State v. Crawford

State v. Crawford (98-323); 169 Vt. 371; 737 A.2d 366

[Filed 25-Jun-1999]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of 
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 98-323


State of Vermont	                           Supreme Court

                                                   On Appeal from
     v.	                                           District Court of Vermont,
                                                   Unit No. 3, Essex Circuit

Vernon Crawford	                                   March Term, 1999


       Shireen Avis Fisher, J.

       Vincent Illuzzi, Essex County State's Attorney, Orleans, and Thomas R.
  Paul, Deputy State's Attorney (On the Brief), St. Johnsbury, for
  Plaintiff-Appellee.

       Robert Appel, Defender General, and William A. Nelson, Appellate
  Attorney, Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Defendant Vernon Crawford appeals from a district
  court judgment  denying his motion to dismiss three counts of criminal
  trespass.  Defendant argues that the State was  barred from prosecuting him
  for trespass after previous charges for burglary based on the same  alleged
  conduct were dismissed with prejudice pursuant to the Interstate Agreement
  on Detainers  (IAD).  We affirm, holding that a dismissal with prejudice
  pursuant to the IAD does not prohibit a  subsequent prosecution for conduct
  arising out of the same alleged criminal transaction unless the  newly
  charged crime is a lesser included offense of the charge dismissed with
  prejudice.  

       On October 25, 1995, the Essex County prosecutor charged defendant
  with one count of  sexual assault and thirteen counts of burglary.  At the
  time the charges were filed, defendant was 

 

  serving a prison sentence in New Hampshire.  The Vermont charges were
  lodged as detainers against  defendant, and the State requested temporary
  custody pursuant to the IAD, see 28 V.S.A. §§ 1501-1509.  

       The IAD sets forth procedures for the prompt disposition of criminal
  charges filed in one  state against a prisoner in another state.  A
  prosecutor in the jurisdiction where such untried charges  are pending may
  file the charges as detainers in the "sending state," the state in which
  the prisoner  is incarcerated, and request temporary custody of the
  prisoner for purposes of prosecution.  See id.  § 1504.  A prisoner with
  detainers lodged against him may serve the prosecuting authority a "request 
  for final disposition to be made of the indictment, information, or
  complaints" pursuant to § 1503,  which requires the "receiving state," the
  state in which the trial is to be had, to bring the prisoner to  trial
  within 180 days.  See id. § 1503(a).  Once a receiving state has temporary
  custody of a prisoner  pursuant to the IAD, trial must be had on the
  pending charges before the prisoner is returned to the  sending state, or
  the "indictment, information, or complaint shall not be of any further
  force or effect,  and the court shall enter an order dismissing the same
  with prejudice."  Id. §§ 1503(d), 1504(e).

       On November 30, 1995, defendant filed a request for the final
  disposition of informations  pursuant to § 1503 of the IAD.  Defendant was
  transported to Vermont, arraigned on the charges on  December 5, 1995, and
  returned to the custody of New Hampshire without being tried.  On January 
  29, 1996, citing these prior proceedings, defendant filed a motion to
  dismiss the pending Vermont  charges on grounds that he was returned to New
  Hampshire before trial in violation of 28 V.S.A. §  1504(e).  Defendant's
  motion to dismiss was granted on February 6, 1996, and the sexual assault 
  count and all thirteen counts of burglary were dismissed with prejudice. 
  The State did not appeal  the dismissal.

 


       On February 25, 1997, the Essex County prosecutor filed a new
  fourteen-count information.  Eleven of the new charges were for unlawful
  trespass, one was a charge of burglary which the State  subsequently
  withdrew, and the other two were charges of unlawful mischief.  The new
  charges were  lodged as detainers at the New Hampshire prison where
  defendant was still incarcerated.  Defendant  moved to dismiss the trespass
  charges, arguing that trespass is a lesser included offense of burglary 
  and, therefore, he could not be charged with trespass after the burglary
  charges had been dismissed  with prejudice pursuant to § 1504(e) of the
  IAD.  Defendant also argued that the charges were barred  by the Fifth
  Amendment guarantee against double jeopardy.  
	
