As the result of an accident in which an automobile driven by
respondent struck and killed two children, respondent was convicted
for failing to reduce speed to avoid the accident in violation of
an Illinois statute. Subsequently, based on the same accident,
respondent was charged with involuntary manslaughter under another
Illinois statute. Ultimately, after the Illinois trial and
intermediate appellate courts had held that the manslaughter
prosecution was barred on statutory grounds, the Illinois Supreme
Court held that it was barred by the Double Jeopardy Clause of the
Fifth Amendment, as applied to the States through the Due Process
Clause of the Fourteenth Amendment, the court reasoning that,
because the lesser offense required no proof beyond that necessary
for a conviction of the greater offense of involuntary
manslaughter, the greater offense was the "same" as the
lesser-included offense.
Held: The Double Jeopardy Clause does not necessarily
prohibit Illinois from prosecuting respondent for involuntary
manslaughter. Pp.
447 U. S.
415-421.
(a) Whether the offense of failing to reduce speed to avoid an
accident is the "same offense" for double jeopardy purposes as the
manslaughter charges, depends on whether each statute in question
requires proof of a fact which the other does not.
Blockburger
v. United States, 284 U. S. 299. Pp.
447 U. S.
415-416.
(b) Thus, if manslaughter by automobile does not always entail
proof of a failure to reduce speed, then the two offenses are not
the "same" under the
Blockburger test. And 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. Pp.
447 U. S.
416-419.
(c) But if, as a matter of Illinois law, a careless failure to
reduce speed is always a necessary element of manslaughter by
automobile, then the two offenses are the "same" under
Blockburger and respondent's trial on the latter charge
would constitute double jeopardy.
Brown v. Ohio,
432 U. S. 161. In
any event, if in the pending manslaughter prosecution Illinois
relies on and proves a failure to reduce speed to avoid an accident
as the reckless act necessary to prove manslaughter, respondent
would have a substantial claim of double jeopardy. Pp.
447 U. S.
419-421.
Page 447 U. S. 411
(d) Because the relationship under Illinois law between the
crimes of involuntary manslaughter and a careless failure to reduce
speed to avoid an accident is unclear, and because the reckless act
or acts the State will rely on to prove manslaughter are still
unknown, the Illinois Supreme Court's judgment is vacated and the
case is remanded to that court for further proceedings. P.
447 U. S.
421.
71 Ill. 2d
229,
375 N.E.2d
87, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which BRENNAN, STEWART, and
MARSHALL, JJ., joined,
post, p.
447 U. S.
421.
MR. JUSTICE WHITE delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause
of the Fifth Amendment prohibits the State of Illinois (State) from
prosecuting for involuntary manslaughter the driver of an
automobile involved in a fatal accident who previously has been
convicted for failing to reduce speed to avoid the collision.
I
On November 24, 1974, an automobile driven by respondent John
Vitale, a juvenile, struck two small children. One of the children
died almost immediately; the other died the following day. A police
officer at the scene of the accident issued a traffic citation
charging Vitale with failing to reduce speed to avoid an accident
in violation of § 11-601(a) of the Illinois Vehicle Code.
Ill.Rev.Stat., ch. 95 1/2, § 11-601(a) (1979). This statute
provides in part that
"[s]peed must be
Page 447 U. S. 412
decreased as may be necessary to avoid colliding with any person
or vehicle on or entering the highway in compliance with legal
requirements and the duty of all persons to use due care. [
Footnote 1]"
On December 23, 1974, Vitale appeared in the Circuit Court of
Cook County, Ill., and entered a plea of not guilty to the charge
of failing to reduce speed. [
Footnote 2] After a trial without a jury, Vitale was
convicted and sentenced to pay a fine of $15. [
Footnote 3]
On the following day, December 24, 1974, a petition for
adjudication of wardship was filed in the juvenile division of
Page 447 U. S. 413
the Circuit Court of Cook County, charging Vitale with two
counts of involuntary manslaughter. [
Footnote 4] The petition, which was signed by the police
officer who issued the traffic citation, alleged that Vitale,
"without lawful justification while recklessly driving a motor
vehicle caused the death of" the two children killed in the
November 20, 1974, accident. App. 2.
