DOUBLE JEOPARDY - PROSECUTION OF RELATEDOFFENSES IN SEPARATE TRIALS:

STATE V. WOODFORK

INTRODUCTION

In 1791, the states ratified the Fifth Amendment to the UnitedStates Constitution, which secured each individual's right to fairtreatment and protection by the United States government.' TheDouble Jeopardy Clause of the Fifth Amendment operates againstthe states via the Fourteenth Amendment and provides that no per-son shall '"be subject for the same offence to be twice put in jeopardyof life or limb."'2 The United States Supreme Court has held that thedouble jeopardy protection of not being "twice put in jeopardy" forthe same offense includes "the right not to be twice put on trial forthe same offence." s The Court has construed the Double JeopardyClause to protect an individual from falling prey to the risks of con-viction from multiple prosecutions for a single alleged violation ofthe law.4 The Double Jeopardy Clause also protects an individualagainst multiple punishments for the same offense by preventing asentencing court from punishing the defendant further after that de-fendant has already fulfilled a legally imposed punishment.5 TheDouble Jeopardy Clause thus provides a constitutional buffer againstpossible unlawful prosecutions by overzealous prosecutors.6

Potential abuse of the criminal justice system was one of themain reasons that led to the passage of the Double Jeopardy Clause.7

The Double Jeopardy Clause of the United States Constitution con-sists of three protections: (1) the protection "against a second prose-

1. U.S. CONST. amend. V. See Thomas J. Hickey, Double Jeopardy After Gradyv. Corbin, CRIm. L. BuLL. 3, 7 (1992).

2. Grady v. Corbin, 495 U.S. 508, 510 n.1 (1990). U.S. CONST. amend. V. U.S.CONST. amend. XIV. See NEB. CONST. art. I, § 12 (providing that "[n]o person shall...be twice put in jeopardy for the same offense"); Peter Weston, The Three Faces ofDouble Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 MICH.L. REv. 1001, 1024 (1980) (stating that "[olne cannot know whether a defendant is be-ing punished twice without knowing whether he has yet been fully punished once, andone cannot know whether a defendant has been punished once without identifying thelaw that governs sentences for particular conduct").

3. State v. Milenkovich, 236 Neb. 42, 45, 458 N.W.2d 747, 749 (1990) (citing Abneyv. United States, 431 U.S. 651 (1977)).

4. Green v. United States, 355 U.S. 184, 187 (1957); Missouri v. Hunter, 459 U.S.359, 365 (1983).

5. Julie R. Niemeyer, The Multiple Punishment Protection of the Double Jeop-ardy Clause: Thomas v. Morris, 22 CREIGHTON L. REv. 1081, 1095 (1989).

6. Ashe v. Swenson, 397 U.S. 436, 456 (1969).7. Id. at 459.

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cution for the same offense after acquittal," (2) the protection"against a second prosecution for the same offense after conviction,"and (3) the protection "against multiple punishments for the same of-fense." Underlying the Double Jeopardy Clause is the idea that

the State with all its resources and power, should not be al-lowed to make repeated attempts to convict an individual foran alleged offense, thereby subjecting him to embarrass-ment, expense and ordeal and compelling him to live in acontinuing state of anxiety and insecurity, as well as enhanc-ing the possibility that even though innocent he may befound guilty.9

The principle of finality, which prohibits governments fromthwarting the integrity of verdicts of previous adjudications, is themain consequence of the Double Jeopardy Clause.' 0 Finality is bestdefined as limiting the court system to one trial for one offense."Lack of finality is most associated with mistrials, where the defend-ant must endure a second trial after a dismissed first trial.12 In otherwords, a defendant has the right to rely on previous adjudications sothat he does not have to experience a "continuing state of anxietyand insecurity.'

3

Two additional consequences may flow from a lack of doublejeopardy protection. First, multiple trials give the prosecution theopportunity to rehearse its presentation of evidence, thus increasingthe chance of "an erroneous conviction for one or more of the of-fenses charged."'1 4 Second, when the prosecution brings multiplecharges against an individual, an overwhelming additional burden isthrust upon a defendant if he must appear in separate trials for each

8. Illinois v. Vitale, 447 U.S. 410, 415 (1979). The extent of these three protec-tions hinges on the meaning of the phrase "same offense," which seems simple but hasinstead produced mass confusion within the legal profession. Whalen v. United States,445 U.S. 684, 700 (1980) (Rehnquist, J., dissenting) (citing North Carolina v. Pearce, 395U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794,798-803 (1989)). See Tat Man So, Double Jeopardy, Complex Crimes and Grady v.Corbin, 60 FORDHAM L. REv. 351, 352 (1992).

9. Green v. United States, 355 U.S. 184, 187-88 (1957). See Ashe, 397 U.S. at 450;Vitale, 447 U.S. at 427 (Stevens, J., dissenting).

10. See Green, 355 U.S. at 188; see also Dominic T. Holzhaus, Note, Double Jeop-ardy and Incremental Culpability: A Unitary Alternative to the Dual SovereigntyDoctrine, 86 COLUM. L. REv. 1697, 1697 (1986); Note, Twice in Jeopardy, 75 YALE L.J.261, 277 (1965) (stating that "[i]n its traditional application, double jeopardy is a rule offinality").

11. Richard Finacom, Comment, Successive Prosecutions and the ContinuingCriminal Enterprise: The Double Jeopardy Analysis in Garrett v. United States, 13HASTINGS CONST. L.Q. 785, 810 (1986).

12. Id.13. See id. (quoting Green, 355 U.S. at 187).14. Grady, 495 U.S. at 518.

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of the charges. 15 Analogous to the right to trial by jury, double jeop-ardy protection is a fundamental right in the American judicial pro-cess.16 Even though the precise nature and wording of the DoubleJeopardy Clause are relatively simple on the surface, double jeopardylaw is "complex and confusing," with legal theorists and courts alikefailing to "develop and apply a consistent double jeopardy theory.' 17

The Nebraska Supreme Court was faced with this double jeopardy di-lemma in the case of State v. Woodfork.I8 In Woodfork, the defend-ant was initially convicted of two driving misdemeanors and then wassubsequently prosecuted for a driving felony that arose from thesame events as the misdemeanor charges. 19

This Note first explores the early interpretations of multipleprosecution protection.-° This Note then examines the developmentof a definitional test to determine what constitutes the "same of-fense" for constitutional purposes.21 This Note also examines recentinterpretations of multiple prosecution protection. 22 This Note thenconcludes that the Nebraska Supreme Court, in State v. Woodfork,23

correctly applied the facts of that case to the test set forth in Block-burger v. United States,2A but erroneously applied the facts to the testset forth in Grady v. Corbin.25 This Note further concludes that thedefendant in Woodfork should not have been subjected to a subse-quent prosecution.26

FACTS AND HOLDING

The defendant, Otis Woodfork, was apprehended on Friday, May4, 1990, shortly before 5:00 p.m. near Thirty-Second and Erskine

15. Id. at 519.16. Benton v. Maryland, 395 U.S. 784, 798 (1969); Rosanne C. Kemmit, Note, State

v. DeLuca: Reinterpreting Double Jeopardy Protection Against Successive Prosecu-tion, 41 RUTGERs L. REv. 431, 433 (1988).

17. Finacom, 13 HASTINGS CONsT. L.Q. at 794. See Weston, 78 MICH. L. REV. at1003 (commenting that "[t]he double jeopardy clause does not lend itself to easy tex-tual analysis"); Note, Twice in Jeopardy, 75 YALE L.J. at 283 (suggesting that "to solvethe problems raised by reprosecution after an acquittal, the courts might use the civillaw doctrine of collateral estoppel. Collateral estoppel bars relitigation between thesame parties of issues actually determined at a previous trial").

18. 239 Neb. 720, 721, 478 N.W.2d 248, 250 (1991).19. State v. Woodfork, 239 Neb. 720, 721, 478 N.W.2d 248, 250 (1991).20. See infra notes 92-99 and accompanying text. This Note is limited to a discus-

sion of multiple prosecutions, and does not address multiple punishments.21. See ifra notes 100-28 and accompanying text.22. See infra notes 127-72 and accompanying text.23. 239 Neb. 720, 478 N.W.2d 248 (1991).24. 284 U.S. 299 (1932).25. 495 U.S. 508 (1990). See infra notes 199-208 and accompanying text (discussing

the Blockburger test). See infra notes 209-44 and accompanying text (discussing theGrady test).

