Harrell v. State
| Decision Date | 29 March 1979 |
| Docket Number | No. 78-181-CR,78-181-CR |
| Citation | 88 Wis.2d 546,277 N.W.2d 462 |
| Parties | Alfred Ronnie HARRELL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Court of Appeals |
Before DECKER, C. J., CANNON, P. J., and ROBERT W. HANSEN, Reserve judge.
The undisputed facts are that the defendant pointed a gun at the victim as she unlocked the lobby door to the apartment building in which she resided and ordered her to walk to the basement. At a point under the stairs, while pointing the gun at her head, he ordered her to remove her clothing. After she complied, he told her to remain quiet or he would "blow (her) head off"; demanded money and received $3 from his victim; and then, without the victim's consent, had sexual intercourse with her. After the act of sexual intercourse, and while threatening to "blow (her) head off," he searched her clothing for more money. After twenty to twenty-five minutes of conversation, he completed a second act of sexual intercourse without the victim's consent with the gun at all times pointed at the victim's head. The defendant left the scene after the second act of sexual intercourse.
After trial by jury, the defendant was convicted of two counts of rape and one count of armed robbery as charged in the information. During the trial, the trial court denied the defendant's motion to dismiss one of the counts of rape. The defendant contended that the two alleged acts of intercourse constituted only one rape. The defendant's postconviction motion pursuant to sec. 974.06, Stats., contending that the conviction for two counts of rape subjected him to double jeopardy, was also denied. Writs of error were then issued.
The defendant contends that the two acts of sexual intercourse, each charged in this case as a rape, "amounted to a continuous crime, 'a unitary transaction.' " He reasons that charging each act of sexual intercourse as a rape divides a single course of conduct into multiple counts of the same criminal offense and therefore violates the double jeopardy provisions of the United States and Wisconsin Constitutions. The defendant claims that the multiplicity occurred because the sexual intercourse was without the consent of the victim by use or threat of force and that all incidents occurred with the same person and on the same occasion within a period of approximately one-half hour.
The statutes in question 1 do not specifically resolve the question of the allowable unit of prosecution. 2
The fifth amendment double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Because the former jeopardy provisions of the United States and Wisconsin Constitutions 3 are "identical in scope and purpose," our state supreme court has accepted decisions of the United States Supreme Court, where applicable, as controlling the double jeopardy provisions of both constitutions. Day v. State, 76 Wis.2d 588, 591, 251 N.W.2d 811, 812-13 (1977); State v. Calhoun, 67 Wis.2d 204, 220, 226 N.W.2d 504, 512 (1975).
The division of a single offense into multiple counts violates the double jeopardy provisions of the state and federal constitutions. State v. George, 69 Wis.2d 92, 98, 230 N.W.2d 253, 256 (1975).
Multiplicity is defined as the charging of a single offense in more than one It is generally accurate to say that there may be a conviction for more than one offense only where (a) each is based upon different conduct, or (b) if based on the same conduct, each offense requires proof of a fact not required by the other. F. Remington and A. Joseph, Charging, Convicting and Sentencing the Multiple Criminal Offender, 1961 Wis.L.Rev. 528, 545.
count. 4 Multiplicity must be distinguished from duplicity, which is the joining in a single count of two or more distinct and separate offenses. 5 Multiplicity also relates to the question of merger, whether a single criminal episode which contains the elements of more than one distinct offense merges into a single offense. 6
Further authority is found in 1 Wharton's Criminal Law and Procedure, sec. 32, at 67-68 (Anderson ed. 1957): In discussing whether a double jeopardy prohibition would apply in such a case, Wharton states: "The prohibition against double jeopardy does not apply when two separate and distinct crimes are committed in the same transaction or series of related acts, even though the crimes are so closely connected in point of time that it is impossible to separate the evidence relating to them." 7
The most frequently applied test in Wisconsin for determining multiplicity is 8 Nevertheless, in Blenski v. State, supra, the court decided the issue of multiplicity on legislative intent on the facts of the case before it. "We think that a better test in a situation such As is involved here is to ascertain the legislative intent." 9 (Emphasis supplied.)
In Anderson v. State, 10 our state supreme court set forth the test for double jeopardy analogous to the additional fact test:
The books are full of statements that the offenses in order to be the same, must be the "same in law and in fact," must comprise the same act and crime. Here two distinct crimes were charged in the two actions, embezzlement of the taxes collected during one month, and embezzlement of the taxes collected in a later month. The two offenses were the same in law but not in fact. The same act does not constitute both offenses. The point here attempted to be made ordinarily arises where evidence of the same acts is admissible under charges of offenses under two different statutes. (Emphasis supplied.) 11
The United States Supreme Court, using the "additional fact" test, upheld the convictions of a defendant for multiple charges A concurring opinion of Judge Leventhal in Irby v. United States 16 is instructive. Irby was convicted of housebreaking and robbery. In upholding the convictions, the Irby majority relied on two major factors: (1) the interests sought to be protected person versus property, and (2) the time for reflection. 17 As Judge Leventhal explained:
of violations of the Narcotics Act, 26 U.S.C. §§ 692, 696. 12 In so doing, the court distinguished offenses which are continuous in nature from those which can be committed Uno ictu, with one act. 13 Relying on Wharton, Criminal Law, § 34 n. 3 (11th ed.), the court in Blockburger v. United States, supra, 14 determined that "(t)he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 15
If at the scene of the crime the defendant can be said to have realized that he has come to a fork in the road, and nevertheless decides to invade a different interest, then his successive intentions make him subject to cumulative punishment, and he must be treated as accepting that risk, whether he in fact knows of it or not. (Footnotes omitted.) 18
Judge Leventhal advocated the consideration of various factors when determining whether the crimes charged are multiplicitous: interests sought to be protected; purpose which animated the defendant (helping to define the defendant's criminality); and changes in the extent and direction of the defendant's criminal intention (thus relating cumulative punishment to Mens rea ). This approach is "sounder than a generalized approach that two or more consecutive punishments are proper for a single episode because criminality of the activity is established by more than one section of the code." 19
The "additional fact" or "same evidence" test was discussed and criticized in Whitton v. State. 20 The Whitton court held that while it is a fundamental rule that a person may be punished for each distinct crime,
(F)requently the legislature will isolate and make criminal a number of steps arising out of one transaction, so that a defendant may be convicted and punished for multiple offenses arising out of a single (transaction). This type of legislation promote(d) the lawmaking body's legitimate objective of attacking a basic uinitary social evil by different legal devices, to the end that such evil will be entirely obliterated and all avenues of escape for offenders will be closed. 21
The court in Whitton criticized not only the Blockburger test, 22 but also the "same In finding that the Alaska constitution prevented the defendant from being punished for both robbery and use of a firearm during the commission of the same robbery, the Whitton court recognized that under the United States Supreme Court decisions on similar issues, such punishment would not be violative of the double jeopardy clause of the United States Constitution. 24
transaction" test, that is, one punishment for several statutory violations arising out of a single criminal transaction. 23
The "same evidence" or "additional fact" test supports the convictions of the defendant in this...
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