Vitale's counsel filed a motion to dismiss on the grounds, among
others, that the manslaughter prosecution was "violative of
statutory and/or constitutional double jeopardy,"
id. at
7, because of Vitale's previous conviction for failing to reduce
speed to avoid the accident. The juvenile court found it
unnecessary to reach a constitutional question because it held that
the manslaughter prosecution was barred by Illinois statutes
requiring, with certain nonpertinent exceptions, that all offenses
based on the same conduct be prosecuted in a single prosecution.
Ill.Rev.Stat., ch. 38, §§ 3-3 and 3(b)(1) (1979). [
Footnote 5] The juvenile court dismissed the
petition for
Page 447 U. S. 414
adjudication of wardship, and the State appealed. The Appellate
Court of Illinois, First District,
In re Vitale, 44
Ill.App.3d 1030, 358 N.E.2d 1288 (1976), affirmed the holding that
the manslaughter prosecution was barred by the state compulsory
joinder statutes. Ill.Rev.Stat., ch. 38, §§ 3-3 and 3(b)(1)
(1979).
The Supreme Court of Illinois, with two justices dissenting,
affirmed on other grounds.
In re Vitale, 71 Ill. 2d
229,
375 N.E.2d 87
(1978). The court did not reach the state statutory question, for
it found "a more compelling reason why respondent cannot be
prosecuted for the offense of involuntary manslaughter": the Double
Jeopardy Clause of the Fifth Amendment, as applied to the States
through the Due Process Clause of the Fourteenth Amendment. After
analyzing the elements of each offense, the court held that,
because
"the lesser offense, failing to reduce speed, requires no proof
beyond that which is necessary for conviction of the greater,
involuntary manslaughter, . . . for purposes of the double jeopardy
clause, the greater offense is, by definition, the 'same' as the
lesser offense included within it."
Id. at 239, 375 N.E.2d at 91. Thus the court concluded
that the manslaughter
Page 447 U. S. 415
prosecution was barred by the Double Jeopardy Clause.
The dissenting justices argued that the manslaughter prosecution
was not barred by the Double Jeopardy Clause because the homicide
charge could be proved by showing one or more reckless acts other
than the failure to reduce speed.
Id. at 242, 251-253, 375
N.E.2d at 93, 96-97 (Underwood, J., joined by Ryan, J.,
dissenting).
On November 27, 1978, we granted the State's petition for
certiorari, vacated the judgment, and remanded the case to the
Supreme Court of Illinois to consider whether its judgment was
based upon federal or state constitutional grounds. 439 U.S. 974
(1978). After the Supreme Court of Illinois, on remand, certified
that its judgment was based upon federal constitutional grounds, we
again granted a writ of certiorari. 444 U.S. 823 (1979)
II
The Double Jeopardy Clause of the Fifth Amendment provides that
no person shall "be subject for the same offence to be twice put in
jeopardy of life or limb." This constitutional guarantee is
applicable to the States through the Due Process Clause of the
Fourteenth Amendment,
Benton v. Maryland, 395 U.
S. 784 (1969), and it applies not only in traditional
criminal proceedings but also in the kind of juvenile proceedings
Vitale faced.
Breed v. Jones, 421 U.
S. 519 (1975).
The constitutional prohibition of double jeopardy has been held
to consist of three separate guarantees: (1) "It protects against a
second prosecution for the same offense after acquittal. [(2) I]t
protects against a second prosecution for the same offense after
conviction. [(3)] And it protects against multiple punishments for
the same offense."
