Petition — Alabama v. Gordon

Office Supreme Coy.

ite.” F

89 -1920 MAY 27 ic

i“ ALEXANDER L. STEVasS

oF CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

V.

WILLIAM SANFORD ELEY, II AND HONORABLE

WILLIAM R. GORDON, CIRCUIT JUDGE,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA;

THE COURT OF CRIMINAL APPEALS

OF ALABAMA AND THE CIRCUIT COURT

OF MONTGOMERY COUNTY, ALABAMA

OF

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

NO.

tt, ll Ne A

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

Ve

WILLIAM SANFORD ELEY, II AND HONORABLE

WILLIAM R. GORDON, CIRCUIT JUDGE,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA;

THE COURT OF CRIMINAL APPEALS

OF ALABAMA AND THE CIRCUIT COURT

OF MONTGOMERY COUNTY, ALABAMA

OF

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

l. Did this Honorable Court's

decision and opinion in Illinois v.

Vitale, (447 U.S. 410, 65 Le. Ed. 2d 228,

100 S. Ct. 2260 [1980]) overrule,

supersede, modify or limit the rule of

double jeopardy announced by this

Honorable Court in Blockburger v. United

States, (284 U.S. 299, 76 L. Ed. 306, 52

S28. Ce. 180 (19321)?

2. Where a party in the same

sequence of events drives under the

influence of intoxicating liquor and

assaults another person with his

automobile, does a conviction for driving

under the influence of intoxicating

liquor constitute former jeopardy as to a

charge of reckless assault, where driving

under the influence and reckless assault

share no common element, driving under

the influence does not necessarily

involve or constitute recklessness and

the State proves or offers to prove

numerous reckless acts in addition to

driving under the influence?

THE PARTIES

In the Honorable Circuit Court of

Montgomery County, Alabama, the parties

were: The State of Alabama, in whose

name the prosecution was brought and who

is the Petitioner herein, and William

Sanford Eley II, who is a Respondent

herein.

In the Court of Criminal Appeals and

Supreme Court of Alabama the real parties

in interest were the same state of

Alabama, Petitioner in the mandamus

proceeding and William Sanford Eley II, a

Respondent in the same proceeding. The

nominal parties in said State Appellate

Courts were: Honorable William R.

se

Gordon, Circuit Judge, Respondent Judge

in the mandamus proceeding and a

Respondent here and James H. Evans,

District Attorney and Charles A.

Graddick, Attorney General, Relators in

the mandamus proceeding.

The matters presented by this

petition were first raised in the Circuit

Court of Montgomery County, Alabama, by

Respondent Eley's Pleas of Autre fois

convict and former jeopardy. The State

of Alabama joined issue on said plea on

the basis of the matters raised herein.

These matters have been at issue

throughout the State Court proceedings.

tik

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ----------- ante, I

PARTIES ----------------------- ante, II

TABLE OF CASES ---------------- iii

TABLE OF CONSTITUTIONAL

PROVISIONS --------------- Vv

TABLE OF STATUTES ------------- v

Sotutcots SLiLOW .-.--.._.......... l

JURISDICTION ------------------ 3

CONSTITUTIONAL PROVISIONS

INVOLVED ----------------- 4

STATUTORY PROVISIONS

INVOLVED ----------------- 5

STATEMENT OF THE CASE AND

THE FACTS --------------~- 6

SUMMARY OF THE ARGUMENT ------- 13

ARGUMENT ---------------------- 15

INTRODUCTION ------------- 15

REASONS FOR GRANTING

THE WRIT --------------- 18

TABLE OF CONTENTS (CON'T)

I. CONFLICT WITH BLOCK-

BURGER V. UNITED STATES,

(284 UeSe 299 [1932] ) yews enieestnens

II. CONFLICT WITH ILLINOIS v.

VITALE (447 U.S. 410

TIS86]) <——--~—..............

A. IN GENERAL ------- ——---

B. CONFLICT WITH THE

MAJORITY OPINION IN

VITALE -------------------

C. CONFLICT WITH THE

DISSENTING OPINION

IN VITALE ------------~..-

D. CONFLICT WITH

VITALE'S TREATMENT

OF BLOCKBURGER V.

UNITED STATES, (284

U.S. 299 [1932]) ---------

CONCLUSION ------------------------~

CERTIFICATE OF SERVICE ------------

ii

TABLE OF CASES

Albernaz v. United States,

Soy Uses 355% 6?

