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State v. Canon9/21/1999
APPEAL from an order of the circuit court for Taylor County: DOUGLAS T. FOX, Judge. Affirmed.
The State of Wisconsin appeals an order dismissing a perjury charge against Phillip Canon relating to Canon's testimony in a previous trial prosecuting him for driving under the influence , for driving with a prohibited blood alcohol concentration, sixth offense and operating after revocation, third offense. At that trial, Canon admitted drinking the day in question but testified that he had not been driving his pickup truck and that his friend was the driver. This was Canon's only defense.
A jury acquitted Cannon on all charges. However, subsequent evidence indicated that Canon had lied in denying that he was the driver. Consequently, the State charged Canon with perjury. To succeed in prosecuting Canon for perjury, the State must prove that Canon drove the car during the time giving rise to the traffic charges. Because a jury has already determined there was insufficient proof Canon was driving, we conclude that issue preclusion, embodied in the constitutional provisions against double jeopardy contained in both the federal and state constitutions pursuant to Ashe v. Swenson, 397 U.S. 436, 445 (1970), precludes relitigating this factual issue. Furthermore, we conclude that an issue of ultimate fact cannot be relitigated even when the judgment was obtained by the defendant's false testimony. Accordingly, we affirm the judgment dismissing the perjury charge.
The facts are undisputed for purposes of this appeal. On July 4, 1996, Canon and a companion, Carey Pergande, were traveling through Taylor County in Canon's pickup truck when they stopped at the roadside to urinate. While they were stopped, a Taylor County police officer approached and inquired whether the two were having any problems with their vehicle. From the officer's observations and conversation with the two men, the officer determined that Canon was intoxicated and was the driver of his pickup truck. Although Canon told the officer that Pergande was the driver, the officer arrested Canon.
Pergande gave a written statement to the police to the effect that it was Canon who was driving the pickup truck. Pergande was subpoenaed for trial but he did not appear and the court refused to admit his written statement, because it was hearsay. At trial Canon admitted drinking and did not contest that his driver's license was revoked; the single issue, therefore, was whether he was the driver at the time in question. Canon testified on his own behalf and asserted under oath that he was not driving his pickup truck on the day in question but that his friend Pergande was the driver. The jury subsequently acquitted Canon of all charges.
Within a month of trial, a friend of Pergande, Antonio Que Sada, informed Taylor County authorities that Canon had admitted that he had lied in denying that he was the driver. Partially based on this supporting evidence, Canon was charged with perjury. The trial court concluded that the issue of who was driving the truck was decided by the jury's verdict in the initial trial. Because the jury determined there was insufficient proof that Canon was driving, the trial court found the State was barred by the doctrine of issue preclusion from relitigating this issue.
We must determine whether the prosecution for perjury following the defendant's acquittal of the three driving-related charges violates the principles of issue preclusion embodied in the double jeopardy clauses of the federal and Wisconsin constitutions. Whether an individual's constitutional right to be free from double jeopardy has been violated is a question of law that this court reviews de novo. See State
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