NOTICE: This opinion is subject to
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBYN A. TODD, )
) Court of Appeals No. A-4618
Appellant, ) Trial Court No. 3AN-91-8149
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1374 - October 21, 1994]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Robyn A. Todd and an accomplice, Joseph Harvey, robbed
the Hub Bar in Anchorage. They forced their way into the office
at gunpoint and threatened the owner, Lloyd Dahl, and two
employees, Nancy Jourdan and George Gillis. Todd led Gillis to
another area of the bar, while Harvey stayed with Dahl in the
office. Harvey directed Dahl to give him the bar's cash
receipts. When Dahl resisted, he was shot and killed. Jourdan
heard the gun shot from outside the office; she fled the bar and
flagged down a passing community patrol van. The police were
quickly summoned and, after a brief armed confrontation, Todd and
Harvey were arrested.
Todd was convicted of the first-degree robbery of Lloyd
Dahl, AS 11.41.500(a)(1), the second-degree murder of Lloyd Dahl,
AS 11.41.110(a)(3), and the third-degree assault of George
Gillis, AS 11.41.220(a)(1). At his sentencing, Todd argued that
the double jeopardy clauses of the Federal and State Constitu
tions1 barred separate sentences for the murder, robbery, and
assault. Superior Court Judge Rene J. Gonzalez disagreed, ruling
that Todd could constitutionally receive separate sentences for
these three crimes. On appeal, Todd renews his argument
that he can only be sentenced for murder - that the double
jeopardy clauses of the Federal and State Constitutions bar his
receiving separate convictions and punishments for the robbery
and assault.2
The propriety of Todd's separate conviction and
sentence for the third-degree assault of George Gillis is the
easier issue. The Alaska Supreme Court has held that a defendant
who victimizes two or more people by a single assaultive act
commits a separately punishable assault for each victim. Cooper
v. State, 595 P.2d 648 (Alaska 1979). Likewise, a single act of
recklessness that kills two or more people constitutes a
separately punishable manslaughter for each victim. State v.
Dunlop, 721 P.2d 604 (Alaska 1986). Thus, even if the assault on
Gillis had arisen from exactly the same act as the assault and
killing of Dahl, it still would constitute a separately punish
able crime under Alaska law.
We turn now to the constitutionality of Todd's robbery
conviction. Todd's argument rests on two premises: first, that
robbery is a lesser included offense of felony murder, and
second, that it is unconstitutional to separately punish anyone
for both a greater offense and an included offense.
Todd's most serious offense, felony murder, is a form
of second-degree murder under AS 11.41.110(a)(3):
A person commits the crime of murder in
the second degree if
. . . .
(3) acting either alone or with one or
more persons, the person commits or attempts
to commit arson in the first degree, kidnap
ping, sexual assault in the first degree,
sexual assault in the second degree, burglary
in the first degree, escape in the first or
second degree, or robbery in any degree and,
in the course of or in furtherance of that
crime, or in immediate flight from that
crime, any person causes the death of a
person other than one of the participants.
The State concedes that, under Alaska's cognate
approach to lesser included offenses, announced in Elisovsky v.
State, 592 P.2d 1221, 1225-26 (Alaska 1979), and in light of the
way Todd's offenses were pleaded, first-degree robbery was a
lesser included offense of felony murder in Todd's case. This
concession would seem to resolve this litigation in Todd's favor
because of two previous Alaska decisions: Tuckfield v. State, 621
P.2d 1350 (Alaska 1981), and Hughes v. State, 668 P.2d 842
(Alaska App. 1983).
In Tuckfield, the defendant had been convicted of both
rape and assault with intent to commit rape arising from a single
assault. The supreme court ruled that, under the theory of
Tuckfield's prosecution, assault with intent to commit rape had
been a lesser included offense of the completed rape. The court
then held that the double jeopardy clause prohibited separate
convictions for both the greater offense and the lesser included
offense:
It is well settled that [the] double
jeopardy [clause] is violated by conviction
of both an offense and a lesser included
offense, unless the convictions arise from
separate conduct. E.g., In re Dennis B., ...
135 Cal.Rptr. 82, 557 P.2d 514 (Cal. 1976);
People v. Brown, ... 523 P.2d 986, 988
([Colo.] 1974). [This] rule is related to,
but distinguishable from, the question
considered in Whitton v. State ... concerning
when separate punishment[s] may be imposed
for separate statutory offenses arising out
of the same conduct. ... A lesser included
offense may differ in terms of conduct or
intent from the greater offense [for Whitton
purposes]. However, a conviction of both
will still be proscribed by the double jeopar
dy bar.
Tuckfield, 621 P.2d at 1352.
Two years later, this court applied the Tuckfield
holding in Hughes v. State. Hughes was charged with first-degree
murder and attempted armed robbery under Alaska's former criminal
code. A jury found him guilty of attempted armed robbery but was
unable to agree on a first-degree murder verdict. Hughes, 668
P.2d at 843. To resolve the murder charge, Hughes entered a plea
to manslaughter. However, he argued that, under Tuckfield, the
double jeopardy clause barred separate convictions for
manslaughter and robbery because the robbery had been a lesser
included offense of the manslaughter. Id. at 843-44.3
The State attempted to avoid Tuckfield by arguing,
"[w]ithout any analysis, ... that attempted armed robbery is not
a lesser included offense of manslaughter." Id. at 844. This
court rejected the State's argument, declaring:
The principle that an underlying felony is a
lesser-included offense of a felony homicide
is well supported by federal and state case
law. ... Under [the] theory of manslaughter
[presented by the State (that is, that an
unintentional killing occurred during
Hughes's commission of armed robbery)], the
attempted armed robbery is a lesser included
offense of the manslaughter charge. We
therefore hold that Tuckfield requires us to
find that convicting Hughes of both attempted
robbery and manslaughter violated double jeop
ardy ... .
Hughes, 668 P.2d at 844-45 & n.6.
In the present appeal, Todd relies heavily on Tuckfield
and Hughes. The State, for its part, argues that Tuckfield
should be limited to its facts and that Hughes was wrongly
decided. The State's argument, like the trial court's ruling,
rests on the supreme court's decision in Whitton v. State, 479
P.2d 302 (Alaska 1970).
Whitton is the supreme court's seminal decision on the
issue of "whether separate punishments may be imposed for the
commission of separate statutory offenses arising from a single
criminal event". 479 P.2d at 305. After surveying the United
States Supreme Court's decisions on this issue, our supreme court
chose to adopt a different approach as a matter of state constitu
tional law:
In determining whether several statutory
violations constitute the same offense for
double jeopardy purposes, we will no longer
follow the same-evidence test as enunciated
in Blockburger v. United States [284 U.S.
299, 304; 52 S.Ct. 180, 182; 76 L.Ed. 306,
309 (1932).] ... We now meet the problem in
another way, ... by focusing upon the quality
of the differences, if any exist, between the
separate statutory offenses, as such differ
ences relate to the basic interests sought to
be vindicated or protected by the statutes.
The trial judge first would compare the
different statutes in question, as they apply
to the facts of the case, to determine
whether [they] involved differences in intent
or conduct. [The judge] would then [analyze]
any such differences ... in light of the
basic interests of society to be vindicated
or protected, and decide whether those
differences were substantial or significant
enough to warrant multiple punishments. The
social interests to be considered ... include
the nature of personal, property[,] or other
rights sought to be protected, and the broad
objectives of [the] criminal law[,] such as
punishment of the criminal for his crime,
rehabilitation of the criminal, and
prevention of future crimes.
Whitton, 479 P.2d at 312.
Here, when Todd raised the double jeopardy issue in the
superior court, Judge Gonzalez agreed that robbery was a lesser
included offense of felony murder in Todd's case; that is, if
Todd committed felony murder as alleged, he perforce committed
first-degree robbery. Nevertheless, Judge Gonzalez ruled that
the differences in intent and conduct between robbery and felony
murder were substantial enough to justify separate convictions
and sentences under Whitton.