Le Ed. 26 275,

301 &. Ct. 1137

(1981) --------~----------~-~- 19,34,35

Blockburger v. United States,

284 U.S. 299, 76

L. Ed. 306, 52 5S.

Ct. 180 (1932) ------------- I,14-16,

18,20,

21,33-35

Brown v. Ohio,

432 U.S. 161, $3

ln EG. 20 i887, 937

So. CO. 232)

(1977) q---------- 19

Chattahoochee Valley Railway

Co. v. Williams,

207 Ala. 464, 103

So. 2d 762 (1958) ---------- 28

Evans v. State,

36 Ala. App. 145,

53 So. 24 764

(1951) ---------~-.~- 28

Ex parte: State,

So. 2d

ths. CO. Ala. Ape.

8, 1983) Se ee ee ee ce ee ee oe eee ee oe ee oe 3

Ex parte: State,

So. 2d

(Cy. App. Ala.,

Jan. iG, 1983) leet id i

ait

TABLE OF CASES (CON'T)

PAGE

Ex parte: Nice,

(Ss. CE. Ala., 1961)

407 So. 2d 874 ------------- i2

Gore v. United States,

Sa?! UsSs 386, 2

L. Ed. 2d 1405,

78 S. Ct. 1280

(1958) --------------------- 19

Harris v. Oklahoma,

a5 Usos GE2Z- $3

Le. Ed. 2d 1054,

S7 &. €e. 2932

(1977) --------------------- 19

Iannelli v. United States,

420 UseSs FIU> 4&3

L. Ed. 2d 616, 95

S. Ct. 1284

(1975) --------------------- 16,19

Illinois v. Vitale,

44/ UsS. €10, 65

in BG. 26 226,

106 8. Ct. 2260

(1980) ss orton aetapae essa ar laa ha Crea rae aloe ny T,i0,16,

ISedhe

22,24-

26,29-35

In re: Nielsen,

Sat Vile 27G, 33

Ibe EG. 138, 3 S.

Ct. 672 (1889) ------------- 19

State v. Eley,

4235 SO. 24 305

(Ss. Ce. Ala., 1982) ee lL, 12

iv

TABLE OF CASES (CON'T)

State v. Eley,

423 So. 2d 303

(Cr. App.Ala.1982) --------- L, 12

In re; Vitale,

TA 244 BO 229, 16

Ill. Dec. 456, 375

N.E. 2d 87 (1978) ---------- 22

Missouri v. Hunter,

UeGe P

74 i BAL Oe

S49. 2603 8. Ct.

(1983) --------------- 19,35

TABLE OF CONSTITUTIONAL

PROVISIONS

PAGE

United States, Constitution,

Amendment 5 ---------------- 4,21

Amendment 14 -------........ 4

TABLE OF STATUTES

PAGE

Code of Alabama, 1975,

Title 13A,

Section 13A-6-20 ------—--... 5,8

Code of the City of Montgomery,

Section 26-68 ---------=---- 6

United States Code,

Tattle 2a,

SRCE ION 1257 ecm mmmin 3 Vv

OPINIONS BELOW

The opinion and order of the

Honorable Circuit Court of Montgomery

County, Alabama, dismissing the

prosecution of William Sanford Eley II

is not and will not be reported. The

same is submitted as Appendix "A" to this

brief.

The decisions and opinions of the

Court of Criminal Appeals and Supreme

Court of Alabama dismissing the State's

appeal from the above order on the

grounds that the Governor had

inadvertently "pocket vetoed" the statute

authorizing the State to appeal are

reported as follows:

State v. Eley, 423 So. 2d 303

(Cr. App. Ala., 1982) and

Ex parte: State; In res State

Vs. EBLGY, 423 SO. 20 305 (5. Ct.

Ala., 1982)

Since said attempted appeal was

collateral to this case and neither

Court addressed nor even mentioned the

matters at issue in the instant

proceeding, these decisions and opinions

are of historical interest only, and the

record will not be burdened by appending

them hereto.

The order of the Court of Criminal

Appeals of Alabama denying without

opinion the State of Alabama's petition

for a writ of mandamus to review tne

order of the Circuit Court dismissing the

prosecution on grounds of former jeopardy

is not as yet reported but will be

reported as:

Ex parte: State; Ex rel.

Graddick & Evans; In re: State

v. Eley, SO. 2d (CE.

App. Ala., 1983)

A copy of the same is submitted as

Appendix "B" hereto.

