State v. Johnson

• Decision Date: 25 March 1966
• Docket Number: No. 40117,40117
• Citation: 273 Minn. 394,141 N.W.2d 517
• Parties: STATE of Minnesota, Respondent, v. TI George Hillman JOHNSON, Relator.
• Court: Minnesota Supreme Court

Page 517

141 N.W.2d 517

273 Minn. 394

STATE of Minnesota, Respondent v. TI George Hillman JOHNSON, Relator.

No. 40117.

Supreme Court of Minnesota.

March 25, 1966.

Syllabus by the Court

1. Minn.St. 609.035 of the Criminal Code of 1963 (L.1963, c. 753, § 609.035) prohibits both double punishment and serialized prosecutions 'if a person's conduct constitutes more than one offense.'

2. '(A) person's conduct constitutes more than one offense' within the meaning of § 609.035 where a single behavioral incident results in violations of more than one criminal statute.

3. Violations of two separate traffic statutes are the result of a single behavioral incident where the violations occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct manifesting an indivisible state of mind or coincident errors of judgment.

4. Under the circumstances of this case, defendant's conduct in driving while under the influence of intoxicants in violation of Minn.St. 169.121 and driving over the centerline in violation of § 169.18 resulted from a single behavioral incident.

5. The statutory prohibition against multiple prosecutions found in § 609.035 may be waived where the accused, upon request, is accorded separate prosecutions for each offense.

6. The traffic offenses of driving while under the influence and driving over the centerline can in no sense be considered 'included' offenses as defined by Minn.St. 609.04, subd. 1 (L.1963, c. 753, § 609.04, subd. 1).

Kempf & Ticen, Bloomington, and Dale J. Happe, Minneapolis, for relator.

John G. Pidgeon, City Atty., John J. Waters, Asst. City Atty., Bloomington, for respondent.

ROGOSHESKE, Justice.

We granted a writ of prohibition in this case to review a municipal court interpretation and application of Minn.St. 609.035 of our Criminal Code of 1963 (L.1963, c. 753, § 609.035) in pending criminal proceedings against defendant where his conduct in driving a motor vehicle gave rise to two complaints charging two separate violations of state traffic statutes.

The precise question presented is whether § 609.035 requires dismissal of a pending charge of driving while under the influence of an alcoholic beverage ¹ after defendant was convicted but not yet sentenced for the offense of driving over the centerline, ² where both offenses charged arise during the course of operating an automobile at a particular time and place.

The facts are stipulated. On July 24, 1965, defendant was arrested by a police officer of the city of Bloomington and was issued two traffic tickets charging the offenses referred to above. The officer witnessed defendant's vehicle enter a four-lane city street and drive upon it for a distance of about 800 feet. Upon entering, the vehicle immediately went to the centerline, straddled it for a time, and continued to the left of it until defendant turned his vehicle into a parking lot adjoining the street. When defendant appeared before the Hennepin County municipal court, he 'entered no plea' to the charge of driving while under the influence and requested that he be arraigned on the charge of driving over the centerline. He thereupon pleaded guilty to the latter charge. His plea was accepted and noted upon the clerk's records. Thereafter his motion for sentencing was denied, the court announcing that sentencing would be deferred until 'the disposition of the Driving Under the Influence charge.' Defendant then moved for a dismissal of the pending charge upon the ground that following his conviction of driving over the centerline any further prosecution for conduct constituting more than one offense is barred by § 609.035. He also contended that under § 609.04 (L.1963, c. 753, § 609.04) the pending charge is an 'included crime' necessarily proved by his conviction of driving over the centerline. The court denied his motion and ordered defendant to stand trial on the pending charge.

For the purposes of this motion and our review only, defendant admits that he was driving under the influence of an alcoholic beverage. Although not a part of the stipulation, we assume also that both the prosecution and defendant contemplated only one trial for both charges.

The perplexing problem concerns the construction and scope of the prohibition against double punishment and multiple prosecutions contained in § 609.035. It provides:

'Except as provided in section 609.585, ³ if a person's conduct constitutes more than one offense under the laws of this state he may be punished for only one of such offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All such offenses may be included in one prosecution which shall be stated in separate counts.'

