Petition — Thigpen v. Roberts

-

82 - 1 3 3 0 Office -Supreme Court,

In the Supreme Court of the United States

October Term, 1982

MORRIS THIGPEN, ET AL,

Petitioners,

vs.

BARRY JOE ROBERTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Brit ALuLarn, Attorney General

State of Mississippi

P. Rocer Gooce, JR.

Counsel of Record

Assistant Attorney General

Larry M. WILSON

Special Assistant Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3680

Attorneys for Petitioners

EB. L. Mewpewnact, Ixc., 926 Cherry Street. Kansas City, Mo. 64106, (816) 421-3080

QUESTIONS PRESENTED

Whether the Court of Appeals applied the correct stan-

dard of review in holding that Respondent, Barry Joe

Roberts, has a substantial double jeopardy claim under the

United States Supreme Court’s holding in Illinois v. Vitale,

447 US. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260 (1980).

TABLE OF CONTENTS

Dy. RRO SO oa I

REET LES DSA ae eR OTP III

ii ini ccaticahalondentat cisteiihameieestbindageeabaniusin 1

gg A RENEE Se AOC OE Oe PO 2

Constitutional and Statutory Provisions Involved ........ 2

I a ctnisnneeiansianstnionntied 2

Reasons for Granting the Writ) 2.00............ccccccccececeseeeeseees 4

Argument—

I. The Court of Appeals Applied the Incorrect

Standard of Review When It Held That Roberts

Has a Substantial Double Jeopardy Claim Un-

der the United States Supreme Court’s Holding

in Illinois v, Vitale, 447 U.S, 410, 65 L.Ed.2d 228,

I IS I ha stad etstccahinagnenmabicame 5

i A Sa onisntiiiasansaiinnsielliepenidnionanes 16

ESET TATE ATE ST 16

Appendix—

Report and Recommendation of the U.S. Magis-

trate for the Northern District of Mississippi

(Affirmed by Order of the District Court Dated

November 19, 1981) . Al

Order of the United States District Court for the

Northern District of Mississippi (Dated Novem-

ber 19, 1981) ..... A5

Order of the United States District Court for the

Northern District of Mississippi (Dated Jan-

uary 18, 1982) A6

Opinion of the United States Court of Appeals for

the Fifth Circuit (Dated November 16, 1982) ... A7

TABLE OF AUTHORITIES

Cases

Bacom v. Sullivan, 200 F.2d 70 (5 Cir. 1952), cert.

denied, 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345

CY aasncrscdisweeinescinicesacichtenslaiiieceseithcdentadeiebitageinslseniindtiaaaiaai 6

Barnes v. State, 249 Miss. 482, 162 So.2d 865 (1964) ...... 15

Blockburger v. United States, 284 U.S. 299, 52 S.Ct.

. Fe Fy | Ne ee 4

Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d

BEE CIGD ccaigasinens xis liaiitithaigataataidadingndipliocecitltdeignal 13

Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (Miss.

BOIS « sicctascnssnestsinceenincoancosesasitinnkalabartansasstaiedintadbinasialiasiovengpiiite 7,15

Gandy v. State, 373 So.2d 1042 (1979) ........-cecvcsereeneneees 15

Gause v. State, 203 Miss. 377, 34 So.2d 729 (1948) .... 15

Illinois v. Vitale, 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct.

ee ENCES a 1, 10, 11

Sanford v. State, 195 Miss, 896, 16 So.2d 628 (1944) ...... 15

State v. James, 606 P.2d 1101 (N.M.App. 1979) eo... ll

State v. Stewart, 223 N.W.2d 250 (1974), cert. denied,

423 U.S. 902, 96 S.Ct. 204, 46 L.Ed.2d 184 ccc 8, 10

State v. Tanton, 88 N.M. 233, 540 P.2d 813 (1975) ........ 12

United States v. Cowart, 595 F.2d 1023 (5 Cir. 1979) 14

Walker v. Loggins, 608 F.2d 731 (9 Cir, 1979) cosccso- 14

Constitutional Provisions

Fifth Amendment to the United States Constitution... 2

Fourteenth Amendment to the United States Con-

stitution 2

Vv

Statutes

RS TR 8s) Sere A eee er

Codes

Miss. Code Ann. (1972), § 63-3-1201 ...........cccccccceeeseees

Miss. Code Ann. (1972), § 97-3-47

Miss. Code Ann. (1972), § 99-35-1

Other

Annot. 172 A.L.R. 1053 (1948) .......

eee eee re ees

Pee eee

No.

In the Supreme Court of the United States

October Term, 1982

MORRIS THIGPEN, ET AL.,

Petitioners,

vs.

BARRY JOE ROBERTS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view the opinion of the United States Court of Appeals

for the Fifth Circuit entered in this case on November

16, 1982.