26. See infra notes 213-44 and accompanying text.

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Streets in Omaha, Nebraska.27 Woodfork was charged with violatingtwo misdemeanor statutes: Willful Reckless Driving and Operating aMotor Vehicle While Intoxicated ("DWI"). 2s Subsequently, Wood-fork was charged with violating a Class IV felony - Operating a Mo-tor Vehicle While Operator's License was Revoked ("Class IVfelony" or "driving with a revoked operator's license"). The ClassIV felony charge arose out of the same incident as the two misde-meanor charges.3°

Before the trial or the disposition on the Class IV felony, Wood-fork entered a no contest plea to the two misdemeanor charges thatarose from the incident.3 ' The Douglas County District Court ac-cepted Woodfork's no contest plea on June 12, 1990, and the court im-mediately ordered Woodfork to serve thirty days in jail for thewillful reckless driving charge and one hundred eighty days for theDWI charge, with the sentences to run concurrently.3 2 Also beforethe trial or disposition of the Class IV felony, Woodfork moved to dis-miss the Class IV felony charge.3 3 In his motion to dismiss, Wood-fork claimed that the indictment of the Class IV felony charge wasprohibited by the Double Jeopardy Clause of the Fifth Amendmentto the United States Constitution.34

Woodfork contended that the driving events leading to the twomisdemeanor charges and his no contest pleas also led to the subse-quent Class IV felony charge.s5 As a result, Woodfork argued that"prosecution for this latter offense [a Class IV felony would] requireproof of conduct that constitute[d] the two offenses for which heha[d] already been convicted."3s

27. Replacement Brief for Appellant at 2, State v. Woodfork, 239 Neb. 720, 478N.W.2d 248 (1991) (No. 90-0784).

28. State v. Woodfork, 239 Neb. 720, 721, 478 N.W.2d 248, 250 (1991). See NEB.REV. STAT. § 39-669.03 (Reissue 1988) (providing that "[a]ny person who drives any mo-tor vehicle in such a manner as to indicate a willful disregard for the safety of personsor property is guilty of willful reckless driving"); NEB. REV. STAT. § 39-669.07 (Cum.Supp. 1990) (providing that "[i]t shall be unlawful for any person to operate or be inthe actual physical control of any motor vehicle... [w]hile under the influence of alco-holic liquor or of any drug").

29. Brief for Appellant at 2, Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991) (No.90-0784).

30. Id.31. Id.32. Id. at 2-3.33. Id. at 3. Woodfork filed a plea in bar with the district court on the basis that

the subsequent prosecution was barred by the Double Jeopardy Clause of the FifthAmendment to the United States Constitution, and he contended that the districtcourt had erred in denying his motion to dismiss. Woodfork, 239 Neb. at 721, 478N.W.2d at 250.

34. Id. See supra note 2 and accompanying text.35. Woodfork, 239 Neb. at 721, 478 N.W.2d at 250.36. Id.

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MAJORITY OPINION

The first issue before the Nebraska Supreme Court was whetherdriving with a revoked operator's license could be classified as eithera greater offense to or lesser-included offense of willful reckless driv-ing and DWI.37 If the Class IV felony could be so classified, Wood-fork would be protected from additional prosecution under theDouble Jeopardy Clause.ss In its analysis of the issue, the NebraskaSupreme Court employed the standard articulated by the UnitedStates Supreme Court in Blockburger v. United States.-" The Courtin Blockburger established the following standard: "[W]here thesame act or transaction constitutes a violation of two distinct statu-tory provisions, the test to be applied to determine whether there aretwo offenses or only one, is whether each provision requires proof ofa fact which the other does not."4 The Nebraska Supreme Courtconcluded that the two misdemeanor charges were neither greateroffenses to nor lesser-included offenses of the Class IV felonycharge.41

The court explained this conclusion by setting forth the elementsof the two misdemeanor charges. 42 The court stated that one com-mits willful reckless driving by "(1) driving a motor vehicle (2) insuch a manner as to indicate a willful disregard (3) for the safety ofpersons or property. '43 One commits DWI by "(1) operation or phys-ical control of a motor vehicle (2) while under the influence of alco-hol."44 The court next compared these two offenses to the Class IVfelony charge, which one commits by "(1) operating a motor vehicleon the highways or streets (2) with a license that has been revoked(3) pursuant to prior DWI convictions."45 The court reasoned thatbecause each of the three offenses required proof of facts that theothers did not, the two misdemeanor charges were neither greater of-fenses to nor lesser-included offenses of driving with a revoked oper-

37. Id. at 722, 478 N.W.2d at 250. A lesser-included offense is one "which is com-posed of some, but not all elements of a greater offense and which does not have anyelement not included in greater offense so that it is impossible to commit greater of-fense without necessarily committing the lesser offense." BLACK'S LAw DIcTIONARY902-03 (6th ed. 1990). The analysis of whether one crime is a lesser-included offense ofanother crime is similar to asking whether the first crime has statutory elements iden-tical to the second crime. See Woodforrk, 239 Neb. at 722, 478 N.W.2d at 250.

38. Id.39. 284 U.S. 299 (1932). Woodfork, 239 Neb. at 722, 478 N.W.2d at 250.40. Blockburger v. United States, 284 U.S. 299, 304 (1932).41. Woo4fork, 239 Neb. at 723, 478 N.W.2d at 251.42. Id.43. Id.44. Id.45. Id.

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ator's license, but were separate offenses.46 Thus, the Blockburgertest had been satisfied, and Woodfork could be charged with the sub-sequent Class IV felony without violating the Double JeopardyClause.

Woodfork conceded the above issue, and instead argued that thesubsequent Class IV felony required proof of conduct that constitutedthe two misdemeanor charges for which he had already been prose-cuted, thus putting him twice in jeopardy.47 This argumentpresented the court with a second issue in this case.

Analyzing this second issue, the court discussed the UnitedStates Supreme Court case of Grady v. Corbin " and the NebraskaSupreme Court's application of the Grady test in State v. Harring-ton. 49 In Grady, the United States Supreme Court expanded the testfor double jeopardy.5° The Court in Grady stated that "[t]he DoubleJeopardy Clause bars any subsequent prosecution in which the gov-ernment, to establish an essential element of an offense charged inthat prosecution, will prove conduct that constitutes an offense forwhich the defendant has already been prosecuted."'51

In Harrington, the defendant, Glenn Harrington, was chargedwith several misdemeanors, including violation of an Omaha Munici-pal Code provision that made it illegal for a person to discharge anydevice that releases a projectile caused by an explosive charge.52

Harrington pleaded no contest to this offense and received a sixmonth sentence in the county jail.53 He subsequently was chargedwith "being a felon in possession of a firearm with a barrel less thaneighteen inches in length."54 Both charges arose out of the same

46. Id.47. Id. The evidence to which Woodfork was referring was the conduct of operat-

ing or driving a motor vehicle. Id.48. 495 U.S. 508 (1990).49. 236 Neb. 500, 461 N.W.2d 752 (1990). Woodfork, 239 Neb. at 721-22, 478 N.W.2d

at 250.50. Grady v. Corbin, 495 U.S. 508, 520-21 (1990). The United States Supreme

Court introduced the Grady test, not to replace the Blockburger test, but as an addi-tional "proof of conduct" test that was to be employed should subsequent prosecutionpass the Blockburger test. See id. at 521.

51. Id. at 521. The main focus of this test is the conduct the State will prove andnot what proof the State will present. Id.

52. State v. Harrington, 236 Neb. 500, 501-02, 461 N.W.2d 752, 754 (1990), overruledby State v. Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991). The elements that consti-tuted the violation were: "(1) a person discharges (2) an instrument (3) which releasesa projectile (4) by means of an explosive charge." OMAHA, NEB., CODE ch. 20, art. VII,§ 20-196 (1980).

53. Harrington, 236 Neb. at 501-02, 461 N.W.2d at 754.54. Id. at 500-02, 461 N.W.2d at 753-54. The elements that constituted this offense

were: "(1) a person who previously has been convicted of a felony (2) possesses (3) afirearm (4) which has a barrel less than eighteen inches in length." NEB. REV. STAT.§ 28-1206(1) (Reissue 1989).