Todd asserts that the trial court's ruling violates
both Alaska law and federal law. With regard to Alaska law, Todd
argues that the Alaska Supreme Court's decision in Tuckfield
establishes the hard-and-fast rule that separate convictions are
never allowed when one of a defendant's crimes is a lesser
included offense of the other, even though the two offenses
arguably have sufficient differences in intent and conduct to
satisfy the Whitton test. With regard to federal law, Todd
argues that Blockburger v. United States, 284 U.S. 299, 304; 52
S.Ct. 180, 182; 76 L.Ed. 306, 309 (1932), establishes the same
rule - that a defendant can never be convicted of two offenses
when one is a lesser included offense of the other.
Federal Double Jeopardy Law
The double jeopardy clause of the Fifth Amendment, made
applicable to the states by the Fourteenth Amendment, Benton v.
Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969),
prohibits a government from twice putting a defendant in jeopardy
for the "same offense". The Supreme Court has interpreted this
clause to embody two different protections for criminal
defendants. First, the clause contains a protection against
successive prosecutions; it prohibits the government from trying
a defendant twice for the same offense (regardless of whether the
first trial ended in conviction or acquittal). Second, the
clause contains a protection against double punishment; it
prohibits the government from convicting and sentencing a
defendant twice for what amounts to the same offense, even though
that single offense might be divided into ostensibly separate
offenses in the charging document and in the court's judgement of
conviction. North Carolina v. Pearce, 395 U.S. 711, 717; 89
S.Ct. 2072, 2076; 23 L.Ed.2d 656 (1969), modified on other
grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104
L.Ed.2d 865 (1989). For a good discussion of this topic, see
Judge Charles E. Moylan's double jeopardy exegesis in Mauk v.
State, 605 A.2d 157 (Md. App. 1992).
In Blockburger, the United States Supreme Court
developed a test for determining whether two offenses are the
"same offense" for double jeopardy purposes. Blockburger, 284
U.S. at 304, 52 S.Ct. at 182. Under the Blockburger test, the
elements of the two offenses are compared: if each offense
requires proof of an element that the other does not, then the
offenses are separate; but if one offense encompasses all the
elements of the other (that is, if the two offenses stand in the
relationship of greater and lesser included), then, for double
jeopardy purposes, they are deemed the same offense.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. See also Brown v.
Ohio, 432 U.S. 161, 165-66; 97 S.Ct. 2221, 2225-26; 53 L.Ed.2d
187 (1977).
The Blockburger test seemingly provided a simple method
for ascertaining the requirements of the federal double jeopardy
clause. However, in a series of later cases, the Supreme Court
held that, at least in instances when all the charges against a
criminal defendant are combined at a single trial (so that the
protection against successive prosecutions is not involved), the
role of the double jeopardy clause is limited to protecting a
defendant against receiving more punishment than the legislature
intended. See United States v. Halper, 490 U.S. 435, 450; 109
S.Ct. 1892, 1903; 104 L.Ed.2d 487 (1989) (The double jeopardy
clause only "ensur[es] that the [defendant's] total punishment
did not exceed that authorized by the legislature".); Brown v.
Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 ("[T]he role of the
constitutional guarantee is limited to assuring that the [sentenc
ing] court does not exceed its legislative authorization.").
Having adopted this interpretation of the double
jeopardy clause, the Supreme Court concomitantly construed the
Blockburger test as being only a tool of statutory construction -
a means of ascertaining legislative intent. If a legislature
indicates that it wishes cumulative punishment for two offenses,
then the Federal Constitution allows cumulative punishment even
though the two offenses might be the "same" under the Blockburger
test. This limited role of Blockburger was clarified by the
Supreme Court's decisions in two cases: Whalen v. United States,
445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Missouri
v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
Whalen involved a District of Columbia prosecution for
rape and felony murder committed during the rape; the defendant
was convicted of both offenses and received cumulative punishment
for these two crimes. He appealed, contending that his dual
punishment for both felony murder and the underlying felony
violated the double jeopardy clause. Whalen, 445 U.S. at 685-86,
100 S.Ct. at 1434.
The Supreme Court declared that "the question whether
[a defendant's] punishments ... are unconstitutionally multiple
cannot be resolved without determining what punishments the
Legislative Branch has authorized." Whalen, 445 U.S. at 688, 100
S.Ct. at 1436. The Court continued:
[I]f Congress has not authorized cumulative
punishments for rape and for an unintentional
killing committed in the course of rape, ...
the petitioner has been impermissibly sen
tenced. The dispositive question, therefore,
is whether Congress did so provide.
Whalen, 445 U.S. at 688-89, 100 S.Ct. at 1436.
The Court interpreted a portion of the District of
Columbia Code, 23-112 (1973), as expressing Congress's
intention to prohibit consecutive sentences whenever two offenses
would be considered the "same offense" under the Blockburger
test. Whalen, 445 U.S. at 690-93, 100 S.Ct. at 1437-38. The
Court then ruled that, under the Blockburger test, the District
of Columbia's felony-murder statute defined the "same offense" as
any of its six underlying felonies. Whalen, 445 U.S. 693-94, 100
S.Ct. at 1439.4 Thus, the Court held, the defendant in Whalen
had unlawfully been subjected to multiple punishment. However,
the Court took some pains to emphasize the limited nature of its
decision - to stress that its decision rested on statutory
grounds:
Congress is clearly free to fashion
exceptions to the rule it chose to enact in
23-112 [limiting consecutive sentences]. A
court, just as clearly, is not. Accordingly,
notwithstanding the arguments advanced by the
Government in favor of imposing consecutive
sentences for felony murder and for the under
lying felony, we do not speculate about wheth
er Congress, had it considered the matter,
might have agreed. It is sufficient for
present purposes to observe that a congressio
nal intention to change the general rule of
23-112 for the circumstances here presented
nowhere clearly appears.
Whalen, 445 U.S. at 695, 100 S.Ct. at 1439.
The statutory basis of the Whalen decision was
confirmed three years later in Missouri v. Hunter, 459 U.S. at
365-370, 103 S.Ct. at 678-79. Hunter involved a defendant who
had been convicted at a single trial of both armed robbery and
"armed criminal action", an offense defined by the Missouri
legislature as "commit[ting] any felony ... by, with, or through
the use, assistance, or aid of a dangerous or deadly weapon".
Hunter, 459 U.S. at 362, 103 S.Ct. at 676.
Even though the Missouri statute defining "armed
criminal action" explicitly provided that "[t]he punishment
imposed pursuant to this [statute] shall be in addition to any
punishment provided by law for the crime committed by, with, or
through the use, assistance, or aid of a dangerous or deadly
weapon," id., the Missouri Court of Appeals reversed Hunter's
conviction for armed criminal action. Relying on a previous
decision of the Missouri Supreme Court deciding the same issue5,
the Missouri Court of Appeals held that, under the Blockburger
test, "armed criminal action" was the same offense (for double
jeopardy purposes) as the underlying felony of armed robbery, and
therefore the Missouri legislature had no authority to order
cumulative punishment for the two crimes. Hunter, 459 U.S. at
362-63, 103 S.Ct. at 676.
The United States Supreme Court reversed the Missouri
court's decision, declaring that the Missouri court's ruling
"manifests a misreading of our cases on the meaning of the Double
Jeopardy Clause of the Fifth Amendment". Hunter, 459 U.S. at
365, 103 S.Ct. at 677.
Because [Hunter] has been subjected to only
one trial, it is not contended that his right
to be free from multiple trials for the same
offense has been violated. Rather, the Mis
souri court vacated [his] conviction for
armed criminal action because of the
statements of this Court that the Double
Jeopardy Clause also "protects against
multiple punishments for the same offense".