       The Essex District Court denied the motion, concluding that dismissal
  with prejudice of the  burglary charges did not preclude prosecution for
  trespass and that jeopardy had not attached in the  prior burglary
  proceeding.  The court granted permission to take an interlocutory appeal,
  which we  denied for having been improvidently granted.  The defense and
  the State then entered into a  conditional guilty plea whereby defendant
  would plead guilty to three counts of unlawful trespass,  the State would
  dismiss the remaining counts and defendant would reserve the right to
  appeal the  denial of his motion to dismiss.  Pursuant to this agreement,
  defendant pleaded guilty and filed a  timely notice of appeal.

       It is instructive to first take note of the arguments defendant is not
  advancing on appeal.   Defendant does not contend, as he did below, that
  the double jeopardy clause of the Fifth  Amendment bars the prosecution of
  the charged crimes because they are lesser included offenses of  the
  charges dismissed with prejudice.  Indeed, defendant concedes that the 1997
  trespass charges  "were almost, but not quite, lesser included offenses of
  the 1995 burglary charges."(FN1)  Nor is 

 

  defendant urging us to apply the doctrine of res judicata or claim
  preclusion to this case, correctly  observing that we have not applied the
  doctrine of claim preclusion to criminal cases.  See State v.  Dann, 167
  Vt. 119, 125, 702 A.2d 105, 109 (1997).  

       Defendant's claim here is best described as an argument for a generous
  interpretation of the  phrase "with prejudice" as it appears in the IAD. 
  To that end, defendant, while conceding that  neither the double jeopardy
  clause nor the doctrine of res judicata are directly applicable to the case 
  before us, urges that we conclude that the drafters of the IAD intended the
  phrase "with prejudice"  to prohibit the refiling not only of previously
  dismissed charges but to bar as well the filing of   charges arising out of
  the "same transaction."

       As applied to the facts, defendant contends that the court's dismissal
  of the 1995 burglary  charges -- unchallenged by the State and required by
  the IAD -- precluded the subsequent filing of  criminal trespass charges
  based on the same alleged conduct. Defendant argues that in our 

 

  examination of other claim preclusion cases, we have looked to the
  Restatement for guidance on  what constitutes identical or substantially
  identical claims.  The Restatement rule bars relitigation  of related
  claims which arise out of "all or any part of the transaction, or series of
  connected  transactions, out of which the action arose."  Restatement
  (Second) of Judgments § 24(1) (1982).  Defendant concedes that trespass is
  not a lesser included offense of burglary but argues that the  trespass
  charges arise out of the identical factual circumstances and, therefore,
  the 1997 charges  violate the Restatement rule.

       The State, basing its response primarily on the specific issue raised
  by defendant in the trial  court, argues that because jeopardy did not
  attach to the burglary charges -- the dismissal of those  charges having
  occurred before a jury was empaneled, see Serfass v. United States, 420 U.S. 377  (1975) --  prosecution on the trespass charges does not subject
  defendant to double jeopardy.  The  State also argues that while the
  doctrine of collateral estoppel or issue preclusion is part of the 
  constitutional guarantee against double jeopardy, there is no indication
  that the doctrine is embodied  in the statutory remedy in 28 V.S.A. §
  1503(d) or 1504(e), particularly where the dismissal occurred  before a
  jury verdict of acquittal, see Sealfon v. United States, 332 U.S. 575
  (1972).  Accordingly,  the State contends it was not collaterally estopped
  from filing trespass charges after the burglary  charges were dismissed
  with prejudice. 

