State v. Laviollette

• Decision Date: 19 March 1992
• Docket Number: No. 58076-6,58076-6
• Citation: 118 Wn.2d 670,826 P.2d 684
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Donald T. LAVIOLLETTE, Respondent.

Page 670

118 Wn.2d 670

826 P.2d 684

STATE of Washington, Petitioner, v. Donald T. LAVIOLLETTE, Respondent.

No. 58076-6.

Supreme Court of Washington,

En Banc.

March 19, 1992.

Arthur D. Curtis, Clark County Prosecutor, Michael B. Dodds, Deputy County Prosecutor, Vancouver, for petitioner.

James J. Sowder, Vancouver, for respondent.

Donald C. Brockett, Spokane County Prosecutor, Kevin M. Korsmo, Deputy County Prosecutor, Spokane, amicus curiae for petitioner on behalf of Washington Ass'n of Prosecuting Attys.

Mark W. Muenster, Steven W. Thayer, Thomas C. Phelan, Vancouver, amicus curiae for respondent on behalf of Washington Ass'n of Criminal Defense Lawyers.

UTTER, Justice.

Donald Laviollette, the defendant, was charged and pleaded guilty to four charges of third degree theft in Clark County District Court. Subsequently, Laviollette was convicted in a separate proceeding of second degree burglary arising out of the same incident in Clark County Superior Court. The State challenges a Court of Appeals decision reversing the burglary conviction of the defendant on the grounds of double jeopardy. It argues the Court of Appeals erred in applying the United States Supreme Court's double jeopardy test as set forth in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Alternatively, it argues the Court of Appeals should have found the defendant guilty of the lesser included offense of criminal trespass in the first degree. We affirm the Court of Appeals.

On February 1, 1989, Donald Laviollette entered VMG Enterprises' building through an employee's entrance marked "Employees Only". VMG Enterprises is a production company and is not open to the general public. While inside the building, Laviollette met several employees and was observed in the employee locker room. He was a former employee of VMG Enterprises, and told employees he met that he had been rehired and was getting his things together to go to work. In fact, Laviollette had not been rehired, and had no permission to be in the building.

Subsequently, Laviollette was seen leaving VMG with a black jacket and some coveralls belonging to VMG. After he left, several items were missing from employees' lockers, including a black jacket. Later that night, a Vancouver police officer stopped a car for speeding in which Laviollette was a passenger. During that stop, the officer learned that Laviollette had an outstanding warrant for burglary in Oregon. The officer placed him under arrest. Later, another Vancouver police officer discovered that the black jacket Laviollette was wearing at the time of his arrest was one of the jackets taken from the employee lockers at VMG.

The defendant was charged with four counts of third degree theft on February 2, 1989, and arraigned in the Clark County District Court where he initially pleaded not guilty. Later, on February 27, 1989, the State charged the defendant with second degree burglary in a separate information. In his arraignment in the Clark County Superior Court on the burglary charge, Laviollette pled not guilty on March 3, 1989. Then, on March 14, 1989, the defendant entered pleas of guilty to all four counts of third degree theft in district court.

Laviollette subsequently filed a motion to dismiss the burglary charge as a violation of double jeopardy. His motion was denied, because the Superior Court noted that the evidence required to convict the defendant of the offenses of theft and burglary was not the same. The defense and prosecution then stipulated to the facts of this case. After a brief bench trial, Laviollette was convicted of second degree burglary.

Laviollette appealed his conviction to the Court of Appeals. His assignments of error included the trial court's denial of his motions to suppress and to dismiss on grounds of double jeopardy. Brief of Appellant, at 1-3. While the appeal was pending, the United States Supreme Court decided Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), in which the Court clarified double jeopardy analysis in multiple prosecution cases. The trial court did not have the benefit of this case. The Court of Appeals, applying the Court's analysis in Grady to the facts of this case, found that Laviollette's burglary conviction violated the double jeopardy clause of the federal constitution. State v. Laviollette, 60 Wash.App. 579, 805 P.2d 253 (1991). The Court of Appeals reversed the conviction and dismissed the burglary charge on double jeopardy grounds. The State sought review, and we affirm the Court of Appeals' decision.