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incident.5In the trial on the "felon in possession" charge, the Douglas

County District Court found Harrington guilty.m On appeal to theNebraska Supreme Court, Harrington argued that his right to doublejeopardy protection had been violated because "in order to prove theelement of possession... of a firearm, the State relied upon conductsurrounding his conviction for the offense of discharging a projec-tile."'57 The Nebraska Supreme Court held that the State had reliedon conduct surrounding Harrington's first offense to prove an essen-tial element - possession - of his subsequently charged offense.-sThe court held that this reliance violated the rule enunciated inGrady and, thus found that Harrington's subsequent prosecution vio-lated the Double Jeopardy Clause.59

In Woodfork, the Nebraska Supreme Court overruled its deci-sion in Harrington and adopted a different interpretation of theGrady test.60 The court stated that under the test in Grady, in orderto invoke the protection of the Double Jeopardy Clause, "the entireconduct constituting the prior offense must be necessary to prove anelement of the [subsequently] charged offense." 6' The NebraskaSupreme Court based its interpretation on footnote number eleven ofGrady.62 In that footnote, the United States Supreme Court statedthat "if in the course of securing a conviction for one offense theState necessarily has proved the conduct comprising all of the ele-ments of another offense not yet prosecuted (a 'component offense'),the Double Jeopardy Clause would bar subsequent prosecution of thecomponent offense."6e The Nebraska Supreme Court, thus, con-cluded that the Double Jeopardy Clause

prohibits a subsequent prosecution where the State, in secur-ing a conviction for one offense, necessarily has proved theconduct comprising all of the elements of the subsequent of-fense not yet prosecuted, and to the extent that the holdingof this court in State v. Harrington is in conflict with thisrule, it is expressly disapproved.64

In its reasoning, the court first explained that the State had in-tended to prove that Woodfork had "unlawfully operate[d] a motor

55. See Harrington, 236 Neb. at 500-01, 461 N.W.2d at 753-54.56. Id. at 500-01, 461 N.W.2d at 753.57. Id. at 502, 461 N.W.2d at 754.58. See id. at 503, 461 N.W.2d at 754-55.59. Id. at 503, 461 N.W.2d at 754.60. Woodfork, 239 Neb. at 730, 478 N.W.2d at 255.61. Id. at 724-25, 478 N.W.2d at 251.62. Id. at 724-25, 478 N.W.2d at 251-52 (discussing Grady, 495 U.S. at 522).63. Id. at 725, 478 N.W.2d at 252 (discussing Grady, 495 U.S. at 522 n.11).64. Id. at 730, 478 N.W.2d at 255.

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vehicle upon the streets and highways in said city, county, and statewhile his operator's license had been suspended, or revoked pursuantto Section 39-669.07 for life or for a period of 15 years."' Under thisdefinition, the elements that constituted the two misdemeanor of-fenses would not entirely be used to prove the Class IV felonycharge.66 More specifically, neither reckless behavior nor a state ofintoxication were conduct necessary to prove an element of the ClassIV felony charge.67 Therefore, the subsequent prosecution for driv-ing with a revoked operator's license charge satisfied the test out-lined in Grady because it was not necessary for the State to prove theentire conduct involved in the misdemeanor charges in order to es-tablish the elements of the Class IV felony.ss The court concededthat driving was an essential element of driving with a revoked oper-ator's license, but the court observed that driving, in and of itself, didnot constitute the entirety of the offense for which Woodfork had al-ready been prosecuted.6 9

DISSENTING OPINION

In a dissenting opinion, Judge Leslie Boslaugh expressed his op-position to the majority's interpretation of the United StatesSupreme Court's decision in Grady.70 Specifically, Judge Boslaughdisagreed that the Grady test had been misapplied in Harrington.71

Judge Boslaugh stated that the majority's reinterpretation failed totake into account the United States Supreme Court's concern that "atechnical comparison of the elements of the two offenses as requiredby Blockburger does not protect defendants sufficiently from the bur-dens of multiple trials."72 Judge Boslaugh narrowed the confusiongenerated by Grady down to one issue: "The critical question in ap-plying the Grady case is to determine what the U.S. Supreme Courtmeant by the term 'conduct'?"7 3

Judge Boslaugh used State v. Harrington to illustrate his defini-

65. Id. at 725-26, 478 N.W.2d at 252.66. See id. at 726, 478 N.W.2d at 252.67. Id.68. Id. at 728, 478 N.W.2d at 253.69. Id. at 726, 478 N.W.2d at 252.70. Id. at 732, 478 N.W.2d at 255-56 (Boslaugh, J., dissenting). Judge Leslie Bos-

laugh noted that in the Wyoming Supreme Court decision of Eatherton v. State, 810P.2d 93 (Wyo. 1991), Chief Justice Walter Urbigkit Jr.'s dissenting opinion foundGrady to be "difficult to understand" and a "muddled up piece of logic," but neverthe-less controlling case law that should be followed. Eatherton v. State, 810 P.2d 93, 104(Wyo. 1991). Woodfork, 239 Neb. at 733, 478 N.W.2d at 256 (Boslaugh, J., dissenting).

71. See id. at 723, 478 N.W.2d at 256.72. Id. at 733, 478 N.W.2d at 256 (Boslaugh, J., dissenting) (quoting Grady, 495

U.S. at 520).73. Id. at 734, 478 N.W.2d at 256 (Boslaugh, J., dissenting).

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tion of conduct.7 4 In Harrington, the defendant was charged withand pleaded no contest to a violation of an Omaha Municipal Codethat made it illegal for a person to discharge any device that releasesa projectile caused by an explosive charge.75 The defendant was sub-sequently charged, prosecuted, and convicted of "being a felon in pos-session of a firearm with a barrel less than eighteen inches inlength.176 The Nebraska Supreme Court reversed the trial court,holding that the Double Jeopardy Clause barred the subsequent pros-ecution of the defendant.77 Judge Boslaugh stated that Harrington'ssubsequent prosecution had been properly barred because he had al-ready been prosecuted in his first offense for the conduct of posses-sion of a firearm. 78

Judge Boslaugh rejected the majority's focus on the entirety ofthe conduct in the first offense.79 Instead, Judge Boslaugh appliedthe Grady test by defining conduct.s° He distinguished between actsand status, stating that conduct usually refers to acts, such as posses-sion, but does not include status, such as being a felon.8 ' Therefore,Judge Boslaugh stated that the "only conduct involved in [Harring-ton's] second offense was the possession of the firearm.8a That wasconduct for which the defendant had already been prosecuted."ss

Judge Boslaugh did not apply his interpretation of Harrington to thefacts of Woodfork.s

4

BACKGROUND

The Fifth Amendment to the United States Constitution pro-vides in part that no person shall "be subject for the same offence tobe twice put in jeopardy of life or limb."s5 The protection againstdouble jeopardy prosecution is so fundamental in nature that it isconstitutionally guaranteed.s The driving force behind the DoubleJeopardy Clause is fairness to the defendant.8 7 This double jeopardyprotection seeks to shield a criminal defendant from the overzealous

74. 236 Neb. 500, 461 N.W.2d 752 (1990). Woodfork, 239 Neb. at 734, 478 N.W.2d at256-57 (Boslaugh, J., dissenting).