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S. 717
(1969) (footnotes omitted). Because Vitale asserts that his former
conviction for failing to reduce speed bars his manslaughter
prosecution, we are concerned with only the second of these three
guarantees in the instant case. The sole question before us is
whether the
Page 447 U. S. 416
offense of failing to reduce speed to avoid an accident is the
"same offense" for double jeopardy purposes as the manslaughter
charges brought against Vitale.
In
Brown v. Ohio, 432 U. S. 161
(1977), we stated the principal test for determining whether two
offenses are the same for purposes of barring successive
prosecutions. Quoting from
Blockburger v. United States,
284 U. S. 299,
284 U. S. 304
(1932), which, in turn, relied on
Gavieres v. United
States, 220 U. S. 338,
220 U. S.
342-343 (1911), we held 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
432 U. S. 166.
We recognized that the
Blockburger test focuses on the
proof necessary to prove the statutory elements of each offense,
rather than on the actual evidence to be presented at trial. Thus
we stated that, if "
each statute requires proof of an
additional fact which the other does not,' Morey v.
Commonwealth, 108 Mass. 433, 434 (1871)," the offenses are not
the same under the Blockburger test. 432 U.S. at
432 U. S. 166
(emphasis supplied); Iannelli v. United States,
420 U. S. 770,
420 U. S. 785,
n. 17 (1975). [Footnote
6]
III
We accept, as we must, the Supreme Court of Illinois'
identification of the elements of the offenses involved here. Under
Illinois law, involuntary manslaughter with a motor vehicle
involves a homicide by the "reckless operation of a motor vehicle
in a manner likely to cause death or great bodily
Page 447 U. S. 417
harm."
In re Vitale, 71 Ill. 2d at 239, 375 N.E.2d at
91. The charge of failing to reduce speed on which respondent was
convicted requires proof "that the defendant drove carelessly and
failed to reduce speed to avoid colliding with a person."
Id. at 238, 375 N.E.2d at 91. The Illinois court, after
specifying these elements, then stated that
"the lesser offense, failing to reduce speed, requires no proof
beyond that which is necessary for conviction of the greater,
involuntary manslaughter"
and concluded, as a matter of federal law, that "the greater
offense is by definition the
same' as the lesser offense
included within it." Id. at 239, 375 N.E.2d at
91.
The Illinois court relied upon our holding in
Brown v. Ohio,
supra, that a conviction for a lesser-included offense
precludes later prosecution for the greater offense. There, Brown
was first convicted of joyriding in violation of an Ohio statute
under which it was a crime to "take, operate, or keep any motor
vehicle without the consent of its owner." He was then convicted
under another statute of stealing the same motor vehicle. The Ohio
courts had held that every element of the joyriding "is also an
element of the crime of auto theft," and that, to prove auto theft,
one need prove in addition to joyriding only the intent permanently
to deprive the owner of possession. Holding that the second
prosecution was barred, by the Double Jeopardy Clause and the
Fourteenth Amendment, we observed that "the prosecutor who has
established joyriding need only prove the requisite intent in order
to establish auto theft."
Id. at 167. But we also noted
that "the prosecutor who has established auto theft necessarily has
established joyriding as well."
Id. at
432 U. S.
168.
Both observations were essential to the
Brown holding.
Had the State been able to prove auto theft, without also proving
that the defendant took, operated, or kept the auto without the
consent of the owner -- if proof of the auto theft had not
necessarily involved proof of joyriding -- the successive
prosecutions would not have been for the "same offense" within the
meaning of the Double Jeopardy Clause.
Page 447 U. S. 418
Vitale does not dispute this proposition, but insists that the
Illinois court fully satisfied
Brown when it held that the
lesser offense of failure to reduce speed "requires no proof beyond
that which is necessary for a conviction of the greater,
involuntary manslaughter." It is clear enough from the opinion
below that manslaughter by motor vehicle could be proved against
Vitale by showing a death caused by his recklessly failing to slow
his vehicle to avoid a collision with the victim. Proving
manslaughter in this way would also prove careless failure to slow;
nothing more would be needed to prove the latter offense, an
offense for which Vitale has already been convicted.