OPINIONS BELOW

The Report and Recommendation and Orders of the

United States District Court for the Northern District of

Mississippi, which are unreported, are set out in the ap-

pendix, infra, p. Al to p. A6. The opinion of the United

States Court of Appeals for the Fifth Circuit which is

unreported, is set out in the appendix, infra, p. A7.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 16, 1982 (App., infra, p. A7). The jurisdiction

of this Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth Amend-

ments to the United States Constitution.

STATEMENT OF THE CASE

Respondent was indicted, tried and convicted of man-

slaughter by means of culpable negligence in the Circuit

Court of Tallahatchie County, Mississippi. Respondent was

sentenced to serve twenty (20) years in the custody of the

Mississippi Department of Corrections.

Respondent’s trial and conviction on the manslaughter

charge resulted from a tragic collision on August 6, 1977,

between an automobile driven by Respondent and a pickup

truck, in which collision a ten-year-old child was killed.

Shortly after the accident, Respondent was cited by a Mis-

sissippi Highway Patrolman for driving under the influence,

driving on the wrong side of the road, driving with a

suspended license, and reckless driving. On August 13,

1977, Respondent was tried and convicted on these charges

by a Tallahatchie County Justice Court Judge;

same date, Respondent appealed the convictions

Circuit Court of Tallahatchie County pursuant to

Code Ann. § 99-35-1. Before the misdemeanor

iFee

3

were retired on appeal, Respondent was indicted by the

Tallahatchie County Grand Jury for manslaughter of the

child killed in the traffic collision. Trial of the Respondent

on the misdemeanors thereafter was consolidated with trial

of the manslaughter charge, but the misdemeanor appeals

were nolle prossed during the consolidated trial.

On or about March 13, 1981, Respondent filed a Peti-

tion for Writ of Habeas Corpus in the United States Dis-

trict Court, Northern District of Mississippi. Respondent

assigned as grounds for relief the following:

1. The trial court erred in permitting the petitioner

to be indicted and tried upon a set of facts and cir-

cumstances which formed the basis for previous

justice court charges for which the petitioner had

been tried, convicted, and sentenced.

2. The trial court erred in vacating its order denying

petitioner a special venire and later during the

trial declaring that a special venire liad in fact

been given and petitioner’s trial attorney was negli-

gent in not objecting to same.

3. The trial court erred in permitting the State to

consolidate the misdemeanor appeals and to receive

evidence relating to same during trial of the re-

lated felony count and petitioner’s trial attorney

was grossly negligent in not objecting to same.

4. The legal representation of the petitioner at the

trial level and at the initial appellant submission

was grossly incompetent and prejudicially negligent

and entitles the petitioner to a new trial.

On April 20, 1981, Petitioners filed their Answer deny-

_ing that Respondent was entitled to any habeas corpus

relief.

4

On November 3, 1981, the Magistrate filed his Re-

port and Recommendation recommending that Respondent

be granted habeas relief.

On December 8, 1981, Petitioners filed their Objections

to the Magistrate’s Report and Recommendation.

On January 18, 1982, Judge L. T. Senter, Jr., United

States District Judge for the Northern District of Missis-

sippi filed his Order granting Respondent habeas corpus

relief and adopting the Magistrate’s Report and Recom-

mendation.

On March 30, 1982, Petiticners filed their brief in the

Fifth Circuit Court of Appeals and Argument was had in

August, 1982.

The Court of Appeals affirmed the District Court’s

judgment on November 16, 1982.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted in this case because the

opinion of the United States Court of Appeals for the

Fifth Circuit is contra to the law of double jeopardy as

decided in Blockburger v. United States, 284 U.S. 299, 52

S.Ct. 180, 76 L.Ed. 306 (1932).

ARGUMENT

The Court of Appeals Applied the Incorrect Standard

of Review When It Held That Roberts Has a Substan-

tial Double Jeopardy Claim Under the United States

Supreme Court’s Holding in Illinois v. Vitale, 447 U.S.

410, 65 L.Ed.2d 228, 100 S.Ct. 2260 (1980).

Addressing the double jeopardy question, the District

Court adopting the Magistrate’s Report and Recommenda-

tion states:

It is thus apparent that manslaughter by automobile

in violation of § 97-3-47 cannot be proved without at the

same time proving reckless driving in violation of

§ 63-3-1201, and that conduct of petitioner that con-

stituted reckless driving—losing control of his vehicle

while driving under the influence, crossing the cen-

terline, and colliding with the other vehicle—is the

same conduct that constituted the culpable negligence

necessary for the manslaughter conviction. [Emphasis

Added].

Petitioner would note to the Court that § 63-3-1201 and

the conduct before the accident are considered “traffic of-

fenses” in Mississippi. Those offenses consist wholly of

the conduct of an operation of a motor vehicle upon the

highways of this state and do not involve a wrongful homi-

cide. The crime of manslaughter involves a wrongful

homicide, an element altogether lacking in the traffic of-

fenses.

