State v. Clarke, 90-1029

• Citation: 475 N.W.2d 193
• Decision Date: 18 September 1991
• Docket Number: No. 90-1029,90-1029
• Parties: STATE of Iowa, Appellee, v. Brian Lee CLARKE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 193

475 N.W.2d 193

STATE of Iowa, Appellee, v. Brian Lee CLARKE, Appellant.

No. 90-1029.

Supreme Court of Iowa.

Sept. 18, 1991.

David E. Grinde, Cedar Rapids, for appellant.

Bonnie J. Campbell, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Denver D. Dillard, County Atty., and Harold Denton, Asst. County Atty., for appellee.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, LAVORATO, and NEUMAN, JJ.

NEUMAN, Justice.

A jury found Brian Clarke guilty of attempted murder and willful injury. See Iowa Code § 707.11 (1989) (defining attempted murder) and § 708.4 (1989) (defining willful injury). ¹ On appeal from the judgment and sentences entered on the jury's verdict, Clarke asserts two errors. First, he claims that willful injury is a lesser-included offense of attempted murder, and thus his conviction for both crimes violates the double jeopardy clause of the United States Constitution. Second, he argues that the record is insufficient to support a conviction for either crime. Finding no merit in either argument, we affirm the judgment and sentence of the district court.

Clarke's convictions stem from an incident in December 1989 in which he shot his paramour's husband four times with a .38 caliber revolver. The victim was seriously injured but not killed. The district court sentenced Clarke to concurrent prison terms of twenty-five years for the attempted murder conviction and ten years for the willful injury conviction. Further facts will be detailed as they pertain to the issues on appeal.

I. Claim of double jeopardy. Clarke asserts that the court erred by convicting him of two separate crimes grounded in the same proof. He theorizes that willful injury is a lesser-included offense of attempted murder, and thus conviction for both crimes violates the double jeopardy clause of the fifth amendment to the United States Constitution. U.S. Const. amend. V; see State v. Gowins, 211 N.W.2d 302, 303 (Iowa 1973) (fifth amendment applicable to state prosecution). Because Clarke alleges the violation of a constitutional safeguard, our appellate review is de novo. State v. Huss, 430 N.W.2d 621, 623 (Iowa 1988).

It is well-settled that the double jeopardy clause protects defendants against multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322, 331 (1989). Thus, if one crime is a lesser-included offense of another, and a defendant is convicted of both crimes, the double jeopardy clause may be violated. State v. Jeffries, 430 N.W.2d 728, 734 (Iowa 1988). Problems of double jeopardy do not arise, however, if the crimes involved are sufficiently distinct that dual conviction does not duplicate the defendant's punishment. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).

We begin our analysis by applying the Blockburger legal elements test reaffirmed by this court in State v. Jeffries, 430 N.W.2d at 730. Under this standard, willful injury has been held by our court of appeals not to constitute a lesser-included offense of attempted murder. State v. Adcock, 426 N.W.2d 639, 640 (Iowa App.1988). The distinguishing element is proof of serious injury, required for conviction of willful injury but not attempted murder. Id. Other jurisdictions are in accord, reasoning that assault crimes requiring an element of physical harm are not congruent with attempted murder laws which require proof of intent to kill but no actual injury. See, e.g., State v. Sharpe, 195 Conn. 651, 654-56, 491 A.2d 345, 349 (1985); State v. Whisonant, 331 N.W.2d 766, 769 (Minn.1983); State v. Ambuehl, 145 Wis.2d 343, 425 N.W.2d 649, 657 (App.1988).

The rationale underlying these decisions is that "the court must look at the statutory definitions rather than the facts in the particular case to determine whether the lesser offense is necessarily included." Whisonant, 331 N.W.2d at 769. One source describes the general rule as follows:

Where the same act or transaction constitutes a violation of two distinct provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not.... [T]he constitutional prohibition against double jeopardy is directed to the identity of the offense and not to the act.... If each statutory provision requires proof of a fact that the other does not, they are not the same, even though there may be a substantial overlap in the proof offered to establish the crimes.