The State, however, does not concede that its manslaughter
charge will or must rest on proof of a reckless failure to slow; it
insists that manslaughter by automobile need not involve any
element of failing to reduce speed. The petition for wardship
charging manslaughter alleged only that Vitale "without lawful
justification, while recklessly driving a motor vehicle, caused
[two] death[s] " in violation of the manslaughter statute. Further,
the dissenting justices relied upon the absence of any showing that
the manslaughter charge on which respondent had not been tried,
would rest upon his reckless failure to reduce speed. Nor could it
be known, in their view, what particular reckless acts might be
relied upon to prove the homicide charge. [
Footnote 7] The State agrees, and submits
Page 447 U. S. 419
that because it is not necessary to prove a failure to slow to
establish manslaughter, the rule of
Brown v. Ohio does not
bar its homicide case against Vitale.
The Illinois Supreme Court did not expressly address the
contentions that manslaughter by automobile could be proved without
also proving a careless 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 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.
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
Page 447 U. S. 420
Vitale's trial on the latter charge would constitute double
jeopardy under
Brown v. Ohio. [
Footnote 8] In any event, it may be that, to sustain its
manslaughter case, the State may find it necessary to prove a
failure to slow or to rely on conduct necessarily involving such
failure; it may concede as much prior to trial. In that case,
because Vitale has already been convicted for conduct that is a
necessary element of the more serious crime for which he has been
charged, his claim of double jeopardy would be substantial under
Brown and our later decision in
Harris v.
Oklahoma, 433 U. S. 682
(1977).
In
Harris, we held, without dissent, that a defendant's
conviction for felony murder based on a killing in the course of an
armed robbery barred a subsequent prosecution against the same
defendant for the robbery. The Oklahoma felony murder statute, on
its face, did not require proof of a robbery to establish felony
murder; other felonies could underlie a felony-murder prosecution.
[
Footnote 9] But for the
purposes of the Double Jeopardy Clause, we did not consider the
crime generally described as felony murder as a separate offense
distinct from its various elements. Rather, we treated a killing in
the course of a robbery as itself a separate statutory offense, and
the robbery as a species of lesser included offense. The State
conceded that the robbery for which petitioner had been indicted
was in fact the underlying felony, all elements of
Page 447 U. S. 421
which had been proved in the murder prosecution. We held the
subsequent robbery prosecution barred under the Double Jeopardy
Clause, since, under
In re Nielsen, 131 U.
S. 176 (1889), a person who has been convicted of a
crime having several elements included in it may not subsequently
be tried for a lesser-included offense -- an offense consisting
solely of one or more of the elements of the crime for which he has
already been convicted. Under
Brown, the reverse is also
true; a conviction on a lesser-included offense bars subsequent
trial on the greater offense.
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.
V
Because of our doubts about the relationship under Illinois law
between the crimes of manslaughter and a careless failure to reduce
speed to avoid an accident, and because the reckless act or acts
the State will rely on to prove manslaughter are still unknown, we
vacate the judgment of the Illinois Supreme Court and remand the
case to that court for further proceedings not inconsistent with
this opinion. [
Footnote
10]
So ordered.
[
Footnote 1]
Section 11-601(a) of the Illinois Vehicle Code, Ill.Rev.Stat.,
eh. 95 1/2, § 11-601(a) (1979), provides:
"No vehicle may be driven upon any highway of this State at a
speed which is greater than is reasonable and proper with regard to
traffic conditions and the use of the highway, or endangers the
safety of any person or property. The fact that the speed of a
vehicle does not exceed the applicable maximum speed limit does not
relieve the driver from the duty to decrease speed when approaching
and crossing an intersection, when approaching and going around a
curve, when approaching a hill crest, when traveling upon any
narrow or winding roadway, or when special hazard exists with
respect to pedestrians or other traffic or by reason of weather or
highway conditions. Speed must be decreased as may be necessary to
avoid colliding with any person or vehicle on or entering the
highway in compliance with legal requirements and the duty of all
persons to use due care."