75. Harrington, 236 Neb. at 501-02, 461 N.W.2d at 754.76. Id. at 500, 461 N.W.2d at 753.77. Id. at 503, 461 N.W.2d at 754-55.78. See Woodfork, 239 Neb. at 734, 478 N.W.2d at 256-57 (Boslaugh, J., dissenting).79. See id. (Boslaugh, J., dissenting).80. See id. at 733-34, 478 N.W.2d at 256-57 (Boslaugh, J., dissenting).81. See id. at 734, 478 N.W.2d at 256-57 (Boslaugh, J., dissenting).82. Id. at 734, 478 N.W.2d at 256 (Boslaugh, J., dissenting).83. Id. at 734, 478 N.W.2d at 257 (Boslaugh, J., dissenting).84. See id. at 732-34, 478 N.W.2d at 255-57 (Boslaugh, J., dissenting).85. U.S. CONST. amend. V. See supra note 2 and accompanying text.86. Benton v. Maryland, 395 U.S. 784, 795 (1969).87. Richard Finacom, Comment, Successive Prosecutions and the Continuing

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prosecutor.88 Although society has a legitimate interest in seeingthat people who violate the law are punished, the Double JeopardyClause prohibits the government from prosecuting a criminal defend-ant more than once for a single offense. s9

The United States Supreme Court has recognized that theDouble Jeopardy Clause provides three protections: "It protectsagainst a second prosecution for the same offense after acquittal. Itprotects against a second prosecution for the same offense after con-viction. And it protects against multiple punishments for the sameoffense."9o

EARLY INTERPRETATIONS OF THE DOUBLE JEOPARDY CLAUSE

Double jeopardy is one of the oldest legal concepts existing inwestern civilization.91 Its origins can be traced back to Greek andRoman times, and it became rooted in English common law longbefore American independence.92

Although the expression, "same offence," appeared in much ofthe early common-law jurisprudence of the double jeopardy princi-ple, doubts as to its precise definition rarely arose prior to the eight-eenth century.93 The term "same offence" still had not beenauthoritatively defined when the Bill of Rights was adopted.94 Whenthe English common law attempted a definition of "same offence" inThe King v. Vandercomb,95 it adopted the "same evidence" test.96This test afforded little protection from multiple prosecutions, statingthat "[u]nless the first indictment were such as the prisoner mighthave been convicted upon by proof of the facts contained in the sec-ond indictment, an acquittal on the first indictment can be no bar to

Criminal Enterprise: The Double Jeopardy Analysis in Garrett v. United States, 13HASTiNGS CONsT. L.Q. 785, 793 (1986).

88. Sara Barton, Comment, Grady v. Corbin: An Unsuccesqful Fffort to Define"Same Offense," 25 GA. L. REv. 143, 147 (1990).

89. Id. See Note, Twice in Jeopardy, 75 YALE L.J. 262, 296 (1965) (remarking that"[a]t one time the law of res judicata resembled the modern law of double jeopardy").

90. Barton, 25 GA. L. REv. at 147 (quoting North Carolina v. Pearce, 395 U.S. 711,717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798-803(1989)).

91. Finacom, 13 HASTINGS CONST. L.Q. at 792. See Ex parte Lange, 85 U.S. (18Wall.) 163 (1873). The Lange decision was one of the first decisions ever handed downby the United States Supreme Court dealing with a protection against multiple punish-ment. Julie R. Niemeyer, The Multiple Punishment Protection of the Double JeopardyClause: Thomas v. Morris, 22 CREIGHTON L. REv. 1081, 1093 (1989).

92. Benton, 395 U.S. at 795.93. Ashe v. Swenson, 397 U.S. 436, 450-51 (1970).94. Id.95. The King v. Vandercomb, 168 Eng. Rep. 455 (K.B. 1796).96. Note, 75 YALE L.J. at 271 (citing Vandercomb, 168 Eng. Rep. at 461).

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the second."' ' Because of the strong influence that English law hadin this country, this "same evidence" test of "same offence" was soonapplied by American courts despite its flaws.98

THE DEVELOPMENT OF A DEFINITION FOR THE "SAME OFFENSE"LANGUAGE IN MULTIPLE PROSECUTION ANALYSIS

An analysis of the protections afforded by the Double JeopardyClause requires a definition of the term "same offense."99 In Block-burger v. United States,1 00 the United States Supreme Court providedsuch a definition.' 0 In Blockburger, the Court dealt with a federallaw, the Harrison Narcotic Act, which made it illegal for any personto buy, sell, dispense, or distribute any drug except in the originalstamped package. 102 The defendant was convicted of violating three

97. Vandercomb, 168 Eng. Rep. at 461. See Note, Twice in Jeopardy, 75 YALE L.J.262, 274 (1965) (remarking, "Even the best evidence, same evidence test is insensitiveto the policies of the double jeopardy clause"). In Blockburger v. United States, 284U.S. 299 (1932), the United States Supreme Court adopted the "same evidence" test indefining "same offense." See Bryon L. Land, Increased Double Jeopardy Protection forthe Criminal Defendant. Grady v. Corbin, 27 WaLjAMErrE L. REV. 913, 916 (1991).See also infra notes 99-115 and accompanying text.

98. Ashe, 397 U.S. at 451. In Ashe, the Court stated:[W]here a single criminal episode involves several victims, under the "sameevidence" test a separate prosecution may be brought as to each. The "sameevidence" test permits multiple prosecutions where a single transaction is di-visible into chronologically discrete crimes. Even a single criminal act maylead to multiple prosecutions if it is viewed from the perspectives of differentstatutes.

Id.99. Niemeyer, 22 CREIGHTON L. REv. at 1091. (f. Note, A Definition of Punish-

ment for Implementing the Double Jeopardy Clause's Multiple-Punishment Prohibi-tion, 90 YALE L.J. 632, 640-41 (1981) (defining the term "punishment," in a multiplepunishment context, as consisting of fines or jail sentences imposed after conviction).

100. 284 U.S. 299 (1932).101. See Blockburger, 284 U.S. at 304. But see Grady v. Corbin, 495 U.S. 508, 516-17

(1990) (stating that the Blockburger test is the first step in double jeopardy analysisbut not the exclusive test). The United States Supreme Court suggested, in Whalen v.United States, that the "interpretation of the Blockburger test may be too narrow tosatisfy the double jeopardy clause." See Whalen v. United States, 445 U.S. 684 (1980).See also George C. Thomas, RICO Prosecutions and the Double Jeopardy/MultiplePunishment Problem, 78 Nw. U.L. REV. 1359, 1378 (1984) (interpreting Whalen).

102. Blockburger, 284 U.S. at 300 n.1. The Harrison Narcotic Act provided in rele-vant part:

It shall be unlawful for any person to purchase, sell, dispense, or dis-tribute any of the aforesaid drugs [opium and other narcotics] except in theoriginal stamped package or from the original stamped package; and the ab-sence of appropriate tax-paid stamps from any of the aforesaid drugs shall beprima fade evidence of a violation of this section by the person in whose pos-session same may be found.

It shall be unlawful for any person to sell, barter, exchange, or give awayany of the drugs specified in section 691 of this title, except in pursuance of awritten order of the person to whom such article is sold, bartered, exchanged,or given, on a form to be issued in blank for that purpose by the Commis-sioner of Internal Revenue.

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provisions of the Act.'0 3 All of these offenses involved the defendantselling morphine hydrochloride to a single buyer l 4 The first offenseconsisted of selling ten grains of the drug not in or from an original,tax-paid stamped package. 0 5 The second offense consisted of a sale,made on the following day, of eight grains of the drug not in or fromthe original stamped package.10 The third offense was that the sec-ond sale was not made pursuant to a written order, as required bylaw. 0 7 The defendant was found guilty and sentenced to five yearsimprisonment for each offense, with the terms to run consecutively,and was fined $2000 for each offense.'08 On appeal, the defendantcontended that the two sales involved in the first and second offenseswere made to the same buyer, and thus composed a single offense.' ° 9

Therefore, the defendant argued that his double jeopardy protectionhad been violated.110

In Blockburger, the Supreme Court set forth the test to deter-mine whether those two offenses constituted a "single offense.""' Indefining the term "same offense," the Court stated that "[w]here thesame act or transaction constitutes a violation of two distinct statu-tory provisions, the test to be applied to determine whether there aretwo offenses or only one, is whether each provision requires proof ofa fact which the other does not."" 2 This test hinges on whether theforbidden conduct consists of the individual acts themselves or thecourse of action which the acts compose." 3 If the individual acts areforbidden, then each act is punished separately; however, if thecourse of action is forbidden, then there can be only one punish-ment.114 The Supreme Court ultimately concluded that the defend-ant had been properly convicted of two separate offenses."15

The United States Supreme Court applied the Blockburger test

Harrison Narcotic Act, ch. 1, § 1, 38 Stat. 785 (1914), amended, ch. 18, § 1006, 40 Stat.1057, 1131 (codified at 26 U.S.C. § 692); ch. 1, § 2, 38 Stat. 785, 785-86 (1914) (codified at26 U.S.C. § 696), 284 U.S. 299, 300 nn.1-2 (1932).

