Nowack v. State

Decision Date09 May 1989
Docket NumberNo. 87-74,87-74
Citation774 P.2d 561
PartiesEverett NOWACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ. and O'BRIEN, District Judge.

O'BRIEN, District Judge.

On June 5, 1986, while drunk, Everett Nowack operated a vehicle on the streets of Casper, Wyoming. He drove across the median of Poplar Street and ran head-on into another vehicle. That collision resulted in serious injuries to one of the occupants of the other vehicle. For his acts he was criminally charged.

On October 30, 1986, he pled guilty in Natrona County Court to causing serious bodily injury to another as a result of driving while under the influence of intoxicating liquor, in violation of § 31-5-233(a) and (g), W.S. 1977 (hereafter "injury-producing D.W.U.I."). On January 16, 1987, he was found guilty in District Court of aggravated assault and battery in violation of § 6-2-502, W.S. 1977. Both the guilty plea and the later conviction were based upon the events of June 5, 1986. This appeal comes from the aggravated assault and battery conviction.

We are called upon to decide:

(1) Whether the existence of the injury-producing D.W.U.I. statute precludes the state from charging aggravated assault and battery when serious bodily injury results from an alcohol related vehicular accident, and

(2) Whether the double jeopardy clause of the United States or the Wyoming Constitution bars prosecution of the defendant for aggravated assault and battery after he has plead guilty to injury-producing D.W.U.I. for the same incident.

The district court held that the State was not constrained from prosecuting the aggravated assault and battery. For the reasons stated below, the judgment of the district court is affirmed.

On June 30, 1986, Nowack was charged in Natrona County Court with three criminal counts: first, causing serious bodily injury to another resulting from driving under the influence in violation of § 31-5-233(a) and (g), W.S. 1977; second, operating a motor vehicle without liability insurance in violation of § 31-4-103(a), W.S.1977; and third, aggravated assault and battery in violation of § 6-2-502(a)(i), W.S.1977. The first two counts are misdemeanors; the third is a felony.

Upon motion by the State the two misdemeanors were dismissed on July 22, 1986, but the felony went to preliminary hearing. Following the preliminary hearing on July 28, 1986, Nowack was bound over for trial in the district court on the charge of aggravated assault and battery. After the preliminary hearing, and for reasons not disclosed in the record, the misdemeanors, earlier dismissed at the State's request, were refiled and Nowack pled guilty to both. He was sentenced by the county court for those offenses on October 30, 1986. Then, on November 18, 1986, he moved in district court to dismiss the aggravated assault and battery charge. In considering his motion the district judge said: 1 "One problem with the argument of defendant is that it would reach an absurd result, whereby a person who was drunk and driving recklessly, resulting in serious bodily injury, would be guilty only of a misdemeanor, while a sober reckless driver causing serious bodily injury would be guilty of a felony." The motion was denied and the defendant was later found guilty after a bench trial.

The first issue raised by appellant is whether the State can charge him with a felony, aggravated assault and battery, 2 arising from a vehicular accident involving both reckless and drunken driving. He argues that the State must charge him with the statute which, in his view, specifically (and therefore exclusively) covers that conduct, to-wit § 31-5-233, W.S.1977, driving or having control of a vehicle while under the influence of intoxicating liquor or controlled substances. 3

The United States Supreme Court has considered the circumstance of two statutes providing different penalties for identical criminal conduct. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). The Court was called upon to construe conflicting penalty provisions of the Omnibus Crime Control and Safe Streets Act of 1968. In writing for a unanimous court Justice Marshall said [at 118, 99 S.Ct. at 2201], "As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other." The Court went on to say [at 122-124, 99 S.Ct. at 2203-04]:

In resolving the statutory question, the majority below expressed "serious doubts about the constitutionality of two statutes that provide penalties for identical conduct." [U.S. v. Batchelder ], 581 F.2d, at 633-634 [ (7th Cir.1978) ] (footnote omitted). Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate "due process and equal protection interest[s] in avoiding excessive prosecutorial discretion and in obtaining equal justice," and (3) constitute an impermissible delegation of congressional authority. Id., at 631-633. We find no constitutional infirmities.

* * * * * *

It is a fundmental tenet of due process that "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." [citation omitted] A criminal statute is therefore invalid if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." [citations omitted] So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. [citations omitted]

The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. See supra 442 U.S. at 119, 99 S.Ct. at 2201-02, 60 L.Ed.2d, at 761-762. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.

* * * * * *

This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. [citations omitted]

The same issue was presented to this Court with the same result. Kallas v. State, 704 P.2d 693 (Wyo.1985). In Kallas the defendant, who was the father of the victim, was charged with second degree sexual assault, § 6-2-303(a)(v), W.S.1977. On appeal he argued that he should have been charged under the incest statute, § 6-4-402, W.S.1977, which carried a much more lenient sentence. In resolving the issues contrary to his contentions this Court relied upon United States v. Batchelder. After Kallas it would seem that the issue had been adequately put to rest. However, like a phoenix, it continues to resurrect itself. In Bueno-Hernandez v. State, 724 P.2d 1132, 1139 (Wyo.1986) the defendant was convicted of attempted second degree sexual assault under §§ 6-2-303(a) and 6-1-301(a), W.S.1977. He argued that he should have been charged with fourth degree sexual assault, § 6-2-305, W.S.1977, or indecent liberties with a minor, § 14-3-105, W.S.1977. This Court again held that absent discriminatory prosecution, the State may charge any offense it can prove. In spite of those holdings, and for the third time in recent years we are again presented with the same argument. We will now conclusively deal with the issue.

Nowack suggests several rules of statutory construction to support his position. He argues that statutes on the same subject must be construed together to promote consistency and harmony, Capwell v. State, 686 P.2d 1148 (Wyo.1984) and, presuming that the legislature does not intend futile acts, that statutes must be construed so as to give meaning to each and nullify neither. Sodergren v. State, 715 P.2d 170 (Wyo.1986); Attletweedt v. State, 684 P.2d 812 (Wyo.1984); Haddenham v. City of Laramie, 648 P.2d 551 (Wyo.1982); McGuire v. McGuire, 608 P.2d 1278 (Wyo.1980). We recognize the validity of those accepted rules of statutory construction, but fail to see their relevance to the issue presented. The thrust of the argument appears to be that consideration of the two statutes creates an ambiguity which should be resolved in favor of lenity. 4 But, "[l]enity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation 'at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.' " Albernaz v. United States, 450 U.S. 333, 342, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). We see no ambiguity either in the proscriptions of the statutes or in the punishments provided. Id. at 336, 101 S.Ct. at 1141. Stripped of rhetorical gloss Appellant's argument distills to his claim that the injury-producing D.W.U.I. statute is specific and must be applied in this circumstance to the exclusion of the more general aggravated assault and battery statute.

In dealing with a similar argument about various statutes which address sexual misconduct, Kallas v. State, 704 P.2d at 693, we said [at 695]:

All three statutes (sexual assault, indecent liberties with a minor, and incest) concern sexual activities, but one cannot be said to be...

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