       Although defendant would have us look to the Restatement to determine
  the applicability of  the "same transaction" test in IAD cases, two more
  instructive sources are the United States Supreme  Court's decision in Ashe
  v. Swenson, 397 U.S. 436 (1970) and the New York Federal District Court's 
  decision in United States v. Cumberbatch, 438 F. Supp. 976 (S.D.N.Y. 1976). 
  The relevance of the  "same transaction" analysis to the trespass charges
  is fairly summarized in Cumberbatch, 

 

  where, as here, the defendant argued that dismissal of criminal charges
  with prejudice for failure to  comply with the IAD should bar any
  subsequent prosecution charging different crimes arising from  the original
  underlying conduct:

     The defendant's . . . argument is premised on the "same transaction" 
     test in the double jeopardy area . . . .  In Ashe, the Supreme Court 
     held that the doctrine of collateral estoppel was included in the fifth 
     amendment's guarantee against double jeopardy.  [T]he Court[] did 
     not adopt the "same transaction" test, and, thus, it has not been held 
     to be part of  the collateral estoppel element of the Double Jeopardy 
     Clause.  Moreover, the collateral estoppel argument is wholly 
     inapplicable to this case.  As the Court in Ashe stated, collateral 
     estoppel bars the relitigation by the same parties of an issue of 
     ultimate fact which has been determined by a valid and final 
     judgment.  No such fact has been litigated in the present case, and, 
     thus, the collateral estoppel rule does not apply.  

  Cumberbatch, 438 F. Supp.  at 979 (citations omitted).

       Collateral estoppel, or issue preclusion is a constitutional right
  embodied in the Fifth  Amendment guarantee against double jeopardy, see
  Ashe, 397 U.S.  at 445, and, while there is no  question it applies to
  criminal matters, see Dann, 167 Vt. at 126, 702 A.2d  at 110, it does not
  apply  here.  As in Cumberbatch, no issue of ultimate fact has been
  determined and, thus, the State is not  collaterally estopped from
  prosecuting defendant for trespass.  See Trepanier v. Getting Organized, 
  Inc., 155 Vt. 259, 265, 583 A.2d 583, 587 (1990) (dispensing with
  appellant's argument for  application of collateral estoppel based on
  determination of second element only - that is, that no  ultimate issue of
  fact was resolved by final judgment on merits).  	Here, as in
  Cumberbatch, the  State, in indicting defendant on trespass charges, is
  attempting to "salvage its prosecution" in the  wake of the dismissal of
  the burglary indictments.  Cumberbatch, 438 F. Supp.  at 978.  However, 
  neither the language of the IAD nor the facts of this case compel a result
  that would insulate  defendant from all criminal liability solely because
  the State did not charge defendant with every 

 

  possible criminal offense arising out of the initial alleged misconduct. 
  "The [IAD] does not create  consequences beyond those accompanying the
  dismissal with prejudice of the particular indictment  that was subject to
  the [IAD's] time constraints.  In other words, the Act does not prevent
  subsequent  indictments that would not be barred by the protections against
  double jeopardy."  U.S. v. Boone,  959 F.2d 1550, 1554 (11th Cir. 1992).  

       The "with prejudice" language of the IAD barred the prosecution of
  defendant on the  dismissed sexual assault and burglary charges, not on
  every possible charge arising out of the  conduct underlying the dismissed
  counts.  See id.  The "anti-shuttling" objective of the IAD --- to  prevent
  repeated transfers of a prisoner who has more than one charge against him
  in the receiving  state -- was amply served by precisely what transpired
  here when the State of Vermont failed to try  the case against defendant
  within the proscribed time limits of the IAD:  the dismissal and permanent 
  bar of prosecution for one sexual assault charge and thirteen burglary
  charges, each of which carried  substantially greater exposure for lengthy
  incarceration than defendant now faces.

       Affirmed.