North Carolina v. Pearce[.] Particularly in
light of recent precedents of this Court, it
is clear that the Missouri Supreme Court has
misperceived the nature of the Double
Jeopardy Clause's protection against multiple
punishments. With respect to cumulative sen-
tences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater
punishment than the legislature intended.
Hunter, 459 U.S. at 365-66, 103 S.Ct. at 678 (citation omitted).
Returning to its decision in Whalen, the Court stated
that it was "clear ... that the result in Whalen turned on the
fact that the Court saw 'no clear indication of contrary
legislative intent.'" Hunter, 459 U.S. at 367, 103 S.Ct. at 678.
The Court then quoted its decision in Albernaz v. United States,
450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), where the
Court held that cumulative punishments could be imposed for
conspiracy to import marijuana and conspiracy to distribute
marijuana:
The Blockburger test is a "rule of statutory
construction," and because it serves as a
means of discerning congressional purpose the
rule should not be controlling where, for
example, there is a clear indication of con
trary legislative intent.
. . . .
The question of what punishments are constitu
tionally permissible is no different from the
question of what punishments the Legislative
Branch intended to be imposed. Where
Congress intended, as it did here, to impose
multiple punishments, imposition of such
sentences does not violate the Constitution.
Hunter, 459 U.S. at 367-68, 103 S.Ct. at 679 (quoting Albernaz,
450 U.S. at 340 & 344, 101 S.Ct. at 1143 & 1145) (emphasis by the
Hunter court).
The United States Supreme Court recognized that the
Missouri Supreme Court had "construed the two statutes at issue
as defining the same crime" under the Blockburger test, and the
Supreme Court further recognized that it was "bound to accept the
Missouri court's construction of that State's statutes". Hunter,
459 U.S. at 368, 103 S.Ct. at 679. "However," the Supreme Court
declared, "we are not bound by the Missouri Supreme Court's legal
conclusion that these two statutes violate the Double Jeopardy
Clause, and we reject its legal conclusion." Id.
Our analysis and reasoning in Whalen and
Albernaz lead inescapably to the conclusion
that simply because two criminal statutes may
be construed to proscribe the same conduct
under the Blockburger test does not mean that
the Double Jeopardy Clause precludes imposi
tion, in a single trial, of cumulative punish
ments pursuant to those statutes. The rule
of statutory construction noted in Whalen is
not a constitutional rule requiring courts to
negate clearly expressed legislative intent.
Thus far, we have utilized that rule only to
limit a federal court's power to impose con
victions and punishments when the will of
Congress is not clear. Here, the Missouri
Legislature has made its intent crystal
clear. Legislatures, not courts, prescribe
the scope of punishments.
Hunter, 459 U.S. at 368, 103 S.Ct. at 679 (emphasis added).
Federal courts confronting habeas corpus attacks on
state criminal judgements now recognize that the constitutional
ity of multiple convictions and punishments at a single trial
depends on the intention of the state legislature. Birr v.
Shillinger, 894 F.2d 1160, 1161-62 (10th Cir. 1990) (per curiam),
cert. denied, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671
(1990); Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989);
Gillespie v. Ryan, 837 F.2d 628, 630-32 (3rd Cir. 1988), cert.
denied, 488 U.S. 833, 109 S.Ct. 90, 102 L.Ed.2d 66 (1988);
Fallada v. Dugger, 819 F.2d 1564, 1572-73 (11th Cir. 1987);
Deloach v. Wainwright, 777 F.2d 1524, 1525-26 (11th Cir. 1985).
Thus, under Hunter, the question of whether Todd's dual
conviction for robbery and felony murder violates the federal
double jeopardy clause is to be answered by asking another
question: Did the Alaska legislature intend for defendants to be
separately punished for both felony murder and the underlying
felony?6
Todd asserts that the Hunter analysis has been altered
by the Supreme Court's decision in United States v. Dixon, ___
U.S. ___, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). We believe
that Todd has misinterpreted Dixon.
Dixon involved two defendants who had each been
prosecuted for contempt of court: one defendant (Dixon) had been
found in contempt for violating the terms of his bail release by
committing a new crime (possession of cocaine with intent to
distribute); the other defendant (Foster) had been found in
contempt for violating a restraining order by assaulting his
wife, by threatening on three other occasions to injure her, and
by assaulting her with intent to kill. In each case, after the
defendant had been punished for contempt of court, the government
sought to prosecute him for the underlying crime or crimes that
led to his contempt conviction. Dixon, 113 S.Ct. at 2853-54. By
a 5 to 4 vote, the Supreme Court ruled that Dixon's drug prosecu
tion and one of the charges brought against Foster (the charge of
simple assault) violated the federal double jeopardy clause.
Todd argues that the Supreme Court's resolution of
Dixon shows that he can not be prosecuted for both felony murder
and robbery. He analogizes the felony murder charge against him
to the contempt of court charges in Dixon, since they both
required proof of an underlying crime. Todd construes Dixon to
mean that whenever one criminal charge requires proof of another
underlying crime, a defendant can not be prosecuted for both
crimes. However, the facts and the text of Dixon do not support
Todd's interpretation.
Like the Court's previous decision in Whalen, the Dixon
case arose in the District of Columbia. Thus, as in Whalen, the
Supreme Court in Dixon had the authority to interpret the federal
statutes at issue in the appeal and to apply the Blockburger test
as the rule of construction. Two members of the court (Scalia
and Kennedy) resolved Dixon on this statutory basis.
Justices Scalia and Kennedy believed that Dixon's drug
possession charge and Foster's simple assault charge were barred
by the Blockburger rule that two criminal offenses are presump
tively the "same offense" for double jeopardy purposes if the
elements of one are completely subsumed in the elements of the
other. Dixon had, as a condition of his release, been ordered
not to commit any criminal offense. To prove that Dixon had
violated this condition, the government alleged and proved that
Dixon had possessed cocaine with intent to distribute. Foster
had been under a restraining order prohibiting him from
"molest[ing], assault[ing], or in any manner threaten[ing] or
physically abus[ing]" his wife. 113 S.Ct. at 2854. In one of
its later five charges against Foster, the government alleged and
proved that Foster had assaulted his wife. Justices Scalia and
Kennedy held that Dixon's act of drug possession and Foster's act
of simple assault were completely subsumed in the elements of the
government's proof in the two defendants' contempt prosecutions;
thus, the defendants' later prosecutions for these underlying
crimes were barred. For this same reason, however, Justices
Scalia and Kennedy concluded that the four other assault charges
brought against Foster were not barred by the double jeopardy
clause, since these charges alleged aggravated assault, and proof
of those charges required proof of additional elements (intent to
kill, or a threat to kidnap or injure). 113 S.Ct. at 2858-59.
Three other members of the court (White, Stevens, and
Souter) believed that the double jeopardy clause barred Dixon's
drug prosecution and all of Foster's assault prosecutions - not
because of Blockburger's rule of statutory interpretation, but
because of the other prohibition contained in the double jeopardy
clause: the bar on successive prosecutions arising from the same
conduct. Justice White wrote:
[The government's] second, more powerful,
argument [in support of the defendants' con
victions] is that contempt and the underlying
substantive crime constitute two separate
offenses for they involve injuries to two
distinct interests, the one the interest of
the court in preserving its authority, the
other the public's interest in being
protected from harmful conduct. This
position finds support in Justice Blackmun's
partial dissent [113 S.Ct. at 2879-2881], and
is bolstered by reference to numerous
decisions acknowledging the importance and
role of the courts' contempt power.
[citations omitted] [This argument] cannot
lightly be dismissed. Indeed, we recognized
in Young [v. United States ex rel. Vuitton et
Fils, 481 U.S. 787, 800, 107 S.Ct. 2124,
2134, 95 L.Ed.2d 740 (1987)] that contempt
"proceedings are not intended to punish
conduct proscribed as harmful by the general
criminal laws. Rather, they are designed to
serve the limited purpose of vindicating the
authority of the court. In punishing con
tempt, the Judiciary is sanctioning conduct
that violates specific duties imposed by the
court itself, arising directly from the
parties' participation in judicial
proceedings." Id., 481 U.S. at 800, 107
S.Ct. at 2134.
