Taylor v. Sherrill

• Decision Date: 24 October 1991
• Docket Number: No. CV-90-0449-PR,CV-90-0449-PR
• Citation: 169 Ariz. 335,819 P.2d 921
• Parties: John Hubert TAYLOR, Petitioner, v. The Honorable William SHERRILL, Judge of the Superior Court of the State of Arizona, County of Pima, Respondent, and The STATE of Arizona, Real Party In Interest.
• Court: Arizona Supreme Court

Page 921

819 P.2d 921

169 Ariz. 335

John Hubert TAYLOR, Petitioner, v. The Honorable William SHERRILL, Judge of the Superior Court of the State of Arizona, County of Pima, Respondent and The STATE of Arizona, Real Party In Interest.

No. CV-90-0449-PR.

Supreme Court of Arizona, In Banc.

Oct. 24, 1991.

[169 Ariz. 336] Susan A. Kettlewell, Pima County Public Defender by Peter J. Eckerstrom, Asst. Public Defender, Tucson, for petitioner.

Stephen D. Neely, Pima County Atty. by Thomas J. Zawada, Deputy County Atty., Catherine M. Shovlin, Deputy County Atty., Tucson, for State of Ariz.

Frederick S. Dean, Tucson City Atty. by R. William Call, Deputy City Atty., Laura Brynwood-Kitchen, Supervising Prosecutor, Tucson, for amicus curiae.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

The state seeks review of a court of appeals' opinion holding that the double jeopardy clause of the United States Constitution applied to, and prohibited prosecution of, defendant's pending felony charges of aggravated assault and criminal damage. We granted the state's petition for review in part, and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

PROCEEDINGS IN THE TRIAL COURTS

On July 18, 1988, John Hubert Taylor (defendant) turned left into oncoming traffic and collided with another automobile, injuring its driver and passenger. Officers arriving at the scene issued several traffic tickets. Defendant was cited for violating three civil traffic laws: A.R.S. §§ 28-701 (speeding), 28-754 (unsafe turn), and 28-1253 (failure to provide proof of insurance). In addition, he was cited for violating four misdemeanor criminal laws: A.R.S. §§ 28-473 (driving on a suspended license), 28-692(A) (driving under the influence), 28-692(B) (driving with blood alcohol content (BAC) greater than .10%) and 13-2907.01 (providing police with false information).

When defendant failed to appear at a pretrial hearing in Tucson City Court, default civil judgments were entered against him on the speeding and unsafe turn citations. The record does not indicate the amount of the civil judgments or whether defendant paid them. Pursuant to a motion filed by the City Prosecutor's Office, the city court dismissed the two DUI-related misdemeanor charges and those charges were referred to the Pima County Attorney for prosecution.

Following proceedings in Pima County Superior Court, a jury convicted defendant of a number of criminal charges arising from the accident. Specifically, defendant was convicted of three misdemeanors: DUI, driving with BAC greater than .10%, and driving with a suspended license. Defendant was also convicted of the following felonies: theft (the car he was driving was stolen), two counts of aggravated assault, and two counts of criminal damage. Defendant did not appeal at that time. Later, however, he sought post-conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S. The trial court granted relief based on a change in the law concerning the admissibility of breathalyzer tests. The state sought review in the court of appeals.

In July 1990, the city court dismissed the misdemeanor charges of driving on a suspended license and providing false information to a police officer. The record does not disclose how or when the suspended license charge got back to the city court or the disposition of the failure to provide proof of insurance citation.

While the state's petition for review on the breathalyzer issue was pending in the court of appeals, defendant filed a motion to dismiss the felony aggravated assault and criminal damage charges in the superior court. He argued that the double jeopardy clause of the United States Constitution barred prosecution of those felony charges because the default civil judgments for speeding and unsafe turn had already placed him in jeopardy. When the trial court denied his motion to dismiss, defendant filed a petition for special action with the court of appeals. That court accepted jurisdiction and consolidated the special action with the state's petition for review.

