State v. Schroeder
| Citation | 279 Kan. 104,105 P.3d 1237 |
| Decision Date | 18 February 2005 |
| Docket Number | No. 90,188.,90,188. |
| Parties | STATE OF KANSAS, Appellant, v. MATTHIAS W. SCHROEDER, JR., Appellee. |
| Court | United States State Supreme Court of Kansas |
Bobby J. Hiebert, Jr., assistant county attorney, argued the cause, and Stacy Lynn Cunning, assistant county attorney, was with him on the brief for appellant.
Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
This case arises on petition for review from a divided panel of the Court of Appeals, which reversed the district court's double jeopardy dismissal of a Saline County attempted theft by deception charge against defendant Matthias Schroeder, Jr.
Schroeder was first charged in Norton County with forgery and theft by deception. The State alleged he stole 47 cows from Norton Livestock by giving a forged check for purchase of the cattle.
A few days after the Norton County transaction, several of the stolen cows were brought to Farmers and Ranchers Sale Barn (Farmers and Ranchers) in Saline County. A man who gave his name as "Randall Senters" called Farmers and Ranchers, said he was the owner of the cattle, and requested payment. Farmers and Ranchers became suspicious and notified police, because the man gave an incomplete address and because ear tags had been removed from the cows. A special investigator for the Kansas Animal Health Department/Brand Division inspected the cows and determined that several had brands matching those of the cows purchased by means of the forged check in Norton County.
The next morning, police officers waited at Farmers and Ranchers for the man claiming to be Senters to arrive to pick up his payment. When the man arrived, a Farmers and Ranchers' employee handed him the check. The officers arrested him immediately, and the man was identified as defendant Schroeder.
Schroeder was acquitted of forgery and theft by deception in Norton County. Two months later, the State charged him in Saline County with possession of the stolen cattle. The State later amended the complaint to add a charge of attempted theft by deception of the Farmers and Ranchers check.
At Schroeder's preliminary hearing in Saline County, the State, with one exception, called the same witnesses who had testified in the Norton County trial that ended in acquittal. The witnesses testified about the Norton County theft of the cattle and the Saline County events that led to defendant claiming the Farmers and Ranchers check.
Schroeder filed a motion to dismiss, arguing only that the possession of stolen property charge violated double jeopardy. Specifically, in his reply memorandum to the district court, Schroeder focused on the compulsory joinder clause of K.S.A. 21-3108(2)(a) and summarized the similarities between the testimony in the Norton County trial and the Saline County preliminary hearing. Although the parties appeared at a later hearing on the motion to dismiss, they offered no further argument on the governing law to the district court at that time. Rather, at the hearing, the defense merely introduced a complete transcript of the Norton County trial in support of its motion, and the district judge took the matter under advisement. The district judge ultimately dismissed both Saline County charges on double jeopardy grounds, stating in his journal entry of judgment:
The district judge also relied upon his theory that the Norton County and Saline County crimes were part of a single enterprise, giving each county jurisdiction over the prosecution of all of the crimes. In addition, he stated that Kansas "public policy strongly discourages piecemeal prosecutions."
On appeal to the Court of Appeals, the State conceded that further pursuit of the Saline County possession of stolen property charge would violate double jeopardy. See State v. Schroeder, No. 90,188, an unpublished opinion filed May 7, 2004. However, because the Saline County attempted theft by deception charge was based on Schroeder's acceptance of the Farmers and Ranchers check rather than the theft of the cattle, in its view, that charge should have been permitted to proceed to trial.
The Court of Appeals majority quoted In re Berkowitz, 3 Kan. App. 2d 726, 743, 602 P.2d 99 (1979), for the three requirements of the compulsory joinder clause in K.S.A. 21-3108(2)(a):
"`For the Kansas statute to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.'" Slip op. at 6.
Although the State had acknowledged that the first two factors of the compulsory joinder provision were met—Schroeder had been already been tried and acquitted in Norton County, and evidence of the Saline County theft by deception had been introduced in the Norton County trial—it argued the third requirement for application of the compulsory joinder provision was unmet. Norton County would not have been an appropriate venue for prosecution of Schroeder's attempted theft by deception of the Farmers and Ranchers check in Saline County.
The majority accepted this argument. Because all the elements of the Saline County attempted theft by deception occurred in that county, venue in Norton County would have been improper. In addition, the majority rejected Schroeder's claim that the Norton and Saline County crimes were parts of a single criminal enterprise amenable to prosecution in either county. Slip op. at 14-15.
Judge Greene dissented. He stated that the Dissent at D-1. Although he regarded the majority's analysis and application of the compulsory joinder clause of K.S.A. 21-3108(2)(a) as sound, he argued that Saline County's prosecution of the attempted theft by deception charge should have been barred by K.S.A. 21-3108(2)(b). Dissent at D-4.
Our standard of review of a double jeopardy claim is de novo. See State v. Barnhart, 266 Kan. 541, 543, 972 P.2d 1106 (1999). In addition, Kansas has codified both the United States Constitution's Fifth Amendment prohibition of double jeopardy and the state Constitution's tandem prohibition in Section 10 of the Bill of Rights at K.S.A. 21-3108, see Barnhart, 266 Kan. at 544. We must also examine several statutes affecting joinder and venue to analyze the parties' arguments. To the extent this case requires statutory interpretation, such interpretation also raises issues of law subject to de novo review on appeal. State v. Marsh, 278 Kan. 520, ___, 102 P.3d 445 (2004).
Compulsory Joinder under K.S.A. 21-3108(2)(a)
The district court and the Court of Appeals majority both relied upon the first clause of section (2)(a) of K.S.A. 21-3108, although they reached opposite conclusions. The statute reads:
This first clause of section (2)(a) of K.S.A. 21-3108 is a compulsory joinder provision. State v. Wilkins, 269 Kan. 256, Syl. ¶ ¶ 1 and 2, 7 P.3d 252 (2000):
The Court of Appeals majority correctly outlined the three requirements for application of the compulsory joinder clause to bar a prosecution: "`(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.'" Wilkins, 269 Kan. at 260 (quoting In re Berkowitz, 3 Kan. App. 2d at 743).
The State asserts this court's decision in State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), supports its argument that Norton County would not have been an appropriate venue for prosecution of the attempted theft by deception charge.
The Mahlandt case began with a robbery of a service station in Sedgwick County. After obtaining the money in the cash register, the defendant kidnapped the service station clerk. However, she was able to escape the defendant's car as it left the station parking area. Later the same morning, and before the defendant removed the proceeds of the ...
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