I

The United States Supreme Court's decision in Grady is the applicable law in this case. The defendant, Laviollette, challenged his second prosecution as a violation of the double jeopardy clause of the federal constitution. ¹ The United States Supreme Court acts as the final arbiter of controversies arising under the federal constitution. State v. Chrisman, 100 Wash.2d 814, 816, 676 P.2d 419 (1984). Therefore, this court must follow the United States Supreme Court's recent formulation of double jeopardy analysis in Grady.

The double jeopardy clause of the federal constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb ..." U.S. Const. amend. 5. The United States Supreme Court has stated that that clause embodies three 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." (Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). For purposes of double jeopardy, perhaps one of the most vexing issues has been to determine what "the same offense" means. Recently, the United States Supreme Court in Grady clarified what "the same offense" means in the context of multiple prosecutions.

Grady involved multiple prosecutions arising from a fatal traffic accident. The automobile of the defendant, Thomas Corbin, crossed a double yellow line and struck two vehicles. The driver of one of those vehicles, Brenda Dirago, died that evening as a result of the collision, and her husband, Daniel Dirago, was seriously injured. That night, while Corbin was being treated for his injuries, he received tickets charging him with driving while intoxicated and with failing to keep right of the median. A few days later, another assistant district attorney began gathering evidence for a homicide prosecution in connection with the accident. The prosecution of the minor offenses and the homicide prosecution were never coordinated. Corbin pleaded guilty to the two traffic tickets and received a minimal sentence on November 17, 1987. Two months later, on January 19, 1988, a grand jury investigating the accident indicted Corbin for reckless manslaughter, second degree vehicular manslaughter, and criminally negligent homicide for causing the death of Brenda Dirago; third degree reckless assault for causing physical injury to Daniel Dirago; and driving while intoxicated. Grady, 110 S.Ct. at 2089. Corbin moved to dismiss the indictment on statutory and constitutional double jeopardy grounds.

The Court in Grady began by noting that it had long employed the test adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) in determining whether a subsequent prosecution involved "the same offense" and was therefore barred by the double jeopardy clause. Grady, 110 S.Ct. at 2087. In Blockburger, the Court wrote that

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Another way of stating the Blockburger test is that if the elements of each offense are identical, or if one is a lesser included offense of the other, then a subsequent prosecution is barred. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

In determining what the "same offense" is for double jeopardy purposes, this court has applied a test that was basically identical to the Blockburger test. State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973). Although denominated a "same evidence" test, the court's analysis in Roybal indicates that it focused primarily on whether or not each offense contained "an additional element not included in the other." Roybal, 82 Wash.2d at 582.

The Blockburger test, however, was developed in the context of double jeopardy challenges to multiple punishments imposed in a single prosecution. In several decisions that preceded Grady, it was apparent that the Blockburger test was not the exclusive means of determining whether multiple prosecutions violated double jeopardy. See, e.g., Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. at 166 n. 6, 97 S.Ct. at 2226 n. 6. The Court in Grady described how multiple prosecutions raise more serious concerns than multiple punishments imposed in a single proceeding. For example, multiple prosecutions allow the state, with its greater resources, to subject a defendant to the expense and ordeal of multiple trials. Grady, 110 S.Ct. at 2091. Moreover, allowing the state to proceed in successive trials gives it the opportunity to hone its trial strategies and perfect its evidence. Grady, 110 S.Ct. at 2092. Therefore, the United States Supreme Court in Grady attempted to clarify the law of double jeopardy by adopting a 2-part analysis for determining when a defendant has been unconstitutionally subjected to multiple prosecutions for the same offense.

Grady requires that we first apply the traditional Blockburger test to determine whether the...