103. Blockbusger, 284 U.S. at 300.104. Id. at 301.105. Id.106. Id.107. Id.108. Id.109. Id.110. See id.111. Blockburger, 284 U.S. at 304.112. Id. If consecutive actions are separately alleged, even though all arise from

the same conduct, separate crimes are established. Blockburger, 284 U.S. at 302 (quot-ing FRANCIS WHARTON, CRIMINAL LAw § 34 (11th ed. 1912)).

113. Id.114. Id.115. Blockbtuier, 284 U.S. at 304.

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in Brown v. Ohio."6 In Brown, the defendant, Nathaniel Brown,stole a car in East Cleveland, Ohio, and nine days later he was caughtdriving the car in Wickliffe, Ohio.117 The Wickliffe police chargedthe defendant with joyriding, and the defendant entered a guiltyplea." 8 He was fined one-hundred dollars and sentenced to thirtydays in jail.119 Upon release, the defendant was taken to East Cleve-land to face additional charges in connection with the same inci-dent.12° In East Cleveland, the defendant was charged with twoadditional counts: theft of an automobile and joyriding.' 2l The de-fendant objected to the two East Cleveland charges, arguing thatthey violated the Double Jeopardy Clause.I22 The Cuyahoga CountyCourt of Common Pleas overruled the defendant's motion for dismis-sal, and the Ohio Court of Appeals affirmed.2 s

The United States Supreme Court granted certiorari and re-versed the decision of the Ohio Court of Appeals. 124 In its opinion,the Court stated, that "[i]t has long been understood that separatestatutory crimes need not be identical - either in constituent ele-ments or in actual proof - in order to be the same within the mean-ing of the constitutional prohibition."'' I The Court stated that the"lesser" offense of joyriding required no additional proof than thatrequired in the conviction of the "greater" offense of auto theft.12l

The Court also held that the Double Jeopardy Clause was not a"fragile" guarantee that prosecuting attorneys could sidestep by clev-erly dividing a single crime into a series of distinct events.I m

116. 432 U.S. 161, 166 (1977).117. Brown v. Ohio, 432 U.S. 161, 162 (1977).118. Id. The joyriding charge was in violation of Omo REv. CODE ANN.

§ 4549.04(D). Id. That section defined joyriding as: 'The taking or operating an auto-mobile without the owner's consent." OHIO REV. CODE ANN. § 4549.04(D) (Baldwin1973).

119. Brown, 432 U.S. at 162.120. Id.121. Id. at 162-63. The first charge was in violation of OHIO REV. CODE ANN.

§ 4549.04(A) (Baldwin 1973), and the second charge was in violation of OHIO REV. CODEANN. § 4549.04(D) (Baldwin 1973). Id.

122. Id. at 163.123. Id. The Cuyahoga County Court of Common Pleas and the Ohio Court of Ap-

peals held the subsequent prosecutions acceptable because:The two prosecutions are based on two separate acts of the appellant, onewhich occurred on November 29th and one which occurred on December 8th.Since appellant has not shown that both prosecutions are based on the sameact or transaction, the second prosecution is not barred by the double jeopardyclause.

Id. at 164 (quoting the Ohio Court of Appeals).124. Id. at 164. The Ohio Supreme Court had denied an appeal. Id. See Brown v.

Ohio, 429 U.S. 893 (1976) (granting writ of certiorari).125. Brown, 432 U.S. at 164.126. Id. at 168.127. Brown, 432 U.S. at 169. See Harris v. Oklahoma, 433 U.S. 682, 683 (1977) (stat-

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MORE RECENT INTERPRETATIONS OF THE DOUBLE JEOPARDY CLAUSE

The double jeopardy analysis of the United States SupremeCourt in Blockburger has become a crucial test in evaluating manyrecent Supreme Court decisions concerning multiple prosecutions.' s

In addition, the Court established the groundwork for adding anothercomponent to the double jeopardy test in Illinois v. Vitale." 9

While driving an automobile, John Vitale struck and killed twosmall children.13 The officer at the scene issued Vitale a traffic cita-tion for failing to reduce his speed so as to avoid an accident. 13 ' Onemonth after the accident, Vitale was convicted of failure to reducespeed, and was fined fifteen dollars.'3 2 On the next day, Vitale wascharged with two counts of involuntary manslaughter.1 ss The juve-nile division of the Circuit Court of Cook County dismissed thecharges because an Illinois statute required that all offenses based onthe same conduct must be prosecuted in a single prosecution.1 4 TheAppellate Court of Illinois affirmed on the same grounds as the cir-cuit court.lss That decision was upheld by the Illinois SupremeCourt, but its holding was based on different grounds.136 After ana-lyzing the elements of each offense, the Illinois Supreme Court heldthat "for purposes of the double jeopardy clause, the greater offenseis by definition the 'same' as the lesser offense included within it" be-cause "the lesser offense, failing to reduce speed, requires no proofbeyond that which is necessary for conviction of the greater, involun-tary manslaughter.' 137

ing that "[a] person [who] has been tried and convicted for a crime which has variousincidents included in it .... cannot be a second time tried for one of those incidentswithout being twice put in jeopardy for the same offence").

128. See, e.g., Missouri v. Hunter, 459 U.S. 359, 366 (1983); Illinois v. Vitale, 447 U.S.410, 416 (1980); Walen, 445 U.S. at 692; Brown, 432 U.S. at 166.

129. 447 U.S. 410 (1980). See Grady v. Corbin, 495 U.S. 508, 510 (1990).130. Vitale, 447 U.S. at 411. One of the children died immediately while the other

died the next day. Id.131. Id. The relevant statute, ILL. REV. STAT. ch. 95 1/2, § 11-601(a) (1979), pro-

vided that "[s]peed must be decreased as may be necessary to avoid colliding with anyperson or vehicle on or entering the highway in compliance with legal requirementsand the duty of all persons to use due care." ILL. REv. STAT. ch. 95 1/2, § 11-601(a)(1979).

132. Id.133. Id. at 412-13. The same police officer that had issued the citation for failure to

reduce speed also issued the citation for the two charges of involuntary manslaughter.Id.

134. Id. at 413-14 (discussing ILL. REV. STAT. ch. 38, §§ 3-3, 3-4(b)(1) (1979)).135. Id. at 414.136. Id. The Illinois Supreme Court did not address the statutory issue because it

thought that there was "a more compelling reason" why the defendant could not besubsequently prosecuted. Id. The court, however, failed to state this "more compellingreason." See id.

137. Id. (quoting In re Vitale, 375 N.E.2d 87, 91 (1978)).

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In Vitale, the United States Supreme Court relied on Brown todetermine whether the "offense of failing to reduce speed to avoid anaccident is the 'same offense' for double jeopardy purposes as themanslaughter charges brought against Vitale."'as The Court heldthat if a defendant has "already been convicted for conduct that is anecessary element of the more serious crime for which he has beencharged, his double jeopardy claim would be substantial."' Becausethe Court did not know what act or acts the State intended to provein the manslaughter case, it remanded the case back to the IllinoisSupreme Court. 14°

Although the groundwork for this new test originated in Vitale,the new test was more clearly enunciated by the Court in Grady v.Corbin.141 In Grady, the defendant struck two oncoming vehicleswhen he drove his car across the double yellow line on a New Yorkhighway.142 One of the other drivers that the defendant struck diedthe same day.143 Later that evening, the defendant submitted to ablood alcohol test that registered 0.19%, and he was charged withdriving while intoxicated and failing to keep right of the median.144

Two weeks after the accident, the defendant entered a guilty plea tothe traffic citations.145 At a sentencing hearing three weeks later,the judge fined the defendant and temporarily revoked his driver'slicense.1'

Two months after the sentencing hearing for the traffic citations,the defendant was charged with reckless manslaughter, second de-gree vehicular manslaughter, criminal negligent homicide, third de-gree reckless assault, and driving while intoxicated.147 Theprosection filed a bill of particulars that showed which reckless ornegligent acts it would use in proving those charges. 14 The prosecu-tion intended to prove that the defendant was: (1) driving while

138. Id. at 415-16. The Supreme Court relied upon the Blockburger test, statingthat "if each statute requires proof of an additional fact which the other does not, theoffenses are not the same under the Blockburger test." Id. at 416.