21 Am.Jur.2d Criminal Law § 279, at 487-88 (1981).

It is this "overlap in the proof" that is really at the heart of defendant's argument. He argues that, even if willful injury is technically not a lesser-included offense of attempted murder under the legal elements test, the fact that the same proof is used to convict him of both crimes shows that he is being punished twice for the same offense. For the reasons that follow, we think defendant's argument lacks merit when applied to a single prosecution.

Iowa Rule of Criminal Procedure 6(1) provides, in pertinent part:

Multiple offenses. Two or more public offenses which arose from the same transaction or occurrence ... may be alleged and prosecuted as separate counts in a single ... information ... unless, for good cause shown, the trial court in its discretion determines otherwise.

The rule is relevant to the present case because it dashes any suggestion that multiple charges may not stem from a single criminal transaction. What the legislature intended by "same transaction or occurrence" is further refined in Iowa Code section 701.9, which states: "No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted." (Emphasis added.) We regard the term "necessarily" as meaning the legislature intended an offense to be included only when it must be, in all circumstances, part of a greater offense. This is essentially the "impossibility test" sanctioned in Jeffries, 430 N.W.2d at 740, and State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990). This concept finds further support in Iowa Rule of Criminal Procedure 21(3) which allows the jury to find the defendant guilty of "any offense the commission of which is necessarily included in that with which the defendant is charged." Iowa R.Crim.P. 21(3) (emphasis added).

Beyond these clues to legislative intent, we are guided by considerations of the basic protections guaranteed by the double jeopardy clause. It is significant that Clarke's two convictions resulted from only one prosecution. This fact immediately distinguishes his case from the more typical double jeopardy situation in which a defendant is tried once, acquitted or convicted, and then prosecuted a second time for offenses arising from the same act. See, e.g., Grady v. Corbin, 495 U.S. 508, ----, 110 S.Ct. 2084, 2093-95, 109 L.Ed.2d 548, 565-66 (1990) (double jeopardy bars prosecution for vehicular homicide based on proof of identical conduct established in prior conviction for related traffic offense). Freedom from vexatious proceedings, which is the core value protected by the double jeopardy clause, is simply not a concern in the single prosecution context. State v. Lonergan, 16 Conn.App. 358, 377, 548 A.2d 718, 727 (1988), aff'd, 213 Conn. 74, 92-93, 566 A.2d 677, 686 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990).

Viewing the present case in the light of this authority, we see nothing to prevent the State from charging and convicting an individual for both attempting to murder and, at the same time, willfully injuring a victim. Application of the legal elements test plainly demonstrates that willful injury is not a lesser-included offense of attempted murder. No reason appears to depart from the legal elements test in the present case just because both offenses arise out of the same course of conduct by the defendant. Neither the opinions of the Supreme Court nor pertinent Iowa statutory law compels a contrary result in the context of a single criminal prosecution. No violation of the defendant's claimed rights under the double jeopardy clause occurred.

II. Sufficiency of the evidence. Clarke also asserts that the State provided insufficient evidence to support conviction of either offense. Specifically Clarke asserts inadequacy of proof of the intent element of each crime. To address this alleged error we must give a more thorough recitation of the facts.

Clarke was romantically involved with Regina Herren. Regina was married at the time to Kevin Herren. Kevin is evidently a man of considerable size and physical strength. He is also prone to violence. He candidly admitted at trial that he physically abused Regina and damaged their mobile home by punching holes in the walls, throwing furniture, and destroying appliances.

Regina testified that Kevin had on occasion threatened to kill both her and himself. She confided in Clarke these fears of her husband. She warned Clarke never to engage Kevin in a fight, however, because he would be no match for her husband. Despite Clarke's knowledge of Kevin's violent nature, the record contains no evidence that Clarke ever spoke badly of Kevin or threatened him in any way.

The incident giving rise to this prosecution occurred on December 13, 1989. Clarke and Regina spent the early evening competing in a pool tournament at a local tavern. Regina went home around 9:30 while Clarke continued to drink and play pool with friends. Sometime later Regina called the tavern to let Clarke know she was home safely but that Kevin had left their trailer in a huff, annoyed at the time of her return. She did not invite Clarke to visit her. But Clarke testified that on his way home at midnight, he spontaneously decided to stop by her trailer.

When Clarke arrived at...