Section 63-3-1201, Reckless Driving, requires that the

vehicle be driven on the highways of this state before a

citation can be issued. A motorist could not be given

a citation for driving recklessly in a private parking lot,

however, that same motorist could be guilty of manslaugh-

ter under § 97-3-47 for the unintentional killing of someone

in that private parking lot. It is clear that the two of-

fenses are distinct both in law and fact. The traffic of-

fenses are not lesser degrees of the crime of manslaughter.

As stated in Annot, 172 A.L.R. 1053 (1948), Acquittal

of One Offense in Connection With Operation of Automo-

bile As Bar to Prosecution of Another.

. .. it should be borne in mind that there is a distinc-

tion between an offense and the unlawful act out

of which it arises and that the rule that a person shall

not be twice put in jeopardy for the same offense is

directed to the identity of the offense and not to the

act. [Emphasis Added].

... where two offenses, committed in the operation of

a motor vehicle, are separate and distinct and the one

is not necessarily included in the other, a prosecution

for the one is no bar to a prosecution for the other,

even though both offenses were committed at the same

time and by the same act.

The Court in Bacom v. Sullivan, 200 F.2d 70 (5 Cir

1952), cert. denied, 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345

(1953) stated:

To constitute double jeopardy, it is not enough that

the second prosecution arises out of the same facts

as the first. It must be for the same ‘offense.’ The

same act may constitute an offense against two separate

statutes. The recognized test for determining the

identity or separateness of offenses charged in two in-

dictments is whether or not the same proof will sus-

tain a conviction under both or whether one requires

-

y

7

proof of facts, not required by the other. Chrysler

v. Zerbst, 10 Cir., 81 F.2d 975; McGinley v. Hudspeth,

10 Cir., 120 F.2d 523.

If one statute requires proof of a fact which the other

statute does not, then the offenses are not the same,

and a conviction or acquittal under one does not bar

a prosecution under the other as double jeopardy.

Graveires v. United States, 220 U.S. 338, 31 S.Ct. 421,

55 L.Ed. 489; Diaz v. United States, 223 U.S. 442, 32

S.Ct. 250, 56 L.Ed. 500; Sims v. Rives, 66 App. D.C.

24, 84 F.2d 871, cert. denied, 298 U.S. 682, 56 S.Ct.

960, 80 L.Ed. 1402. In the latter case, quoting from

Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed.

1153, it was aptly said ‘* * * the fact that both charges

relate to and grow out of one transaction does not

make a single offense where two are defined by the

statutes.’ [66 App. D.C. 24, 84 F.2d 876].

In Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (Miss.

1941) the Supreme Court of Mississippi stated:

Toe driving of a vehicle by one who is under the in-

fluence of intoxicating liquor is a misdemeanor. § 49,

Ch. 200, Laws 1938. The driving of an automobile

while in this condition is therefore per se negligence.

Williams v. State, 161 Miss. 406, 137 So. 106. But this

does not mean that such evidence constitutes a prima

facie case of manslaughter. (citations omitted) It must

be kept in mind that appellant is here prosecuted not

for driving while under the influence of intoxicating

liquor but for culpable negligence. These are separate

offenses for which one could be separately prosecuted

and neither prosecution would bar the other. See

State v. Sisneros, 42 N.M. 500, 82 P.2d 274; People v.

Townsend, 214 Mich. 267, 783 N.W. 177, 16 A.L.R. 902,

8 R.C.L. 147; Holland v. State, 123 Fla. 142, 166 So. 468.

In a prosecution for manslaughter referable to culpable

negligence, intoxication could be a relevant eviden-

tial fact. Yet it is not as controlling that the defendant

in manslauguter was violating the traffic laws as that

he was in fact culpably negligent. One may be negli-

gent while acting lawfully. State v. Brewen, 169 Iowa

256, 151 N.W. 102; Commonwealth v. Amatucci, 29 Del.

Co. R., Pa., 160. One may violate the law and yet

not be culpably negligent in fact. Commonwealth v.

Aurick, 138 Pa. Super. 180, 10 A.2d 22; People v.

Warner, 27 Cal. App. 2d 190, 80 P.2d 737; Common-

wealth v. Williams, 133 Pa. Super. 104, 1 A.2d 812.

It is sufficient in a prosecution for the misdemeanor

that the defendant be driving while under the in-

fluence of liquor. No injury need be shown.

The Supreme Court of Iowa addressed the same issues

as are now before this Court in a very similar case. Also

in that case the United States Supreme Court refused to

hear petitioner’s appeal. That case was State v. Stewart,

223 N.W.2d 250 (1974), cert. denied, 423 U.S. 902, 96 S.Ct.

204, 46 L.Ed.2d 134. In that case the Court held that de-

fendant’s reckless driving conviction which arose out of

the same occurrence was not a lesser included offense of

manslaughter and former jeopardy did not bar defendant’s

conviction of manslaughter.