139. Id. at 420.140. Vitale, 447 U.S. at 421.141. 495 U.S. 508, 510 (1990).142. Grady v. Corbin, 495 U.S. 508, 511 (1990).143. Id. In addition to the driver being killed, the driver's husband was seriously

injured. Id.144. Id.145. Id. at 512. The assistant district attorney began gathering evidence on the

homicide, but failed to show up for court when the motorist was scheduled to appearfor the traffic citations and failed to inform the court of the homicide investigation. Id.at 511-12.

146. Id. at 513. A different assistant district attorney attended the sentencing hear-ing, but failed to locate the case file and was unaware of the fatality. Id.

147. Id. at 513.148. Id. at 513-14.

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under the influence of alcohol or drugs, (2) failing to keep to theright of the median, and (3) driving at an unsafe speed for theweather and road conditions at the time of the accident.149 The de-fendant moved to dismiss the charges, claiming that the Double Jeop-ardy Clause was violated because elements (1) and (2) had alreadybeen proven in a prior prosecution. 15 The Supreme Court of NewYork, Appellate Division, denied the defendant's motion.1 5 1 Thatruling was reversed by the New York Court of Appeals, which heldthat the subsequent prosecution on the two manslaughter chargeshad violated the Double Jeopardy Clause.152

The United States Supreme Court affirmed the holding of theNew York Court of Appeals.'ss In so doing, the Court in Grady ad-ded a second test to be used with the Blockburger test.154 The Courtin Grady held that the Double Jeopardy Clause of the Fifth Amend-ment bars a subsequent prosecution where "the government, to es-tablish an essential element of an offense charged in thatprosecution, will prove conduct that constitutes an offense for whichthe defendant has already been prosecuted." 155 The test prohibits aprosecuting attorney from attempting to prove conduct that was thefoundation of the prior conviction.15 However, there may be an ex-ception where the prosecution is initially incapable of prosecuting themore serious charge because the additional facts necessary to provethe more serious charge have not yet materialized or have not yetbeen discovered, despite due diligence. 5 7 The Court in Grady articu-lated a two part analysis.1 sm To determine whether the Double Jeop-ardy Clause bars a subsequent prosecution, a court must first apply"the traditional Blockburger test," focusing on "same offense.' 5 9 Acourt must next apply the Grady test, focusing on an "essentialelement."16°

149. Id. at 514.150. See id. at 523.151. Id. at 514.152. Id.153. Id. at 515.154. Anne B. Poulin, Double Jeopardy: Grady and Dowling Stir the Muddy Wa-

ters, 43 RuTGms L. REV. 889, 903 (1991).155. Grady, 495 U.S. at 521. This ruling is not an "actual evidence" or "same evi-

dence" test, either of which would prohibit prosecutors from presenting in a subse-quent prosecution any evidence that was brought forth in a preceding prosecution. Id.In other words, the presentation of specific evidence in one trial does not, under theDouble Jeopardy Clause, forever prevent prosecutors from introducing that same evi-dence in a subsequent proceeding. Id.

156. Poulin, 43 RuTGERS L. Rav. at 903.157. Grady, 495 U.S. at 516 n.7.158. See id. at 521.159. Id. at 516.160. Id. at 521. Justice Antonin Scalia has stated that a defendant's conduct should

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DOUBLE JEOPARDY

The United States Supreme Court (subsequent to Woodfork)also applied the Grady test in United States v. Felix.'6l In Felix, thedefendant, Frank Felix, operated an illegal drug manufacturing plantin Oklahoma. 6 2 When the Oklahoma plant was shut down by drugenforcement officials, the defendant moved his operation to Mis-souri.l 63 While ordering additional chemicals from a government in-formant, the defendant was observed engaging in the illegaltransaction by the Drug Enforcement Agency ("DEA").l e4 The de-fendant was charged and convicted in the United States DistrictCourt for the Western District of Missouri for attempting to manu-facture an illegal drug. 6e During the trial, the prosecution at-tempted to prove criminal intent by introducing evidence that Felixhad manufactured the illegal drug at an earlier time in Oklahoma. 63

After the United States Court of Appeals for the Eighth Circuit af-firmed Felix's conviction and sentence, the United States DistrictCourt for the Eastern District of Oklahoma charged Felix with bothconspiracy and substantive counts that related to Felix's manufactureof the illegal drug in Oklahoma. 6 7 The jury convicted Felix on allcounts.16 On appeal, the United States Court of Appeals for theTenth Circuit reversed the district court's finding because the Gov-ernment "had presented evidence of the Oklahoma drug operation atthe prior trial in order to help demonstrate Felix's criminal intentwith respect to the Missouri transaction [drug violation]."' 6 9 TheUnited States Supreme Court granted certiorari and reversed the de-cision of the Tenth Circuit.170 The Supreme Court premised its re-versal on the fact that

[t]he actual crimes charged in each case were different inboth time and place; there was absolutely no common con-duct linking the alleged offenses. In short, none of the of-fenses for which Felix was prosecuted in the Oklahomaindictment is in any sense the 'same offense' as the offensefor which he was prosecuted in Missouri. 17 1

not be the analytical focus because the Double Jeopardy Clause only protects defend-ants from multiple prosecutions for the same crime. Id. at 526.

161. 112 S. Ct. 1377, 1383-84 (1992).162. United States v. Felix, 112 S. Ct. 1377, 1379 (1992).163. Id.164. Id.165. Id.166. Id. at 1380.167. Id.168. Id. at 1381.169. Id. at 1382.170. United States v. Felix, 112 S. Ct. 47 (1992) (granting certiorari); Felix, 112 S.

Ct. at 1381 (reversing decision of the district court).171. Id. at 1382.

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In determining whether the double jeopardy protection againstmultiple prosecutions can be invoked, an analysis of the "same of-fense" must be undertaken.172 Recent United States Supreme Courtinterpretations of the Double Jeopardy Clause have used the two-part test established in Blockburger and Grady.173

If a court examines a convicted defendant's violations and deter-mines either that the offenses constituted the same offense, or that asingle offense entailed multiple prosecutions, then multiple prosecu-tion protection may be at issue.174 In addition, a court must considerwhether the subsequent offense is a greater offense to or lesser-in-cluded offense to the initial prosecution.175 If a subsequent prosecu-tion passes the Blockburger test, then the court must turn to theGrady test to determine whether conduct constituting an offense forwhich a defendant already has been prosecuted was proved to estab-lish an "essential element" of the subsequent prosecution. 7 6

If the Blockburger and Grady tests are not satisfied, then a de-fendant's subsequent charge must be dismissed.177 The protection af-forded under the Double Jeopardy Clause of the Fifth Amendmentensures that a defendant may not be prosecuted twice for the sameoffense.

178

ANALYSIS

In State v. Woodfork,179 the Nebraska Supreme Court affirmedthe district court's decision denying Woodfork's motion to dismiss thecharge of Operating a Motor Vehicle While Operator's License wasRevoked ("Class IV felony" or "driving with a revoked operator's li-cense"). i s The Class IV felony prosecution arose after Woodfork al-ready had been convicted of two offenses arising from the same seriesof events: driving while intoxicated ("DWI") and willful recklessdriving.' 8 ' The court ruled that the only time the Double JeopardyClause will offer protection in a subsequent prosecution is when "theentire conduct constituting the prior offense must be necessary toprove an element of the [subsequently] charged offense.' 18 2

172. See supra notes 99-127 and accompanying text.173. See supra notes 99-178 and accompanying text.174. See supra notes 99-127 and accompanying text.175. See supra notes 37-41 and accompanying text.176. See supra notes 128-61 and accompanying text.177. See infra notes 198-243 and accompanying text.178. See supra notes 2-5 and accompanying text.179. 239 Neb. 720, 478 N.W.2d 248 (1991).180. State v. Woodfork, 239 Neb. 720, 721, 478 N.W.2d 248, 250 (1991).181. Id. at 730, 478 N.W.2d at 255.182. Id. at 724-25, 478 N.W.2d at 250 (discussing Grady v. Corbin, 495 U.S. 508, 522

(1990)).

