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Opinion # 4357
Todd v. State (4/26/96) sp-4341
<![CDATA[
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBYN TODD, )
) Supreme Court No. S-6709
Petitioner, ) Court of Appeals No. A-4618
) Superior Court No.
v. ) 3AN-S91-8149 Cr.
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) [No. 4341 - April 26, 1996]
______________________________)
)
JOSEPH HARVEY, ) Supreme Court No. S-6807
) Court of Appeals No. A-4648
Petitioner, ) Superior Court No.
) 3AN-S91-8148 Cr.
v. )
)
STATE OF ALASKA, )
)
Respondent. )
)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge .
Appearances: G. Blair McCune, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Petitioner Todd.
Mitchel J. Schapira, Anchorage, for
Petitioner Harvey. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondent.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices. [Moore,
Justice, not participating.]
COMPTON, Chief Justice.
I. INTRODUCTION
Robyn Todd and Joseph Harvey seek review of the court
of appeals' opinion affirming their convictions and corresponding
sentences for both second-degree (felony) murder and first-degree
robbery in connection with an armed robbery during which a man
was killed. They assert that the Double Jeopardy Clauses of the
United States and Alaska Constitutions bar conviction and
punishment for both felony murder and the predicate felony. We
affirm.
II. FACTS AND PROCEEDINGS
The underlying facts are not in dispute. Armed and
wearing ski masks, Todd and Harvey entered a bar in downtown
Anchorage early one morning while the bar's owner, Lloyd Dahl,
and his employees, George Gillis and Nancy Lee Jourdan, were
cleaning up and counting the evening's receipts.
While Todd guarded Gillis in the kitchen area at the
back of the bar, Harvey went into the bar office where Dahl was
counting the money. Dahl tried to prevent Harvey from taking the
money and was shot and killed. Jourdan heard the gunshot from
outside the office. She fled the bar and flagged down a passing
community patrol van. The police were alerted. They confronted
Todd and Harvey as the pair left the bar and apprehended them a
short time later.
Todd and Harvey were indicted for first-degree murder.
At a joint trial, the court dismissed this charge against Todd;
the jury acquitted Harvey of this charge. Each was convicted of
the first-degree robbery of Dahl, the second-degree (felony)
murder of Dahl under AS 11.41.110(a)(3), and the third-degree
assault of Gillis.
At sentencing, Harvey and Todd argued that the Double
Jeopardy Clauses of the United States1 and Alaska Constitutions2
barred separate convictions for second-degree (felony) murder and
the predicate offense of first-degree robbery. The court
disagreed. Todd was sentenced to twenty years imprisonment for
the second-degree murder charge, consecutive to twelve years
imprisonment for the first-degree robbery charge. Harvey was
sentenced to thirty years for the murder, consecutive to twelve
years for the robbery.
On appeal, the court of appeals determined that the
underlying felony "may be"a lesser-included offense of felony
murder under Alaska law, Todd v. State, 884 P.2d 668, 686 (Alaska
App. 1994), but held that Todd's and Harvey's convictions and
consecutive sentences for felony murder and the predicate robbery
were fully consistent with federal double jeopardy law and the
Alaska Constitution as interpreted in Whitton v. State, 479 P.2d
302 (Alaska 1970). Todd, 884 P.2d at 682, 685-86. The court of
appeals observed that its holding at least facially conflicted
with Tuckfield v. State, 621 P.2d 1350 (Alaska 1981), in which
this court observed that "double jeopardy is violated by
conviction of both an offense and a lesser included offense,
unless the convictions arise from separate conduct,"and its own
holding in Hughes v. State, 668 P.2d 842 (Alaska App. 1983).
Todd, 884 P.2d at 680-82. However, the court interpreted more
recent Supreme Court decisions to supersede Tuckfield's analysis
and therefore declined to follow Tuckfield and overruled Hughes.
Todd, 884 P.2d at 682, 686.
Todd and Harvey separately petitioned this court for
review of the court of appeals' decision. Appellate Rule 302(a).
We granted the petitions and consolidated the cases for review.
