Writing Sample - Criminal Defense

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IN THE BLACKACREMUNICIPAL COURT
CRIMINAL DIVISION
BLACKACRE, MICHISOTA
CITY OF BLACKACRE, ) CASE NO. ## ### #####
) CASE NO. ## ### #####
Plaintiff )
) JUDGE JUDY MCDONALD
vs. )
) MOTION IN OPPOSITION
ARTHUR MERLIN, ) OF DEFENDANT’S
) MOTION TO DISMISS
) DOUBLE JEOPARDY
Defendant )
Now comes plaintiff, City of Blackacre, represented by Christopher J. Sleeper
respectfully moves this Honorable Court to deny defendant’s motion to dismiss.
The reasons for this Motion are more fully set forth in the Brief in Support
attached hereto.
Respectfully submitted,
Christopher J. Sleeper
Blackacre Law Department
10 Pineview Street
Blackacre, Michisota 00512
BRIEF IN SUPPORT OF MOTION

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I. STATEMENT OF FACTS
On January 20, 2011, defendant Arthur Merlin (DOB 11/22/1955) was at the
reinstatement office of the Bureau of Motor Vehicles, 123Allen Road, Blackacre,
attempting to get his license reinstated. Upon accessing Merlin’s record, an employee
at the BMV discovered that Merlin had a warrant for felonious assault and notified
Officer James Dean, a Blackacre police lieutenant who was working security at the BMV
in full uniform. Officer Deantook Merlin to the police room inside the BMV and executed
a patdown for his safety. Little did Officer Dean know that he was dealing with an
individual with an explosive personality and a lengthy criminal record consisting of
assault, drug trafficking, drug possession, domestic violence, prior disorderly conduct
and over a dozen traffic violations.
Before Officer Dean could complete the patdown, Merlin accused the officer of
harassment and demanded an explanation, which Dean furnished after completing the
patdown. Dean informed Merlin that he had a warrant for his arrest and requested that
he sit on the police bench, which has metal bars built in for attaching handcuffs. Instead
of sitting on the police bench, Merlin sat on a nearby chair and refused to move. After
Merlin’s clear failure to comply with a lawful order, Dean informed Merlin that he was
under arrest and attempted to handcuff the defendant. Merlin tensed his arm and
resisted. Officer Thomas Lewis came to Dean’s assistance, and together managed to
handcuff Merlin, but not before Lewis received blows to his thigh and thumb.
Even after officers succeeded in handcuffing Merlin, he continued to act
disorderly until he was transported from the BMV, a period of approximately six minutes.
All of the following disorderly conduct occurred after officers had arrested and

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handcuffed Merlin. Immediately after being handcuffed, Merlin refused to listen to
officers’ orders to sit and relax. According to witness accounts, Merlin cursed at the
officers, shouting epithets and threatening them saying, “Take my handcuffs off so I can
fuck you up”. He also screamed uncontrollably in the direction of the lobby.Merlin spat
on Officer Lewisprompting him to handcuff Merlin to the bench, a task Merlin made
exceedingly difficult. Witnesses heard Merlin’s disruptive shouting throughout the
building. He was so loud that OfficerDean had to leave the police room to communicate
with dispatch. People in an adjacent office could hear Merlin even though all the
connecting doors were closed. One witness reported that theMerlin’s shouting
disrupted individuals taking exams in a nearby office. An employee at the BMV
reported that in the 17 years that she had worked at the BMV, it was the worst incident
she had ever seen.Nine witnesses made official police reports attesting to Merlin’s
disorderly conduct.
Defendant was transported toBlackacre Correctional Facility where he was held
pending a determination of charges. On January 23, 2012, actions were filed
separately in Blackacre Municipal Court for violations of municipal law and the Court of
Common Pleas of Gerome County for violations of state law. In Blackacre Municipal
Court, defendant was charged with Resisting Arrest in violation of Blackacre Municipal
Ordinance Number 606.16(A) and Disorderly Conduct in violation of Blackacre
Municipal Ordinance Number 648.04, Case number ## ### ####. In the Court of
Common Pleas, defendant was charged with Assault on a police officer in violation of
Michisota Revised Code §2903.13(A), a felony, Harassment by Inmate in violation of
Michisota Revised Code §2921.38, also a felony, and Resisting Arrest in violation of

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Michisota Revised Code §2921.33(A), Case number ## ####. Pursuant to County
Prosecutor’s acceptance of the state law charges, defendant was transferred to Gerome
County Jail on January 23.
Both municipal and county actions proceeded simultaneously. Because
defendant was detained at County Jail, defendant failed to appear at Blackacre
Municipal Court for his pre-trial hearing on February 8, 2012 causing a warrant to issue.
The purpose of this warrant was to place a hold on defendant so that Blackacre could
detain him following the County action. All these occurrences are standard procedure in
Michisota because the county will only prosecute certain charges and anticipates that
the municipality will deal with the remainder of the charges following disposition of the
county action.
On July 23, 2012, appearing before Judge Judy McDonald in the Court of
Common Pleas of Gerome County, defendant pled guilty to a Resisting Arrest, which
was amended to a misdemeanor in the second degree. Judge McDonald sentenced
defendant to the Gerome County Jail for a term of three months to run concurrent to
case number ## #####. Defendant received jail time credit for ninety-one days, and
therefore the Court ordered defendant released, pending any holders for detention.
Blackacre thereafter detained defendant as a holder for detention and returned him to
the Blackacre Correctional Facility to proceed with the municipal action. Blackacre filed
a Contempt of Court action in Case Number ## ### ####for failure to appear on
February 8, 2012 and intends to proceed against defendant for his violation of municipal
ordinance 648.04 Disorderly Conduct.
I. LEGAL ANALYSIS