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The court based its decision on the analysis of the tests set forthby the United States Supreme Court in Blockburger v. UnitedStates l83 and Grady v. Corbin.ls4 First, the Nebraska Supreme Courtconsidered the Blockburger test and whether the two misdemeanorcharges were either greater offenses to or lessor-included offenses ofthe Class IV felony.1l s After an analysis of the relevant statutoryprovisions, the court determined that driving with a revoked opera-tor's license was neither a greater offense nor a lesser-included of-fense.' s Thus, the court determined that each offense requiredproof of an additional element and that the subsequent prosecutionsatisfied the Blockburger test.l s7

The court then turned to the Grady test.1s The court concludedthat the conduct the State intended to prove in the subsequent prose-cution was that the defendant had operated a motor vehicle on thestreets or highways while his operator's license was revoked.18 9 Thecourt determined that because the prosecution did not intend toprove the entire conduct for which Otis Woodfork had previouslybeen convicted, the subsequent trial would pass the Grady test.x' ° Inother words, the court found that not all of the essential elementsproved in the prior conviction would be used in the subsequent prose-cution.191 In its ruling, the court conceded that driving was an essen-tial element of the two prior charges and of the subsequent charge,but the court added that driving itself did not constitute an offensefor which the defendant had already been convicted.192 Further-more, the court stated that neither "reckless behavior" nor "a stateof intoxication" were essential elements of the driving with a re-

183. 284 U.S. 299 (1932).184. 495 U.S. 508 (1990). See supra notes 39-69 and accompanying text.185. Woodfork, 239 Neb. at 722, 478 N.W.2d at 250. If conviction of a greater of-

fense cannot be accomplished without conviction of a lesser offense, the Double Jeop-ardy Clause bars prosecution for the lesser offense after conviction of the greateroffense. Harris v. Oklahoma, 433 U.S. 682, 682 (1977).

186. Woodfork, 239 Neb. at 723, 478 N.W.2d at 250-51. The relevant sections ana-lyzed by the court were: NEB. REV. STAT. § 39-669.03 (Reissue 1988); NEB. REV. STAT.§ 39-669.07(1) (Cum. Supp. 1990); NEB. REV. STAT. § 39-669.07(5) (Cure. Supp. 1990). Id.at 722-23, 478 N.W.2d at 250-51. The defendant conceded that the DWI and willfulreckless driving charges were not lesser-included offenses of driving with a revokedoperator's license. Woodfork, 239 Neb. at 724-25, 478 N.W.2d at 251.

187. Id. For exact wording of the relevant statutes, see supra notes 42-45 and ac-companying text.

188. Wooddfork, at 725, 478 N.W.2d at 251. Within the Grady test, the court had toconsider the type of conduct that was involved and the "essential elements of thecrimes charged." Id. at 724-25, 478 N.W.2d at 251.

189. Id. at 725-26, 478 N.W.2d at 252.190. See id. at 726, 478 N.W.2d at 252.191. Id. at 725, 478 N.W.2d at 251-52.192. Id. at 726, 478 N.W.2d at 252.

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voked operator's license charge. 193 Therefore, the subsequent prose-cution satisfied the Grady test.194

Courts and commentators have differing interpretations of the"essential elements" test established in Grady.195 Although the Ne-braska Supreme Court analyzed Grady in a logical and correct man-ner, it failed to adhere to the precise language of the Grady test, andfailed to interpret Grady in light of other relevant United StatesSupreme Court decisions concerning the Double Jeopardy Clause.1'Had the court interpreted Grady appropriately, it would have heldthat the conduct and elements involved in Woodfrcrk constituted avalid claim of protection under the Double Jeopardy Clause.197

THE FIRST PRONG: How THE BLOCKBURGER "SAME OFFENSE" TEST

RELATES TO WOODFORK

One of the protections provided by the Double Jeopardy Clauseis a prohibition on multiple prosecutions for the "same offense." 198

The "same offense" element of the Double Jeopardy Clause requiresthat "conduct and consequences underlying a criminal verdict" not beprosecuted again.199

The first issue in Woodfark, which presented little difficulty tothe Nebraska Supreme Court, was the application of the Blockburgertest to the defendant's subsequent prosecution.2m The NebraskaSupreme Court delineated the essential elements of each offense.2 1

The court determined that willful reckless driving was committed by"(1) driving a motor vehicle (2) in such a manner as to indicate awillful disregard (3) for the safety of person or property."202 Thecourt also determined that DWI was committed by "(1) operation orphysical control of a motor vehicle (2) while under the influence ofalcohol. '20 3 Finally, the court determined that driving with a re-voked operator's license was committed by "(1) operating a motor ve-hicle on the highways or streets (2) with a license that has been

193. Id.194. Id. at 725, 478 N.W.2d at 252.195. See infra notes 214-16 and accompanying text.196. See infra notes 209-43 and accompanying text.197. See infra notes 209-43 and accompanying text.198. See Green v. United States, 355 U.S. 184, 187 (1957).199. Bryon L. Land, Increased Double Jeopardy Protection for the Criminal De-

fendant. Grady v. Corbin, 27 WILAMErrE L. REv. 913, 936 (1991).200. See Woodjfrk, 239 Neb. at 722-23, 478 N.W.2d at 250-51. Before the trial or

disposition of the Class IV felony (driving with a revoked operator's license), Wood-fork moved to dismiss that charge. Brief for Appellant at 3, State v. Woodfork, 239Neb. 720, 478 N.W.2d 248 (1991) (No. 90-0784).

201. Woodfork, 239 Neb. at 723, 478 N.W.2d at 250-51.202. Id. at 723, 478 N.W.2d at 251.203. Id.

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DOUBLE JEOPARDY

revoked (3) pursuant to prior DWI convictions." 4

Indisputably, driving with a revoked operator's license requiresproof of facts different from those facts involved in the offenses ofDWI and willful reckless driving.2° 5 The defendant's driving consti-tuted a single act that led to three criminal charges.2 "6 Because eachcharge required proof of facts that the others did not, more than oneoffense existed, and the Blockburger test was satisfied.20 7

THE SECOND PRONG: How THE GRADY TEST RELATES TO WOODFORK

In 1980, the United States Supreme Court suggested that theBlockburger test was not the only test in the analysis of double jeop-ardy protection.Y In Illinois v. Vitale,2° the Court took steps toformulate the groundwork for an additional test.2 10 In Vitale, theCourt stated that if a defendant has "already been convicted for con-duct that is a necessary element of the more serious crime for whichhe has been charged, his double jeopardy claim would besubstantial."

211

In 1990, the Court decided Grady v. Corbin,2 12 which expandedthe decision in Vitale, and held that "Double Jeopardy bars any sub-sequent prosecution in which the government, to establish an essen-tial element of an offense charged in that prosecution, will proveconduct that constitutes an offense for which the defendant has al-ready been prosecuted."2 13 Along with this additional test has comeconfusion and varying interpretations of the test itself.2 14 To onecommentator, the Court's language in Grady is "loose and impre-cise."215 In addition, the "same conduct" language does not make ap-

204. Id.205. Id.206. Woodfork, 239 Neb. at 721, 478 N.W.2d at 250.207. Id. at 722-23, 478 N.W.2d at 250-51. By satisfying the Blockburger test, the

court necessarily not only applied the first step in double jeopardy analysis, but alsoanswered the question of greater or lesser-included offenses. See id. See supra notes37-46 and accompanying text.

208. See Grady, 495 U.S. at 520; see aio inois v. Vitale, 447 U.S. 410, 416 (1989)(suggesting in dictum that double jeopardy analysis involves more than the Block-burger test).

209. 447 U.S. 410 (1980).210. See supra notes 129-40 and accompanying text.211. Vitale, 447 U.S. at 420 (emphasis added).212. 495 U.S. 508 (1990).213. Grady, 495 U.S. at 521 (emphasis added).214. See infra notes 209-43 and accompanying text. Because Justice William Bren-

nan, "who wrote the 5-4 [Grady] decision, is no longer with the Court, and because thedecision had strong dissents, the [Grady] holding itself may be in jeopardy." Tat ManSo, Comment, Double Jeopardy, Complex Crimes and Grady v. Corbin, 60 FORDHAM L.REV. 351, 366 n.94 (1992).