The order of the Supreme Court of

Alabama denying without opinion the State

of Alabama's petition for a writ of

certiorari is not reported as yet but

will be reported as follows:

Ex parte: State; In Re: Ex

parte: State; Ex rel Graddick &

Evans; In re: State v. Eley,

So. 2d Pa. Ces ALae,

1983)

A copy of the same is submitted as

Appendix "C" hereto.

JURISDICTION

The order of the Supreme Court of

Alabama denying certiorari was issued

April 8, 1983, and this petition is filed

within sixty (60) days of said date:

The jurisdiction of this Honorable

Court is invoked under Title 28, United

States Code, Section 1257(3)

CONSTITUTIONAL PROVISIONS INVOLVED

1. The Double Jeopardy Clause of

the Fifth Amendment to the Constitution

of the United States, which reads as

follows:

"No person shall be held to

answer for capital, or other-

wise infamous crime, unless on

a presentment or indictment of

a Grand Jury, except in cases

arising in the land or naval

forces, or in the militia, when

in actual service in time of

war or public danger; nor shall

any person be subject for the

same offence to be twice put in

jeopardy of life or limb; nor

shall be compelled in any

criminal case to be a witness

against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just compensa-

tion." (Emphasis supplied)

2. Section one of the Fourteenth

Amendment to the Constitution of the

United States which reads as follows:

",.eAll persons born or natur-

alized in the United States,

and subject to the jursidiction

thereof, are citizens of the

United States and the State

wherein they reside. No State

shall make or enforce any law

which shall abridge the pri-

vileges or immunities of citi-

zens of the United States; nor

shall any State deprive any

person of life, liberty, or

property, without due process

of law; nor deny any person

within its jurisdiction the

equal protection of the

lawS...."

STATUTORY PROVISIONS INVOLVED

Respondent Eley was charged with

assault in the first degree under Title

13A, Section 13A-6-20(a)(3), Code of

Alabama, 1975, which is submitted as

Appendix "D" hereto. The portion of this

statute under which Respondent Eley was

charged reads as follows:

"§13A-6-20. Assault in the

first degree.

"“(a) A person commits the

crime of assault in the first

degree if:...

"(3) Under circumstances

manifesting extreme indiffer-

ence to the value of human

life, he recklessly engages in

conduct which creates a grave

risk of death to another

person, and thereby causes

serious physical injury to any

person...."

Respondent Eley obtained dismissal

of the assault charge on the grounds that

his conviction for driving under the

influence of intoxicating liquor

allegedly constituted former jeopardy as

to the assault charge. Eley's conviction

for the traffic offense was under Section

25-68, Montgomery [Alabama] City Code,

1980, which is submitted as Appendix "E”"

hereto.

STATEMENT OF THE CASE AND THE FACTS

This case arose out of an incident

on December 31, 1981, in Montgomery,

Alabama, in which Respondent William

Sanford Eley II drove his automobile

into that driven by Mrs. Karen H.

Hellums, causing massive injuries to her.

At the hearing before the Honorable Trial

Judge the State represented that if

permitted to try this case it would show

that the collision resulted from Eley's

being highly intoxicated, speeding,

driving inattentively, running a blinking

red light and failing to yield the right-

of-way. Respondent Eley was charged with

driving under the influencel, a misde-

meanor under Montgomery City ordinances.

(See Appendix "E") Eley was ultimately

convicted of driving under the influence,

paid a fine and received a suspended

sentence. Respondent Eley was also

charged with assault in the first degree

Ifthe full title of this offense is:

"Driving under the influence of intoxi-

cating liquors or beverages, narcotics or

barbiturate drugs." In the interest of

brevity and clarity this offense will be

referred to herein as "driving under the

influence,"

under State statutes. Title 13A, Section

13a-6-20(a)(3), Code of Alabama, 1975;

Appendix "D". (R.2 pp. 4-6 and 21-22;

see Appendix "A" pp. 1-5 and 24)

The indictment of Respondent Eley

read as follows:

"The Grand Jury of said

[Montgomery] County charge that

before the finding of this

indictment, WILLIAM SANFORD

ELEY II, whose name is to the

Grand Jury otherwise unknown,

did, under circumstances

manifesting extreme

indifference to the value of

human life, recklessly engage

in conduct which created a

grave risk of death to another

person and did thereby cause

serious physical injury to

Karen H. Hellums by operating a

motor vehicle while the same

William Sanford Eley II was

under the influence of

intoxicating beverages, and did

cause said motor vehicle to run

into, over, upon, against or

collide with the motor vehicle

in which Karen H. Hellums was

driving, thereby causing

2"R" refers to the Exhibit to the

mandamus petition.

serious physical injury to the

said Karen H. Hellums, in

violation of Section 13A-6-20

of the Code of Alabama, against

the peace and dignity of the

State of Alabama. (R. pp.