[
Footnote 2]
With respect to the traffic offense, the record contains a copy
of the complaint, which charged that respondent, on
"Wednesday, November 20, 1974, 12:29 p.m., did then and there
operate a certain motor vehicle upon a public highway of this
State, to wit 170th and Ingleside in Thornton, situated in Cook
County, Illinois, and did then and there violate section 11-601(a)
of the Illinois Vehicle Code by failure to reduce speed to avoid an
accident."
(Record 66-67.) Notations on the back of the complaint indicate
that Vitale pleaded not guilty, waived a jury trial, was found
guilty, and fined.
[
Footnote 3]
Failing to reduce speed to avoid an accident is punishable by no
more than 30 days in jail or by a fine of no more than $500.
Ill.Rev.Stat., ch. 95 1/2, § 16-104(a) (1975), and ch. 38, §§
1005-9-1 and 1005-8-3 (1979) .
[
Footnote 4]
At the time Vitale was prosecuted, § 9-3 of the Illinois
Criminal Code, Ill.Rev.Stat., ch. 38, § 9-3 (1973), provided:
"(a) A person who kills an individual without lawful
justification commits involuntary manslaughter if his acts whether
lawful or unlawful which cause the death are such as are likely to
cause death or great bodily harm to some individual, and he
performs them recklessly. (b) If the acts which cause the death
consist of the driving of a motor vehicle, the person may be
prosecuted for reckless homicide or if he is prosecuted for
involuntary manslaughter, he may be found guilty of the included
offense of reckless homicide."
[
Footnote 5]
Section 3-3 of the Illinois Criminal Code, Ill.Rev.Stat., ch.
38, § 3-3 (1979), provides:
"(a) When the same conduct of a defendant may establish the
commission of more than one offense, the defendant may be
prosecuted for each such offense. (b) If the several offenses are
known to the proper prosecuting officer at the time of commencing
the prosecution and are within the jurisdiction of a single court,
they must be prosecuted in a single prosecution, except as provided
in Subsection (c), if they are based on the same act. (c) When 2 or
more offenses are charged as required by Subsection (b), the court
in the interest of justice may order that one or more of such
charges be tried separately."
Section 3(b) of the Illinois Criminal Code, Ill.Rev.Stat., ch.
38, § 3(b) (1979), provides in pertinent part:
"A prosecution is barred if the defendant was formerly
prosecuted for a different offense, . . . if such former
prosecution: (1) Resulted in either a conviction or an acquittal,
and the subsequent prosecution . . . was for an offense with which
the defendant should have been charged on the former prosecution,
as provided in Section 3-3 of this Code (unless the court ordered a
separate trial of such charge). . . ."
The juvenile court held that, because the prosecution knew at
the time the traffic offense was prosecuted that the automobile
accident had resulted in the deaths that were the basis of the
manslaughter charges, § 3-3 required that the traffic offense and
the manslaughter charges be prosecuted in a single prosecution. The
court therefore concluded that the manslaughter prosecution was
barred by § 3(b)(1).
[
Footnote 6]
In
Iannelli v. United States, 420 U.S. at
420 U. S. 785,
n, 17, we stated:
"[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."
[
Footnote 7]
"The petition for wardship may have been based on Vitale's acts
in permitting his attention to be diverted while driving at a high
rate of speed, failing to appropriately maintain the vehicle's
braking system, failing to note the seven school zone and speed
warning signs, initially raising the speed of his auto to a
dangerous level, or by disobeying the commands of the crossing
guard. While we do not now know which of that series of acts the
State intended to rely on at trial, one certainly cannot now say
that it would rely solely upon Vitale's failure to reduce speed to
the exclusion of his other misconduct."
In re Vitale, 71 Ill. 2d
229, 251,
375 N.E.2d
87, 97 (1978) (Underwood, J., dissenting).