215. Anne B. Poulin, Double Jeopardy: Grady and Dowling Stir the Muddy Wa-ters, 43 RUTGERS L. REv. 889, 902 (1991). More specifically, the Court's language "does

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plication of the Grady test easy.216

A case decided subsequent to Woodfork, in which the Court ap-plied the Grady test, was United States v. Felix.2 17 In Felix, the de-fendant was charged and convicted by a Missouri district court thatallowed the prosecutor to introduce prior conduct - operating an il-legal drug facility in Oklahoma - to establish criminal intent.21 8 Af-ter sentencing by the State of Missouri, the defendant was chargedand convicted by an Oklahoma district court for engaging in illegalactivities in Oklahoma. 219 The United States Court of Appeals forthe Tenth Circuit reversed the Oklahoma conviction, holding thatthe conviction violated the Double Jeopardy Clause.220 The UnitedStates Supreme Court granted certiorari and permitted the subse-quent drug conviction even though proof of conduct had been used ina previous trial.2 2 1 The Court stated that the events which gave riseto the defendant's convictions consisted of "multilayered conduct,both as to time and place," and as a result were separate offenses indouble jeopardy analysis.2 2 In contrast to the events in Feliz, thecharges for which Otis Woodfork was convicted all arose from thesame incident, not "multilayered conduct."

In Woodfork, the majority's analysis of the Grady test beganwith the premise that the critical point of the test was "What conductthe State will prove, not the evidence the State will use to prove thatconduct. '224 In its analysis, the Nebraska Supreme Court read a foot-note from the Grady opinion into the Grady test.= The court notedthat in Grady the prosecution intended to use all of the conduct inthe initial prosecution to establish all of the elements of the subse-quent offense. 22 6 Therefore, the Nebraska Supreme Court concluded

not clearly explain the relationship between the proof at the second trial and the prioroffense that will generate a double jeopardy bar." Id.

216. Sara Barton, Grady v. Corbin: An Unsuccessful Effort to Define "Same Of-fense," 25 GA. L. REv. 143, 159 (1990). Because the new test is likely to be misunder-stood, Justice Antonin Scalia, in his dissenting opinion, asserted that the test willthoroughly confuse judges in their interpretation of it. Id.

217. 112 S. Ct. 1377, 1383-85 (1992).218. United States v. Felix, 112 S. Ct. 1377, 1380 (1992).219. Id.220. Id.221. Id. at 1381-82.222. Id. at 1385.223. Woodfork, 239 Neb. 720, 721, 478 N.W.2d 248, 250.224. Id. at 724, 478 N.W.2d at 251 (quoting Grady, 495 U.S. at 521).225. Id. at 725, 478 N.W.2d at 251-52. The relevant footnote reads: "[S]imilarly, if

in the course of securing a conviction for one offense the State necessarily has provedthe conduct comprising all of the elements of another offense not yet prosecuted (a'component offense'), the Double Jeopardy Clause would bar subsequent prosecutionof the component offense." Grady, 495 U.S. at 522 n.11.

226. Woodfork, 239 Neb. at 725, 478 N.W.2d at 252.

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that the charge of driving with a revoked operator's license had notviolated the Grady test.227 The Nebraska Supreme Court based itsconclusion on an interpretation of "conduct" as "entire conduct."Because the State of Nebraska had intended to prove that the de-fendant had unlawfully driven his motor vehicle while his operator'slicense had been revoked and that the prior charge involved only thedriving conduct, the court determined that the defendant had not yetbeen convicted of the entire conduct establishing the subsequentcharge.2-9 Furthermore, the court found that the State did not in-tend to rely on all of the conduct constituting the previous convic-tion.23° Therefore, the court concluded that the subsequentprosecution had satisfied the Grady test.231 However, even after itsanalysis of footnote number eleven, the court did not appear confi-dent in its decision.232 In the court's reference to footnote numbereleven, it stated that "this rule seems to require that the 'entire' con-duct constituting the prior offense must be necessary to prove an ele-ment of the charged offense. '23 3

Analyzing Woodfork's defense that driving constituted conductfor which he had already been prosecuted, the Nebraska SupremeCourt conceded that driving was an essential element of the drivingwith a revoked operator's license offense.2z 4 However, the court heldthat "driving does not constitute an offense for which the defendanthas already been prosecuted."= The court supported this holding bystating that driving, by itself, was not unlawful, and therefore couldnot constitute the entire conduct of the offenses for which the de-fendant had already been convicted.2 The court failed to recognizethat the Grady test did not distinguish between lawful and unlawfulconduct.237 One of the goals of the Grady decision was to prohibitthe prosecutor from proving, in a subsequent prosecution, any con-duct that was a part of the prior conviction.238 Consistent with the

227. Id.228. Id. at 725, 478 N.W.2d at 251-52.229. Id. at 725-26, 478 N.W.2d at 252. In addition, the court stated that "reckless

behavior or a state of intoxication are not essential elements of a driving while the op-erator's license was revoked charge." Id. at 726, 478 N.W.2d at 252.

230. Id. at 728, 478 N.W.2d at 253.231. Id.232. Id.233. Id. at 251.234. Id. at 726, 478 N.W.2d at 252.235. Id.236. Id. at 728, 478 N.W.2d at 253.237. See Woodfork, 239 Neb. at 728, 478 N.W.2d at 253. See also Grady, 495 U.S. at

521.238. Poulin, 43 RUTGERs L. REv. at 903. If the Court's decision in Blockburger rep-

resented the entire double jeopardy test in successive prosecutions, the State couldprosecute a defendant for each separate offense and perfect its presentation of evi-

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CREIGHTON LAW REVIEW

goals of Grady, the second prosecution in Wood/ork should havebeen barred because driving was conduct that had already beenproven in Woodfork's prior prosecution. s

In his dissent, Judge Boslaugh did not apply his interpretation ofHarrington to the facts of Woodfork. ° However, Judge Boslaughapparently would have reasoned that being without a license was a"status," not an "act," and therefore did not constitute "conduct."2

This would mean that the only conduct remaining to be proved in thesecond prosecution would be driving.= Because the State had estab-lished the element of driving in the second prosecution by provingthe conduct of driving involved in the first prosecution, Woodfork'ssecond prosecution violated the Grady test and should have beenbarred.24s

CONCLUSION

The Double Jeopardy Clause of the Fifth Amendment providesthat no person shall "be subject for the same offence to be twice putin jeopardy of life or limb." 2" Because the right to be free fromdouble jeopardy encompasses the right not to be tried a second time,the erroneous denial of such a claim and the subsequent retrialwould thwart the intended constitutional protection of the DoubleJeopardy Clause. As a result, the United States Supreme Court hasdeveloped a two-prong test to provide such protection.

In State v. Wood/ork,24 5 the Nebraska Supreme Court properlyemployed the two-prong test to determine whether double jeopardyprotection should be afforded to the defendant. The court correctlyinterpreted and applied the first prong - as defined by the UnitedStates Supreme Court in Blockburger v United States.2 " However,the court failed to properly interpret and apply the second prong -

as defined by the United States Supreme Court in Grady v.Corbin.

247

Because the Double Jeopardy Clause functions as a basic protec-tion of criminal defendants, the test used to enforce the Double Jeop-ardy Clause must be correctly applied. A correctly applied test

dence in each trial. Grady, 495 U.S. at 520. See infra notes 155-56 and accompanyingtext.

239. See supra notes 208-38, 240-43 and accompanying text.240. See supra notes 70-84 and accompanying text.241. See supra notes 73-84 and accompanying text.242. See supra notes 79-84 and accompanying text.243. See supra notes 81-84 and accompanying text.244. U.S. CONST. amend. V. See supra note 2 and accompanying text.245. 239 Neb. 720, 478 N.W.2d 520 (1991).246. 284 U.S. 299 (1932). See supra notes 198-207 and accompanying text.247. 495 U.S. 508 (1990). See supra notes 208-43 and accompanying text.

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would provide defendants with the ability to assess where theirdouble jeopardy protection begins and ends.

In unqualified language, the double jeopardy provision of theFifth Amendment guarantees every person the right to be free fromthe perils of being "twice put in jeopardy" for the same offense.mBy incorrectly interpreting and applying the Grady test, the Ne-braska Supreme Court abridged Otis Woodfork's right to be freefrom being "twice put in jeopardy" for the same offense.

Mark D. Holmstrom-'94

248. See supra notes 1-3 and accompanying text.

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