State v. Canon

• Decision Date: 21 February 2001
• Docket Number: No. 98-3519-CR.,98-3519-CR.
• Citation: 241 Wis.2d 164,2001 WI 11,622 N.W.2d 270
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Philip M. CANON, Defendant-Respondent.
• Court: Wisconsin Supreme Court

241 Wis.2d 164

2001 WI 11

622 N.W.2d 270

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Philip M. CANON, Defendant-Respondent.

No. 98-3519-CR.

Supreme Court of Wisconsin.

Oral argument September 7, 2000.

Decided February 21, 2001.

For the plaintiff-appellant-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-respondent there was a brief by Alan D. Eisenberg and Law Offices of Alan D. Eisenberg, Milwaukee, and oral argument by Alan D. Eisenberg.

¶ 1. JON P. WILCOX, J.

The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a) (1997-98)¹ for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue. We conclude that it does not.

¶ 2. The State charged the defendant, Philip M. Canon (Canon), with perjury under Wis. Stat. § 946.31(1)(a) for lying at his criminal traffic trial on the issue of whether he was driving his pickup truck immediately prior to being arrested for drunk driving. Canon moved to dismiss the complaint on the grounds of "collateral estoppel," or issue preclusion, and the Circuit Court for Taylor County, Judge Douglas T. Fox, presiding, granted Canon's motion.² The court of appeals, in a split decision, affirmed the order of the circuit court.

I

¶ 3. The facts are undisputed for the purposes of this review. The State charged Canon with intentionally making a false statement under oath at his criminal traffic trial for operating a vehicle while intoxicated. That criminal traffic trial in March of 1998 arose from an incident on July 4, 1996, when Canon and his companion, Cary S. Pergande, were travelling through Taylor County in Canon's pickup truck and they stopped to urinate alongside the road. A Taylor County police officer approached the two men to inquire whether they were having difficulty with Canon's truck. After talking with them, the officer concluded that Canon had been drinking and driving. As a result, the State charged Canon with operating a vehicle while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level.³ At the subsequent criminal traffic trial, the sole issue was whether Canon had been the driver of the truck. Canon testified that he had not been driving his pickup truck, implicating Pergande instead. The jury acquitted Canon of all charges.

¶ 4. One month after the trial, a man named Antonio Que Sada sent a letter to the Taylor County authorities alleging that Canon had "boast[ed] about their recent trip up north" and that Canon told him that he, not Pergande, had been driving his truck at the time. The State then filed the present complaint charging Canon with perjury. Canon countered with a motion to dismiss, contending that the charge was barred by issue preclusion. The circuit court reasoned that because the sole contested issue at the criminal traffic trial was whether Canon had been driving and the acquittal by the jury established beyond a reasonable doubt that Canon had not been driving, the State was barred by Ashe v. Swenson, 397 U.S. 436 (1970), from charging Canon with lying about whether he had been driving his truck. The circuit court acknowledged that in Ashe, the United States Supreme Court recognized the doctrine of issue preclusion as one of the protections in the Double Jeopardy Clause, which prevents the State from trying a defendant twice for the same offense. Id. at 443. Therefore, the circuit court granted Canon's motion to dismiss the criminal complaint on the grounds of issue preclusion. The State appealed the circuit court's dismissal.

¶ 5. In a published opinion, the court of appeals concluded that because who was driving on July 4, 1996, had "necessarily and actually been determined in a previous litigation," the doctrine of issue preclusion applied; to allow the State to proceed would violate the double jeopardy clauses of the federal and Wisconsin constitutions. State v. Canon, 230 Wis. 2d 512, 522, 602 N.W.2d 316 (Ct. App. 1999). The State's argument that a fraudulently obtained judgment "does not carry its full preclusive weight" was rejected by the court of appeals as incongruous with Ashe. Id. at 520. Consequently, the court of appeals affirmed the circuit court's order dismissing the State's complaint. Id. at 523.

¶ 6. This court subsequently granted the State's petition for review.

II

[1]

¶ 7. The application of issue preclusion to a set of facts is a question of law, which this court reviews without deference to the lower courts. Lindas v. Cady, 183 Wis. 2d 547, 552, 515 N.W.2d 458 (1994). This case involves competing policies, which must be balanced in order to preserve the central principle that undergirds the Double Jeopardy Clause on one hand and the integrity of our judicial system on the other hand.⁴ Therefore, before applying the law to the facts in the present case, it is appropriate to examine these competing policies.

[2]

¶ 8. The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment,⁵ provides that no "person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V.⁶ This clause prevents a prosecutor from harassing a criminal defendant with multiple prosecutions. The United States Supreme Court recognized this central principle when it wrote that:

The underlying idea [of the double jeopardy prohibition], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). Based on the above principle, this court has recognized three constitutional protections provided by the Double Jeopardy Clause: (1) protection against a subsequent prosecution for the same offense after acquittal; (2) protection against a subsequent prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. State v. Vassos, 218 Wis. 2d 330, 341, 579 N.W.2d 35 (1998). Consequently, each double jeopardy claim necessitates a fact-specific analysis to determine if any of these protections are implicated.

¶ 9. On the other hand, the crime of perjury erodes the integrity of our judicial system.⁷ As the United States Supreme Court declared in United States v. Mandujano, 425 U.S. 564, 576 (1976), "[p]erjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative." Because perjury is an egregious offense, the Wisconsin legislature enacted Wis. Stat. § 946.31(1)(a) to punish lying in court, making it a Class D felony. Criminal defendants must not be allowed to stretch the Double Jeopardy Clause in order to shelter themselves from perjury prosecutions. Such a result would undermine the intent of the legislature and engender more untruthful testimony in court. See ABF Freight Sys. v. NLRB, 510 U.S. 317, 323 (1994) ("False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a `flagrant affront' to the truth-seeking function of adversary proceedings."). To allow the crime of perjury to go unchecked would diminish the truth-seeking function of our judicial system. As the United States Supreme Court noted, "[a]ll perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth....[I]t cannot be denied that it tends to defeat the sole ultimate objective of a trial." In re Michael, 326 U.S. 224, 227 (1945).

¶ 10. Echoing the United States Supreme Court, we previously have declared:

[i]t is fundamental to the American system of jurisprudence that a witness testify truthfully. Without truthful testimony, it is nigh onto impossible to achieve the primary goal of our judicial system, justice. It is because the search for the truth is central to our legal proceedings that we require each witness to take an oath of truthfulness prior to testifying.

State v. Rivest, 106 Wis. 2d 406, 416-17, 316 N.W.2d 395 (1982). The oath that each witness is required to take prior to testifying in court is set forth in Wis. Stat. § 906.03. We have observed that the purpose of this oath "is to impress the person who takes the oath with a due sense of obligation, so as to secure the purity and truth of his or her words under the influence of the oath's sanctity." Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995). Perjury, by definition, violates this solemn oath. Consequently, we need to balance the State's efforts to eradicate perjury from our judicial system with the fundamental principle that underlies the Double Jeopardy Clause.

III

¶ 11. Canon urges this court to protect him from the consequences of his alleged offense by ruling that Ashe bars the State from prosecuting him for any perjury he may have committed at his criminal traffic trial. In Ashe, three or four masked men broke into a dwelling and robbed six poker players. 397 U.S. at 437. After the robbery, three men were arrested nearby and a fourth man, Ashe, was arrested some distance away. Id. Ashe was charged with robbing one of the six poker players, but he was acquitted when some of the witnesses were unclear whether there was a fourth man, and those witnesses that thought there was...