People v. Zegart

MR. JUSTICE UNDERWOOD, dissenting:

The court’s opinion does not completely reflect the history of In re Vitale (1980), 71 Ill. 2d 229 , a case which I believe is, in principle, indistinguishable from this one. My colleagues in Vitale held a prior conviction for failure to reduce speed precluded a subsequent manslaughter prosecution. The State sought certiorari, which was allowed, and we were subsequently requested by the Supreme Court to certify whether Vitale had been decided on- State or Federal grounds. On March 23, 1979, we responded as follows:

“IT IS HEREBY certified that the judgment of this Court, as expressed in its opinion in this cause, is based upon federal constitutional grounds.”

Despite this, my colleagues now say that Vitale was decided on the basis of Illinois statutory provisions as well as Federal double jeopardy provisions. That statement is, however, directly contradicted by our certification quoted above and this court’s opinion in Vitale. There, the late Mr. Justice Dooley, speaking for my colleagues, removed any doubt as to the basis for the majority opinion by concluding it with the following paragraph:

“For the reasons herein expressed, under the double jeopardy clause the conviction on the traffic charge of failure to reduce speed precluded the prosecution in a separate action for involuntary manslaughter.” 71 Ill. 2d 229, 240 .

I dissented at some length in Vitale because I thought the issue an important one and because I believed then, as I do now, that double jeopardy considerations barred the manslaughter prosecution only if manslaughter always included the lesser charge of failure to reduce speed. Plainly, it seemed to me, it did not.

In Illinois v. Vitale (1980), 447 U.S. 410 , 65 L. Ed. 2d 228, 237-38 , 100 S. Ct. 2260, 2267 , the opinion of the Supreme Court states:

“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.

IV

If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the ‘same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio. ” (Emphasis added.)

The italicized portions indicate that double jeopardy considerations apply only if involuntary manslaughter always involves a failure to reduce speed. Since one can be guilty of involuntary manslaughter without even using a car, it is apparent that a failure to reduce speed is not always included in the offense of involuntary manslaughter; the fact that failure to reduce speed may be an element of that offense in some cases “would not be sufficient to bar the latter [manslaughter] prosecution.” Illinois v. Vitale (1980), 447 U.S. 410, 419-20 , 65 L. Ed. 2d 228, 237 , 100 S. Ct. 2260, 2267 .

My colleagues quote and rely upon later language in Vitale indicating that reliance by the State in the manslaughter case upon a failure to slow down would pose a “substantial” double jeopardy claim. The fact that the dissenting members of the Supreme Court viewed that same claim as “not merely *** ‘substantial,’ ” but “dis-positive” ( 447 U.S. 410, 426 , 65 L. Ed. 2d 228, 241 , 100 S. Ct. 2260, 2270 (Stevens, J., dissenting)) lends support to my belief that the majority thought otherwise.

My colleagues acknowledge the obvious fact that in this case the subsequent charges of reckless homicide against defendant Zegart do not always involve crossing a highway dividing median, the lesser charge to which defendant had earlier pleaded guilty. Consequently, the fact that the proof in the trial of the homicide cases will show that defendant crossed the median strip does not, in my opinion, bar the reckless-homicide prosecutions.

The Blockburger test providing that a prosecution for the lesser offense does not preclude subsequent prosecution for the greater offense unless the lesser is always included within the greater has been a workable, easily understood and easily applied rule. In my opinion we should adhere to it in the absence of an unequivocal pronouncement by a majority of the Supreme Court that it has been superseded. I do not find that announcement in Vitale, and I would not voluntarily abandon the Block-burger test. Particularly would I not exchange it for the amorphous concept now adopted by this court.

I would reverse the double jeopardy holding of the appellate court.

MR. JUSTICE RYAN joins in this dissent.