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, 30.)
[
Footnote 8]
We recognized in
Brown v. Ohio, 432 U.S. at
432 U. S. 169,
n. 7 that
"[a]n exception may exist where the State is unable to proceed
on the more serious charge at the outset because the additional
facts necessary to sustain that charge have not occurred or have
not been discovered despite the exercise of due diligence."
This exception is not applicable here, because the trial court
found that the prosecution was aware that Vitale's accident had
resulted in two deaths at the time he was prosecuted for failing to
reduce speed.
[
Footnote 9]
The Oklahoma felony murder statute under which Harris was
convicted, Okla.Stat., Tit. 21, § 701(3) (1971), provided that
homicide is murder "[w]hen perpetrated without any design to effect
death by a person engaged in the commission of any felony."
[
Footnote 10]
We note also that the Illinois Supreme Court did not reach the
question whether the lower Illinois courts were correct in
dismissing the manslaughter case under the State's compulsory
joinder statute.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, dissenting.
The controlling issue in this case is whether respondent's
failure to reduce speed to avoid a collision, in violation of
Page 447 U. S. 422
§ 11-601(a) of the Illinois Motor Vehicle Code, [
Footnote 2/1] was a lesser offense included within
the greater offense of killing a person by the reckless "driving of
a motor vehicle," in violation of § 9-3(b) of the Illinois Criminal
Code. [
Footnote 2/2] The Illinois
Supreme Court held that it was, and that, because respondent had
already been convicted on the lesser charge, the State was barred
by the Double Jeopardy Clause of the Fifth Amendment, as applied to
the States through the Fourteenth Amendment, from prosecuting him
on the greater charge.
There are two separate reasons, each of which is sufficient in
itself, for affirming the judgment of the Illinois Supreme Court.
First after applying the test set forth in
Brown v. Ohio,
432 U. S. 161, the
Illinois Supreme Court made a finding that failing to reduce speed
to avoid a collision is a lesser included offense of reckless
homicide as a matter of state law. This Court clearly has a duty to
respect that finding. Second, even if the dissenting members of the
Illinois Supreme Court were correct in their view that, as a matter
of state law, the traffic offense is not necessarily a lesser
included
Page 447 U. S. 423
offense in every reckless homicide prosecution, the Double
Jeopardy Clause bars the homicide prosecution under the particular
facts of this case. For, 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 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.
I
Relying on
Blockburger v. United States, 284 U.
S. 299, the Court holds that the question the Illinois
Supreme Court should have addressed in this case was whether proof
of reckless homicide by vehicle will always, in each and every
case, establish the defendant's guilt of the traffic offense as
well. If not, the Court states that the traffic offense is not
necessarily the "same offense" for double jeopardy purposes, and
therefore the second prosecution may not be barred by the Double
Jeopardy Clause. [
Footnote 2/3]
Ante at
447 U. S. 419.
The Court then goes on to discuss the position of the dissenting
justices in the Illinois Supreme Court that it is theoretically
possible for an Illinois prosecutor to prove a charge of reckless
homicide by vehicle without proving a failure to reduce speed in
order to avoid a collision. Because it finds the majority's
response to this argument "cryptic," the Court refuses to accept
the Illinois court's clear determination that the traffic offense
is a lesser included offense of reckless homicide; instead, it
reverses and remands for a new determination as to whether "under
Illinois law proof of manslaughter by automobile would always
involve a careless failure to reduce speed to avoid a collision."
[
Footnote 2/4]
Page 447 U. S. 424
I cannot agree that this is an appropriate disposition. As the
Court itself recognizes, it is not the province of this or any
other federal court to tell the State of Illinois what is or is not
a lesser included offense under state law. [
Footnote 2/5] To the extent that this Court has any role
at all, it is to ensure that the States apply the proper analytic
framework insofar as they rely on the Double Jeopardy Clause of the
Federal Constitution. Unlike the Court, I have no doubt that in
this case the Illinois Supreme Court did apply the proper test.