The fact that two criminal prohibitions
promote different interests may be indicative
of legislative intent and, to that extent,
important in deciding whether cumulative
punishments imposed in a single prosecution
violate the Double Jeopardy Clause. See
Missouri v. Hunter, 459 U.S. 359, 366-368,
103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983).
But the cases decided today involve instances
of successive prosecutions in which the
interests of the defendant are of paramount
concern.
Dixon, 113 S.Ct. at 2870-2871 (White, J., concurring) (underlined
emphasis added; italicized emphasis in the original). See also
the concurring opinion of Justice Souter, 113 S.Ct. at 2881-83.
Later in his opinion, Justice White declared his view that the
double jeopardy clause still allows vindication of both the
court's interest in preserving its authority through the contempt
power and society's interest in enforcing the criminal law. To
act in conformance with the double jeopardy clause,
judges and prosecutors [should] ensure, where
necessary or advisable, that the contempt and
the substantive charge be tried at the same
time, in which case the double jeopardy issue
"would be limited to ensuring that the [defen-
dant's] total punishment did not exceed that
authorized by the legislature." United
States v. Halper, 490 U.S. 435, 450, 109
S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989).
Dixon, 113 S.Ct. at 2873 (White, J., concurring).
The four remaining members of the court (Rehnquist,
joined by O'Connor and Thomas; and Blackmun, writing separately)
believed that Dixon's and Foster's later prosecutions were
entirely proper and were not barred by either the Blockburger
rule or the prohibition on successive prosecutions. Dixon, 113
S.Ct. at 2865-68 (Rehnquist, C.J., concurring and dissenting),
and 113 S.Ct. at 2879-2881 (Blackmun, J., concurring and
dissenting).
Returning to the facts of Todd's case, Todd was
prosecuted for felony murder and first-degree robbery at the same
trial. The various opinions in Dixon demonstrate that, for defen
dants convicted of several offenses at the same trial, Missouri
v. Hunter retains the allegiance of a clear majority of the
Supreme Court as the embodiment of the proper federal double
jeopardy analysis.7 That is, for federal double jeopardy
purposes, the question of whether Todd could properly be
convicted and sentenced for both robbery and felony murder
depends on whether the Alaska legislature intended to allow
cumulative punishment for the two offenses.
Survey of Cases from Other States
State courts are split on the question of whether a
defendant can be convicted of both felony murder and the
underlying felony. However, the precise contours of this split
are hard to gauge. Many of the state court decisions prohibiting
dual punishment are premised on a misunderstanding of federal
double jeopardy law. These courts believed, erroneously, that
the Supreme Court's decisions in Blockburger, Brown, Whalen, and
Harris stood for the rule that the Federal Constitution strictly
prohibited state legislatures from punishing a defendant for both
felony murder and the underlying felony, even when these two
charges were tried at a single trial.8
Other states have resolved the issue without reaching
any question of constitutional law. These states have found that
multiple punishments for a greater and a lesser included offense
are barred by either a state sentencing statute or by a common-
law rule of merger. Boulies v. People, 770 P.2d 1274 (Colo.
1989) (only one conviction allowed because of a state merger
rule); People v. Raymer, 662 P.2d 1066, 1068-1070 (Colo. 1983)
(construing felony murder as an aggravated form of armed
robbery); State v. Ah Choy, 780 P.2d 1097, 1099-1100 (Haw. 1989)
(construing felony murder as an aggravated form of armed robbery,
and reasoning that the legislature could not have intended
cumulative punishment when the mandatory punishment for murder is
life imprisonment); Swaite v. State, 612 S.W.2d 307, 308-09 (Ark.
1981) (construing state statutes to require merger of the
convictions); Candler v. State, 363 N.E.2d 1233, 1243 (Ind. 1977)
(state rule of merger); State v. Fratzke, 354 N.W.2d 402, 410
(Minn. 1984) (dictum) (discussion based on a state statute). See
also People v. Wilder, 308 N.W.2d 112, 116-121 (Mich. 1981)
(deciding the issue on state constitutional grounds, and
recognizing that the result under the Federal Constitution might
be different).
We now turn to the state court decisions which
(1) decide the issue on federal constitutional grounds and
(2) recognize that the federal double jeopardy question hinges on
the intent of the state legislature. Of these courts, the great
majority uphold separate punishment for felony murder and the
underlying felony.
In State v. Blackburn, 694 S.W.2d 934 (Tenn. 1985), the
Tennessee Supreme Court declared that it had earlier misread
Harris v. Oklahoma to flatly prohibit dual punishment for felony
murder and the underlying felony. See Briggs v. State (Briggs
II), 573 S.W.2d 157 (Tenn. 1978). The court now recognized that
Harris was confined to instances in which a defendant had been
subjected to successive prosecutions, and that the Federal
Constitution allowed cumulative punishment based on convictions
at a single trial (if that is what the state legislature
intended). Blackburn, 694 S.W.2d at 936.
Addressing the issue of whether a defendant could be
separately convicted and punished for assault with intent to
commit rape and a resulting felony murder, the Tennessee court
stated that
neither reason nor authority [supports the
rule] that one who commits murder during the
perpetration of a felony named [in the felony-
murder statute] cannot or should not be con
victed and punished for both the offense of
murder ... and for the named felony. Nothing
in the statutory definitions of [felony]
murder ... and of the felonies listed in [the
felony- murder statute] indicates a
legislative intent that conviction and
punishment for both offenses should not be
permitted.
Blackburn, 694 S.W.2d at 936-37 (quoting State v. Briggs (Briggs
I), 533 S.W.2d 290, 292-93 (Tenn. 1976)). Noting that the
underlying felony statutes and the murder statute "are directed
to separate evils", the court concluded that the Tennessee
legislature "intended that multiple punishments be imposed on
conviction of a defendant for felony murder and the underlying
felony." Id. at 937.
The Virginia Supreme Court reached the same conclusion
in Fitzgerald v. Commonwealth, 292 S.E.2d 798 (Va. 1982), cert.
denied, 459 U.S. 1228 (1983). The defendant had been convicted
of rape, robbery, and a resulting felony murder. The Virginia
court recognized that Harris and Brown dealt with the prohibition
against successive prosecutions, and that, when a defendant is
convicted of both felony murder and an underlying felony at a
single trial, the constitutionality of multiple punishment hinges
on the intent of the state legislature. Fitzgerald, 292 S.E.2d
at 809. The court then examined the legislative history of
Virginia's felony-murder statute. The court concluded that the
Virginia legislature had enacted the felony-murder statute as
part of its efforts to re-classify the various types of murder,
so that the penalty for each type might more justly reflect its
level of culpability. This legislative history, said the court,
reflected the legislature's intention to allow cumulative
punishment for both the murder and the underlying felony:
The overriding purpose of the murder
statutes being gradation, we can divine no
legislative intent to eliminate punishment
for other offenses included in the murder
statutes solely for the purpose of
categorizing the murder. The legislature has
granted authority for the punishment of rape
... and robbery[.] Moreover, ... the General
Assembly has provided, "When any person is
convicted of two or more offenses, and
sentenced to confinement, such sentences
shall not run concurrently, unless expressly
ordered by the court." In the face of the
current statutory scheme and its legislative
history, we can not say that the legislature
intended any elimination of [the] underlying
sentencing authority for rape and robbery
when it modified the murder statutes in 1975,
or on any prior occasion.
