State v. Kurzawa, 92-0926-CR
| Decision Date | 09 September 1992 |
| Docket Number | No. 92-0926-CR,92-0926-CR |
| Citation | 496 N.W.2d 695,173 Wis.2d 769 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. Michael J. KURZAWA, Defendant-Appellant. . Oral Argument |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant there were briefs by Stephen M. Glynn and Robert R. Henak of Shellow, Shellow & Glynn, S.C. of Milwaukee and oral argument by Attorney Henak.
On behalf of the plaintiff-respondent there was a brief by James E. Doyle, Atty. Gen., and Sharon Ruhly, Asst. Atty. Gen., and oral argument by Attorney Ruhly.
Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.
Michael J. Kurzawa appeals from a nonfinal order denying his motion to dismiss a criminal complaint charging him with fifty-four counts of uttering forged writings contrary to sec. 943.38(2), Stats. 1 The sole issue on appeal is whether the double jeopardy clause of the United States and Wisconsin Constitutions bars this prosecution because Kurzawa was previously acquitted of theft by fraud charges based on the same core conduct as charged in this case. Pursuant to the United States Supreme Court decision of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), we conclude that the prosecution is barred on double jeopardy grounds. We reverse the trial court's order and remand with directions to dismiss the criminal complaint against Kurzawa.
For the purposes of Kurzawa's motion to dismiss in the trial court, the parties stipulated to the facts. Kurzawa served as an accountant and financial manager for the professional practices of Drs. Robert and Clarice Beckes. In this capacity, Kurzawa wrote numerous checks to himself on the Beckes' accounts and then cashed the checks. Based on this conduct, the state charged Kurzawa in Milwaukee county with two counts of felony theft by fraud, contrary to sec. 943.20(1)(d) and (3)(c), Stats. 2
In the Milwaukee county theft by fraud proceeding a jury was impaneled and sworn. Therefore, jeopardy attached. Section 972.07(2), Stats. In that trial, the state sought to establish the element of "false representation" (see sec. 943.20(1)(d), Stats.) with evidence that Kurzawa had obtained money from the Beckes' accounts by forging the Beckes' names as the purported makers of the checks, by naming himself or his business as payee, and by then cashing the checks. The matter was never submitted to the jury, however, because the Milwaukee county circuit court granted Kurzawa's motion for a judgment of acquittal. 3
Thereafter, the state initiated the Walworth county criminal proceeding which is the subject of this appeal. The criminal complaint in this action charges Kurzawa with fifty-four counts of uttering a forged writing contrary to sec. 943.38(2), Stats. Each count involves a check written by Kurzawa on the Beckes' accounts that was either cashed by him or deposited into one of his accounts at a Walworth county bank. The parties agree that the complaint in this case is based upon the same core conduct underpinning the Milwaukee county theft by fraud charges which were dismissed after jeopardy attached.
Kurzawa argued that this prosecution violated his constitutional protection against double jeopardy. The trial court disagreed, noting that the Milwaukee county charges and these charges did not possess an overlapping or concurrent "necessary element between theft by fraud and uttering." Kurzawa appeals.
The double jeopardy clauses of both the United States and Wisconsin Constitutions protect a citizen against being put twice in jeopardy for the same offense. 4 Double jeopardy embodies three protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Grady, 495 U.S. at 516, 110 S.Ct. at 2090.
We are concerned in this case with the double jeopardy protection against a second prosecution after acquittal for the same offense. The issue presents a question of law which we review de novo. State v. Poveda, 166 Wis.2d 19, 21, 479 N.W.2d 175, 176 (Ct.App.1991); State v. Harris, 161 Wis.2d 758, 760, 469 N.W.2d 207, 208 (Ct.App.1991).
In Grady, the United States Supreme Court reviewed a double jeopardy claim made in the context of successive prosecutions for separate offenses which arose out of a single occurrence. There, the intoxicated defendant drove his vehicle over the center line and killed the driver of an oncoming car. Through an oversight in the local prosecutor's office, the defendant was only charged and convicted of driving while intoxicated and failing to keep to the right of the center line. The state later indicted the defendant for homicide and reckless assault in connection with the accident. The state confirmed that it would establish the defendant's guilt by proving his intoxication at the time of the accident, his failure to keep to the right of the median, and his driving too fast for conditions. Grady, 495 U.S. at 511-14, 110 S.Ct. at 2087-89.