In State v. Stewart, supra, the Court stated:

There are two steps in determining whether one of-

fense is included within another. The first is a con-

sideration of the elements. The lesser offense must

be composed solely of some but not all elements of the

greater crime. The lesser crime must not require any

additional element which is not needed to constitute

the greater crime. The lesser offense is therefore said

to be necessarily included within the greater. [Em-

phasis Added].

It is only after the elements of the lesser crime are

shown to be necessarily included in the greater crime

that a second inquiry is made. The second inquiry is

a factual one, undertaken on a case by case basis... .

the lesser crime (reckless driving) requires additional

elements not needed to constitute the greater crime

(manslaughter). [Emphasis Added].

There are three elements to the crime of reckless

driving under § 321-283, The Code. They are (1) the

conscious and intentional operation of a motor ve-

hicle (2) in a manner which creates an unreasonable

risk or harm to others (3) where such risk is or should

be known to the driver. State v. Baker, 203 N.W.2d

795, (796) (Iowa) and authorities.

Manslaughter under § 690-10, The Code, is the un-

lawful unintentional killing of a human being by

another without malice express or implied. State v.

Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410. We

have no vehicular homicide statute in Iowa. But our

cases acknowledge manslaughter can be committed

by operating a motor vehicle in either of two ways.

Manslaughter may result from t) reckless operation

of a motor vehicle. State v. Wallin, 195 N.W.2d 95,

99 (lowa 1972); State v. Means, 211 N.W.2d 283 (Iowa

1973). It may result from operating a motor vehicle

while intoxicated. State v. Davis, 196 N.W.2d 885,

890 (Iowa 1972).

However under either theory, proof of manslaughter

requires proof of fact (resultant death) which the

other (either reckless driving or driving while in-

10

toxicated) does not. See State v. Cook, supra, and

Blockburger v. United States, 284 U.S. 299, 304, 52

S.Ct. 180, 182, 76 L.Ed. 306, 309.

223 N.W.2d at 253:

We think that reckless driving and manslaughter are

not the same for former jeopardy purposes. We ap-

prove the following:

‘The offense of reckless driving is not the same in

law or in fact as, nor is it a lesser degree of, the

offense of manslaughter arising out of the operation

of a motor vehicle, even though they may arise from

the same occurrence or transaction, and consequently

an acquittal or conviction of reckless driving will

not be a bar to a prosecution for manslaughter arising

out of the same facts. Nor will an acquittal or con-

viction of manslaughter serve as a bar to a prosecution

for reckless driving arising out of the same facts

does not bar a subsequent prosecution for causing

the death of another by reckless driving, the offense

not being the same.’ 7 Am.Jur.2d, Automobiles and

Highway Traffic, § 343, pages 889-890. See also 22

C.J.S. Criminal Law 8 295(2), pages 771-772.

We conclude defendant is wrong in claiming reckless

driving is a lesser included offense to manslaughter.

The District Court adopting the Magistrate’s Report

states that guidance of respondent’s contention, that he is

entitled to habeas relief on the ground that trial on the

manslaughter charge after trial and conviction of the mis-

demeanors violated his rights under the Double Jeopardy

Clause of the Fifth Amendment, may be found in Illinois

v. Vitale, 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260 (1980).

The Supreme Court in Illinois v. Vitale, held:

11

The Illinois Supreme Court did not expressly address

the contentions that nanslaughter by automobile could

be proved without also proving a reckless failure to

reduce speed and we are reluctant to accept its rather

cryptic remarks about the relationship between the

two offenses involved here as an authoritative holding

that under Illinois law proof of manslaughter by

automobile would always involve a careless failure

to reduce speed to avoid a collision.

Of course, any collision between two automobiles or

between an automobile and a person involves a moving

automobile and in that sense a ‘failure’ to slow

sufficiently to avoid the accident. But such a ‘failure’

may not be reckless or even careless, if when the

danger arose, slowing as much as reasonably possible

would not alone have avoided the accident yet, reck-

less driving causing death might still be proved if, for

example, a driver who had not been paying attention

could have avoided the accident at the last second, had

he been paying attention, by simply swerving his car.

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. [Emphasis Added]. (65 L.Ed.2d

at 237).

The Court in State v. James, 606 P.2d 1101 (N.M.

App. 1979), found that the municipal court record did

not show a plea of guilty or a trial to determine guilt

or innocence on the traffic offense charge, the Court held

12

that such circumstances did not rise to the level of a

conviction for purposes of double jeopardy. It was then

further held:

We also reassert the jurisdictional exception to using

a lesser included offense as a bar to prosecution of

the greater offense. The exception was set forth in

State v. Goodson, 54 N.M. 184, 217 P.2d 262, 263 (1950),

where the court quoted the following language from

1 F.Wharton, Criminal Law § 394 (12th ed.):

‘And a conviction of a lesser offense bars a subsequent

prosecution for a greater offense, in all those cases

where the lesser offense is included in the greater

offense, and vice versa. But a former trial and ac-

quittal or prosecution, unless the defendant could have

been convicted on the same evidence in the former

trial, of the offense charged in the subsequent trial.