III. DISCUSSION
A. Standard of Review
The issue before the court involves questions of
constitutional law and statutory interpretation which we resolve
by applying our independent judgment. Arco Alaska, Inc. v.
State, 824 P.2d 708, 710 (Alaska 1992); Norton v. Alcoholic
Beverage Control Board, 695 P.2d 1090, 1092 (Alaska 1985). Our
duty is to adopt the rule of law which is most persuasive in
light of precedent, reason and policy. Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
B. Federal Double Jeopardy Law
The Double Jeopardy Clause of the Fifth Amendment
protects against multiple prosecutions and multiple punishments
for the same offense. North Carolina v. Pearce, 395 U.S. 711,
717 (1969). As Todd and Harvey were convicted of all charges in
a single proceeding, the only issue is whether their consecutive
sentences impermissibly subject them to multiple punishments for
the same offense. See Missouri v. Hunter, 459 U.S. 359, 365-66
(1983).
In Blockburger v. United States, 284 U.S. 299, 304
(1932), the Supreme Court laid out the test to determine whether
the violation of two statutory provisions constitutes two
offenses or only one. It is "whether each provision requires
proof of an additional fact which the other does not." Id. The
Supreme Court consistently has applied the Blockburger test for
this limited purpose. See Whalen v. United States, 445 U.S. 684,
693-94 (1980) (rape and felony murder where the rape was the
predicate crime are the same offense under Blockburger); Brown v.
Ohio, 432 U.S. 161, 168 (1977) (crimes of joyriding and auto
theft are "'the same statutory offense' within the meaning of the
Double Jeopardy Clause"); see also U.S v. Dixon, 113 S. Ct. 2849
(1993) (test applied to determine whether conviction of criminal
contempt of court barred subsequent prosecution for the offense
which was the basis for the contempt prosecution); Albernaz v.
United States, 450 U.S. 333, 338-39 (1981) (consecutive sentences
for conspiracy to import marijuana and conspiracy to distribute
marijuana permissible because "although the objects of the
conspiracies may partially overlap,"Blockburger was satisfied by
the fact that the statutes necessitated the proof of different,
non-overlapping ends of the conspiracy).
Any indication the Court once may have given that
Blockburger provided a unitary test for determining whether
offenses were the same and whether the Double Jeopardy Clause was
violated has since been disavowed. In a series of cases
beginning with Brown v. Ohio and culminating with Missouri v.
Hunter, the Supreme Court has stated that, at least in multiple
punishment cases, the role of the Double Jeopardy Clause is
limited to protecting a defendant against receiving more
punishment than the legislature intended. See Brown v. Ohio, 432
U.S. at 165 ("Where consecutive sentences are imposed at a single
criminal trial, the role of the constitutional guarantee is
limited to assuring that the court does not exceed its
legislative authorization by imposing multiple punishments for
the same offense."); Whalen v. U.S., 445 U.S. at 688 ("[T]he
question whether punishments . . . are unconstitutionally
multiple cannot be resolved without determining what punishments
the Legislative Branch has authorized."); Missouri v. Hunter, 459
U.S. at 366 ("With respect to cumulative sentences 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."); see also United States v.
Halper, 490 U.S. 435, 450 (1989).3
In the later cases, the Supreme Court has employed the
Blockburger test as a statutory interpretation screening tool to
educe the intent of the legislature. See Hunter, 459 U.S. at 366-
67; Albernaz, 450 U.S. at 340; Whalen, 445 U.S. at 691, 693-95.
