Thigpen v. Roberts , 104 S. Ct. 2916 ( 1984 )

Justice Rehnquist,

dissenting.

The Court granted certiorari in this case to review a single question presented by the petition for certiorari: whether the Court of Appeals properly applied our decision in Illinois v. Vitale, 447 U. S. 410 (1980), in sustaining respondent’s claim of double jeopardy under the Fifth and Fourteenth Amendments to the United States Constitution. The Court of Appeals held that the Clause was a bar to further prosecution on a charge of manslaughter stemming from the death of a 10-year-old child who had been a passenger in the truck involved in a collision with respondent’s car. This Court, however, in an unexampled bit of procedural footwork which surely has adverse implications for the “rule of four” principle governing our grants of certiorari, simply refuses to even consider the double jeopardy issue raised by the State in its petition for certiorari. Without any explanation whatever, the Court affirms the judgment of the Court of Appeals on an alternative ground.

The only precedent cited for this unexplained — and I dare say unexplainable — decision is United States v. New York Telephone Co., 434 U. S. 159 (1977). But that case stands only for the unexceptionable proposition that a respondent may argue to this Court any basis supported by the record for affirming the judgment of the lower court, even though respondent did not cross-petition for certiorari. Nevertheless, in New York Telephone Co. the Court decided the issue presented in the petition for certiorari in addition to ruling on the alternative basis for affirmance urged by the respondent. See id., at 174-178. See also Dandridge v. Williams, 397 U. S. 471 (1970).¹ I believe that the Court is obligated to confront the State’s contention that the Court of Appeals misapplied the Double Jeopardy Clause of the Fifth Amendment in this case. The Court being unwilling to undertake that obligation, I turn to it in dissent.

Respondent was tried and convicted of the misdemeanor offense of reckless driving in a Justice Court in Tallahatchie County, Miss., a county in northwestern Mississippi with a population of approximately 17,000 people. He was sentenced to pay a fine of $100 for this offense. As permitted by the Mississippi “two-tier” system, he appealed his conviction to the State Circuit Court where he was entitled to a trial de novo. But before he was retried on the misdemeanor charge in the Circuit Court, he was indicted for the felony offense of manslaughter for causing the death of the 10-year-old child who was riding in the truck that respondent struck with his car. The misdemeanor offense was “nolle prossed” before trial, but respondent was convicted by a jury of manslaughter and sentenced to 20 years in the custody of the Mississippi Department of Corrections.

Respondent’s conviction was affirmed by the Mississippi Supreme Court. Roberts v. State, 379 So. 2d 514 (1979). After exhausting his state postconviction remedies, respondent filed a petition for federal habeas corpus relief. This writ was granted by the District Court, and the Court of Appeals for the Fifth Circuit affirmed that determination. The Court of Appeals held that “because Roberts has a substantial double jeopardy claim under the Supreme Court’s holding in Illinois v. Vitale, the district court’s granting of habeas corpus relief must be affirmed.” App. to Pet. for Cert. A13.

In reaching this conclusion, I believe that the Court of Appeals mistakenly relied upon a mere form of expression in the Court’s opinion in Illinois v. Vitale to depart from all of our previous double jeopardy holdings in this area. The Court of Appeals apparently felt that the Vitale opinion changed governing double jeopardy law to permit a defendant to establish a substantial, and apparently dispositive, claim of double jeopardy merely by showing that the State actually relied upon the same evidence to prove both crimes. While there is one sentence in the Court’s opinion in Vitale that supports this construction, I do not believe that construction is consistent with the opinion as a whole. Until the present case, the relevant question to be answered by any court is whether the evidence required to prove the statutory elements of crime is the same, not whether the evidence actually used at trial is the same.

In Vitale the Supreme Court of Illinois had held that the Double Jeopardy Clause of the Fifth Amendment barred the prosecution of a defendant for manslaughter because the defendant had previously pleaded guilty to a charge of failing to reduce speed arising out of the same incident. This Court vacated the judgment of the Supreme Court of Illinois, saying:

“The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.” 447 U. S., at 419.

It seems to me that this is about as clear a statement as there can be of the principle that the double jeopardy inquiry turns on the statutory elements of the two offenses in question, and not on the actual evidence that may be used by the State to convict in a particular case. Nonetheless, the Court went on in Vitale to distinguish Harris v. Oklahoma, 433 U. S. 682 (1977), and in so doing stated:

“By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.” 447 U. S., at 421.

I cannot say that this last expression did not afford the Court of Appeals some ground for the views which it expressed, nor can I say that I think it is entirely consistent with the first quotation from the Vitale opinion. But I am reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an either “up or down” inquiry based on the evidence required to prove the statutory elements of a crime into a “substantial claim” inquiry based on the evidence the State introduced at trial. I think that there are ambiguities in Illinois v. Vitale which urgently need resolution by this Court, that the present case affords an ample opportunity to do this, and that the Court’s failure to do it is an unexampled abdication of its responsibility.

I would unambiguously reaffirm the statement in Brown v. Ohio, 432 U. S. 161 (1977), relied upon in Illinois v. Vitale, supra, that

“‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’” 432 U. S., at 166, quoting Blockburger v. United States, 284 U. S. 299, 304 (1932).