The United States Supreme Court held that the successive prosecution was barred on double jeopardy grounds because the state sought to prove the "entirety of the conduct for which [the defendant previously] was convicted--driving while intoxicated and failing to keep right of the median--to establish essential elements of the homicide and assault offenses." Id. at 523, 110 S.Ct. at 2094. The Court employed a two-step analysis. First, the Court applied the Blockburger 5 test which inquires whether the offense charged in the subsequent prosecution requires proof of a fact which the other offense does not. Grady, 495 U.S. at 515, 110 S.Ct. at 2090 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). If such an inquiry reveals that "the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred." Id., 495 U.S. at 516, 110 S.Ct. at 2090. As to this analysis, the Grady Court concluded that the offenses and attendant elements in the later prosecution were different from those in the prior prosecution. Thus, the state's multiple charging passed muster under the Blockburger test. See Grady at 515, 110 S.Ct. at 2090.
This did not conclude the Supreme Court's inquiry, however. The Court next turned to the second step of the analysis, examining whether "to establish an essential element of an offense charged in that prosecution, [the state] will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 521, 110 S.Ct. at 2093. The Court held that such was the case under the facts of Grady. Id. at 523, 110 S.Ct. at 2094. Therefore, the Court concluded that the double jeopardy clause barred the subsequent prosecution.
We now turn to the application of Grady in this case. As to the first prong of the Grady analysis, both parties concede--and we agree--that the offenses at issue here survive the Blockburger test because they neither have identical statutory elements nor is one the lesser included offense of the other. 6 State v. Sauceda, 168 Wis.2d 486, 494-95, 485 N.W.2d 1, 4-5 (1992). Theft by fraud requires proof that the defendant obtained title to another's property by intentionally deceiving and defrauding the owner with a known false representation. See sec. 943.20(1)(d), Stats. In contrast, uttering a forged writing requires proof that the defendant presented or cashed as genuine a false or altered writing by which legal rights are created or transferred. See sec. 943.38(2), Stats. Thus, each offense carries elements which requires proof of facts which the other does not. Therefore, the state's successive charging of Kurzawa survives the Blockburger test.
We therefore move to the next level of inquiry under Grady: whether, to establish an essential element of an offense charged in that prosecution, the state will attempt to prove conduct that constitutes an offense for which the defendant has already been prosecuted. Grady, 495 U.S. at 521, 110 S.Ct. at 2093. As the Grady Court stated at another point, "if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a component offense), the Double Jeopardy Clause would bar subsequent prosecution of the component offense." Id. at 521 n. 11, 110 S.Ct. at 2093 n. 11. The critical inquiry is what conduct the state will seek to prove, not the evidence the state will use in the attempt. See id. at 521, 110 S.Ct. at 2093.
As to the Milwaukee county theft by fraud charges, the parties stipulated that the state sought to establish the element of "false representation" by proving that Kurzawa had obtained money from the Beckes' accounts by forging the Beckes' names as the purported makers of the checks and naming himself or his business as payees. As to the Walworth county forgery charges, the parties have stipulated that the state intends to rely on the following conduct:
[1.] Between a date prior to May, 1983 and the end of March, 1986, Mr. Kurzawa wrote a number of checks to himself or his business on the Beckeses' [sic] business accounts, forging their names as the drawers of the checks. These checks included the checks which are set forth in Counts 1 through 54 of this information.
[2.] Mr. Kurzawa presented the checks set forth in Counts 1 through 54 of the information for cashing or deposit into accounts held in his name at the Walworth State Bank in Walworth County, Wisconsin.
[3.] Neither Dr. Robert Beckes nor Dr. Clarice Beckes gave the defendant permission to make the checks, to sign their names to the checks, or to present the checks for cashing anywhere.
Comparing Kurzawa's...
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