As the dissenting justices in the Illinois Supreme Court pointed
out at some length, the Illinois courts are hardly unfamiliar with
the
Blockburger test, having consistently applied it for
many years in determining whether two offenses are the same for
purposes of either the Double Jeopardy Clause or the State's own
compulsory joinder statute.
In re Vitale, 71 Ill. 2d
229, 244-245,
375 N.E.2d
87, 93-94 (1978). In this case the majority of the Illinois
court did not purport
Page 447 U. S. 425
to deviate from that test. On the contrary, it relied heavily on
this Court's opinion in
Brown v. Ohio, supra, which, in
turn, relied upon
Blockburger.
Thus, after examining the statutory definitions of the two
crimes at issue in this case, without reference to the particular
facts of this case, the Illinois Supreme Court concluded:
"As is usually the situation between greater and lesser included
offenses, the lesser offense, failing to reduce speed, requires no
proof beyond that which is necessary for conviction of the greater,
involuntary manslaughter. Accordingly, for purposes of the double
jeopardy clause, the greater offense is, by definition, the 'same'
as the lesser offense included within it."
71 Ill. 2d at 239, 375 N.E.2d at 91. In so holding, the court
made the same finding as this Court did in
Brown v.
Ohio:
"Applying the
Blockburger test, we agree with the Ohio
Court of Appeals that joyriding and auto theft, as defined by that
court, constitute 'the same statutory offense' within the meaning
of the Double Jeopardy Clause. App. 23. For it is clearly not the
case that 'each [statute] requires proof of a fact which the other
does not.' 284 U.S. at
284 U. S. 304. As is
invariably true of a greater and lesser included offense, the
lesser offense -- joyriding -- requires no proof beyond that which
is required for conviction of the greater -- auto theft. The
greater offense is therefore, by definition, the 'same' for
purposes of double jeopardy as any lesser offense included in
it."
432 U.S. at
432 U. S.
168.
Having made the finding required by
Brown v. Ohio,
based on its interpretation of its own law, the Illinois Supreme
Court should not now be required to go through the process all over
again simply to assure this Court that it really meant what it
plainly said.
Page 447 U. S. 426
II
In
447 U. S. even if
the Illinois Supreme Court should hold on remand that failure to
reduce speed is not always a lesser included offense as a matter of
state law, respondent will still have a "substantial" double
jeopardy claim if the State finds it necessary to rely on his
failure to reduce speed in order to sustain its manslaughter case.
In my opinion, such a claim would not merely be "substantial"; it
would be dispositive.
In
Harris v. Oklahoma, 433 U.
S. 682, we held that a conviction on a felony murder
charge barred a subsequent prosecution for robbery where the
robbery had been used to establish the requisite intent on the
murder charge.
Cf. Whalen v. United States, 445 U.
S. 684. Since it was theoretically possible that a
different felony could have supported the murder charge, such a
result may not have been required by a literal application of the
Blockburger test,
see Whalen v. United States,
supra at
445 U. S.
708-711 (REHNQUIST, J., dissenting). However, the entire
Court agreed that it was required by the Double Jeopardy Clause. In
this case, it is equally clear that the State could not use
respondent's failure to reduce speed to avoid a collision as the
reckless act necessary to establish reckless homicide by vehicle,
even if theoretically his recklessness could be proved in some
other way.
Throughout the five years that this case has been in litigation,
the State has apparently not seen fit to reveal the basis of its
homicide prosecution. The Court does not view this omission as an
important one. On the contrary, its opinion implies that the State
may proceed to trial before a determination is made on respondent's
double jeopardy claim. But surely such a procedure is inconsistent
with the Double Jeopardy Clause, which was specifically designed to
protect the citizen from multiple trials. The vital interest in
avoiding an unlawful second trial led the Court in
Abney v.