An acquittal or confiction for a minor offense included

in a greater offense will not bar a prosecution for

the greater if the court in which the acquittal or con-

viction was had was without jurisdiction to try the

accused for the greater offense.’

The exception was recognized in the specially concur-

ring opinion of Justice Sosa in State v. Tanton, 88 N.M.

333, 337, 540 P.2d 813, 817 (1975):

I would hold that conviction bars prosecution of a

greater offense, subject to one exception: If the court

does not have jurisdiction to try the crime, double

jeopardy cannot attach. Double jeopardy requires that

a court have sufficient jurisdiction to try the charge.

The exception does not conflict with the United States

Supreme Court decision in Waller v, Florida, 397 U.S.

387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). The Waller

13

decision stands for the proposition that two courts

within a state—district and municipal—cannot each

try a person for the same crime. However, the Su-

preme Court recognized the possible existence of ex-

ceptions to this rule. Id. at 395, n. 6, 90 S.Ct. 1184.

In Ashe v. Swenson, 397 U.S. 436, 453, 90 S.Ct. 1189,

25 L.Ed.2d 469 (1970). Mr. Justice Brennan specified

and elaborated upon several of the exceptions in his

concurring opinion. He stated: ‘Another exception

would be necessary if no single court has jurisdiction

of all the alleged crimes.’ Id. at 453, n. 7, 90 S.Ct.

at 1199, n. 7.

It is clear that the justice court in the case presently

before this Court was acting pursuant to its authority

to punish Respondent for his traffic infractions, but it

is equally clear that it had no authority to prosecute for

manslaughter. Consequently, under the jurisdictional ex-

ception the State’s felony prosecution against Respondent

was correct.

The Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct.

2221, 53 L.Ed.2d 187 (1977) stated:

The established test for determining whether two of-

fenses are sufficiently distinguishable to permit the

imposition of cumulative punishment was stated in

Blockburger v. United States, 284 U.S. 299, 304, 76

L.Ed. 306, 52 S.Ct. 180 (1932):

The applicable rule is that where the same act or

transaction constitutes a violation of two distinct sialu-

tory 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... (Emphasis Added].

14

In the recent case of United States v. Cowart, 595

F.2d 1023 (5 Cir. 1979), the same issue was addressed

in this language:

This standard frequently has been referred to as the

‘same evidence’ test; however, the Blockburger test

looks not to the evidence adduced at trial but focuses

on the elements of the offense charged. Brown v.

Ohio, 432 U.S. at 166, 97 S.Ct. at 2225 (Blockburger

test emphasizes the elements of the two crimes); Ian-

nelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct.

1284, 1294, 43 L.Ed.2d 616 (1975) (‘if each [offense]

requires proof of a fact that the other does not, the

Blockburger test is satisfied, notwithstanding a substan-

tial overlap in the proof offered to establish the

crimes.’) United States v. Dunbar, 591 F.2d 1190,

1193 (5th Cir. 1979) (‘Application of the [Block-

burger] test focuses on the statutory elements of the

offenses charged.’) [Emphasis Added]. (595 F.2d at

1023).

Similarly, it was held in Walker v. Loggins, 608 F.2d

731 (9 Cir. 1979):

The application of this test focuses on the statutory

elements of the offense charged, not the particular

manner in which the offense was committed or de-

scribed in the indictment. Jannelli v. United States,

420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 LEd2d

616 (1975).

15

the manner of operation of a motor vehicle upon the streets

or highways of this State and are in no manner dependent

upon any resultant injury to persons or property. See

Barnes v. State, 249 Miss. 482, 162 So.2d 865 (1964); Gause

v. State, 203 Miss. 377, 34 So.2d 729 (1948); Sanford v.

State, 195 Miss. 896, 16 So.2d 628 (1944). The crime of

manslaughter by culpable negligence, by contrast, not only

involves an unlawful homicide, but is not restricted as

to either instrumentality or location. Gandy v. State, 373

So.2d 1042 (1979). See also: Cutshall v. State, 191 Miss.

764, 4 So.2d 289 (1941). ‘These offenses therefore are

neither the same in law or fact.

16

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Brit ALLAN, Attorney General

State of Mississippi

P, Rocer Gooce, Jr.

Counsel of Record

Assistant Attorney General

Larry M. WILson

Special Assistant Attorney General

Post Office Box 220

Jackson, Mississippi 39205

(601) 359-3680

Attorneys for Petitioners

CERTIFICATE OF SERVICE

I, Larry M. Wilson, a Special Attorney General for

the State of Mississippi and one of the attorneys for the

Petitioners, do hereby certify that I have this day served

a true and correct copy of the foregoing Writ of Certiorari

to the following counsel:

Cleve McDowell, Esq.