1-2)

On arraignment Respondent Eley

pleaded not guilty and not guilty by

reason of insanity. Seven days later he

entered a plea of autre fois convict and

former jeopardy claiming that his driving

under the influence conviction barred the

assault charge. The Honorable

Respondent, as Judge of the Circuit Court

of Montgomery County, overruled this plea

on the grounds that the two offenses were

not the same. However, Respondent Eley

renewed this plea on June 24, 1982. (R.

pp. 3-7) It is the ruling on this renewed

plea of former jeopardy which is at issue

in this case.

On September 1, 1982, the Honorable

Trial Judge dismissed the assault

indictment on the basis of Respondent

Eley's former jeopardy claim. His

Honor's lengthy opinion is submitted as

Appendix "A" to this petition and is

merely highlighted here. His Honor noted

that Eley's claim rested on Illinois v.

Vitale, (447 U.S. 410, 65 L. Ed. 2d 228,

100 S. Ct. 2260 [1980]).3 It was con-

ceeded and found that unless Vitale

radically altered the law, Eley's claim

of former jeopardy had to be rejected.4

3",..Defendant [Eley] rests his plea on

Illinois v. Vitale, 447 U.S. 410 (1980)

-- with all respect, a case simply

written, but with a labyrinthian result.

Before examining Vitale, certain

fundamental concepts of double jeopardy

should be noted...." (R. p. 23, Appendix

TE" s Bs 7)

4"... Defendant [Eley] concedes, as he

must, that application of Blockburger

[v. United States, 284 U.S. 299, 76 L.

EG. 306, 32 Ss Ges 180 (1932})] to the

instant case requires that the plea be

overruled. However, he earnestly

10

His Honor then analyzed Vitale and

concluded that in that case this

Honorable Court had established a new

test for former jeopardy which disallows

any evidence of conduct relating to a

former conviction. Under His Honor's

understanding of Vitale, the State would

not be allowed to introduce any evidence

which in any way related to driving under

the influence. Since the indictment

mentioned driving under the influence as

part of the means of the assault, His

Honor concluded that the indictment had

footnote 4 con't:

contends that Vitale has modified Block-

burger and that application of the

modified test requires the court to

Sustain the plea.

Additionally, prior to Vitale, there is

little reason to question but that under

the facts of the case sub judice, the

Plea fails...." (R. p. 24, Appendix "A",

p. 9)

it

to be dismissed. (R. pp. 21-34, Appendix

man)

Six days later che State of Alabama

initiated a long and thus far utterly

unsuccessful effort to get an appellate

court to review the merits of His Honor's

ruling. The State first attempted an

appeal under a new state statute.

This attempt failed when the Court of

Criminal Appeals of Alabama ruled that

the Governor had inadvertantly "pocket

vetoed" the law giving the State the

right to appeal. (R. pp. 35-36; State v.

Eley, 423 So. 2d 303 [Cr. App. Ala.,

1962]; cert. den. €23 So. 240 305 [S. Ct.

Ala., 1982]) Then the State instituted

the instant proceeding as a mandamus

action against the Honorable Trial

Judge.> The State's petition was filed

SMandamus is the only remedy available to

the State under Alabama Law in this

situation. Ex parte: Nice, 407 So. 2d

S76 (8. C&. Bik. 1981) 12

in the Court of Criminal Appeals of

Alabama on January 5, 1983 and denied

without opinion on January 10, 1983.

(Appendix "B") On January 20, 1983, the

State applied for rehearing and requested

the finding of facts; both were denied

without opinion on January 24, 1983.

(Appendix "B") The State's petition for a

writ of certiorari was denied without

opinion by the Alabama Supreme Court on

April 8, 1983. (Appendix “C*)

SUMMARY OF THE ARGUMENT

The State of Alabama has sought and

is seeking review of the Honorable

Respondent's ruling not just because his

ruling is erroneous but because the

ruling is based on an erroneous legal

theory, which will of necessity prevent

the State from trying the case under a

new indictment.

i3

The Alabama Courts expressly stated

that they were not following this

Honorable Court decision in Blockburger

ve United States, (284 U.S. 299, 76 L.

Bd. 306, 52 S. Ct. 160 (19321). The

Alabama Courts claimed to have followed

instead Illinois v. Vitale, (447 U.S.