Fitzgerald, 292 S.E.2d at 810 (citations omitted). Moreover, the
Virginia court continued, "[a] contrary conclusion would create
disorder and anomalous results in punishments" because a
defendant convicted of robbery and non-felony second-degree
murder (e.g., murder committed knowingly or by an act of extreme
recklessness) might well receive a greater sentence of imprison
ment than a co-defendant who was convicted of robbery and felony
murder (which in Virginia is first-degree murder) arising from
the same transaction. Id. at 811. For these reasons, the
Virginia court concluded, the defendant's separate convictions
and punishments for rape, robbery, and felony murder did not
violate the double jeopardy clause. Id.
In State v. Greco, 579 A.2d 84 (Conn. 1990), the
Connecticut Supreme Court concluded that its legislature intended
separate punishments for felony murder and an underlying felony.
The court noted that the legislature had set forth separate
punishments in separate statutes for murder and the various
predicate felonies, rather than making the penalty for felony
murder a multiple or other direct enhancement of the penalties
for the underlying felonies. Id. The court also noted that the
Connecticut legislature had enacted several statutes that limited
a defendant's punishment for specified multiple offenses
potentially committed in the same transaction: "Since the
legislature has shown that it knows how to bar multiple
punishments expressly when it does not intend such punishment,
the absence of similar language in [the felony-murder statute]
provides evidence that the legislature intended cumulative
punishment." Id. The court then commented upon "the distinct
nature of the interests protected by the felony murder, robbery,
and burglary statutes":
An obvious purpose of the felony murder
statute, or any murder statute, is to protect
human life. ... In contrast, the basic ratio
nale [of the robbery statutes] is protection
against the terror of forcible taking ... ,
while the primary rationale of the crime of
burglary is protection against invasion of
premises likely to terrorize occupants[.]
Each of these three statutes penalizes a
different type of evil. Since the felony
murder statute and the underlying felony
statutes are designed to address separate
evils, they provide clear evidence that the
legislature intended multiple punishments.
Greco, 579 A.2d at 91 (citations omitted). Finally, the
Connecticut court interpreted the felony-murder statute as
representing another method of committing murder, rather than
representing an increased penalty provision for the underlying
felonies. Id. The court concluded, "[o]n the basis ... of the
language, structure, and legislative history of [the felony-
murder statute], ... that the legislature clearly intended
multiple punishments for felony murder and the underlying
predicate offenses of robbery and burglary." Id.
Accord: State v. McCovey, 803 P.2d 1234 (Utah 1990);
State v. Gonzales, 783 P.2d 1239, 1246-49 (Kan. 1989) (noting the
"absurdity" of allowing two criminal convictions if the injured
victim lives but allowing only one conviction if the victim
dies); People v. Williams, 240 Cal.Rptr. 717, 719-723 (Cal. App.
1987), cert. denied, 488 U.S. 832 (1988); Talancon v. State, 721
P.2d 764 (Nev. 1986) (legislative intent to allow cumulative
punishment inferred from the fact that the felony-murder statute
protects distinct interests from the predicate felony statutes,
and from the fact that the legislature had, through inaction,
apparently acquiesced in the Nevada court's earlier decision
allowing cumulative punishment); State v. Enmund, 476 So.2d 165
(Fla. 1985); State v. Close, 623 P.2d 940, 949-51 (Mont. 1981).
Not all the state decisions support multiple punish
ment. In Cook v. State, 841 P.2d 1345 (Wyo. 1992), the Wyoming
court recognized that the question was one of legislative intent,
but the court concluded that the Wyoming legislature had intended
only one punishment for felony murder and the underlying felony.
The Wyoming court interpreted felony murder to be, in essence,
the most aggravated form of robbery. The court stated, "[a]s the
threat of or use of violence against the person increases, the
severity of legislatively authorized punishment increases." Id.
at 1352. The court also relied on the fact that, under Wyoming
law, the punishment for murder is either death or life in prison
without possibility of parole - sentences that apparently obviate
the need for any additional punishment. Id. at 1353.
The Alaska Supreme Court's Decision in
Tuckfield
As discussed above, Todd relies on the Alaska Supreme
Court's decision in Tuckfield for the proposition that the double
jeopardy clause is invariably violated when a defendant is
"convict[ed] of both an offense and a lesser included offense,
unless the convictions arise from separate conduct." Tuckfield,
621 P.2d at 1352. As can be seen from the preceding discussion
of federal double jeopardy law, this statement from Tuckfield is
erroneous. Under the Federal Constitution, defendants who are
tried on several charges at a single trial can be separately
convicted and punished for both a greater offense and a lesser
included offense if the legislature has authorized this
cumulative punishment.
Moreover, the statement from Tuckfield is directly at
odds with the Alaska Supreme Court's decision in Jacinth v.
State, 593 P.2d 263 (Alaska 1979), a case decided less than two
years before. The defendant in Jacinth had burned down an
"adult" theater, unintentionally causing the death of a man who
lived on the premises. Jacinth was convicted of both second-
degree arson and manslaughter under the former criminal code.
Id. at 264. He argued that the double jeopardy clause prohibited
his receiving separate convictions for a single criminal act.
The supreme court rejected this argument, holding that arson and
manslaughter were sufficiently distinct (both in terms of the
conduct and intent they involved and in terms of the societal
interests they protected) to support separate convictions and
sentences under Whitton. Jacinth, 593 P.2d at 266-67.
Under the facts in Jacinth, and using the "cognate"
approach to lesser included offenses adopted by the Alaska
Supreme Court in Elisovsky, Jacinth's crimes of manslaughter and
arson stood in the relation of greater offense and lesser
included offense. Under Alaska's former criminal code (the law
governing Jacinth's case), an unintentional homicide committed in
the perpetration of a felony was manslaughter. The supreme court
clarified this "felony-manslaughter" rule in Keith v. State, 612
P.2d 977 (Alaska 1980):
In Gray v. State, 463 P.2d 897, 906 (Alaska
1970), we held that a killing done in the
perpetration of a felony, but without a
specific intent or purpose to kill,
constitutes manslaughter. This is, in a
sense, a felony-manslaughter rule and appears
to be a rather distinctive homicide scheme.
Keith, 612 P.2d at 987-88.9
Jacinth's act of willfully setting the building on fire
(arson) was the unlawful act that caused the unintended homicide,
thus establishing the crime of manslaughter under Alaska's former
"felony-manslaughter" rule. Nevertheless, despite this relation
ship between the manslaughter and the arson, the supreme court
upheld Jacinth's separate convictions (and consecutive sentences)
for these two crimes.
The Tuckfield opinion does not mention Jacinth, and the
supreme court has not had later occasion to discuss the relation
ship of these two cases. However, if we are to reconcile these
two decisions, Tuckfield can not be read as broadly as Todd
wishes.
The precise holding in Tuckfield is that a defendant
can not be separately convicted for both an assault with intent
to commit rape and the completed rape arising from the same
assault. Examined under the criteria announced in Whitton, this
holding is all but self-evident and is completely consistent with
the supreme court's decision in Jacinth that separate convictions
are permitted for arson and manslaughter. Looking at the facts
of Tuckfield, the result in that case appears to be a
straightforward application of the rule now codified in AS
11.31.140(c), that "[a] person may not be convicted on the basis
of the same course of conduct of both [an attempt and] the crime
that is the object of the attempt".
It is Tuckfield's broader language - the statement that
separate convictions are never permitted for a greater and a
lesser included offense - that creates the tension with Jacinth.
Tuckfield cites two cases for the proposition that a
greater and a lesser included offense can never support two
convictions. The first, In re Dennis B., 557 P.2d 514, 517 (Cal.