If the statutes pass muster under the Blockburger test,
cumulative punishment is presumptively allowable. See Hunter,
459 U.S. at 367 ("[C]umulative punishment can presumptively be
assessed after conviction for two offenses that are not the
'same' under Blockburger."). If they fail it, cumulative
punishment is presumptively barred. See Whalen, 445 U.S. at 691-
92 ("The assumption underlying the rule [of statutory
construction from Blockburger] is that Congress ordinarily does
not intend to punish the same offense under two different
statutes."). The presumption against multiple punishment is,
however, rebuttable. Thus, the analysis continues with a
determination of whether the legislature intended to allow
multiple punishments for those offenses that fail the Blockburger
test. See Garrett v. United States, 471 U.S. 773, 779 (1985)
("We have recently indicated that the Blockburger rule is not
controlling when the legislative intent is clear from the face of
the statute or the legislative history."); Albernaz, 450 U.S. at
340, 344 ("[T]he [Blockburger] rule should not be controlling
where . . . there is a clear indication of contrary legislative
intent."; "Where Congress intended, as it did here, to impose
multiple punishments, imposition of such sentences does not
violate the Constitution."); Whalen, 445 U.S. at 692 ("[W]here
two statutory provisions proscribe the 'same offense,' they are
construed not to authorize cumulative punishments in the absence
of a clear indication of contrary legislative intent.").
On the basis of our examination of the language and
legislative history of the felony-murder statute,
AS 11.41.110(a)(3), we conclude that the legislature intended to
allow multiple punishments for felony murder and the predicate
offense of robbery.4
The drafters' commentary to AS 11.41.110(a)(3) is the
first source of evidence that the legislature intended to allow
multiple punishments:
In considering the Revised Code's
approach 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
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 have a felony murder rule. . . .
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) [the felony murder
provision] specifically eliminates the Gray
requirement that a felon "purposely" kill
during the commission of an enumerated
felony.
Alaska Criminal Code Revision, Tentative Draft, Part 1, pp. 27-
29, quoted in Todd, 884 P.2d at 683. Under Alaska law prior to
the 1980 revision, an actor who unintentionally caused a death
during the course of a felony was subject to prosecution for the
felony and for manslaughter. See Gray v. State, 463 P.2d 897,
906 (Alaska 1970) (no felony-murder provision under Alaska law;
absent an intent to kill, only conviction for manslaughter is
permissible); see also Keith v. State, 612 P.2d 977, 987-88
(Alaska 1980) (describing Gray as establishing a "felony-
manslaughter rule"); Jacinth v. State, 593 P.2d 263 (Alaska 1979)
(upholding convictions for arson and manslaughter for death
caused by fire). The commentary to the rule makes clear the
legislature's intent to make the penalty for killings caused
during felonies more severe than under the then-existing felony-
manslaughter rule. This can be accomplished predictably only by
allowing multiple punishments for felony murder and the
underlying felony. Absent multiple punishment, the defendant
such as Jacinth, convicted of both manslaughter and the
accompanying felony, may face a greater sentence than a defendant
convicted under the ostensibly more severe felony-murder statute.
Compare AS 12.55.125(b) (sentence for felony murder at least five
years but not more than 99 years) with AS 12.55.025(e)-(h) and AS
12.55.125(c) (sentence for each class A felony carries term of up
to 20 years, with a presumptive term of five years for each,
sentences to run consecutively). Moreover, as the court of
appeals observed, "[n]othing 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 for
both the felony and a resulting homicide." Todd, 884 P.2d at
684.
Further evidence of the legislature's intent to allow
cumulative punishment is found in the limited exception to the
felony-murder statute for a burglary with murder as its object.
AS 11.41.115(c) provides:
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 subsection provides:
Subsection (c) was referred to at the
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, quoted in
Todd, 884 P.2d at 684-85. On the basis of this language, the
court of appeals concluded that, "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 the homicide and the underlying
felony." Todd, 884 P.2d at 685-86. We agree with that
conclusion.
Our conclusion that the legislature intended to allow
multiple punishments is also based upon the distinct nature of
the interests protected by the felony-murder and robbery
statutes.
Specifically, upon reviewing the statutory
scheme devised by our legislature, we believe
that it sought to protect against two
separate societal interests when it enacted
the felony murder statute and the robbery
statute. In essence, the robbery statute is
intended to protect against robbery only,
while the felony murder statute seeks to
protect against homicides. In light of this
intent to protect against two separate evils,
we must conclude that the legislature
intended two separate punishments when a
defendant violates both statutes.
