CHIEF JUSTICE BURGER, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
I dissent from the denial of certiorari because the decision of the Supreme Court of Illinois is directly contrary to Illinois v. Vitale, 447 U.S. 410 (1980), and other decisions of this Court.
Respondent drove her eastbound automobile over a highway dividing median, striking a westbound car head on and killing two 13-year-old girls who were passengers in the westbound car. An Illinois State Police officer at the scene cited respondent for the traffic offense of crossing the median.*fn1 In January 1976, she pleaded guilty to that offense and she was convicted and fined.
In May 1976, following an investigation of the collision, a state grand jury indicted respondent on two counts of reckless homicide.*fn2 The State subsequently filed a bill of particulars indicating that in order to show that respondent's conduct leading up to the collision was reckless, it would
prove that she drove too fast for conditions; failed to reduce speed to avoid an accident; failed to drive her vehicle in the proper lane of the roadway; failed to exercise due care for the safety of persons rightfully on the highway; improperly passed on the right; improperly passed on the left; and failed to wear corrective lenses as required by her driver's license. The State explained that it would use the fact that respondent had driven across the center line of the highway only "in order to show the causal nexus between [respondent's] conduct prior to actually crossing the median strip and the death of the two victims."*fn3
The trial court granted respondent's motion to dismiss the indictment on double jeopardy grounds, and the Appellate Court affirmed. The divided Supreme Court of Illinois also affirmed, reasoning that "the State intends to use the factual basis which led to the first conviction as the basis for the second conviction." 83 Ill. 2d 440, 445, 415 N. E. 2d 341, 343 (1980).
Illinois v. Vitale, supra, involved strikingly similar facts. The respondent's automobile struck and killed two children; a police officer at the scene issued a traffic citation charging the respondent with failing to reduce speed to avoid an accident; the respondent was convicted and fined; the State then charged him with involuntary manslaughter under the statute involved in the present case.*fn4 The Supreme Court of Illinois, by precisely the same division as that presented here, held that the second prosecution was barred by the Double Jeopardy Clause of the Federal Constitution. Noting that "[the] sole question before us is whether the offense of failing
to reduce speed to avoid an accident is the 'same offense' for double jeopardy purposes as the manslaughter charges brought against Vitale," id., at 415-416, we held:
"[The] Blockburger test [ Blockburger v. United States, 284 U.S. 299 (1932)] focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus [in Brown v. Ohio, 432 U.S. 161, 166 (1977),] we stated that if 'each statute requires proof of an additional fact which the other does not,' . . . the offenses are not the same under the Blockburger test." Id., at 416, quoting 432 U.S., at 166 (emphasis supplied by Vitale Court).
We amplified this by example. Brown v. Ohio, we explained, depended on the fact that a prosecutor who has established the offense of "joyriding" need only prove the requisite intent in order to establish auto theft, and "'the prosecutor who has established auto theft necessarily has established joyriding as well.'" Vitale, supra, at 417, quoting Brown, supra, at 168. If proof of auto theft had not necessarily involved proof of joyriding, "the successive prosecutions would not have been for the 'same offense' ...