1976), is miscited. In the cited passage from Dennis B., the
California Supreme Court speaks of the rule that the double
jeopardy clause bars successive prosecutions for a greater and a
lesser offense. Compare Harris v. Oklahoma, 443 U.S. 682, 97
S.Ct. 2912, 53 L.Ed.2d 1054 (1977), discussed in footnote 7. The
second case cited by the supreme court, People v. Brown, 523 P.2d
986, 988 (Colo. 1974), holds that a defendant can not be
convicted of both possession of narcotics for sale and simple
possession of narcotics when both charges arise from a single act
of possession - again, a readily apparent result under a Whitton
analysis, and a holding that does not speak to the kind of
situation presented in Jacinth, where the two crimes (arson and
manslaughter) involve substantial differences in intent and
conduct and address significantly different societal interests.
After the United States Supreme Court's decision in
Missouri v. Hunter, it is clear that Tuckfield's broader implica
tions are wrong. There is no universal rule barring separate
convictions and sentences for a greater offense and a lesser
included offense, so long as these two convictions arise from a
single trial. Even though the elements of one offense may
completely subsume the elements of another, so that the two
crimes are the "same offense" under the Blockburger test, the
federal double jeopardy clause allows separate convictions and
punishments for both the greater offense and the lesser included
offense if this is what the legislature intended.10
Tuckfield correctly resolved the situation presented in
that case - the situation in which the government seeks to
convict a defendant, based on a single criminal act, of both an
attempt or an assault intended to accomplish a specific crime
and, additionally, the completed crime itself. However,
Tuckfield's statement that separate convictions are never allowed
for greater and lesser included offenses is erroneous.
Accordingly, we must re-examine our decision in Hughes.
In Hughes, this court held that a defendant could not
be convicted of both attempted robbery and manslaughter for a
homicide that resulted from the robbery attempt. This holding
was perceived to be dictated by the supreme court's decision in
Tuckfield. This court wrote that, because "an underlying felony
is a lesser-included offense of a felony homicide[,] ...
Tuckfield requires us to find that convicting [a defendant] of
both [a predicate felony] and [felony] manslaughter violate[s]
[the] double jeopardy [clause]". Hughes, 668 P.2d at 844-45.
We now perceive that the answer to the multiple
punishment issue is not governed by Tuckfield. Instead, the
answer must be found by investigating the legislature's intent in
enacting the robbery and felony-murder statutes, and by examining
these two statutes under the criteria established in Whitton.
Did the Alaska Legislature Intend to
Authorize Cumulative Punishment for Felony
Murder and a Predicate Felony?
As pointed out above, Alaska's former criminal code did
not follow the common-law felony-murder rule. Instead, under pre-
1980 Alaska law, all forms of murder - including felony murder -
required proof of an intent to kill. An unintentional homicide
occurring during the commission of a felony (or a misdemeanor)
was manslaughter. Keith, 612 P.2d at 987-88.
The drafters of Alaska's current criminal code wrote
the second-degree murder statute, AS 11.41.110(a), to single out
certain types of unintentional homicide that would have been
manslaughter under prior law, changing the classification of
these homicides to murder. In particular, with respect to felony
murder, the drafters wrote:
In considering the Revised Code's ap
proach to the felony murder statute, it must
be recalled that the purpose of a felony
murder rule is to deter all killings during
the commission of felonies which involve a
high potential for violence. By holding the
felon liable for an unintended and even [an]
accidental death occurring in the course of
or in furtherance of a felony, the rule
provides a powerful incentive not to commit
inherently dangerous crimes, or at the very
least to plan and carry out such crimes with
increased regard for physical dangers.
For all practical purposes, Alaska does
not now [i.e., in 1977] have a felony murder
rule. In Gray, ... the Supreme Court held
that an "intent to kill" is a necessary ele
ment of felony murder under existing law.
Consequently, an accidental killing occurring
during the commission of an enumerated felony
does not render the actor guilty of felony
murder under the existing statute.
Subsection (a)(3) specifically
eliminates the Gray requirement that a felon
"purposely" kill during the commission of an
enumerated felony. In doing so, the Revised
Code brings Alaska's felony murder rule into
conformance with the rule in 48 states.
Existing Alaska law lists the crimes of
rape, arson, robbery and burglary as felonies
sufficient to trigger the application of the
felony murder rule. The [proposed] felony
murder provision in subsection (a)(3) of the
Revised Code only lists those degrees or
forms of arson, burglary and sexual assault
which create a serious risk of violence.
Because all degrees of robbery involve the
use or threatened use of physical force, the
commission of any degree of robbery is
sufficient to bring into play the felony
murder rule.
Alaska Criminal Code Revision, Tentative Draft, Part 1, pp. 27-
29.
The drafters' commentary to AS 11.41.110(a)(3) demon
strates that the intent of AS 11.41.110(a)(3) was to change the
degree of homicide in situations like the one presented in
Jacinth. Under the revised code, if a defendant commits or tries
to commit one of the listed predicate felonies and an unintention
al death results, the homicide is classified as murder, not just
manslaughter, and the penalty is concomitantly more severe.
The drafters' commentary illustrates another important
point. Under Alaska law, felony murder is not an aggravated form
of robbery, arson, sexual assault, or any of the other enumerated
predicate felonies. Rather, felony murder was intended to be an
aggravated form of manslaughter. Under the statute, the
defendant's intent to commit one of the listed felonies
constitutes the culpable mental state that makes any resulting
homicide murder, even if the homicide was unintended. In
essence, the defendant's intent to commit one of the listed
dangerous felonies constitutes a heightened form of recklessness
that raises the classification of a resulting homicide from
manslaughter to murder. See State v. Enmund, 476 So.2d 165, 168-
69 (Fla. 1985) (Shaw, J., concurring). This is analogous to the
common-law felony-murder rule, under which the defendant's intent
to engage in a dangerous felony constituted the malice required
for murder. R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982),
p.71.11
Alaska law most clearly calls for separate convictions
and punishments when the victim of the homicide is someone other
than the victim of the underlying felony - as when a bystander or
a police officer is killed during a robbery. Under such circum
stances, Alaska precedent clearly supports separate convictions
and punishments for the felony and the homicide. See State v.
Dunlop, 721 P.2d 604 (Alaska 1986)(a defendant who kills or
injures two or more people by a single reckless act commits a
separately punishable homicide or assault upon each victim);
Cooper v. State, 595 P.2d 648 (Alaska 1979) (a defendant who
threatens or terrorizes two or more people by a single assaultive
act commits a separately punishable assault upon each victim).
But even when the defendant's crimes involve only one victim, we
conclude that the Alaska legislature intended to authorize
separate convictions and punishments for the underlying felony
and the resulting homicide.
Nothing in the legislative history of Alaska's felony-
murder statute, and nothing in any subsequent legislation,
indicates legislative dissatisfaction with the result in Jacinth
- the Alaska Supreme Court's decision that a single criminal act
(arson) will support separate convictions and punishments for
both the felony and a resulting homicide. In fact, the
legislative history of the felony-murder statute affirmatively
indicates that the legislature intended for the defendant to
receive separate convictions. This legislative intent is
manifested by AS 11.41.115(c) and the legislature's commentary to
that section.
AS 11.41.115(c) provides a limited exception to the
felony-murder rule codified in AS 11.41.110(a)(3). The statute
reads:
(c) A person may not be convicted of
murder in the second degree under AS 11.41.
110(a)(3) [the felony-murder statute] if the
only underlying crime is burglary, the sole
purpose of the burglary is a criminal
homicide, and the person killed is the
intended victim of the defendant. However,
if the defendant causes the death of any
other person, the defendant may be convicted
of murder in the second degree under
AS 11.41.110(a)(3). Nothing in this
subsection precludes a prosecution for or
conviction of murder in the first degree or
murder in the second degree under
AS 11.41.110(a)(1) or (2) or of any other
crime, including manslaughter or burglary.
