State v. Naydihor

• Decision Date: 11 March 1992
• Docket Number: 91-1020-CR and 91-1673-CR,Nos. 91-0945-C,s. 91-0945-C
• Citation: 483 N.W.2d 253,168 Wis.2d 144
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Timothy P. NAYDIHOR, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant, v. Gregory J. PETERSON, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Respondent, v. Leroy CARR, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 253

483 N.W.2d 253

168 Wis.2d 144

STATE of Wisconsin, Plaintiff-Appellant, v. Timothy P. NAYDIHOR, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Appellant, v. Gregory J. PETERSON, Defendant-Respondent.

STATE of Wisconsin, Plaintiff-Respondent, v. Leroy CARR, Defendant-Appellant.

Nos. 91-0945-CR, 91-1020-CR and 91-1673-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 24, 1992.

Opinion Released March 11, 1992.

Opinion Filed March 11, 1992.

On behalf of the plaintiffs-appellants in Nos. 91-0945-CR and 91-1020-CR, the cause was submitted on the briefs of Robert J. Jambois, Dist. Atty., and Glenn J. Blise, Asst. Dist. Atty.

On behalf of the defendant-appellant in No. 91-1673-CR, the cause was submitted on the briefs of Donald J. Bielski, Asst. State Public Defender, Kenosha.

On behalf of the defendants-respondents in Nos. 91-0945-CR and 91-1020-CR, the cause was submitted on the briefs of Steven D. Phillips, Asst. State Public Defender.

On behalf of the plaintiff-respondent in No. 91-1673-CR, the cause was submitted on the brief of Robert J. Jambois, Dist. Atty., and Glenn J. Blise, Asst. Dist. Atty.

On behalf of the State of Wisconsin, in Nos. 91-0945-CR and 91-1673-CR, an amicus curiae brief was filed by James E. Doyle, Atty. Gen., and Maureen McGlynn Flanagan, Asst. Atty. Gen.

Before BROWN, ANDERSON and SNYDER, JJ.

SNYDER, Judge.

This is a consolidation of three cases, each presenting the identical issue: whether an adjudication of guilt on a civil traffic offense penalized solely by a forfeiture erects a double jeopardy bar to a subsequent criminal prosecution based on the same conduct supporting the civil action. ¹ Each of the defendants argues that Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), bars the subsequent prosecution. We disagree. To read Corbin as the defendants do would result in an abrupt and unwarranted departure from the long-held notion of double jeopardy protection against successive criminal prosecutions or punishment for the same conduct. We decline to take that action without explicit Supreme Court direction to do so. Based on Corbin and United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), we hold that because the traffic proceedings were not criminal and did not impose criminal punishment, none of the defendants was placed twice in jeopardy for the same conduct by the subsequent criminal prosecutions.

Accordingly, we conclude that the trial court erred by dismissing the criminal charges against Naydihor and Peterson, and we reverse those orders. We also conclude that the trial court properly denied Carr's motion to dismiss the criminal charges and we affirm that order.

I. FACTS

A. Naydihor

In December 1990, Timothy Naydihor was involved in a car accident and was issued a citation for failing to yield the right-of-way while making a left turn, contrary to sec. 346.18(2), Stats. He was ordered to appear on those charges on January 30, 1991. That appearance was continued to allow the state to review medical records pertinent to potential alcohol-related charges. He was ordered to appear on February 12 on both the citation and the as yet unissued alcohol-related charges.

On February 12, a criminal complaint was filed against Naydihor charging him with four counts of causing injury by intoxicated use of a motor vehicle and four counts of causing injury by operating a motor vehicle while having a blood alcohol concentration in excess of 0.10%, contrary to sec. 346.63(2)(a)1 and 2, Stats. Naydihor pled guilty to the citation and was ordered to pay $67. ² He pled not guilty to the criminal charges. Nine days later, Naydihor moved to dismiss the criminal charges on double jeopardy grounds. The state conceded that prosecution on the criminal charges would require proof of the same conduct underlying the civil action. ³ The trial court agreed with Naydihor that Corbin precluded the criminal prosecution and granted his motion. The state appeals.

B. Peterson

On February 13, 1991, Gregory Peterson was issued two traffic tickets. One was for driving left of center, contrary to sec. 346.05(1), Stats. The other was for operating after revocation (OAR), second offense, contrary to sec. 343.44(1), Stats. Peterson was convicted in municipal court of the driving left of center charge and forfeited $97.