£10, 6S L. Ed. 2€ 228, 100 S. Ct. 2266

[1980]), which the State Courts held

Overruled, superceded or modified

Blockburger. It follows that if

Blockburger is still sound law, this case

Should be reversed summarily.

The decision of the Alabama Courts

is in patent conflict with this Honorable

Court's decision and opinion in Illinois

ve. Vitale, (447 U.S. 410, 65 L. Bd.

228, 100 S. Ct. 2260 [1980]) in every

way. There are conflicts with the case

in general, conflicts with each of the

four points stated or implied by the

14

majority of this Honorable Court, and

conflicts with the two points made by the

Honorable dissenters, in this Honorable

Court. Most importantly, this Honorable

Court in Vitale and subsequent cases

relied heavily on Blockburger v. United

States, (284 U.S. 299, 76 Le. Ed. 306, 52

S. Ct. 180 [1932]), while the Honorable

Alabama Trial Judge held that Vitale

Overruled, superceded or modified

Blockburger.

ARGUMENT

INTRODUCTION

This petition represents the State

of Alabama's seventh effort to obtain

appellate review of the Honorable Trial

Judge's ruling that Illinois v. Vitale,

(@47 U.S. 410, 65 UL. EG. 24 228, 1006 8S.

Ct. 2260 [1980]) overruled, superceded or

modified this Honorable Court's classic

15

decision in Blockburger v. United States,

(264 U.B. 299, 76 be Ed. 306, 52 8. Ct.

180 [1932]). The State has sought such

review, not merely because His Honor's

ruling is incorrect but because of the

legal theory on which His Honor based his

ruling. His Honor's reading of Vitale is

that, once a party is convicted of

certain conduct, no evidence relating to

that conduct can be introduced in a

prosecution for an other offense arising

out of the same transaction. For

example, if a person commits a robbery, a

rape and a murder using a pistol, he

could, under this Court's decisions be

separately tried, convicted and sentenced

for robbery, rape and murder.

Blockburger v. United States, 284 U.S.

200. 76 &. BGs 306, $2 8. CE. 300 12932):

Iannelli v. United States, 420 U.S. 770,

43 L. B&. 34 616, 95 S&. Ct. 1284 (1975).

16

However, under His Honor's approach, if

the person was first convicted of

possession of a pistol without a permit,

he could be convicted of these other

offenses only if the prosecution could

prove its case without any reference to a

pistol.

In the instant case, if the State

reindicted Eley for assault, it could

easily prove recklessness by showing

Eley's speeding, inattentive driving,

running the blinking red light and

failure to yield the right-of-way, but

any evidence of these facts would also

tend to show that Eley was driving under

the influence, and would, under His

Honor's understanding of Vitale, have to

be excluded. Of course, once trial

commenced and the State found that all of

its evidence was excluded, because of the

necessary implications of His Honor's

i g

erroneous theory, it would be too late to

seek review. The State would have to

rest with its case unproven and await the

unavoidable verdict of acquittal.

REASONS FOR GRANTING THE WRIT

I.

CONFLICT WITH BLOCKBURGER V.

UNITED STATES (284 U.S. 299

(1932])

The classic case on former jeopardy

as to different offenses in the same

sequence of events is Blockburger v.

United States, (284 U.S. 299, 76 L. Ed.

306, 52 S. Ct. 180 [1932]}). Biockburger

held that for purposes of double

jeopardy, offenses based on the same

facts are subject to separate prosecution

if they are not the same, and they are

not the same if each has one element in

its corpus delecti that is not included

18

in that of the other. Blockburger v.

United States, Gore v. United States, 357

357 U.S. 386, 2 b. ES. 24 1405, 78 S. Ct.

1280 (1958); Iannelli v. United States,

420 U.S. 770, 43 Le. Ed. 2d 616, 95 S. Ct.

1284 (1975); Albernaz v. United States,

450 U.S. 333, 67 le EG. 2€¢ 275, i101 &.

Ct. 1137 (1981). Thus offenses are the

same for jeopardy purposes, even if they

have different names, if they have the

exact same elements of their corpus

delecti. Missouri v. Hunter, U.8.

» 78 be Ba. 2G $35, i935 S. CEs

em

(1983) On the other hand, where the

corpus delecti of an offense is contained

in its entirety in the corpus delecti of

another offense, the two are the same for

jeopardy purposes. In re: Nielsen, 131

0.5. 176, 323 Lb. Bd. 118, 9 Ss CE. 672

(1889); Harris v. Oklahoma, 433 U.S. 682,

53 Le BG. 26 1054, 97 S. Ck. 2912

(1977): Brown v. Ohio, 432 U.S. 161, 53

19

be EG. O20 i687, 97 Ss CEs 2221 (C1877) But,

where two offenses each have at least one

uncommon element in their corpus delecti,

they are not the same for jeopardy

purposes. This is the well established

rule which this Honorable Court has

consistently followed.