In arriving at an answer to the question presented, we must, consistent with basic legal concepts, attempt to effectuate the intention of the legislature. The two most reliable indicators of the legislature's intended application and scope are the language of the statute and the policy considerations as revealed by the history of the statute and the comments of an advisory committee which assisted the legislature in recently revising our criminal code.

1. Although the statute is commonly referred to as one prohibiting double punishment, a reading of it compels a recognition that it contains two prohibitions, one against double punishment and the other against serialized prosecutions for separate offenses similar to that afforded by our constitutional provision prohibiting placing an accused twice in jeopardy for the same offense. ⁴ Conceivably, double punishment can arise where a person is convicted of two or more offenses following either one prosecution where the charges are stated as separate counts or two or more prosecutions where the charges are brought separately. The double-jeopardy prohibition can become applicable when a second prosecution is attempted following a conviction or acquittal upon a previous charge. In either case, the application of the prohibitions turns on the same determination--whether the 'person's conduct constitutes more than one offense.' Stated another way, a defendant can neither be punished nor prosecuted more than once where his 'conduct constitutes more than one offense.'

The probable area of application is not as inclusive as an initial reading might suggest. It is not likely that the statute will be used where the 'person's conduct' results in the commission of multiple crimes if one of the crimes includes the commission of a lesser or included crime. In those instances, § 609.04 ⁵ applies and allows conviction of the crime charged or an 'included crime, but not both,' and bars 'further prosecution of any included crime, or other degree of the same crime.' In those cases it is clear that, since a conviction of only one crime is permitted, double punishment could not be imposed, and § 609.04 as well as the rule against double jeopardy would prohibit further prosecutions. ⁶ Thus the instances in which the application of § 609.035 may be sought are narrowed to those where a 'person's conduct' results in the commission of two or more separate or nonincluded offenses. Moreover, it must be kept in mind that the type of conduct specified must involve a multiplicity of violations rather than a single violation resulting from a single criminal act. Apparently to emphasize this feature and to encourage its application, the final sentence of the statute was added, authorizing for the first time a procedure by which all nonincluded offenses may be charged in one indictment, information, or complaint by stating each violation as a separate count. This procedure contemplates one prosecution wherein an accused is charged and tried for all violations resulting from his conduct. It also necessarily contemplates multiple convictions. ⁷

2. The policy and purpose of the statute as now written is best revealed by the comments of the advisory committee and its reporter, Professor Maynard E. Pirsig, who aided a legislative interim commission established in 1955 in performing the task of recommending a revision of our criminal code prior to its enactment in 1963. From these comments it is apparent that the overall design of both § 609.035 and the statute it superseded is to prohibit double punishment and at the same time to insure that punishment for a single incident of criminal behavior involving a multiplicity of violations will be commensurate with the criminality of defendant's misconduct. As stated in the comments of the committee, the purpose of the statute prior to and after revision is 'to limit punishment to a single sentence when a single behavioral incident resulted in the violation of more than one criminal statute.' ⁸ The policy underlying this objective appears to be that, where the statute is applicable and defendant is convicted of multiple offenses, as a practical matter a single sentence will necessarily take into account all violations, and imposing up to the maximum punishment for the most serious offense will include punishment for all offenses. As further pointed out by Professor Pirsig, permitting a series of prosecutions and sentences where a single behavioral incident constitutes more than one offense will 'exaggerate the criminality of the behavior involved and, in a sense, defeat the policy underlying the constitutional protection against double jeopardy.' ⁹ From these and other published comments, it does appear that the drafters, as well as the legislature, intended not only to protect against double punishment but also to broaden the protection afforded by our constitutional provisions against double jeopardy. The latter provision prohibits trying a defendant more than once for the same offense. Its underlying policy is to protect an accused from being unduly harassed by repeated prosecutions for the same conduct until a desired result is accomplished. ¹⁰ It can be...