This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Mantu Manier Craven,
Filed February 25, 2003
Hennepin County District Court
File No. 01069235
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.
In this appeal following convictions of two counts of fleeing a peace officer in a motor vehicle causing death, in violation of Minn. Stat. § 609.487, subd. 4 (2000), appellant argues that his convictions are barred (1) by the double-jeopardy provisions of the federal and Minnesota constitutions and (2) by the statutory prohibition against serialized prosecution, Minn. Stat. § 609.035, subd. 1 (2002). Because we conclude that the district court did not err by denying appellant’s motion to dismiss the charges, we affirm.
Appellant Mantu Manier Craven struck and killed two people with his car as he fled police on the night of August 23, 1998. See generally State v. Craven, 628 N.W.2d 632, 633-34 (Minn. App. 2001) (stating the facts of this case in detail), review denied (Minn. Aug. 15, 2001). The state charged Craven with two counts of third-degree murder, in violation of Minn. Stat. § 609.195(a) (1998), and two counts of fleeing a peace officer in a motor vehicle causing death (“fleeing causing death”), in violation of Minn. Stat. § 609.487, subd. 4 (1998).
The state later amended its complaint, dropping the fleeing-causing-death charges and adding two counts of second-degree felony murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (1998). The predicate felony for the felony-murder charge was fleeing a peace officer in a motor vehicle, in violation of Minn. Stat. § 609.487, subd. 3 (1998). A bench trial followed, during which the district court granted Craven’s motion for judgment of acquittal on the third-degree murder charges. The district court ultimately found Craven guilty of two counts of second-degree felony murder.
Craven appealed from the felony-murder convictions, and this court reversed on the grounds that (1) State v. Kalvig, 296 Minn. 395, 209 N.W.2d 678 (1973), required the state to charge Craven with the more specific offense of fleeing causing death and (2) because death is an element of fleeing causing death, fleeing causing death cannot serve as the predicate felony for felony murder without “extinguishing” fleeing causing death as a separate offense. Craven, 628 N.W.2d at 636. After the supreme court denied the state’s petition for further review, the state charged Craven with two counts of fleeing causing death, in violation of Minn. Stat. § 609.487, subd. 4 (2000).
D E C I S I O N
Craven argues that the prosecution for violating Minn. Stat. § 609.487, subd. 4 (2000), is barred by the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, and by the Double Jeopardy Clause of the Minnesota Constitution. See U.S. Const. amend. V; Minn. Const. art. I, § 7. We review de novo the district court’s conclusion that retrial of Craven does not amount to double jeopardy. See State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).
Although the double-jeopardy provision of the Minnesota Constitution may be interpreted to provide greater protection than its federal analog, State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985), Craven does not make such an argument here. Thus, our analysis focuses on federal constitutional law.
As the U.S. Supreme Court has observed,
[i]t has long been settled * * * that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.
Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 289 (1988) (citation omitted). But where an appellate court reverses a conviction after concluding that the evidence against the defendant was “legally insufficient,” the Double Jeopardy Clause precludes a second trial. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150 (1978).
This exception to the rule allowing retrial, known as the Burks doctrine, applies only “to reversals that ‘necessarily establish the criminal defendant’s lack of criminal culpability.’” Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir. 1995) (quoting United States v. Scott, 437 U.S. 82, 98, 98 S. Ct. 2187, 2197-98 (1978) (quotation omitted)).
The Burks doctrine will * * * not apply when a conviction is reversed by an appellate court due to other types of deficiencies, such as a charge that does not encompass the defendant’s conduct, or an error in instructing the jury.
5 Wayne R. LaFave et al., Criminal Procedure § 25.4(b), at 679 (2d ed. 1999). Thus, in Hall, where the defendant’s incest conviction had been reversed by the Montana Supreme Court because at the time of the offense the incest statute did not apply to sexual assaults against stepchildren, the U.S. Supreme Court upheld a retrial under a more general sexual-assault statute. Montana v. Hall, 481 U.S. 400, 404, 107 S. Ct. 1825, 1827 (1987). The Court concluded that the Double Jeopardy Clause does not bar retrial where the reversal is “on grounds unrelated to guilt or innocence,” id. at 403, 107 S. Ct. at 1827, or where the government “simply relied on the wrong statute in” the indictment, id. at 404, 107 S. Ct. at 1827.
Here, this court reversed Craven’s first conviction because we determined that charging Craven with felony murder was legal error:
The district court erred in failing to dismiss felony-murder charges with fleeing a peace officer as the predicate felonies because the charges violate the rule that the more specific crime prevails over a more general crime with the same elements, and also constitute an unwarranted extension of the felony-murder doctrine.
State v. Craven, 628 N.W.2d 632, 637 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). Thus, Craven’s first conviction was reversed not on grounds related to his guilt or innocence with respect to the felony-murder charge but rather on the ground that the state simply relied on the wrong statute in charging him. See Hall, 400 U.S. at 403, 107 S. Ct. at 1827; Parker, 64 F.3d at 1180-82 (holding that retrial following state supreme court’s reversal of felony-murder conviction on ground that “killings were not committed during the course of an independent felony” did not constitute double jeopardy).