There is no need to burden this

Honorable Court with a lengthy discussion

of the differences between drunk driving

and assault. As defined by the statutes,

Appendicies, "D" and "E", the two

offenses share no elements at all. Most

Significantly, it was conceded by

Respondent Eley and found by the

Honorable Respondent Trial Judge, that

under Blockburger Eley's former jeopardy

claim must fail. The issue in this case

is not whether the State Courts followed

this Honorable Court's decision in

20

Blockburger, they admittedly did not.

The issue here is whether Blockburger

still represents good law. If it does,

then the Alabama Courts have embarked on

a grossly wrong course in pursuing the

Double Jeopardy Clause of the Fifth

Amendment to the Constitution.

The Alabama Courts reached their

decision in an effort to follow Illinois

v. Vitale, (447 U.S. 410, 65 L. Ed. 2a

228, 100 S. Ct. 2260 {1980]). As will be

discussed below, they misapplied Vitale

in every way. If, as is argued below,

Vitale did not overrule, supercede or

modify Blockburger, as the Alabama Courts

found, it would appear that this case

ought to be summarily reversed.

21

i

CONFLICT WITH ILLINOIS V.

VITALE (447 U.S. 410 [1980] )

A.

IN GENERAL

The case of Illinois v. Vitale, (447

U.S. 610, 65 L. Ed. 24 228, 100 S. Ct.

2260 [1980]) was substantially identical

to the instant case. There an individual

by reckless conduct with his motor

vehicle killed two children. He was

convicted of a traffic offense in an

inferior court, and the state courts held

that under the Double Jeopardy Clause the

misdemeanor conviction barred a

Prosecution for manslaughter. In re:

Vitalie, 71 141 20 229, 16 Ill. Dec. 456,

375 N.E. 2d 87 (1978) This Honorable

Court reversed, holding: (1) The

misdemeanor conviction would bar the

felony prosecution if, and only if, the

misdemeanor was always an element of

ra

manslaughter. and (2) Vitale would have a

substantial double jeopardy claim only if

the state relied solely on the conduct

represented by the misdemeanor conviction

to prove an element of manslaughter.

In the instant case, Eley by

recklessly operating his vehicle severely

injured a lady. He was convicted of a

traffic offense, and the state courts

have held that, although driving under

the influence and assault, have no common

elements, neither is an element of the

other and the state offered to prove

numerous other unlawful and reckless

acts, the misdemeanor conviction barred

the felony prosecution. This holding is

in patent conflict with what this

Honorable Court ruled in Vitale.

This obvious conflict will be

examined in some detail in the

subsections below.

23

B.

CONFLICT WITH THE MAJORITY

OPINION IN VITALE

As mentioned above, the Illinois

Courts in Vitale dismissed the

prosecution before trial. This Honorable

Court vacated and remanded. As to

dismissal before trial, this Court held

that the conviction for failure to reduce

speed (Vitale's misdemeanor) was a bar to

manslaughter prosecution if, and only if,

the traffic offense was always a

necessary element of manslaughter with an

automobile. Under Alabama law, as found

by the Honorable Respondent Trial Judge,

driving under the influence is not an

element of assault. Thus, in dismissing

this prosecution, the Alabama Courts

ruled contrary to Vitale on this point.

Then, this Court wrote:

",..Of course, any collision

between two automobiles or

between an automobile and a

24

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, reckless

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. (447 U.S. 410,

S13, G63 tke BG. 228, 237)

(Emphasis supplied)

This language is of extreme importance

because it demonstrates that this Court

Was aware that the State of Illinois

would not be able to prove a case against

25

Vitale without offering evidence of the

same conduct which was represented by the

misdemeanor conviction. Yet, obviously

this Honorable Court found no jeopardy

problems with this situation. This is in

absolute conflict with the Alabama

Court's ruling that any evidence of

conduct represented by the misdemeanor

conviction would be inadmissible in the

felony prosecution.