United States, 431 U. S. 651, to
allow an appeal in advance of trial
Page 447 U. S. 427
in order to assure the defendant that the substance of his
constitutional right to be protected against double jeopardy would
not be lost before his plea could be vindicated. In that case, the
Court emphasized that
"the Double Jeopardy Clause protects an individual against more
than being subjected to double punishments. It is a guarantee
against being twice put to
trial for the same
offense."
Id. at
431 U. S.
660-661 (emphasis in original). Continuing, the Court
stated:
"Because of this focus on the 'risk' of conviction, the
guarantee against double jeopardy assures an individual that, among
other things, he will not be forced, with certain exceptions, to
endure the personal strain, public embarrassment, and expense of a
criminal trial more than once for the same offense. It thus
protects interests wholly unrelated to the propriety of any
subsequent conviction. Mr. Justice Black aptly described the
purpose of the Clause:"
"'The underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State, with
all its resources and power, should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that even though innocent he may
be found guilty.'
Green \[v. United States,
355 U. S.
184,]
355 U. S. 187-188."
". . . [I]f a criminal defendant is to avoid exposure to double
jeopardy, and thereby enjoy the full protection of the Clause, his
double jeopardy challenge to the indictment must be reviewable
before that subsequent exposure occurs."
Id. at
431 U. S.
661-662. (Emphasis in original.)
If a defendant is entitled to have an appellate court rule on
his double jeopardy claim in advance of trial, he is surely
entitled to a definitive ruling by the trial court in advance
Page 447 U. S. 428
of trial. Since the State has not provided the respondent with
notice of any basis for the prosecution that does not depend upon
proving, for the second time, a careless failure to reduce speed, I
would not require this respondent to stand trial again.
I respectfully dissent.
[
Footnote 2/1]
Illinois Rev.Stat., ch. 95 1/2, § 11-601(a) (1979),
provides:
"No vehicle may be driven upon any highway of this State at a
speed which is greater than is reasonable and proper with regard to
traffic conditions and the use of the highway, or endangers the
safety of any person or property. The fact that the speed of a
vehicle does not exceed the applicable maximum speed limit does not
relieve the driver from the duty to decrease speed when approaching
and crossing an intersection, when approaching and going around a
curve, when approaching a hill crest, when traveling upon any
narrow or winding roadway, or when special hazard exists with
respect to pedestrians or other traffic or by reason of weather or
highway conditions.
Speed must be decreased as may be necessary
to avoid colliding with any person or vehicle on or entering the
highway in compliance with legal requirements and the duty of all
persons to use due care."
(Emphasis supplied.)
[
Footnote 2/2]
"If the acts which cause the death consist of the driving of a
motor vehicle, the person may be prosecuted for reckless homicide
or if he is prosecuted for involuntary manslaughter, he may be
found guilty of the included offense of reckless homicide."
Ill.Rev.Stat., ch. 38, § 9-3(b) (1973) .
[
Footnote 2/3]
See the discussion of Part IV of the Court's opinion,
infra at
447 U. S.
426.
[
Footnote 2/4]
"The Illinois Supreme Court did not expressly address the
contentions that manslaughter by automobile could be proved without
also proving a careless 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."
Ante at
447 U. S.
419.
[
Footnote 2/5]
Despite its apparent agreement with the dissenters' reading of
the Illinois statutes,
see ibid., the Court does not hold
that the Illinois Supreme Court is foreclosed from concluding on
remand that failure to reduce speed is a lesser included offense of
reckless homicide by vehicle. On the contrary, the Court
states:
"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."
Ante at
447 U. S.
419-420.
See also Brown v. Ohio, 432 U.
S. 161,
432 U. S. 167,
where the Court reiterated that state courts "
have the final
authority to interpret . . . that State's legislation.' Garner
v. Louisiana, 368 U. S. 157,
368 U. S. 169
(1961)," and thus accepted as "authoritative" the Ohio courts'
definition of the elements of the two offenses.