State v. Kurzawa

• Decision Date: 19 October 1993
• Docket Number: No. 92-0926-CR,92-0926-CR
• Citation: 509 N.W.2d 712,180 Wis.2d 502
• Parties: , 62 USLW 2514 STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael J. KURZAWA, Defendant-Appellant. d . Oral Argument
• Court: Wisconsin Supreme Court

Page 712

509 N.W.2d 712

180 Wis.2d 502, 62 USLW 2514

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael J. KURZAWA, Defendant-Appellant. ^d

No. 92-0926-CR.

Supreme Court of Wisconsin.

Oral Argument Oct. 19, 1993.

Decided Jan. 12, 1994.

For the defendant-appellant there were briefs by Stephen M. Glynn, Robert R. Henak and Shellow, Shellow & Glynn, S.C. Milwaukee and oral argument by Robert R. Henak.

WILCOX, Justice.

This is a review under sec. (Rule) 809.62, Stats., of a published decision of the court of appeals ¹ reversing Walworth County Circuit Court Judge James L. Carlson's determination that the state's attempt to prosecute the defendant, Michael J. Kurzawa (Kurzawa) in Walworth County on 54 counts of forgery did not violate Kurzawa's constitutional protection against being placed twice in jeopardy for the same offense. Because we believe the Walworth County prosecution does not violate Kurzawa's constitutional rights, we reverse and remand.

Background

This appeal has a complicated and lengthy history. In 1977, Dr. Robert Beckes and his wife, Dr. Clarice Beckes, each established their own medical practice in the city of Milwaukee. Beginning in 1977, and continuing until some time in 1986, Kurzawa provided professional services in connection with the business aspects of the Beckes' practices. He was instrumental in the initial set-up of the offices. He also provided ongoing assistance in such areas as personnel decisions, the development of marketing strategies, bill- paying, and general bookkeeping responsibilities. The performance of these services allowed Kurzawa access to the Beckes' business checking accounts and bank records.

All of the criminal charges against Kurzawa, first in Milwaukee County, and later in Walworth County, stem from allegations that during this period he signed and made payable to himself checks drawn against the Beckes' business checking accounts. These checks were discovered during the course of an audit requested by Robert Beckes in 1986 after he had grown concerned over his practice's financial condition.

That audit revealed that Kurzawa had signed the name of either Robert or Clarice Beckes on checks drawn against their business accounts with the Greater Milwaukee Bank. Many of these checks were payable to parties other than Kurzawa, and apparently went towards legitimate business expenses. In other instances, however, Kurzawa signed checks made payable either to himself or his business. The Beckes claim that Kurzawa was not entitled to those assets. It is conceded by all parties that Kurzawa was not authorized to sign checks on these accounts.

Following an investigation by the forgery unit of the Milwaukee Police Department, Kurzawa was charged in Milwaukee County with one count of embezzlement, contrary to secs. 943.20(1)(b) and (3)(c), Stats. Shortly before trial, the criminal information was amended so as to charge Kurzawa with two counts of theft by fraud, where the value of the property exceeds $2,500, in violation of secs. 943.20(1)(d) and (3)(c). Count one of the amended information involved the property of Dr. Robert Beckes; count two involved the property of Dr. Clarice Beckes.

The theft by fraud charges against Kurzawa went to trial on September 25, 1990. Following the state's presentation of its case-in-chief, Judge William D. Gardner granted Kurzawa's motion for acquittal on all charges. Judge Gardner based his order on what he regarded as several flaws in the prosecution's legal theory of the case. ² The merits of the case did not go to the jury.

Then, by criminal complaint dated April 10, 1991, Kurzawa was charged in Walworth County with 54 counts of uttering a forged writing (forgery), in violation of sec. 943.38(2), Stats. Each count arises from a separate check written on the business account of either Robert or Clarice Beckes. The 54 checks in question were written during a time that spanned April 16, 1985 to March 24, 1986. There is no question but that these 54 checks were among those checks that served as the basis for the prior Milwaukee County theft by fraud prosecution.

