State v. Lewis

• Decision Date: 09 January 1996
• Docket Number: No. 2459,2459
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Isaac LEWIS, Appellant. . Heard

Page 265

467 S.E.2d 265

321 S.C. 146

The STATE, Respondent, v. Isaac LEWIS, Appellant.

No. 2459.

Court of Appeals of South Carolina.

Heard Jan. 9, 1996.

Decided Feb. 5, 1996.

Assistant Appellate Defender Lisa T. Gregory, of the South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Salley W. Elliott; and Solicitor Warren B. Giese, Columbia, for respondent.

HEARN, Judge.

Isaac Lewis appeals from his conviction for assaulting a police officer while resisting arrest. Lewis claims this prosecution violated his constitutional protection against double jeopardy since he had previously been convicted in municipal court for failure to stop on police command for the same conduct which gave rise to the assault while resisting arrest charge. We affirm.

A defendant may be severally indicted and punished for separate offenses without being placed in double jeopardy where a single act consists of two "distinct" offenses. State v. Walsh, 300 S.C. 427, 388 S.E.2d 777 (1988). In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the United States Supreme Court set forth the following analysis for determining whether a subsequent prosecution was barred by the double jeopardy clause. The court had to first apply the traditional test under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which requires a technical comparison of the elements of the offense for which the defendant was first tried with the elements of the offense in the subsequent prosecution. If the Blockburger test revealed that the offenses had identical statutory elements or that one was a lesser included offense of the other, then the inquiry must cease and the subsequent prosecution was barred. Id. If, however, a subsequent prosecution survived this technical comparison of the elements of the two offenses, the court had to then determine whether the State would prove the entirety of the conduct previously prosecuted to establish an essential element of the offense in the subsequent prosecution. If so, the subsequent prosecution was barred. Id. The Grady v. Corbin analysis relied on a determination of whether one offense was a "species of lesser-included offense" of the other. See State v. Wilson, 311 S.C. 382, 429 S.E.2d 453 (1993) (discussing and applying the Grady v. Corbin analysis).

Grady v. Corbin was overruled, however, in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). A majority of the United States Supreme Court found Grady 's "same conduct" test lacked constitutional roots, and was wholly inconsistent with Supreme Court precedent and "the clear common-law understanding of double jeopardy." United States v. Dixon, 509 U.S. at 688, 113 S.Ct. at 2860. Accordingly, Grady is no longer the law, and Blockburger remains as the only test of double jeopardy for successive prosecutions as well as for multiple punishments in a single prosecution. See generally McAninch, Double Jeopardy: The Basics for Practitioners, Criminal Practice Law Report, April and May 1994 (two parts).

Applying the Blockburger test, we find no double jeopardy violation in this case. The offenses do not have identical statutory elements, and one is not a lesser included offense of the other. Lewis was convicted in municipal court for violating City of Columbia Code § 2-1005, which provides:

It shall be unlawful for any person in the city to wilfully and knowingly fail or refuse to stop when signaled, hailed, or commanded to stop by a policeman or other officer of the city.

Lewis was subsequently indicted for assault on a police officer while resisting arrest in violation of S.C.Code Ann. § 16-9-320 (Supp.1992), which at the time of Lewis's arrest provided in pertinent part:

A person who knowingly and wilfully:

* * * * * *

(2) assaults, beats, or wounds a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or who assaults, beats, or wounds an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not, is guilty of a misdemeanor and, upon conviction, must be fined not less...