Talancon v. State, 721 P.2d 764, 768 (Nev. 1986). See also State
v. Greco, 579 A.2d 84, 90-91 (Conn. 1990); State v. Blackburn,
694 S.W.2d 934, 937 (Tenn. 1985).
It is true, as Todd and Harvey point out, that both the
robbery and the homicide provisions are contained in Chapter 41
of the criminal code, "Offenses Against the Person." However,
contrary to Todd's and Harvey's contention, this fact does not
lead to the "inescapable"conclusions that the societal interests
sought to be protected are "virtually identical"and that the
legislature did not intend to allow multiple punishments. An
examination of some of the other offenses in Chapter 41 reveals
the speciousness of their argument. Sexual assault crimes are
included along with robbery and related offenses in Chapter 41.
Yet, it cannot be argued seriously that AS 11.41.434, Sexual
Abuse of a Minor in the First Degree, and AS 11.41.520,
Extortion, protect "virtually identical"societal interests.
For the foregoing reasons, we conclude that the Alaska
legislature intended to authorize separate convictions and
cumulative punishments for felony murder and the predicate felony
of robbery. We hold that the Double Jeopardy Clause of the Fifth
Amendment does not bar Todd's and Harvey's consecutive sentences.
C. Alaska Double Jeopardy Law
Alaska has its own constitutional provision relating to
double jeopardy. See note 2, supra. This court is free to
interpret the state constitutional provision as it sees fit, so
long as the interpretation does not undermine the minimum
protections established by the United States Supreme Court in
decisions interpreting the federal constitution. Whitton v.
State, 479 P.2d at 309.
Whitton is the seminal case and still controlling
precedent in this area of law. In Whitton, this court held the
Double Jeopardy Clause of the Alaska Constitution barred multiple
punishments for "one or 'the same' offense." Id. at 310. After
considering and rejecting the Blockburger and other tests, id. at
310, this court developed its own test for determining whether
several statutory violations constitute the same offense for
double jeopardy purposes:
The trial judge first would compare the
different statutes in question, as they apply
to the facts of the case, to determine
whether there were involved differences in
intent or conduct. He would then judge any
such differences he found 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. . . .
If such differences in intent or conduct
are significant or substantial in relation to
the social interests involved, multiple
sentences may be imposed, and the
constitutional prohibition against double
jeopardy will not be violated. But if there
are no such differences, or if they are
insignificant or insubstantial, then only one
sentence may be imposed under double
jeopardy.
Id. at 312.
Applying the Whitton test, we conclude that felony
murder and robbery are not the same offense for double jeopardy
purposes; therefore, Petitioners' consecutive sentences are
allowable. The statutes differ significantly in the intent and
conduct required; the most obvious difference is the requirement
under the felony-murder statute that someone have been killed.
Moreover, as we discussed above, the statutes also protect
different societal interests. The felony-murder statute protects
against the loss of human life. "In contrast, the basic
rationale of the robbery statutes is protection against the
terror of the forcible taking." Greco, 579 A.2d at 91 (internal
quotations omitted); see also Jacinth, 593 P.2d at 267 ("Here the
separate statutory offenses to be considered are those of second
degree arson and manslaughter. Since the former protects a
property interest and the latter the paramount personal interest
of protection of human life, we hold that they should be
considered separate offenses under the Whitton test.").
The legal concept of greater and lesser-included
offenses is "related to, but distinguishable from, the question
considered in Whitton . . . concerning when separate punishment
may be imposed for separate statutory offenses arising out of the
same conduct." Tuckfield v. State, 621 P.2d at 1352. Tuckfield
was convicted of rape and assault with intent to rape in
connection with one criminal episode and appealed the rape
conviction on evidentiary grounds. Id. at 1352. This court
affirmed the rape conviction, but concluded that rape and assault
with intent to rape stood in the relationship of greater and
lesser-included offenses and that the double jeopardy clause
barred conviction of both. Id.
We believe that robbery, although a predicate felony
for felony murder, is not a lesser-included offense of felony
murder, and we therefore conclude that Tuckfield is inapplicable
in the present context.
