's license. Goodloe was well known to the police; he had been convicted of willful and reckless driving on four other occasions and had two state felony convictions. Seeing the police car's flashing lights, Goodloe accelerated to a high rate of speed, and the officer gave chase. Goodloe was finally apprehended and charged with willful and reckless driving (third offense), Neb.Rev.Stat. § 39-669.06 (1974), operating a motor vehicle to avoid arrest, Neb.Rev.Stat. § 60-430.07 (1974), and being an habitual criminal, Neb.Rev.Stat. § 29-2221 (1964). He was convicted by a jury on all counts, and sentenced to two concurrent 10 to 15 year terms of imprisonment. 1 The Nebraska Supreme Court affirmed the conviction, but modified the sentence to two concurrent 10 year terms. 2 Goodloe sought a writ of habeas corpus in federal district court. Upon denial this appeal followed.

The scenario began when Goodloe was tried on one count of a two count information for driving with a suspended license in Washington County court. Much to the chagrin of the prosecutor, the conviction was reversed by the district court for insufficient evidence. However, sweet prosecutorial revenge was in the offing. Following reversal, the State amended the filed information to include not only the remaining count of operating a motor vehicle to avoid arrest, but also a second count of being an habitual criminal. This information was consolidated with another information, previously filed, which alleged one count of willful and reckless driving (third offense) and a second count of being an habitual criminal. 3

The 15 year concurrent sentences (later modified to 10), were made possible in the following manner. The prosecutor charged avoidance of arrest as a felony. Willful and reckless driving, normally a misdemeanor, becomes a felony by operation of enhanced penalty provisions when it is a third offense or subsequent offense, and the prosecutor charged third offense. 4 Habitual offender counts were added to each information. Upon conviction of a felony committed in Nebraska, proof of two prior felony convictions results in imposition of a mandatory 10-year prison term under the habitual criminal statute. Neb.Rev.Stat. § 29-2221 (1964). 5 Thus, even with use of concurrent sentences, no Nebraska court could give Goodloe a term of imprisonment less than 10 years for what was an attempt to evade arrest for the misdemeanor of driving with a suspended license.

Although Goodloe's counsel raises several distinct points on appeal we find these can be basically summarized as:

1. Due process and double jeopardy challenges to prosecution for both operation of a motor vehicle to avoid arrest and willful and reckless driving when the evidence demonstrating operation of the vehicle to avoid the arrest was the same as that which showed the reckless driving. Stated in another way, the issue is whether a person in a motor vehicle being pursued by a police officer for reckless operation of the vehicle may be charged with avoidance of arrest for the same reckless driving incident.

2. Due process and double jeopardy challenges to simultaneous application of two penalty enhancement statutes, one that made a subsequent misdemeanor offense into a felony, (i. e., third offense reckless driving), and an habitual criminal statute that enhanced the penalty for this offense upon proof of conviction of prior felonies. 6

Avoidance of Arrest Due Process. We need not pass on the double jeopardy question raised, because we hold the conviction for operation of a motor vehicle to avoid arrest should be set aside because of violations of Goodloe's right to due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution. 7 In the state court Goodloe challenged, as violative of due process, the vagueness of the statute which defines the crime of operating a motor vehicle to avoid arrest as applied in his case. 8 He makes the same argument here. We need not pass on the constitutionality of the statute, but relate the challenge to the statute only in a collateral sense, as it affects the fairness of Goodloe's conviction under it. See State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973), Cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); Heywood v. Brainard, 181 Neb. 294, 147 N.W.2d 772 (1967). The statute's lack of specificity in definition of criminal conduct is reflected in disputes which arose at trial over whether a specific prior violation of law had to be alleged and proved for conviction. While we hold Goodloe's trial was fundamentally unfair due to lack of fair and reasonable notice of the offense charged, our conclusion is derived from a combination of factors: the specificity of the complaint and arrest warrant that alleged flight from arrest for driving with a suspended license, the general language of the information, the trial court rulings on the elements of the offense, the mid-trial switch in the prosecution's case in chief, and the instructions given.

It is clear from the arrest warrant and the first information filed, statements made in court and the progress of the trial, that the State based its avoidance of arrest charge under the statute on the theory that the arrest Goodloe was avoiding was an arrest based upon probable cause that he was driving with a suspended license. During trial, the court ruled proof Goodloe had violated a state law was required for the State to sustain its charge of avoiding arrest. Thus, because Goodloe had been previously acquitted on the suspended license charge, the district court ruled that proof of flight from arrest for driving with a suspended license was precluded and sustained Goodloe's motion to exclude evidence concerning suspension of his license. 9 Thereafter the State, without amending the information, changed its theory of prosecution 10 and attempted to prove flight from arrest for any of four violations, among them willful and reckless driving. The court allowed the switch, but because of its concern over the issue of fair notice to Goodloe of the case he had to meet, it specified the underlying violation and instructed the jury that it must find, as an element of the offense of operating a motor vehicle to avoid arrest, that Goodloe "had violated a law of this State, to-wit: Operating a motor vehicle in such a manner as to indicate a willful disregard for the safety of persons or property . . . ." 11

The fundamental right "to be informed of the nature and cause of the accusation," guaranteed criminal defendants by both the Nebraska and United States Constitutions, U.S.Const. Amend. VI; Neb.Const. art. 1, § 11, is implemented primarily by charging papers which contain the elements of the offense so as to fairly inform a defendant of the charge against which he must defend. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Brown, 540 F.2d 364, 371 (8th Cir. 1976); State v. Harig, 192 Neb. 49, 56-57, 218 N.W.2d 884, 889 (1974). This most basic ingredient of due process, a person's right to reasonable notice of the charge against him, is incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states. See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). 12

An information in the words of the statute creating the offense will generally suffice, Hamling v. United States, 418 U.S. at 117, 94 S.Ct. 2887, but the requirement of fair notice is only met if "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); See also State v. Abraham, 189 Neb. 728, 729-30, 205 N.W.2d 342, 343-44 (1973).

The indictment upon which Goodloe was tried charged that he did, in the words of the statute, "unlawfully operate a motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this State." There is no indication from this statutory language that, as the trial court held and instructed the jury, an additional element must be proven for conviction: actual commission of the violation of state law for which the defendant fled arrest. Once prior violation of a specific state statute became an element of the offense by virtue of the trial court ruling, Goodloe was entitled not only to notice of that general fact, but also to specific notice of what law he was alleged to have violated. See Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899); United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed 588 (1875). 13 As the trial court's exclusion of evidence pertaining to the suspended license charge illustrated, whether Goodloe had violated a specific state statute was a crucial...

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