The commentary to this statute states that it was intended to
work a "merger" of the homicide and the underlying burglary:
Subsection (c) was referred to at
Criminal Law Subcommission meetings as the
"felony-murder merger doctrine." In
considering this extremely limited exemption
from the felony-murder rule, it must be
recalled that the purpose of the rule is to
diminish the risk of unintentional or even
accidental killings during the commission of
violent felonies. One of these felonies,
burglary in the first degree, occurs when a
person enters a dwelling with intent to
commit a crime. If a person commits burglary
in the first degree by breaking into a house
with intent to kill the occupant, the felony-
murder rule would have no deterrent effect.
Permitting a conviction for murder under the
felony-murder rule in this circumstance would
also have the effect of preventing the jury
from considering whether the defendant acted
in the "heat of passion."
The Code does not permit a conviction
for felony-murder in this situation; the
felony is said to "merge" with the homicide.
Of course, the defendant can still be charged
with first or second degree murder for the
intentional killing. The effect of the
felony-murder merger doctrine is to prohibit
a second-degree murder conviction solely on
proof that the defendant committed first
degree burglary by entering a dwelling with
intent to kill the occupant.
1978 Senate Journal 1399, Supp. No. 47 (June 12), p. 12. See
also the Criminal Code Revision Subcommission's commentary to the
originally proposed version of this statute, TD 11.41.110(d),
found in the Alaska Criminal Code Revision, Tentative Draft, Part
1, pp. 32-33.
From this legislative commentary, two things are
apparent. First, even in the situation described in the statute
(a burglary committed for the purpose of killing someone) when
the felony-murder rule does not apply, the legislature still
envisioned that the defendant might be separately convicted of
murder (first-degree murder) or manslaughter and, additionally,
the underlying burglary. See Mead v. State, 489 P.2d 738, 742-43
(Alaska 1971) (allowing separate convictions for burglary and the
motivating theft). Second, because the legislature enacted a
special provision to merge the two potential offenses in this
specific situation, the legislature must have intended that
defendants in other felony-murder situations would be subject to
conviction and punishment for both the homicide and the
underlying felony.
We note that the Alaska legislature has, in other
sections of the criminal code, expressly prohibited multiple
punishment for potentially separate crimes. See AS 11.31.140(b)
(prohibiting more than one punishment for attempt when two or
more attempts are made to commit the same crime), and AS
11.31.140(c) (prohibiting conviction for both
attempt/solicitation and the completed crime). Given the
legislature's demonstrated willingness to enact statutes that
limit the number of convictions under particular circumstances,
the legislature's failure to require a general merger of
convictions for felony murder and the predicate felonies is
further evidence of a legislative intent to allow multiple
convictions.
Robbery and felony murder are directed to distinct
societal interests. As the legislative commentary points out,
felony murder is a grade of homicide, a crime whose primary
rationale is the protection and vindication of human life.
Robbery, on the other hand, punishes assaultive conduct whose aim
is the taking of property. The rationale of robbery is the
protection of people against "the terror of forcible taking [of
property]". State v. Greco, 579 A.2d 84, 91 (Conn. 1990).
It is true that the Alaska legislature now classifies
robbery among the "offenses against the person" in chapter 41 of
the criminal code, accentuating its assaultive aspect.
Nevertheless, the theft aspect of robbery can not be ignored.
Both the common law and Alaska's criminal law (both the former
criminal code and the current one) have always treated the crime
of robbery as more serious than the sum of its parts. Among
assaults, those assaults motivated by theft have always been
viewed as among the most serious, and the resulting crime of
robbery has always been punished more severely than either
assault or theft, or even the combination of both. For instance,
under Alaska law, a person who menaces another person with a
dangerous weapon commits third-degree assault, a class C felony.
AS 11.41.220(a)(1) and (b). A person who attempts to take
property from another commits no more than a class C felony. (If
the property is worth less than $25,000, the attempted theft is a
misdemeanor.) AS 11.46.120-150 and AS 11.31.-100(d). Yet an
armed assault motivated by an intent to take property is first-
degree robbery, a class A felony, even if the attempted taking is
unsuccessful. AS 11.41.500(a).12
For all these reasons, we conclude that the Alaska
legislature intended to authorize separate convictions and
cumulative punishment for felony murder and a predicate felony.
Are Cumulative Punishments Consistent with
the Alaska Constitution as Interpreted in
Whitton?
Under Missouri v. Hunter, our determination of the
Alaska legislature's intent to authorize cumulative punishments
concludes our double jeopardy inquiry under the Federal Constitu
tion. For state constitutional purposes, however, we must decide
whether the legislature's intention is consistent with Whitton v.
State.
Whitton directs us to consider "the basic interests of
society to be vindicated or protected" by the two statutes.
Whitton v. State, 479 P.2d at 312. As we have already discussed
in more detail, the crimes of robbery and felony murder address
distinct evils. The robbery statute is aimed at protecting
people from being terrorized by an assault whose aim is the
taking of property. Felony murder, on the other hand, is an
aggravated form of manslaughter, a statute addressed to the
protection and vindication of human life. As the drafters of the
revised criminal code wrote, if the increased punishment for an
unintended homicide does not deter people from committing
dangerous felonies, it will at least encourage criminals "to plan
and carry out such crimes with increased regard for physical
dangers". Tentative Draft, Part 1, p. 28.
Whitton further directs us to consider "the broad
objectives of [the] criminal law[,] such as punishment of the
criminal for his crime, rehabilitation of the criminal, and
prevention of future crimes". Id. at 312. The purpose of the
felony-murder statute is to deter people from committing the
listed dangerous felonies or, failing that, to encourage felons
to be extremely careful when committing these felonies. The
increased deterrence provided by the potential additional charge
of felony murder implements one of the major purposes of the
criminal law. See State v. Dunlop, 721 P.2d at 610.
Finally, we look to the legal precedent provided by
Jacinth v. State. In Jacinth, the supreme court resolved an
analogous question: whether Whitton allows separate punishments
for arson and manslaughter arising from the same act. Although
Alaska's criminal code now declares that an unintended homicide
arising from a dangerous felony is murder, not manslaughter, this
change in the law does not appear to alter Jacinth's analysis of
the Whitton issue.
We therefore hold that the Alaska Constitution allows
separate convictions and punishments for felony murder and the
underlying felony, even though, under Alaska's cognate approach,
the underlying felony may be a lesser included offense of felony
murder. We overrule Hughes v. State to the extent that it contra
dicts our holding in this case.
The judgement of the superior court is AFFIRMED.
_______________________________
1 The Fifth Amendment to the United States Constitution and
Article I, Section 9 of the Alaska Constitution.
2 Because Todd was tried and convicted of his various
offenses at a single trial, his case does not involve the double
jeopardy clause's limitation on multiple trials. Rather, Todd's
case involves only the double jeopardy clause's prohibition of
multiple punishments for the same criminal act. See Missouri v.
Hunter, 459 U.S. 359, 365-66; 103 S.Ct. 673, 678; 74 L.Ed.2d 535
(1983).
3 Under Alaska's pre-1980 criminal code, a homicide
committed during the commission of a felony was first-degree
murder if the defendant acted with intent to kill; otherwise, the
homicide was manslaughter. Keith v. State, 612 P.2d 977, 987-88
(Alaska 1980); Gray v. State, 463 P.2d 897, 906 (Alaska 1970).
4 When interpreting the criminal law that Congress has
enacted to govern the District of Columbia, the Supreme Court is
free to interpret the federal statutes without regard to the
rulings of the lower federal courts - different from the normal
rule in which the Supreme Court is "barred from reviewing a state
court's interpretation of a state statute". Whalen, 445 U.S. at
687-88, 100 S.Ct. at 1435.
5 See Sours v. State, 603 S.W.2d 592 (1980), cert. denied,
449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981).