On October 18, 1991, Kurzawa moved the Walworth County Circuit Court to dismiss the charges against him on double jeopardy grounds. Essentially, his argument was that under the analysis articulated in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), he had already been prosecuted for this offense in the Milwaukee County theft by fraud trial. Judge Carlson dismissed Kurzawa's motion, and ordered the Walworth County prosecution to proceed.

Kurzawa appealed Judge Carlson's non-final order to the court of appeals. Following an unsuccessful attempt to certify the issue to the Wisconsin Supreme Court, the court of appeals reversed Judge Carlson's order, and remanded the case with instructions to dismiss the criminal complaint.

In the court of appeals' view, the Walworth County forgery prosecution failed Grady's double jeopardy analysis. The opinion's author, Judge Nettesheim, noted that Grady established a new two-step analysis for "successive prosecution" cases such as Kurzawa's. In the first step, the inquiry is whether the second prosecution passes the "same elements" test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). That test asks whether each offense, "requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. Applying that test, the court of appeals compared the statutory elements of theft by fraud, sec. 943.20(1)(d), with those of forgery, sec. 943.38(2), and found that they survived Blockburger because, "they neither have identical statutory elements, nor is one the lesser-included of the other." Kurzawa, 173 Wis.2d at 775, 496 N.W.2d 695.

The court then proceeded to the second inquiry under Grady, one it characterized as whether, "to establish an essential element of an offense charged ... the state will attempt to prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 776, 496 N.W.2d 695. In its analysis, the court of appeals had the benefit of a series of stipulations made by the parties. In one such stipulation, the state acknowledged that in the Milwaukee County prosecution, it sought to establish the element of 'false representation' by proving that Kurzawa obtained money from the Beckes' accounts by forging their names as the purported makers of the checks and naming himself as payee. The court then compared that fact with the following stipulations regarding the conduct the state intended to rely upon in the Walworth County forgery prosecution:

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 Beckes' 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. Id.

The court of appeals found that these stipulations revealed that the state was attempting to prosecute Kurzawa for the same "core conduct" in successive prosecutions. This, the court concluded, was precisely what Grady forbids. Id.

Judge Nettesheim also wrote a separate concurrence wherein he questioned the continuing vitality of Grady, particularly in light of the Supreme Court's subsequent holding in United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), and the Wisconsin Supreme Court's post-Grady decision, State v. Sauceda, 168 Wis.2d 486, 485 N.W.2d 1 (1992). Kurzawa, 173 Wis.2d at 777, 778-79, 496 N.W.2d 695 (Nettesheim, J., concurring). Judge Nettesheim recognized that Sauceda dealt with the situation where multiple offenses are tried in a single prosecution, while Grady was addressed to instances of successive prosecutions. Nonetheless, he felt that Sauceda, which relied almost exclusively on a Blockburger analysis, and Grady could lead to unjustifiably disparate results. Id. 173 Wis.2d at 780, 496 N.W.2d 695.

In April of 1993, we agreed to hear the state's appeal of the court of appeals decision, and scheduled oral arguments for September of that year. In the interim, on June 28, 1993, the United States Supreme Court overturned its barely three-year-old Grady decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). In Dixon, five justices criticized Grady for what they viewed as that decision's lack of historical grounding and its demonstrated unworkability in practice. Id. 509 U.S. at ---- - ----, 113 S.Ct. at 2860-63, 125 L.Ed.2d at 573-76. These same five justices further rejected the idea, which lay at the heart of Grady, that the double jeopardy clause required a different method of analysis for cases involving successive prosecutions than it did for multiple punishment cases. Id. 509 U.S. at ----, 113 S.Ct. at 2860, 125 L.Ed.2d at 573. The Dixon majority returned to Blockburger's "same elements" test for virtually all double jeopardy questions. Id.

Kurzawa concedes that under Blockburger, the Walworth County forgery prosecution can proceed. Still, he advances three arguments why Blockburger should not be the test for his double jeopardy claims. First, he maintains that Dixon, and its return to Blockburger's "same elements" test cannot be retroactively applied to his case because such an application violates ex post facto principles embodied in the Due Process Clause. Second, he argues that even if Dixon can be applied without violating due process, this court should nonetheless reject its...