A criminal complaint was filed on March 7 charging Peterson with OAR. Peterson successfully moved to dismiss the charge on double jeopardy grounds. The state appeals.

C. Carr

On March 2, 1991, Leroy Carr was cited for failing to yield at a flashing red light, contrary to sec. 346.39(1), Stats. A routine driving status check revealed that he was a habitual traffic offender (HTO) who was driving after revocation. Two days later a criminal complaint was filed charging Carr with fourth offense OAR as an HTO. Carr then pled guilty to the failing to yield offense and forfeited $61. Carr's motion to dismiss the criminal charge based on double jeopardy was denied. He appeals.

II. DISCUSSION

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It applies to states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). In similar fashion, art. I, sec. 8, of the Wisconsin Constitution provides that "no person for the same offense may be put twice in jeopardy of punishment." The decisions of the United States Supreme Court govern both provisions. State v. Harris, 161 Wis.2d 758, 760, 469 N.W.2d 207, 208 (Ct.App.1991).

The double jeopardy clause embodies three protections: (1) against a second prosecution for the same offense after acquittal; (2) against a second prosecution for the same offense after conviction; and (3) against multiple punishments for the same offense. Corbin, 495 U.S. at 516, 110 S.Ct. at 2090. Collectively, these three protections forbid two things: successive prosecutions and multiple punishments. Corbin is an example of a successive prosecution case, see id. at 510, 110 S.Ct. at 2087; Halper is an example of a multiple punishment case. See Halper, 490 U.S. at 439-40, 109 S.Ct. at 1896-97. To fully address the defendants' double jeopardy claims, we will conduct both a successive prosecution and a multiple punishment analysis.

A. Successive Prosecution

Successive prosecutions are barred because otherwise a defendant could be "forced to run the gauntlet" more than once. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957). Furthermore, successive prosecutions would permit the state to "rehearse its presentation of proof" and perfect its evidence through successive attempts at conviction. Corbin, 495 U.S. at 518, 110 S.Ct. at 2091. Wisconsin courts often have stated that there is no double jeopardy bar to a second prosecution if the first was not criminal and did not result in criminal punishment. See State v. Kramsvogel, 124 Wis.2d 101, 108-09, 369 N.W.2d 145, 148, cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 226 (1985), and State v. Schulz, 100 Wis.2d 329, 330, 302 N.W.2d 59, 60 (Ct.App.1981).

Naydihor, Peterson and Carr contend that Corbin implicitly overrules cases such as Kramsvogel and Schulz. They assert that, despite the first proceeding being civil in nature, Corbin proscribes a second prosecution on double jeopardy grounds if the second is based on the "same conduct" as the first. They take this position despite recognizing that the Supreme Court did not explicitly state that the "same conduct" analysis applies when the prior proceeding is civil with purely civil sanctions imposed.

The facts of Corbin are these: Corbin, whose blood alcohol level was found to be 0.19%, allegedly caused a fatal accident when he drove his car across a highway's double yellow line and struck oncoming vehicles. He received two traffic tickets, one for driving while intoxicated, a misdemeanor, and the other for failing to keep right of the median, a traffic "infraction." ⁴ He pleaded guilty to both.

Three months later, Corbin was charged with reckless manslaughter, second-degree vehicular manslaughter, criminally negligent homicide, third-degree reckless assault, and driving while intoxicated. To prove the homicide and assault charges, the prosecution stated that it intended to prove that Corbin was: (1) operating a motor vehicle on a public highway in an intoxicated condition, (2) failing to keep right of the median, and (3) driving too fast for conditions. Corbin moved to dismiss the criminal indictment on double jeopardy grounds. Ultimately, the Supreme Court ruled in his favor, holding that the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant already has been prosecuted. Corbin, 495 U.S. at 510, 110 S.Ct. at 2087.

Until Corbin, the "test" for double jeopardy was as set out sixty years ago in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). As stated in Blockburger, the double jeopardy clause prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not require proof of a fact which the other does not. Id. at 304, 52 S.Ct. at 182. Corbin expanded that analytic framework, stating that a subsequent prosecution must do more than merely survive the Blockburger test. Corbin, 495 U.S. at 521, 110 S.Ct. at 2093. In addition,

the Double Jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Id. The defendants look to this...