Applying that principle to this case, it seems to me that the Court of Appeals was demonstrably wrong in its treatment of the double jeopardy issue. Comparing the elements of the Mississippi reckless driving statute with the Mississippi manslaughter statute, that court said:

“A narrow focus on the two statutes provides one answer. Proof of manslaughter does not necessarily entail proof of reckless driving, for manslaughter could be proved in a situation completely foreign to a vehicular collision.” App. to Pet. for Cert. A10-A11

But the court went on to say that taking into account a “judicial veneer” which had been placed on the statute by the Supreme Court of Mississippi, “it is apparent that manslaughter by automobile cannot be proven without at the same time proving reckless driving. Because the specific felony offense, manslaughter by automobile, is not statutorily defined, this Court is confronted with a novel situation. Depending on whether the focus is on the manslaughter statute alone or on its case law veneer as well, application of the first prong of the Vitale analysis gives different results.” Id., at A11.

But the Court of Appeals declined to resolve the inquiry based on the elements of the two statutes, as mandated by Brown, supra, and went on to say that there was a “second prong” of the inquiry based upon the evidence actually presented at trial. Because the same evidence that led to respondent’s conviction on the misdemeanor charge was also introduced in the manslaughter trial, respondent was said to have a “substantial claim” of double jeopardy, whatever that phrase may mean. Because respondent had such a “substantial claim,” the Court of Appeals set aside a state-court conviction.

I believe that a straightforward analysis of the holding in Brown v. Ohio requires the conclusion that there was a different element in each of the offenses involved which need not be proved with respect to the other offense. The offense of reckless driving is based on the manner of operation of a motor vehicle upon the public roads, and in no wise requires any result ,in injury to persons or property. The crime of manslaughter by culpable negligence simply requires the causing of a death with a particular state of mind, and need not in any way involve an automobile.²

The fact that in this particular case the “same evidence” might be used to prove the “reckless” element in the automotive offense and the “culpable negligence” in the manslaughter offense is also not dispositive. For reckless driving a defendant must have driven an automobile, which he need not do to be found guilty of manslaughter; for manslaughter a defendant’s act must have caused a death, which is not required for the offense of reckless driving. Applying the “Blockburger” test to a question of statutory construction, the Court in Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975), said:

“[T]he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.”

Since Vitale we have reaffirmed the Blockburger test that the evidence required to prove the statutory elements of a crime determines whether particular crimes are the same offense for double jeopardy purposes. See Missouri v. Hunter, 459 U. S. 359, 367-368 (1983). The actual evidence test which the Court of Appeals inferred from the single sentence in Vitale has never been applied to bar a second trial on grounds of double jeopardy.

I would therefore reverse the judgment of the Court of Appeals insofar as it upheld respondent’s double jeopardy claim. Because the Court of Appeals did not pass upon respondent’s due process claim based upon our decision in Blackledge v. Perry, 417 U. S. 21 (1974), I would remand the case to that court so it may consider the question in the first instance.

1 Our decision in Langnes v. Green, 282 U. S. 531 (1931), is not to the contrary. While in Langnes the Court never addressed the errors specified by the petitioner in that case, the Court decided in Langnes that the District Court should never have addressed the petitioner’s claims in the first instance. See id., at 540-542; cf. Schlesinger v. Councilman, 420 U. S. 738, 743-744 (1975). When a petitioner’s claims should never have been presented to or decided by a federal court in the first instance, a ruling by this Court on those claims would be wholly inappropriate. There being no similar grounds upon which to abstain from deciding any issue raised by this case, the Court should address the question raised by the petitioner.

2 The case which the Court of Appeals suggested created a separate, nonstatutory crime of manslaughter by automobile, Smith v. State, 197 Miss. 802, 20 So. 2d 701 (1945), involved a charge of manslaughter under Miss. Code Ann. § 2232 (1942), which read:

“Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without any authority of law, not provided for in this chapter, shall be manslaughter.”

This provision has remained unchanged since the Smith decision. See Miss. Code Ann. § 97-3-47 (1972).

That the Smith decision did not result in a new crime of manslaughter by automobile should be clear from the following analysis of Smith in Dickerson v. State, 441 So. 2d 536 (Miss.1983):

“This statute [§ 97-3-47] has been authoritatively construed in Smith v. State, 197 Miss. 802, 20 So. 2d 701 (1945), a case involving alleged manslaughter with an automobile, to require that, before the defendant may be convicted, the state must prove that he ‘was guilty of such gross negligence on the occasion, complained of as evince [sic] on his part a wanton and reckless disregard for the safety of human life, or such an indifference to the consequences of his act under the surrounding circumstances as to render his conduct tantamount to willfulness.’” Id,., at 538 (citing to Smith v. State, supra, at 812, 20 So. 2d, at 703).

At no point in Dickerson does the Mississippi Supreme Court suggest that the crime of manslaughter involving use of an automobile is a different crime than any other manslaughter charged under § 97-3-47. In other instances involving prosecutions under the manslaughter statute the State Supreme Court has employed similar language, indicating the juxtaposition of the words “manslaughter” and “motor vehicle” found in Smith was nothing more than an effort to illuminate what the court meant by culpable negligence in those circumstances. Cf. Latiker v. State, 278 So. 2d 398, 399 (1973); Gregory v. State, 152 Miss. 133, 141-142, 118 So. 906, 909 (1928).