PROCEEDINGS IN THE COURT OF APPEALS

Although defendant's double jeopardy argument in the court of appeals was somewhat unclear, we believe it can fairly be summarized as follows: The facts of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), are "nearly identical" to this case. Grady, together with United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), "make it clear that even non-criminal traffic tickets constitute prior jeopardy ..." Pet. for Special Action at 10. Defendant further argued that the defendant in Grady received a traffic ticket for failing to keep to the right of the median, a "traffic infraction" under New York law. Under New York law, a traffic infraction "is not a crime, and the penalty or punishment imposed therefor shall not be deemed for any purpose a penal or criminal penalty or punishment." ." N.Y.Veh. & Traf.Law § 155 (McKinney 1986). Defendant argues from this analysis of New York law that Grady held that jeopardy attaches to a civil traffic infraction. This presumed Grady holding was "no oversight," defendant asserts, because the Court in Halper had already held that jeopardy attached to civil sanctions. Continuing, defendant argues that he was placed in jeopardy when he "pled guilty" to the unsafe turn and speeding charges. Defendant concludes, therefore, that the double jeopardy clause bars his prosecution in superior court on aggravated assault and criminal damage charges because he was "placed in jeopardy" for the "same conduct" when the city court entered civil default judgments on the unsafe turn and speeding citations.

In an opinion dealing with the consolidated cases, the court of appeals first addressed the state's petition for review. Taylor v. Sherrill, 166 Ariz. 359, 361-62, 802 P.2d 1058, 1060-61 (App.1990). It affirmed the trial court's order granting post-conviction relief based on grounds relating to the breathalyzer results. Id. at 362, 802 P.2d at 1061. That portion of the court of appeals' opinion is not here on review.

The court of appeals then addressed the merits of the defendant's special action based on double jeopardy. It held that the civil default judgments entered against defendant for speeding and an unsafe turn had "placed him in jeopardy." The court of appeals either prohibited defendant's prosecution for aggravated assault and criminal damage altogether, or permitted prosecution but precluded use of evidence of the unsafe left turn and speeding. Id. at 364, 802 P.2d at 1063.

Because Grady v. Corbin has produced, and continues to produce, a deluge of double jeopardy claims in Arizona trial and appellate courts, we granted the state's petition for review to provide guidance to Arizona courts in this difficult area of constitutional law.

QUESTIONS PRESENTED

We granted review on several issues, but address only those which we find to be dispositive. They are: (1) Whether entry of the civil default judgments constituted a prior "prosecution" for double jeopardy purposes, thus barring a second prosecution; and (2) Whether entry of the civil default judgments constituted "punishment" of the defendant for purposes of the double jeopardy clause, thus barring a second punishment.

DISCUSSION

I. Introduction

The fifth amendment to the United States Constitution states: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, (1969). While the Arizona Constitution also contains a double jeopardy clause, Ariz. Const. art. 2, § 10, we do not separately discuss it because defendant relied solely on the federal constitution in his arguments to the trial court and the court of appeals.

The United States Supreme Court has interpreted the double jeopardy clause to protect against: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense following conviction; and (3) multiple punishment for the same offense. Grady v. Corbin, 495 U.S. 508, 515-516, 110 S.Ct. 2084, 2090, 109 (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, (1969)). These three double jeopardy protections collectively forbid two things: multiple prosecutions and multiple punishment.

Two recent Supreme Court opinions, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), have significantly added to the country's double jeopardy jurisprudence. Grady, a multiple prosecution decision, and Halper, a multiple punishment decision, have generated a spate of double jeopardy claims in Arizona courts. See, e.g., State v. Nichols, 168 Ariz. 469, 815 P.2d 396 (App.1991) (automatic license suspension pursuant to arrest for DUI and subsequent administrative hearing sustaining suspension neither prosecution nor punishment for double jeopardy purposes; subsequent criminal prosecution for DUI not barred); Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (App.1991) (proceedings before Arizona Corporation Commission not prosecutions under Grady, but case remanded to determine if administrative penalty assessed by Commission constitutes punishment under Halper sufficient to bar criminal prosecution). We believe, however, that defendant's argument and the court of appeals' opinion in this case overstate the proper scope and application of Grady and Halper.

II. Multiple Prosecution Analysis

The double jeopardy clause forbids prosecuting any person a second time for the same offense after either acquittal or conviction. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, ...