In our view, the offenses encompass different
constituent elements. See Christie v. State, 580 P.2d 310, 317
(Alaska 1978) ("[T]he included offense must be less than the
charged offense in terms of its constituent elements."). Murder,
unlike robbery, has as an element that someone have been killed;
robbery, unlike murder, has as an element the taking or attempted
taking of property. This view has been adopted by the highest
court of at least one state. See State v. Gonzales, 783 P.2d
1239, 1249 (Kan. 1989) ("Clearly, the elements of rape are not
included in the elements of murder . . . the defendant was
properly convicted of both attempted rape and felony murder.").
However, because a defendant cannot be convicted of
felony murder with robbery as a predicate without having been
convicted of robbery, robbery would appear to be a lesser-
included offense of felony murder under the formulation that "to
be necessarily included in the greater offense, the lesser must
be such that it is impossible to commit the greater without first
having committed the lesser." Christie, 580 P.2d at 317 (quoting
Giles v. United States, 144 F.2d 860, 861 (9th Cir. 1944)).
That formulation notwithstanding, we view felony murder
as a distinct area of the criminal law not governed by
traditional lesser-included offense analysis. See Gonzales, 783
P.2d at 1248 ("The flaw in defendant's argument [that convictions
for both felony murder and the predicate felony are barred
because greater and lesser-included offenses] is that he fails to
recognize the distinction between the 'lesser included offense'
doctrine and the 'felony-murder' doctrine. Each is a separate
theory of law."). Traditional lesser-included offense analysis
involves examining offenses with overlapping elements and
normally arises in two contexts: where a defendant has been
convicted of separate statutory offenses for the same conduct and
it is not clear whether the legislature intended the defendant be
punished under both statutory provisions, and where a defendant's
conduct possibly constitutes several offenses of varying
seriousness and the defendant seeks (or seeks to avoid on an "all
or nothing"trial strategy) a lesser-included instruction. See,
e.g., Tuckfield, 621 P.2d at 1352 (convictions for rape and
lesser-included offense of assault with intent to rape
impermissible); Elisovsky v. State, 592 P.2d 1221 (Alaska 1979)
(defendant charged with assault with a dangerous weapon (a gun)
entitled to instruction on lesser-included offense of careless
use of a firearm). The felony-murder provision does not overlap
with other offenses but rather enhances them, and, as we noted
above, the intent of the legislature to allow multiple
punishments is clear. See State v. McCovey, 803 P.2d 1234, 1237-
39 (Utah 1990) ("Despite the fact that under the [same-elements]
analysis aggravated robbery would be a lesser included offense of
felony murder, we recognize that enhancement statutes are
different in nature than other criminal statutes."; "A true
lesser included relationship does not exist in the felony murder
statute . . . ."). Because we conclude that the predicate felony
of robbery is not a lesser-included offense of felony murder, our
decision today does not affect the conclusion reached in
Tuckfield that conviction of both a greater and lesser-included
offense is barred by double jeopardy.5 We disavow any suggestion
in the court of appeals' opinion that Tuckfield is mistaken and
should be overruled. See Todd, 884 P.2d at 681-82 (describing
Tuckfield as "erroneous").
D. The Assault Conviction
Petitioners also assert that their convictions for
assault in the third degree against George Gillis should be
merged into the felony-murder conviction. This argument is
without merit. This court has held that a single assaultive act
constitutes a separately-punishable assault for each victim,
Cooper v. State, 595 P.2d 648 (Alaska 1979), and that the robbery
of each of several victims constitutes a separate and distinct
criminal offense, Davenport v. State, 543 P.2d 1204, 1209 (Alaska
1975) ("an intent to harm multiple victims will lift the veil of
protection which the double jeopardy doctrine might otherwise
afford to a defendant"). Petitioners' convictions for the
assault on one victim and the robbery of a second victim are
entirely consistent with the principles of double jeopardy and
the precedent of this court.
IV. CONCLUSION
Petitioners' consecutive sentences for felony murder
and the predicate felony of first-degree robbery do not violate
the Double Jeopardy Clauses of the United States and Alaska
Constitutions.
AFFIRMED.
_______________________________
1 The Fifth Amendment to the United States Constitution
provides in part: "nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. Through the Fourteenth Amendment, state
prosecutions also are subject to the strictures of Fifth
Amendment double jeopardy. Benton v. Maryland, 395 U.S. 784, 794
(1969).
