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Todd v. State (6/21/96), 917 P 2d 674
<![CDATA[
IN 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. 3AN-S91-8149CR
v. )
)
STATE OF ALASKA, ) O R D E R
)
Respondent. )
______________________________)
)
JOSEPH HARVEY, )
) Supreme Court No. S-6807
Petitioner, ) Court of Appeals No. A-4648
) Superior Court No. 3AN-S91-8148CR
v. )
)
STATE OF ALASKA, )
)
Respondent. )
______________________________)
Before: Compton, Chief Justice, Rabinowitz and Matthews,
Justices. [Eastaugh and Fabe, Justices, not
participating.]
On consideration of the petition for rehearing filed on
May 6, 1996,
IT IS ORDERED:
1. The petition for rehearing is DENIED.
2. However, factual misstatements in the last paragraph
of page 2, which are irrelevant to the substantive decision have
been corrected.
3. Accordingly, Opinion No. 4341 issued on April 26,
1996, is WITHDRAWN.
4. Opinion No. 4357 is issued on this date in its
place.Supreme Court Order
S-6709/6807
Page 2
Entered by direction of the Court at Anchorage, Alaska on
June 21, 1996.
CLERK OF THE SUPREME COURT
__________________________
JAN HANSEN
cc:
Justices
Court of Appeals Judges
Judge Gonzales
Central Staff Attorneys
Appeals Division/Anchorage
Publishers
 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)
264-0878.
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. 4357 - June 21, 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.
At a joint trial, Todd and Harvey were convicted of the
first-degree robbery of Dahl, the second-degree (felony) murder of
Dahl, the third-degree assault of Gillis, and Misconduct Involving
Weapons in the First Degree. Todd also was convicted of the third-
degree assault on police officer Pam Nelson.
At sentencing, Harvey and Todd argued that the Double
Jeopardy Clauses of the United States (EN1) and Alaska
Constitutions (EN2) 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). (EN3)
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. (EN4)
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. (EN5) 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.
ENDNOTES:
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, sec. 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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