Attorney at Law

Post Office Box 1205

Cleveland, Mississippi 38732

This, the 7th day of February, 1983.

Larry M. WILson

Al

APPENDIX

EXHIBIT 1

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF MISSISSIPPI

DELTA DIVISION

NO. DC 81-45-LS-P

BARRY JOE ROBERTS,

Petitioner

V.

MORRIS THIGPEN, ET AL,

Defendants

REPORT AND RECOMMENDATION

In this petition for a writ of habeas corpus, petitioner

Barry Joe Roberts challenges the constitutionality of his

May 15, 1978 manslaughter conviction in the Circuit Court

of Tallahatchie County, pursuant to which he is presently

incarcerated at the Mississippi State Penitentiary.

Petitioner’s trial and conviction on the manslaughter

charge resulted from a tragic collision on August 6, 1977

between an automobile driven by petitioner and a pickup

truck, in which collision the ten-year-old daughter of the

driver of the truck was killed. Shortly after the accident,

petitioner was cited by a Mississippi Highway Patrolman

for several misdemeanor offenses, viz., driving under the

influence, driving on the wrong side of the road, driving

with a suspended license, and reckless driving. On August

A2

13, 1977, petitioner was tried and convicted of these charges

by a Tallahatchie County Justice of the Peace; on the

same date, petitioner appealed the convictions to the Cir-

cuit Court of Tallahatchie County pursuant to Miss. Code

Ann. §99-35-1, where he was entitled to trial de novo,

id. Before the misdemeanor charges were retried on ap-

peal, petitioner was indicted by the Tallahatchie County

Grand Jury for manslaughter of the child killed in the

traffic collision. Trial of the appeal of the misdemeanors

thereafter was consolidated with trial of the manslaughter

charge, but the misdemeanor appeals were nolle prossed

during the consolidated trial.

Petitioner claims that he is entitled to habeas relief

on the ground that trial on the manslaughter charge after

trial and conviction of the misdemeanors violated his rights

under the Double Jeopardy Clause of the Fifth Amend-

ment.' Guidance on this contention is found in Illinois v.

Vitale, ........ Semen , 65 L.Ed.2d 228 (1981). There, in a

similar factual setting, the Supreme Court held that the

Double Jeopardy Clause precludes prosecution for man-

slaughter by automobile when the defendant has been

convicted of a misdemeanor based on the same conduct

and where proof of the manslaughter charge necessarily

entails proof of the misdemeanor charge.

As noted above, one of the misdemeanors of which

petitioner was convicted was reckless driving. Miss. Code

Ann. §63-3-1201 provides that “Any person who drives any

vehicle in such a manner as to indicate a wilful or wanton

disregard for safety of persons or property is guilty of

1. Petitioner also asserts claims for habeas relief based upon

the trial court's certification of an improper venire, and

B -

A3

reckless driving.” Manslaughter is defined in general

terms by Miss. Code Ann. §97-3-47 as “killing of a human

being, by the act, pro.urement, or culpable negligence of

another, and without authority of law .. .”; with regard

to manslaughter by automobile, the Mississippi Supreme

Court has construed the statute to explain that “the gist

of the offense of involuntary manslaughter with a motor

vehicle is criminal negligence, which must be wanton or

reckless under circumstances implying danger to human

life’, Smith v. State, 20 So.2d 701, 704 (Miss, 1945), “that

is to say, a wanton and flagrant recklessness and disregard

of the safety of human life cr limb .. .”, id. at 706. It is

thus apparent that manslaughter by automobile in violation

of §97-3-47 cannot be proved without at the same time

proving reckless driving in violation of §63-3-1201, and

that the conduct of petitioner that constituted reckless

driving — losing control of his vehicle while driving under

the influence, crossing the centerline, and colliding with

the other vehicle — is the same conduct that constituted

the culpable negligence necessary for the manslaughter

conviction. Therefore, under the Double Jeopardy Clause,

the “conviction on [the] lesser included offense bars sub-

sequent trial on the greater offense”, Illinois v. Vitale,

supra, 65 L.Ed.2d at 238, and petitioner is entitled to habeas

relief on his double jeopardy claim.

Additionally, prosecution of petitioner on the man-

slaughter charge violated his right to due process of law

under the Fourteenth Amendment. Blackledge v. Perry,

417 U.S. 21, 40 L.Ed.2d 628 (1974), established a per se

rule that a criminal defendant’s right to due process is

violated by the state substituting a felony chargé for a mis-

demeanor charge covering the same conduct after the

defendant has been convicted of the misdemeanor and

has exercised his right under state law to appeal and to

A4

trial de novo, The facts of this case fall squarely within

Blackledge, under which petitioner also is entitled to re-

lief.