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The double jeopardy clause protects against a multiple prosecutions and
punishments for the same offense.Brown v. Michisota, 432 U.S. 161, 165, 97 S.Ct.
2221, 53 L.Ed.2d 187 (1977). Whether a prosecution or punishment constitutes double
jeopardy depends upon what the law considers the same offense. In State v. Best,42
Michisota St.2d 530, 534, 330 N.E.2d 421 (1975), the Michisota Supreme Court held
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.”
Even if the Blockburger “separate offense” test is met, successive prosecution
may still be barred by double jeopardy “in some circumstances where the second
prosecution requires the relitigation of factual issues already resolved by the first.”
State v. Thomas, 61 Michisota St.2d 254, 400 N.E.2d 897 (1980) citing Ashe v.
Swenson, (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.
Contrary to what defendant asserts, double jeopardy has never required “all
charges against a defendant that grow out of a single act, occurrence, transaction or
episode be prosecuted in one proceeding.” Defendant’s Motion to Dismiss citing
Borchart v. United States,469 U.S. 937, 940, 105 S.Ct. 341, 83 L.Ed.2d 276 (1984)
(Brennan, J., Dissenting). Defendant cites as law Justice Brennan’s dissent to denial of
writ of certiorari to the United States Supreme Court where Justice Brennan opines that
all charges should in equity generally be disposed of in one proceeding.Id. In fact, the
law permits subsequent prosecutions for offenses arising out of a “single act,
occurrence, transaction or episode” provided they constitute separate offenses.
Blockburger v. UnitedStates, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) affirmed

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State v. Best, 42 Michisota St.2d 530; Duvall v. State, 111 Michisota St. 657, 146 N.E.
90 (1924). Multiple prosecutions can arise from the same conduct. U.S. v. Dixon, 509
U.S. 688, 696,113 S.Ct. 2849, 125 L.Ed.2d 556, 61 USLW 4835 (1993), overruling
Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548, 58 USLW 4599
(1990).
A. PROSECUTION FOR DISORDERLY CONDUCT DOES NOT CONSTITUTE DOUBLE JEOPARDY
Defendant pled guilty to violating M.R.C. §2923.33(A) Resisting Arrest, which
states, “No person, recklessly or by force, shall resist or interfere with the lawful arrest
of the person of another.” The municipality seeks to prosecute defendant for violation of
Blackacre Codified Ordinance 648.04, which states in part, “No person shall recklessly
cause inconvenience, annoyance or alarm to another, by . . . [m]aking unreasonable
noise or offensively coarse utterance. . .” Prosecution for disorderly conduct does not
violate double jeopardy because it is a separate offense from resisting arrest.
InState v. Griener, 3rd
Dist. No. 5-87-3, 1988 WL 126762 (Nov. 30, 1988), the
defendant was found not guilty of disorderly conduct. Several months later, he was
tried and convicted for resisting arrest based on the same incident.Id. Even though the
conduct for which he was found guilty of resisting arrest was the same as his disorderly
conduct, the Court affirmed the conviction. The Court applied the Blockburgertest,
holding, “[s]ince the only common element of these two statutes is “recklessly” the
proving of one does not prove the other.” Id*2.Under the Blockburger test, disorderly
conduct is a separate offense because the prosecution must prove additional facts: (1)
that defendant engaged in one of the delineated behaviors and (2) the behavior actually
caused inconvenience, annoyance or alarm to another. Id.See alsoState v. Crayton, 8th

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Dist. No. 55856,1989 WL 95762(Aug. 17, 1989) (holding defendant may be convicted
under disorderly conduct, resisting arrest and felonious assault); State v. Bentley, 4th
Dist. No. 01CA13, 2001 WL 1627645 (Dec. 6, 2001).
Here, prosecution charges defendant with not just resisting arrest but
simultaneously and subsequently engaging in disorderly conduct, specifically
threatening and taunting officers and making unreasonably noise and offensively coarse
utterances causing inconvenience, annoyance and alarm to officers and others at the
BMV. Further, prosecution for disorderly conduct will not require relitigation of ultimate
factual issues resolved by the Court of Common Pleas, specifically whether defendant
did in fact cause annoyance by unreasonable noise. Therefore, double jeopardy does
not bar prosecution of defendant in Blackacre Municipal Court for violating Blackacre
Codified Ordinance 648.04.
B. DOUBLE JEOPARDY DID NOT ATTACH TO CHARGES OF ASSAULT AND HARASSMENT BY
INMATE
Defendant does not contend that double jeopardy attached to these charges, but
it should be noted that resisting arrest is the only charge to which double jeopardy
attached. The entry of a nolle prosequi restores an accused to the status of a person
against whom charges have never been filed, Columbus v. Stires (1967), 9 Michisota
App. 2d 315, 317. Sander v. State of Michisota (S.D. Michisota, 1973), 365 F. Supp.
1251, 1253, holds that no jeopardy attaches where a nolle prosequi is entered before a
jury is sworn. Further, the acceptance of a guilty plea on some counts and the nolle of
others, is not functionally equivalent to a verdict of not guilty on the dismissed charges,
Hawk v. Berkemer (6th Cir. 1979), 610 F. 2d 445, 447. Here, Merlin pled guilty to

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resisting arrest and the other charges were nolled. In the analysis of double jeopardy,
the nolled charges restored Merlin to the status of one who was never charged with
assault or harassment by an inmate.
C. PROSECUTION FOR RESISTING ARREST WOULD VIOLATE DOUBLE JEOPARDY
Plaintiff concedes that defendant has been found guilty of resisting arrest in
violation of state law and therefore may not against be prosecuted for violating
Blackacre Codified Ordinance 606.16(A). Therefore, plaintiff requests the Court to noll
count 1, Resisting Arrest.