2 Alaska Const. art. I, ' 9 provides: "No person shall be
put in jeopardy twice for the same offense."
3 Petitioners assert that this area of law has come full
circle: the Supreme Court overruled Hunter and its antecedents in
Dixon, and returned to a unitary test, based on Blockburger, for
determining whether two offenses are the same offense for double
jeopardy purposes, and whether the total punishment imposed for
multiple offenses violates double jeopardy. As evidence of this,
they point to two sentences from Dixon in which Justice Scalia
writes for the Court:
In both the multiple punishment and multiple
prosecution contexts, this Court has
concluded that where the two offenses for
which the defendant is punished or tried
cannot survive the "same-elements"test the
double jeopardy bar applies. . . . The same-
elements test, sometimes referred to as the
"Blockburger" test, inquires whether each
offense contains an element not contained in
the other; if not, they are the "same
offense" and double jeopardy bars additional
punishment and successive prosecution.
U.S. v. Dixon, 113 S. Ct. at 2856 (citing Brown v. Ohio, 432 U.S.
at 168-69).
The State asserts that Petitioners have taken the
quoted passage out of context and that, in the context of the
Dixon opinions, it is clear that the passage does not stand for
the broad principle Petitioners espouse:
Todd . . . attempts to inflate this sentence
from Dixon [quoted above] as establishing
Blockburger as a conclusive test to be used
in all double jeopardy cases. Dixon, however
involved only the successive prosecution
element of the Double Jeopardy Clause; it
presented no multiple punishment issue. . .
Viewed in this light, the statement Todd
relies upon is nothing more than one of
historical fact, i.e. the Court has applied
Blockburger in both multiple punishment and
successive prosecution cases. . . . If Todd's
interpretation is correct, then Dixon, in
effect, overruled [the Whalen-Albernaz-Hunter
line of cases] sub silentio.
Respondent's Brief at 14-15 (emphasis in original).
The State offers the more plausible reading of Dixon.
Considering the lengths to which the Court went to justify
overruling Grady v. Corbin, 495 U.S. 508 (1990), in which the
Court held that the Double Jeopardy Clause barred a subsequent
prosecution if that prosecution required the government to prove
conduct that constituted an offense for which the defendant
already had been prosecuted, see Dixon, 113 S. Ct. at 2859-64,
Petitioners' contention that the Court overruled the Whalen-
Albernaz-Hunter line of cases without comment is not persuasive.
Moreover, as the State points out, Justice Scalia, the author of
the passage on which Petitioners' argument hinges, in a later
case implicitly acknowledged that the double jeopardy prohibition
against multiple punishments was not coextensive with the
Blockburger test:
Thus, in the context of criminal proceedings,
legislatively authorized multiple punishments
are permissible if imposed in a single
proceeding, but impermissible if imposed in
successive proceedings.
Dep't of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937, 1957
n.1 (1994) (Scalia, J., dissenting) (citing Hunter, 459 U.S. at
368-69).
4 The sequence of the analysis is not important; a court
should derive the same result whether it applies the Blockburger
test and then examines legislative intent or first looks to
legislative intent in the hope of obviating the need for further
analysis. See Hunter, 459 U.S. at 368-69 ("Where, as here, a
legislature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes proscribe
the 'same' conduct under Blockburger, a court's task of statutory
construction is at an end . . . ."). Because we conclude that
the legislature's intent is clear, we need not determine whether
the Alaska felony-murder and robbery statutes are the "same"
under Blockburger. We note, however, the Supreme Court's holding
in Whalen -- that the District of Columbia's rape and felony
murder offenses are the same offense under Blockburger --
suggests they are.
5 The validity of the distinction we draw today between
felony murder and traditional lesser-included analysis is further
evidenced by the fact that the situation in which a defendant is
convicted of felony murder and also a felony which would be a
lesser-included offense of homicide under traditional lesser-
included analysis is never likely to arise. This is so because
Alaska's felony-murder statute does not include assault among the
predicate felonies. See AS 11.41.110(a)(3).
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