Craven argues that this court reversed his felony-murder conviction “because there was insufficient evidence, as a matter of law, that [he] committed felony murder.” But the opinion reversing the conviction states that, at that time, Craven “argue[d] that the district court erred by failing to dismiss each felony-murder charge because the more specific charge of fleeing causing death applie[d]” pursuant to State v. Kalvig, 296 Minn. 395, 209 N.W.2d 678 (1973), not that the district court erred because there was insufficient evidence to support a felony-murder charge. Craven, 628 N.W.2d at 634. Thus, Craven appears to have argued in his first appeal that the state relied on the wrong statute in charging him, although even if he had argued that the evidence was insufficient to support the felony-murder conviction, we did not reverse the conviction on that basis.
We therefore conclude that the prosecution for violating Minn. Stat. § 609.487, subd. 4, is not barred by the double-jeopardy provisions of the federal and Minnesota constitutions.
Craven next argues that any retrial is barred by Minn. Stat. § 609.035, subd. 1 (2002), which forbids serialized prosecution. We review de novo the district court’s conclusion that section 609.035, subdivision 1, did not bar retrial on the fleeing-causing-death charges. See State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).
The statute provides that
if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Minn. Stat. § 609.035, subd. 1. Thus, as the supreme court concluded in Schmidt, retrial is barred by Minn. Stat. § 609.035, subd. 1, if (1) the defendant’s course of conduct consists of a single behavioral incident and (2) the defendant was either convicted of or acquitted on any count arising from that incident. State v. Schmidt, 612 N.W.2d 871, 876-77 (Minn. 2000). This statute was intended “to broaden the protection afforded by our constitutional provisions against double jeopardy.” Id. at 876 (quotation and citation omitted).
A. Single Behavioral Incident
The first issue is whether the charges arise from a single behavioral incident. In reaching a decision on this issue, this court considers “the factors of time and place and also whether the conduct was motivated by an effort to obtain a single criminal objective.” Id. Here, the charges all involve an incident that occurred at a single, particular time and place: Craven’s flight from police on August 28, 1998. Thus, the charges arise from a single behavioral incident.
B. Convictions on Charges Arising from the Incident
On appeal, Craven does not ask this court to apply the Schmidt analysis and does not specifically argue that he was either “convicted” or “acquitted” for purposes of Minn. Stat. § 609.035, subd. 1, in the first trial. Craven instead argues that the state “waived” the opportunity to charge him with fleeing causing death when it dropped those charges in the first trial and that to allow a retrial in spite of the state’s “waiver” would “encourage prosecutorial manipulation in the charging process.” Recognizing that Schmidt is the controlling authority with respect to Minn. Stat. § 609.035, subd. 1, and after reviewing the record on appeal, we conclude that we must address whether Craven’s felony-murder conviction in the first trial constitutes a “conviction” for purposes of Minn. Stat. § 609.035, subd. 1.
In Schmidt, the supreme court held that there was no “final conviction” within the meaning of Minn. Stat. § 609.035, subd. 1, barring retrial where the defendant successfully sought to vacate the jury’s guilty verdicts on several counts and the state, in recharging, did not charge “additional offenses or offenses involving a greater penalty.” Id. at 877; see also State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980) (concluding that conviction set aside on appeal is not “final conviction” barring further prosecution). Here, Craven successfully challenged his felony-murder conviction in this court. Thus, the question of whether Craven was previously “convicted” turns on whether the state charged either additional offenses or offenses involving a greater penalty, after Craven’s felony-murder conviction was reversed.
We find the standard set forth in Minn. R. Crim. P. 17.05, which governs amendment of a criminal complaint, helpful in evaluating whether the state charged Craven with any additional offenses. Under the rule, “if [inter alia] no additional or different offense is charged,” the state may amend the complaint. See Minn. R. Crim. P. 17.05. A different offense is charged “if an amendment affects an essential element of the charged offense.” State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997) (quotation and citation omitted). Here, felony murder, with fleeing a peace officer as the predicate felony, and fleeing causing death have the same elements. Craven, 628 N.W.2d at 635 (concluding that the two offenses have the same elements). Compare Minn. Stat. § 609.19, subd. 2(1) (2000), and Minn. Stat. § 609.487, subd. 3 (2000), with Minn. Stat. § 609.487, subd. 4. Thus, no “additional offenses” were charged.
We also conclude that the state did not charge Craven with offenses involving a greater penalty. The statutes in effect at the time Craven was charged with fleeing causing death show that the penalty for felony murder was greater than the penalty for the offense of fleeing causing death. Compare Minn. Stat. § 609.19, subd. 2 (providing 40-year maximum sentence), with Minn. Stat. § 609.487, subd. 4(a) (providing 10-year maximum sentence). Thus, no offenses involving greater penalties were charged, and we conclude that Craven was not “convicted” within the meaning of section 609.035, subdivision 1.
We conclude that the district court did not err by finding that Minn. Stat. § 609.035, subd. 1, did not bar retrial of Craven on the fleeing-causing-death charges. The convictions are therefore affirmed.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.