This Honorable Court in Vitale then

went on to discuss the problem of the

State's relying on Vitale's failure to

reduce speed as THE RECKLESS ACT

necessary to prove manslaughter. As the

language quoted above demonstrates, the

Court was aware that the State of

Illinois would have to show a reckless

failure to reduce speed in order to prove

its case, and the Court held that, if the

State relied entirely on such conduct to

26

prove an element oi the manslaughter

case, then a substantial double jeopardy

claim would arise. However, this court

noted that there were indications of

other offenses in record® and saw no need

to resolve a claim which might never

arise.

In the instant case, there is no

need to wonder if the State will rely on

driving under the influence to prove that

Eley was reckless. Alabama law is very

strict on drunk driving. The statement,

"I had only two or three beers," is a

confession to the offense. However, by

the same token, it can not be argued that

driving under the influence, as defined

6",...The police report concerning

Vitale's accident noted that the brakes

on the automobile were defective and that

there had been a school crossing guard

and a stop sign at the intersection where

the accident occurred. (Record 29,

3Q0)eae-”" (Rote 7, 447 U.S. 410, 418, 65

inn BG. 20 228, 237)

27

by Alabama law, necessarily involves

recklessness, and the Alabama Courts have

rejected such an argument. Evans v.

State, 36 Ala. App. 245, 53 So. 2a 764

(1951)! In, fact, the Alabama Courts have

held that driving under the influence

does not necessarily involve even

negligence. Chattahoochee Valley Railway

Co. v. Williams, 267 Ala. 464, 103 So. 2d

762 (1958)° Thus, if in the aneant>

Prosecution the State proved only that

Eley drove under the influence and

*.. at ie not necessary for the prosecu-

tion to establish that the degree or

extent of intoxication had reached the

Stage where it would interfere with the

Proper operation of the vehicle..." (53

SO. 2d 764, 766)

8"... Likewise, in the instant case, the

intoxication of Plaintiff, if he was in

fact intoxicated, would not in and of

itself alone constitute such contributory

negligence as to bar his recovery if

Plaintiff ‘nevertheless exercised the

care of a reasonably prudent driver' on

the occasion of the accident which is the

basis for this suit...." (103 So. 24d

762, 766) 28

collided with Mrs. Hellums' automobile,

Eley would be due to be acquitted, not on

grounds of former jeopardy but on grounds

of the insufficiency of the evidence.

Thus, the holding of the State Courts

conflicts with that of the majority

opinion of this Honorable Court in Vitale

on four different points: (1) Dismissing

the prosecution before trial; (2) Ruling

that a misdemeanor which is not an

element of a felony bars the felony

Prosecution; (3) holding that evidence of

conduct represented by a misdemeanor

conviction is inadmissible in a felony

Prosecution and (4) ruling that a felony

Prosecution must be dismissed if the

State must prove conduct represented by a

misdemeanor conviction, even though the

such conduct can, at most constitute only

part of the evidence of an element of the

felony.

29

Oe

CONFLICT WITH THE DISSENTING

OPINION IN VITALE.

As strange as it may seem, the

Alabama Trial Judge in this case managed

to rule contrary to, not only the Vitale

majority opinion but to the dissenting

opinion as well. This is all the more

remarkable, because His Honor thought

that he was relying heavily on Justice

Steven's dissent.

In this dissenting opinion, Justice

Stevens makes two points: First,

",..-{T]Jhe Illinois Supreme

Court made a finding that

failing to reduce speed to

avoid a collision is a

lesser-included offense of

reckless homocide as a matter

Of stete iaw..." (447 U.S. 410,

422. 6S bb. Bd. 24 228, 239).

And, second:

",..-even if the State intended

to rely on evidence other than

respondent's failure to reduce

speed to establish the element

of reckless driving necessary

for a homicide conviction, the

30

prosecutor's failure to apprise

the respondent and the court of

such a theory at some point in

the lengthy proceedings on the

double jeopardy issue should

bar the second trial in this

case..." (Ibid)

Applying the Vitale Dissenters'

views to the instant case, the double

jeopardy clause would not bar the assault

Prosecution. The Honorable Trial Judge

expressly held that driving under the

influence was not an element of assault

with an automobile. No Alabama Court has

ever held that driving under the

influence bears any legal relationship at

all to assault, and such a holding would

be outlandish.2 In addition, the State

9If driving under the influence was an

element of assault with an automobile, a

person who ran down a citizen could

escape liability by proving that he had

not been drinking.

31

advised the Honorable Trial Court of its

intention to prove reckless acts in

addition to drunk driving1l9 and indeed,

as noted above (see pages 27-29), such

proof would be essential even without the

former jeopardy problem.

