State v. Kramsvogel

Decision Date29 May 1985
Docket NumberNo. 84-017-CR,84-017-CR
Citation369 N.W.2d 145,124 Wis.2d 101
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Thomas J. KRAMSVOGEL, Defendant-Respondent.
CourtWisconsin Supreme Court

Stephen W. Kleinmaier, Asst. Atty. Gen., argued for the plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Terry W. Rose, argued, Kenosha, for defendant-respondent; Rose & Rose, Kenosha, on brief.

CECI, Justice.

This is a review of an unpublished decision of the court of appeals, 119 Wis.2d 902, 350 N.W.2d 743, which affirmed an order of the circuit court for Kenosha county, Max Raskin, reserve judge, presiding, dismissing a criminal complaint charging Thomas J. Kramsvogel (defendant) with criminal damage to property, contrary to section 943.01, Stats. 1 The circuit court dismissed the complaint on collateral estoppel and double jeopardy grounds, finding that the defendant had been convicted in a municipal court for the same acts which formed the basis for the state's charges against him in the criminal complaint. We reverse the court of appeals and hold that the double jeopardy clause prohibits only multiple criminal punishments. In this case, the municipal court proceeding against the defendant was a civil action. Therefore, we conclude that the civil action against Kramsvogel for violation of the municipal ordinances does not bar this subsequent criminal prosecution for violation of a state criminal statute, even though both proceedings concern the same actions of the defendant. Second, we hold that the doctrine of collateral estoppel is not applicable in this case. There are no facts that have been established against the state here, and, further, there is a lower burden of proof in civil cases than there is in criminal actions.

The facts that gave rise to the charges being filed against Kramsvogel are set forth in the criminal complaint, which alleges, in part,

"... that on June 12, 1983, at Pleasant Prairie Township, in said [Kenosha] County, the defendant did: intentionally and unlawfully cause physical damage to the property of another without that person's consent; in that on said date at approximately 12:30 p.m., Officer Paul Ratzburg of the Pleasant Prairie Police Department had occasion to return to said defendant's residence for the fourth time that day on reports of excessively loud noise and music emanating from the residence of said defendant; further that as Officer Ratzburg pulled into the residence and informed said defendant that he would be issued Pleasant Prairie Ordinances for loud and unnecessary noise, said defendant was then ordered to have a seat in the squad car operated by Officer Ratzburg; and further that said officer then had occasion to run a TTY on said defendant and determine that there were two warrants outstanding for said defendant with bond amounts totaling in excess of $3,000; whereupon, with the assistance of Deputy John Paul of the Kenosha Sheriff's Department, said defendant was then placed under arrest and handcuffed and placed into the squad vehicle; further that during the course of said defendant being placed in said vehicle, he became very violent and loud, telling said officer to 'get f------', fish face, a------ and other reported obscenities were then directed at Officer Ratzburg; further that said defendant continued with such behavior when he was questioned as to where his children could be taken while he was to be brought to the Kenosha County Public Safety Building; whereupon, said defendant continued to be very loud, stated that he was going to break out the windows of the squad car; at which point, said defendant leaned back on the rear seat of said squad and broke out the rear driver's side window with a kicking motion of his feet; further that said conduct by the defendant was without the permission or consent of Officer Ratzburg of the Pleasant Prairie Police Department; said conduct by the defendant being contrary to Section 943.01, Wis.Stats.,...."

On June 12, 1983, Officer Ratzburg issued two town of Pleasant Prairie municipal citations to Kramsvogel. The first citation alleged that the defendant violated section 9.06 of the municipal ordinances prohibiting loud and unnecessary noise by playing loud music. This citation is not in issue here. The second citation alleged that Kramsvogel violated section 9.03.1., Ordinances, 2 prohibiting disorderly conduct by "using profane language and had to be put in handcuffs." The municipal record is not before this court; however, the parties agree that it contains the following description of Kramsvogel's conduct:

"Def. used profane language, said f--- you, kiss my a--, called K.S.D. unit fishface while in the back of my squad car. Also stated he was going to get me, etc. Def. then kick out the window in the squad car and condt. [sic] to act disorderly."

Kramsvogel pled guilty to these citations and was fined $122.

On June 13, 1983, the criminal complaint charging Kramsvogel with criminal damage to property was issued by the Kenosha county district attorney. On June 29, 1983, the defendant filed a motion to dismiss the complaint, on the grounds that the charges against him were barred by either the double jeopardy clause or the collateral estoppel doctrine. The defendant argued that he pled guilty to the disorderly conduct charge in municipal court, believing that the charge included his act of breaking the squad car window, and, therefore, the state should not be allowed to subsequently charge him with criminal damage to property.

The circuit court granted the defendant's motion, finding that Kramsvogel was found guilty in the municipal court of the town of Pleasant Prairie for the same offense, based upon the same identical acts, as he is now being charged by the state. The circuit court held that if the state was allowed to proceed with this action, the defendant would be deprived of his right to protection under the double jeopardy provisions of both the state and federal constitutions. The circuit court's order dismissing the complaint was subsequently affirmed by the court of appeals.


There are two issues before this court:

(1) Whether a criminal prosecution based upon a state statute, which follows a guilty plea of violating municipal ordinances, should be barred as a violation of protection against double jeopardy when both proceedings concern the same actions of the defendant; and

(2) Whether a criminal prosecution based upon a state statute, which follows a guilty plea of violating municipal ordinances, should be barred under the doctrine of collateral estoppel when both proceedings concern the same actions of the defendant.

Double Jeopardy

Defendant contends that this prosecution places him twice in jeopardy for the same offense, contrary to the fifth amendment to the United States Constitution and art. 1, section 8 of the Wisconsin Constitution. 3 This is a question of law, and, therefore we owe no deference to the trial court's determination. State v. Denter, 121 Wis.2d 118, 122, 357 N.W.2d 555 (1984).

This court recently discussed the rationale underlying the prohibition against double jeopardy in State v. Martin, 121 Wis.2d 670, 360 N.W.2d 43 (1985), where we stated,

" 'The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, 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 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 [78 S.Ct. 221, 223-24, 2 L.Ed.2d 199] (1957), quoted with approval in United States v. DiFrancesco, 449 U.S. 117, 127-28 [101 S.Ct. 426, 432-33, 66 L.Ed.2d 328] (1980).

"A corollary of this principle of fairness is that the defendant once convicted and punished, should not live in a state of anxiety and insecurity for fear of further punishment for the same offense. The double jeopardy clause assures finality and fairness in the administration of the criminal justice system. United States v. DiFrancesco, 449 U.S. 117, 128-29 [101 S.Ct. 426, 432-33, 66 L.Ed.2d 328] (1980)." Id. 121 Wis.2d at 675-76, 360 N.W.2d 43 (footnote omitted).

The United States Supreme Court has analyzed the fifth amendment double jeopardy guarantee as consisting of three separate constitutional protections.

"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." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (emphasis added; footnotes omitted), cited with approval in State v. Sepulveda, 119 Wis.2d 546, 563, 350 N.W.2d 96 (1984). 4

It is the second of these protections that we deal with in this case. To determine whether the double jeopardy clause prohibits the state from prosecuting Kramsvogel for criminal damage to property, we must make two findings--first, whether this proceeding constitutes a "second prosecution" as defined for purposes of the double jeopardy clause; and, second, whether both prosecutions are for the "same offense."

Our first inquiry begins with the long-established rule that the double jeopardy clause protects against two attempted criminal prosecutions. In 1938, the United States Supreme Court held,

"Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy...

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