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

MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.

The Court reverses the judgment of the Ohio Court of Appeals because the Court does not wish this case to slip by without taking advantage of the opportunity to pronounce some acceptable but hitherto unenunciated (at this level) double jeopardy law. I dissent because, in my view, this case does not deserve that treatment.

I, of course, have no quarrel with the Court’s general double jeopardy analysis. See Jeffers v. United States, ante p. 137. I am unable to ignore as easily as the Court does, however, the specific finding of the Ohio Court of Appeals that the two prosecutions at issue here were based on petitioner’s separate and distinct acts committed, respectively, on November 29 and on December 8, 1973.

Petitioner was convicted of operating a motor vehicle on December 8 without the owner’s consent. He subsequently was convicted of taking and operating the same motor vehicle on November 29 without the owner’s consent and with the intent permanently to deprive the owner of possession. It is possible, of course, that at some point the two acts would be so closely connected in time that the Double Jeopardy Clause would require treating them as one offense. This surely would be so with respect to the theft and any simultaneous unlawful operation. Furthermore, as a matter of statutory construction, the allowable unit of prosecution may be a course of conduct rather than the separate segments of such a course. See, e.g., United States v. Universal C. I.T. Credit Corp., 344 U.S. 218 (1952). I feel that neither of these approaches justifies the Court’s result in the present case.

Nine days elapsed between the two incidents that are the basis of petitioner’s convictions. During that time the automobile moved from East Cleveland to Wickliffe. It strains credulity to believe that petitioner was operating the vehicle every minute of those nine days. A time must have come when he stopped driving. the car. When he operated it again nine days later in a different community, the Ohio courts could properly find, consistently with the Double Jeopardy Clause, that the acts were sufficiently distinct to justify a second prosecution. Only if the Clause requires the Ohio courts to hold that the allowable unit of prosecution is the course of conduct would the Court’s result here be correct. On the facts of this case, no such requirement should be inferred, and the state courts should be free to construe Ohio’s statute as they did.

This Court, I fear, gives undeserved emphasis, ante at 163-164, to the Ohio Court of Appeals’ passing observation that the Ohio misdemeanor of joyriding is an element of the Ohio felony of auto theft. That observation was merely a preliminary statement, indicating that the theft and any simultaneous unlawful operation were one and the same. But the Ohio Court of Appeals then went on flatly to hold that such simultaneity was not present here. Thus, it seems to me, the Ohio courts did precisely what this Court, ante at 169 n. 8, professes to say they did not do.

In my view, we should not so willingly circumvent an authoritative Ohio holding as to Ohio law. I would affirm the judgment of the Court of Appeals.