For the foregoing reasons, it is recommended that the

petition be granted, that the challenged manslaughter con-

viction be set aside, and that respondent be ordered to

release petitioner from custody forthwith.

Respectfully submitted, this 3rd day of November,

1981.

/s/ (Mlegible)

United States Magistrate

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EXHIBIT 2

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF MISSISSIPPI

DELTA DIVISION

NO. DC 81-45-LS-P

BARRY JOE ROBERTS,

Petitioner

Vv.

MORRIS THIGPEN, ET AL,

Defendants

ORDER

Upon due consideration of the petition for a writ of

habeas corpus filed herein, the response thereto, and the

Report and Recommendation of the United States Magis-

trate entered herein on November 3, 1981, no objection

thereto having been filed, the court finds that the petition

is well taken and should be granted. It is therefore

ORDERED:

1. That the Report and Recommendation of the

United States Magistrate is hereby adopted as the opinion

of the court; and

2. That the petition for a writ of habeas corpus is

hereby granted, that petitioner’s May 15, 1978 manslaughter

conviction in the Circuit Court of Tallahatchie County is

hereby vacated, and that respondent shall forthwith release

petitioner from custody.

This, 19th day of November, 1981.

/s/ L. T. Senter, Jr.

United States District Judge

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EXHIBIT 3

IN THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF MISSISSIPPI

DELTA DIVISION

NO. DC 81-45-LS-P

BARRY JOE ROBERTS,

Petitioner,

Vv.

MORRIS THIGPEN, et al.,

Defendants.

ORDER

On November 23, 1981, this court issued an order stay-

ing its November 19, 1981, grant of habeas corpus so that

defendants’ counsel might have the opportunity to file

written objections to the report and recommendations of

the magistrate filed November 3, 1981. After reviewing

defendants’ objections and the brief filed by petitioner in

support of the magistrate’s report and recommendations,

the court is of the opinion that the facts of this case fall

squarely within Blackledge v. Perry, 417 U.S. 21 (1974),

and that the writ earlier granted should issue.

Accordingly, it is

ORDERED:

That the stay ordered on November 23, 1981, is hereby

lifted.

This 18th day of January, 1982.

/s/ L. T. Senter, Jr.

United States District Judge

Al

EXHIBIT 4

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-4067

BARRY JOE ROBERTS,

Petitioner-Appellee,

versus

MORRIS THIGPEN, Commissioner, Mississippi

Department of Corrections, ET AL.,

Respondents-Appellants.

Appeal from the United States District Court

For the Northern District of Mississippi

(NOVEMBER 16, 1982)

Before RUBIN und JOHNSON, Circuit Judges, and

DAVIS,* District Judge.

PER CURIAM:

This habeas corpus appeal comes before this Court

in an unusual manner: it is the state, not the prisoner,

that appeals. Roberts was tried and convicted in a

Tallahatchie County Justice Court for the misdemeanor

offense of reckless driving;' he was later convicted of man-

slaughter in the Circuit Court of Tallahatchie County.

Roberts challenged his manslaughter conviction on the

ere oe OP VES SS 6 See, Se

: Bebe wesc xavised of es oes misuncane

the roed, and Griving With © ous.

A8

grounds that he was twice put in jeopardy for the same

offense. The federal district court held that Roberts was

entitled to habeas corpus relief on either double jeopardy

or due process grounds.’ We agree with the district court

that Roberts was twice put in jeopardy for the same of-

fense and therefore affirm the granting of habeas corpus

relief.

L

On August 6, 1977, at approximately 7:90 p.m., Roberts

lost control of his car and collided with a pickup truck

on Mississippi State Highway 35. The ten-year-old daugh-

ter of the driver of the pickup truck was killed. Roberts

was tried and convicted by a Tallahatchie County Justice

Court judge for the misdemeanor offense of reckless driv-

ing and three other misdemeanor offenses. Roberts’ pun-

ishment was assessed at a fine of $100.00 for the offense

of reckless driving. He appealed his convictions to the

Tallahatchie Circuit Court where he was entitled to trial

de novo. Before he was retried for the misdemeanor

charges on appeal, Roberts was indicted for the felony

offense of manslaughter of the girl killed in the collision.

The appeal of the misdemeanors was consolidated with

AQ

to twenty years in the Mississippi Department of Cor-

rections.

On March 13, 1981, Roberts filed a habeas corpus

petition in federal district court. Roberts contended that

he was put in double jeopardy in violation of the fifth

amendment because the same proof was offered to sustain

the conviction of involuntary manslaughter that had been

offered to prove the misdemeanor charges. The district

court’s granting of habeas corpus relief on the double

jeopardy claim was based on the Supreme Court’s decision

in Illinois v. Vitale, 100 S.Ct. 2260 (1980). The district

court concluded that manslaughter by automobile cannot

be proved without at the same time proving reckless driv-

ing, and consequently, reckless driving is a lesser included

offense of manslaughter. The felony manslaughter trial

and conviction was therefore held to be barred due to

the prior misdemeanor conviction for reckless driving.