                                        FOR THE COURT:



                                        _______________________________________
                                        Chief Justice


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                                  Footnotes


FN1.  The Fifth and Fourteenth Amendment guarantees against double
  jeopardy bar subsequent prosecution for a lesser offense, if, in proving
  the greater offense, the prosecution "relies on and proves" the elements of
  the lesser offense as an element of the greater offense.  Illinois v.
  Vitale, 447 U.S. 410, 421 (1980).  See also State v. Grega, ___ Vt. ___,
  ___, 721 A.2d 445, 459 (1998) (double jeopardy clause does not prevent
  multiple punishment if "each [statutory] provision requires proof of a fact
  which the other does not.") (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).  Defendant was originally charged with burglary in
  violation of 13 V.S.A. § 1201.  A person is guilty of burglary if he
  "enters any building or structure knowing that he is not licensed or
  privileged to do so, with the intent to commit a felony, petit larceny,
  simple assault, or unlawful mischief."  Id. § 1201.  The 1997 indictment
  charged defendant with unlawful trespass in violation of 13 V.S.A. §
  3705(d).  A person is guilty of criminal trespass in violation of § 3705(d)
  if he "enters a dwelling house, whether or not a person is actually
  present, knowing that he is not licensed or privileged to do so."  Id. §
  3705(d).  To convict a defendant of criminal trespass, the State is
  required to prove that the defendant entered a "dwelling house," while for
  burglary, entry of "any building or structure" could support a conviction. 
  Although the elements of entry and knowledge are common to both statutes,
  burglary does not require entry into a "dwelling house" and trespass does
  not require intent to commit a felony or other a crime, a point which
  defendant concedes in his brief.  "[T]he lesser offense is considered to be
  included in the greater offense only if each of its elements is 'always a
  necessary element' of the greater offense."  State v. Forbes, 147 Vt. 612,
  617, 523 A.2d 1232, 1235 (1987) (quoting Vitale, 447 U.S. at 419). 
  Trespass in violation of § 3705(d) requires the State to prove an element
  not included in burglary; it is therefore not a lesser included offense.	
  *  The Fifth and Fourteenth Amendment guarantees against double jeopardy
  bar subsequent prosecution for a lesser offense, if, in proving the greater
  offense, the prosecution "relies on and proves" the elements of the lesser
  offense as an element of the greater offense.  Illinois v. Vitale, 447 U.S. 410, 421 (1980).  See also State v. Grega, ___ Vt. ___, ___, 721 A.2d 445,
  459 (1998) (double jeopardy clause does not prevent multiple punishment if
  "each [statutory] provision requires proof of a fact which the other does
  not.") (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). 
  Defendant was originally charged with burglary in violation of 13 V.S.A. §
  1201.  A person is guilty of burglary if he "enters any building or
  structure knowing that he is not licensed or privileged to do so, with the
  intent to commit a felony, petit larceny, simple assault, or unlawful
  mischief."  Id. § 1201.  The 1997 indictment charged defendant with
  unlawful trespass in violation of 13 V.S.A. § 3705(d).  A person is guilty
  of criminal trespass in violation of § 3705(d) if he "enters a dwelling
  house, whether or not a person is actually present, knowing that he is not
  licensed or privileged to do so."  Id. § 3705(d).  To convict a defendant
  of criminal trespass, the State is required to prove that the defendant
  entered a "dwelling house," while for burglary, entry of "any building or
  structure" could support a conviction.  Although the elements of entry and
  knowledge are common to both statutes, burglary does not require entry into
  a "dwelling house" and trespass does not require intent to commit a felony
  or other a crime, a point which defendant concedes in his brief.  "[T]he
  lesser offense is considered to be included in the greater offense only if
  each of its elements is 'always a necessary element' of the greater
  offense."  State v. Forbes, 147 Vt. 612, 617, 523 A.2d 1232, 1235 (1987)
  (quoting Vitale, 447 U.S. at 419).  Trespass in violation of § 3705(d)
  requires the State to prove an element not included in burglary; it is
  therefore not a lesser included offense.