Therefore, even under the Vitale

dissent, Eley in this case has no double

jeopardy claim.

D.

CONFLICT WITH VITALE'S TREAT-

MENT OF BLOCKBURGER V. UNITED

STATES, (266 Uche« 299 (i932!)

The Honorable Trial Judge ruled that

it was obvious that under this Honorable

10The Honorable Trial Judge found:

"...The state represented that in

addition to evidence of intoxica-

tion, at trial it expects to intro-

duce evidence of speeding, inat-

tentive driving, running a blinking

red light and failure to yield the

right-of-way, thereby avoiding the

bar of the double jeopardy

clause...." (R. 30, Appendix "A",

p. 24) 32

Court's decision in Blockburger v. United

States, (284 U.S. 299, 76 L. Ed. 306, 52

S. Ct. 180 [1932]), Eley had no former

jeopardy claim in the assault

Prosecution. However, His Honor found

that Vitale represented an effort on the

part of this Honorable Court to modify,

supercede or overrule Blockburger.

Did Vitale overrule, supersede or

limit Blockburger? The Petitioner will

not presume to tell this Honorable Court

what it intended. However, nothing in

the Vitale majority opinion suggests such

an intention. On the contrary the Court

goes to great lengths to show how the

Illinois Courts may have misapplied the

Blockburger rule to Illinois Law. The

majority opinion cites Blockburger by

name five (5) times in Vitale and relies

on it throughout the opinion. The

Petitioner State suggests that Vitale

represents an effort to preserve and

y 33

follow Blockburger, not to limit it. The

dissenting opinion likewise presents no

question of Blockburger's viability.

The apparent continued viability of

Blockburger is clearly demonstrated by a

case decided nine (9) months after

Vitale. Albernaz v. United States, 450

UseSe 3395 GF Ie BGs 20 275, 101 S. Ct.

1137 (1981) Albernaz was a unanimous

decision but not a unanimous opinion.

After stating the issue in the case, the

Albernaz majority stated:

",..The answer to the

petitioners' contention is

found, we believe, in

application of the rule

announced by this Court in

Blockburger v. United States,

264 U.S. 2939, 76 lee EG. 306, 52

S. Ct. 180 (1932) and most

recently applied last term in

Whalen v. United States, 445

UeGe CUE, G62 Le EG. 26 715, 100

S. Ct. 1432 (1980) [*+)...°

(450 U.S. 333-6 337, 67 Le Ed.

2d 275, 280)

llactually, the most recent application

of Blockburger prior to Albernaz was in

Vitate.; 34

The Albernaz majority then goes on to

decide the case under Blockburger,

specifically mentioning that case nine

(9) additional times. Three of the four

Vitale dissenters concurred in Albernaz.

They agreed with the majority's

conclusion but disagreed with certain of

Their Honor's statements; the basis of

the concurrers' position was Blockburger.

Albernaz v. United States, 450 U.S. 333,

3355 67 le BG. 26 275, 266, i001 S. Ct.

Li37 (1961)

In an even more recent case,

Missouri v. Hunter ( U.S. » FH Tec

et ie

Court again cited and relied on

Blockburger, citing the case nine (9)

times. It would appear that Blockburger

continues to represent the Constitutional

standard for former jeopardy in the

post-Vitale world, except in Alabama.

35

CONCLUSION

In conclusion, the Petitioner, the

State of Alabama, respectfully submits

that the decisions and opinions of the

Honorable Respondent Judge, the Circuit

Court of Montgomery County, Alabama,

Court of Criminal Appeals and the Supreme

Court of Alabama in this case present

conflicts with the prior decisions and

opinions of this Honorable Court. For

this reason the Petitioner prays that

this Honorable Court will issue the writ

of certiorari and review the decisions

and opinion of the Honorable Courts of

Alabama and on such review will reverse

the decisions of said Courts dismissing

the indictment of Respondent Eley.

Respectfully submitted,

CHARLES A. GRADDICK

ATTORNEY GENERAL

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

36

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the

Attorneys for the State of Alabama,

Petitioner, do hereby certify that on

this ____ day of May, 1983, I did serve

the requisite number of copies of the

foregoing on the Attorney for William

Sanford Eley II and Honorable William R.

Gordon, Circuit Judge, Respondents, by

mailing same to hi , first class postage

37

prepaid and addressed as follows:

Honorable Maury Smith

P. O. Box 78

c/o Smith, Bowman, Thagard, Crook

and Culpepper

Attorneys at Law

2 Dexter Avenue

Montgomery, Alabama 36101

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

38