Jacobs v. Marathon County, Wis.

• Decision Date: 15 February 1996
• Docket Number: No. 95-1080,95-1080
• Citation: 73 F.3d 164
• Parties: Chris JACOBS III, Petitioner-Appellant, v MARATHON COUNTY, WISCONSIN, Circuit Court, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 164

73 F.3d 164

Chris JACOBS III, Petitioner-Appellant, v MARATHON COUNTY, WISCONSIN, Circuit Court, Respondent-Appellee.

No. 95-1080.

United States Court of Appeals Seventh Circuit.

Argued Sept. 27, 1995.

Decided Jan. 5, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 15, 1996.

Randall Edward Paulson (argued), Office Of Public Defender, Milwaukee, WI, and Weldon Nelson (argued), State Public Defender, Wausau, WI, for Petitioner-Appellant.

Marguerite M. Moeller (argued), Office of Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before WOOD, Jr., ROVNER, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

A gruesome tragedy was discovered in the early morning hours of July 5, 1987, in the town of Bern in rural Marathon County, Wisconsin. Sheriff's deputies, responding to a report of an "accident with injuries," arrived at the Kunz family residence and discovered the bodies of Randy, Marie, Irene, and Clarence Kunz. All had been shot to death. The deputies were told that the only other relative who lived in the house, Helen Kunz, was missing. The remains of what turned out to be the body of Helen Kunz were discovered nine months later in Taylor County, approximately 18 miles from the Kunz residence.

Even before the discovery of Helen Kunz's body, police attention focused on Chris Jacobs III as the perpetrator, or one of the perpetrators, of the crimes. Six months after the discovery of the four bodies at the home, and three months before Helen's remains were uncovered, Jacobs was arrested and detained over the weekend in connection with the homicides. He was released uncharged.

Eventually, based on tire track marks, shell casings, and other physical evidence, police arrested Jacobs again in August of 1988, and charged him with five counts of first degree murder--party to the crime. He was tried before a jury in October of 1989 and acquitted on all five counts.

Almost four years after the trial, armed with additional evidence, the State charged Jacobs again, this time with the kidnapping and false imprisonment of Helen Kunz. Jacobs moved to dismiss the charges, claiming that the Fifth Amendment's prohibition against double jeopardy barred the State from charging him with the abduction that ultimately led to the death of Helen Kunz. The motion to dismiss was denied by the Marathon County Circuit Court, and that decision was upheld by the Wisconsin Court of Appeals. The Wisconsin Supreme Court declined to review the case, and Jacobs then moved to the federal court by filing a petition for a writ of habeas corpus in the United States District Court for the Western District of Wisconsin. The district court denied the petition and Jacobs appeals. We affirm.

The Double Jeopardy Clause of the Fifth Amendment provides that no one will "be subject for the same offence to be twice put in jeopardy of life or limb...." The clause affords protection against three classes of abuse. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Schiro v. Farley, --- U.S. ----, ----, 114 S.Ct. 783, 789, 127 L.Ed.2d 47 (1994) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). Mr. Jacobs' habeas petition invokes the first of these protections.

To better understand how the issue in this case is to be resolved, we turn first to the 1989 trial that ended in Jacobs' acquittal. In that case the jury had two options; to find Jacobs either guilty or not guilty of murder in the first degree as to each victim. The trial judge instructed the jury on the law as follows:

Before the defendant may be found guilty of murder in the first degree, the State must prove by evidence which satisfies you beyond a reasonable doubt that there were present the following two elements of this offense.

First, that the defendant or another that he aided and abetted intended to kill Randy, Irene, Marie, Clarence and/or Helen Kunz. Second, that the defendant or another that he aided and abetted caused the death of Randy, Irene, Marie, Clarence, and/or Helen Kunz.

After ten hours of deliberations, the jury submitted the following written question to the court:

Would like "intent to kill" made clear. Can we separate "intent to muder [sic]." That is can we separate Chris Jacobs' intentions from possible accomplice's or accomplices' intention.

The note was accompanied by one of the pages of the judge's written instructions to the jury. The following paragraph was circled:

If a person intentionally aids and abets the commission of a crime, then that person is guilty of the crime as well as the person who directly commits it.

The court responded to the jury's question by writing:

Yes. You must look at the intention of the defendant. The person who directly commits a crime must have an intention to commit that crime. One who aids and abets must be found to have an intent to assist another in the commission of that crime before he can be found guilty.

A little over an hour after the judge answered the question, the jury returned a verdict of not guilty on all five counts.

Jacobs' first argument in support of his habeas petition is that the present charges against him are either analogous to or "species of" lesser included offenses of the first degree murder charge of which he was acquitted in 1989. Two lines of reasoning are offered in support of this argument. One is that the current charges were readily available to the State in the murder prosecution because felony murder was an available lesser included offense of the first degree murder charge. Kidnapping and false imprisonment were likewise available lesser-included offenses of felony murder. Because the State could have included the present charges in the prior trial, Jacobs argues, it is barred by the Double Jeopardy Clause from bringing them now. The other line of reasoning pursued in support of this argument is that, while Jacobs was never charged with felony murder, the trial was litigated as a "robbery gone fatally wrong." Jacobs contends that the current charges are "analogous to" lesser included offenses of the uncharged felony murder case presented at his 1989 trial.

The fatal flaw in this argument is that, for purposes of double jeopardy analysis, we look to the charges actually brought against the defendant, not to all possible charges available to the prosecution. To do otherwise would be to follow the "same-conduct" test announced in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), a case expressly overruled in United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The appropriate test for determining whether new charges are barred by the Double Jeopardy Clause was originally set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "The test to be applied to determine whether there are two offenses or only one is whether each provision (i.e. charge) requires proof of a fact which the other does not." Blockburger at 304, 52 S.Ct. at 182. New charges will pass the Blockburger test as long as each charge requires proof of an element not required by the other. Evaluating the charges against Jacobs in the two prosecutions, we see that each charge requires proof of additional elements as demanded by the Blockburger test. First degree murder requires proof of both a killing and an intent to kill, elements which are not required to prove the charges of kidnapping or false imprisonment. Kidnapping and false imprisonment both include elements that are not required to be proven in order to secure a conviction for first degree murder. The Blockburger test is satisfied.

Jacobs attempts to support his argument with citations to Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). These cases do not address the central flaw in Jacobs' argument, however. All involve offenses for which the defendants had actually been charged. None of them hold, as Jacobs argues, that subsequent charges may be barred due to charges that could have been, but were not brought in an earlier prosecution.

Jacobs' second argument in support of his petition...