6 Because Hunter dealt with a state statute that included
an express cumulative punishment provision, the Hunter decision
might arguably be read to require that, before multiple
punishments can be imposed for offenses that are "the same" under
Blockburger, the legislature's intention to impose cumulative
punishment must be "clearly" expressed. However, as can be seen
from the cases discussed in the next section, most state courts
have adopted a more liberal interpretation of Hunter; they read
Hunter to mean that the Federal Constitution allows multiple
punishment whenever normal methods of statutory interpretation
reveal a legislative intention to allow cumulative punishment for
the two offenses.
7 This same distinction between a single trial and
successive trials differentiates Harris v. Oklahoma, 433 U.S.
682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), from Todd's case.
Harris involved a defendant who was tried and convicted for
felony murder, then later tried and convicted for armed robbery.
Harris v. State, 555 P.2d 76, 77-78, 80 (Okla. Crim. App. 1976).
The Supreme Court summarily reversed Harris's armed robbery
conviction, issuing "a three-paragraph per curiam [opinion] in an
unargued case". Dixon, 113 S.Ct. at 2865 (Rehnquist, C.J.,
concurring and dissenting). Significantly, the Supreme Court did
not cite Blockburger when it reversed Harris's second conviction;
rather, the Court cited Ex Parte Nielson, 131 U.S. 176, 188; 9
S.Ct. 672, 676; 33 L.Ed. 118 (1889), for the rule that Harris
could not be subjected to successive prosecutions.
8 State v. Pizzuto, 810 P.2d 680, 694-96 (Idaho 1991),
cert. denied, 112 S.Ct. 1268, 117 L.Ed.2d 495 (1992), and Sivak
v. State, 731 P.2d 192, 205-08 (Idaho 1986): The Idaho court
relied on Whalen as a statement of constitutional law rather than
as a case construing the District of Columbia sentencing
statutes. The Idaho court also relied on its previous decision
in State v. Thompson, 614 P.2d 970, 973 (Idaho 1980), where the
court erroneously held, relying on Brown (a successive
prosecution case) that the federal double jeopardy clause uni
formly forbids cumulative punishment for a greater and a lesser
included offense, even when the charges are combined in a single
trial.
Munson v. State, 758 P.2d 324, 332 (Okla. Crim. App. 1988),
cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809
(1989): The Oklahoma court decided to address the dual
punishment issue even though "this issue was not raised in the
trial court or on appeal". The court then erroneously construed
Harris v. Oklahoma (a successive prosecution case) to flatly
prohibit cumulative punishment for both felony murder and the
underlying felony, even when the convictions and sentences arise
from a single trial.
State v. Julius, 408 S.E.2d 1, 11-13 (W.Va. 1991): The
state conceded that a defendant could not be punished for both
felony murder and the underlying felony; the West Virginia court
accepted the state's concession, erroneously believing that
Harris v. Oklahoma was controlling.
State v. Lane, 629 S.W.2d 343, 344 (Mo. 1982): The Missouri
Supreme Court, in a terse decision that relied on Whalen and did
not discuss legislative intent, ruled that the double jeopardy
clause did not allow multiple convictions. In a subsequent
appeal involving the same case, the Missouri Court of Appeals
attempted to place their supreme court's decision on more sus
tainable footing: the court of appeals declared that the supreme
court had reached its decision "only because the Missouri legisla
ture did not intend to allow conviction of both [offenses]".
Lane v. State, 778 S.W.2d 769, 772 (Mo. App. 1989).
State v. Jones, 525 So.2d 1149, 1151 (La. App. 1988): The
Louisiana court relied on its supreme court's decision in State
v. Vaughn, 431 So.2d 763, 766 (La. 1983), which erroneously
assumed that the Blockburger test was a constitutional rule,
binding on the states, that defined when cumulative punishment
was permissible.
Commonwealth v. Tarver, 426 A.2d 569 (Pa. 1981): The Penn
sylvania court, erroneously believing that Blockburger and Harris
dictated a merger of offenses as a matter of federal constitution
al law, overruled its prior decision in Commonwealth v. Sparrow,
370 A.2d 712 (Pa. 1977), and held that a defendant could not be
separately punished for both felony murder and the underlying
felony. Seven years later, in Gillespie v. Ryan, 837 F.2d 628
(3rd Cir. 1988), cert. denied 488 U.S. 833 (1988), the Third
Circuit "reversed" Tarver and resuscitated Sparrow, at least for
federal habeas corpus purposes. The defendant in Gillespie
petitioned for federal habeas corpus relief after he was
sentenced for both felony murder and an underlying felony. The
Third Circuit noted that, in the years since Tarver was decided,
the United States Supreme Court had clarified that Blockburger
was simply a rule of construction and that Harris was limited to
instances of successive prosecutions. Gillespie, 837 F.2d at 630-
31. The Third Circuit then observed that the Pennsylvania
Supreme Court had not re-interpreted state law in Tarver but had
simply declared the Pennsylvania law to be inconsistent with the
Federal Constitution. Because the decision in Tarver rested on
federal grounds, the Third Circuit ruled that it was free to
apply the correct federal law - that is, the court was free to
ignore the erroneous result in Tarver and, in fact, was obliged
to apply Pennsylvania law as it had been interpreted in Sparrow.
Thus, the Third Circuit concluded, the defendant's multiple
punishments were lawful. Gillespie, 837 F.2d at 631-32.
9 Keith went on to hold that an unintended killing
committed during the perpetration of any crime, whether felony or
misdemeanor, was manslaughter under Alaska's former criminal
code. Id. at 988-89.
10 In fact, the Alaska Supreme Court acknowledged this tenet
of double jeopardy law in State v. Dunlop, 721 P.2d 604, 606 n.6
(Alaska 1986):
The United States Supreme Court has repeatedly
stated that "the question whether punishments imposed
by a court after a defendant's conviction upon criminal
charges are unconstitutionally multiplied cannot be
resolved without determining what punishments the
Legislative Branch has authorized;" Whalen v. United
States [citation omitted]; Jeffers v. United States
[citation omitted]; Bell v. United States [citation
omitted]. Other jurisdictions concur. See State v.
Miranda, ... 416 P.2d 444, 451 ([Ariz.] 1966); State v.
Meyers, ... 298 S.E.2d 813, 816 (W.Va. 1982); State v.
Rabe, 291 N.W.2d 809, 819 ([Wis.] 1980).
11 Compare the analysis of Chief Judge Bazelon in United
States v. Greene, 489 F.2d 1145 (D.C. Cir. 1973), cert. denied,
419 U.S. 977 (1974):
At common law, homicides were divided into two
categories, murder and manslaughter, with murder
requiring a showing of "malice." Any homicide
committed in the course of a felony was considered
murder because malice could be implied from the
commission of the felony. When homicides were further
subdivided by statute into first degree murder, second
degree murder[,] and manslaughter, the doctrine of
felony murder was preserved, and the underlying felony
was viewed as providing the "premeditation" and
"deliberation" otherwise required for first degree
murder, as well as malice, where necessary.
Given this rationale for the felony murder
doctrine, it strains credulity to hold that the
underlying felony merges with the felony murder. The
statute proscribing the underlying felony - robbery,
for example - is designed to protect a wholly different
societal interest from the felony murder statute, which
is intended to protect against homicide. The
underlying felony is an essential element of felony
murder only because without it the homicide might be
second degree murder or manslaughter.
Greene, 489 F.2d at 1168-69.
Judge Bazelon's analysis is in accord with the view taken by
the Alaska Supreme Court in Padie v. State, 557 P.2d 1138 (Alaska
1976). Referring to the three degrees of criminal homicide under
Alaska's former criminal code - first-degree murder (which
included
felony murder), second-degree murder, and manslaughter - the
court stated, "All three of these offenses require the same
physical act, the unlawful killing of a human being. The
difference is in the mental state of the perpetrator." Padie,
557 P.2d at 1141 (emphasis added).
12 Alaska's former criminal code also provided a
significantly greater punishment for armed robbery than the
punishments for theft and assault with a dangerous weapon.
Whitton, 479 P.2d at 304-05.