I.

A.

One of the guarantees of the constitutional prohibition

of double jeopardy is protection against a second prosecu-

tion for the same offense after conviction‘ We must

decide, therefore, whether the felony offense of manslaugh-

ter is the “same offense” for double jeopardy purposes

as the misdemeanor offense of reckless driving.

In confronting this question, this Court is bound by

the analytical framework of Vitale. The Vitale analysis

is a two-pronged one. The first prong involves application

4. The other two guarantees are (1) protection against a

second prosecution for the same offense after acquittal and (2)

protection against multiple ae a the same offense.

Tilinois v. Vitale, 100 S.Ct. 2260, 2264-65

Al0

of the Blockburger test.’ The Supreme Court’s application

of the test focuses on the statutory elements of each

offense. lanelli v. United States, 95 S.Ct. 1284, 1293 n.17

(1975).

In this case the Blockburger test requires a close com-

parison of the Mississippi statute for reckless driving and

the Mississippi manslaughter statute. Miss. Code Ann.

§ 63-3-1201 provides that “[a]ny person who drives any

vehicle in such a manner as to indicate either a wilful

or a wanton disregard for the safety of persons or prop-

erty is guilty of reckless driving.” Miss. Code Ann. §

97-3-47 defines manslaughter in general terms as the “kill-

ing of a human being, by the act, procurement, or culpable

negligence of another, and without authority of law... .”

To establish a violation of the reckless driving statute,

one element. not required to prove manslaughter must

be established: operation of a motor vehicle. Of course,

to establish manslaughter, an element not required to prove

reckless driving must be shown: death of a person.

Brown v. Ohio, 97 S.Ct. 2221 (1977), and Vitale require

a double checking of the analysis with a second question:

does proof of the greater crime necessarily involve proof

of the lesser crime? If, in proving manslaughter, the

prosecutor has necessarily established reckless driving as

well, double jeopardy will bar reprosecution.

A narrow focus on the two statutes provides one an-

swer. Proof of manslaughter does not necessagfly entail

proof of reckless driving, for manslaughter could be proved

5. “The applicable rule is that where the same act or trans-

All

in a situation completely foreign to a vehicular collision.

The flaw in this analysis is that Mississippi has a case

law veneer on its general manslaughter statute. Conse-

quently, there is a definition, albeit not a statutory one,

of the offense of vehicular homicide. The Mississippi Su-

preme Court has clearly defined the offense of manslaugh-

ter by automobile: “(T]he gist of the offense of involun-

tary manslaughter with a motor vehicle is criminal negli-

gence which must be wanton or reckless under circum-

stances implying danger to human life.” Smith v. State,

20 So.2d 701, 704 (Miss. 1945). By taking this judicial

veneer into account, it is apparent that manslaughter by

automobile cannot be proven without at the same time

proving reckless driving. Because the specific felony of-

fense, manslaughter by automobile, is not statutorily de-

fined, 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.

B. ‘

It is unnecessary to resolve this dilemma on the first

prong of the analysis.’ Roberts unquestionably has such

Al2

a “substantial claim” of double jeopardy under the second

prong that his trial and conviction for manslaughter are

precluded.

The focus here is on the evidence actually presented

at trial. If the state had to prove reckless driving or

had to rely on conduct necessarily involving reckless driv-

ing in order to prove manslaughter, Roberts has a substan-

tial claim of double jeopardy under the fifth and fourteenth

amendments of the United States Constitution. The same

evidence that led to Robert’s conviction on the misde-

meanor charge was also introduced in the manslaughter

trial. The trial court’s instructions to the jury’ leave

8. This evidence consisted largely of the testimony of the

investigating highway patrol officer regarding the speed of the

car, tire skid marks, and the positions of the automobile and the

pickup truck. The same highway patrol officer was the prin-

cipal law enforcement witness in both p

. 9. The following portion of the court’s charge is instruc-

ve:

The Defendant, BARRY JOE ROBERTS, has been charged

by an Indictment with the crime of Manslaughter for having

A his culpable negligence caused the death of BRENDA

If you find from the evidence in this case beyond a reason-

able doubt and to the exclusion of every other reasonable

hypothesis consistent with innocence that

(a) The deceased, BRENDA BONNER, was a living per-

son; and

Al3

no room for doubt that Mississippi did indeed rely on

and prove reckless driving as the culpable act of negligence

necessary to prove manslaughter.

ITI.

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.

AFFIRMED.

Footnote continued—

every other reasonable hypothesis consistent with innocence,

then you shall find the Defendant not guilty.

Culpsble negligence is, as used in these instructions, conduct

which exhibits or manifests a wanton or reckless disregard

for the safety of human life, or such indifference to the con-

sequences of the Defendant's act under the surrounding cir-

cumstances as to render his conduct tantamount to wilful-

ness.