Talancon v. State

• Decision Date: 26 June 1986
• Docket Number: No. 15279,15279
• Citation: 102 Nev. 294,721 P.2d 764
• Parties: Robert Martin TALANCON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 764

721 P.2d 764

102 Nev. 294

Robert Martin TALANCON, Appellant, v. The STATE of Nevada, Respondent.

No. 15279.

Supreme Court of Nevada.

June 26, 1986.

David G. Parraguirre, Public Defender, Jane McKenna and Mark Mausert, Deputy Public Defenders, Reno, for appellant.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., Michael L. Mahaffey, Edwin T. Basl and Alzora Jackson, Deputy Dist. Attys., Reno, for respondent.

OPINION

PER CURIAM:

Appellant Robert Martin Talancon was convicted upon jury verdict of one count each of first degree murder and robbery with the use of a deadly weapon. He was sentenced to life imprisonment with the possibility of parole for his first degree murder conviction, and to two consecutive seven year prison terms for his conviction of robbery with the use of a deadly weapon. On appeal, Talancon contends that his convictions and sentences for these two offenses violated his constitutional right to be free from double jeopardy. For the reasons set forth below, we disagree.

At appellant's jury trial, the state presented circumstantial evidence to demonstrate that appellant and his brother robbed and killed Mike Williams on the night of December 24, 1982. The district court instructed the jury that it could find appellant guilty of first degree murder for the killing under either of two alternative theories. First, the court instructed the jury that it could find appellant guilty of first degree murder if it concluded that appellant murdered the victim in a premeditated and deliberate manner. See NRS 200.030(1)(a). Second, the court instructed the jury that it could alternatively find appellant guilty of first degree murder under a felony-murder theory, if it concluded that the killing took place during the course of the robbery. See NRS 200.030(1)(b).

The jury returned its verdict of guilt for first degree murder, without specifying which of these two theories it relied on, along with its verdict of guilt for the robbery offense. Appellant contends that because the jury may have found him guilty under a felony-murder theory, he could not be convicted of both the murder offense and the robbery offense, because the robbery was used as the underlying felony to support the felony murder theory of guilt. Specifically, appellant contends that these two offenses are the "same offense" for double jeopardy purposes, and that they must "merge" together at sentencing because double jeopardy prohibits the imposition of cumulative sentences for the "same offense." Appellant therefore submits that his robbery conviction must be reversed.

Initially, because the jury did not specify which theory of first degree murder it relied on, we address the question of whether we should presume that the jury premised its verdict on a felony-murder theory for purposes of this appeal. We note that in some cases it might not be appropriate to make such a presumption, particularly where the evidence of premeditation and deliberation is substantial. See, e.g., Breedlove v. State, 413 So.2d 1, 8 (Fla.1982),cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Buford v. State, 403 So.2d 943, 948-49 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). In the present case, however, the state relied primarily on a felony-murder theory of guilt in the proceedings below, and was unable to present any direct evidence to support its alternative theory of premeditated murder. In fact, the prosecution's closing arguments in this case contained numerous references to the felony-murder theory of guilt, and only referred to the premeditated theory of guilt in passing. Under these circumstances, we believe it would be improper to presume that the jury's verdict was premised on anything but a felony-murder theory for purposes of this appeal. Nevertheless, even assuming that appellant was convicted under a felony-murder theory, we disagree with his contention that double jeopardy prohibits his conviction for both felony-murder and the underlying felony.

In Koza v. State, 100 Nev. 245, 681 P.2d 44 (1984), we addressed an identical contention, and we concluded that double jeopardy did not prohibit the imposition of cumulative sentences for felony-murder and the underlying felony following a single trial. ¹ Appellant, however, contends that our holding in Koza is in conflict with two United States Supreme Court opinions, Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), and Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), as well as our own prior caselaw. Although we disagree with appellant's contention that Koza should be overruled, we believe it is necessary to review our position on this particular aspect of the double jeopardy clause at this time.

We being our analysis by reviewing the relevant Supreme Court opinions in this area, beginning with the Court's decision in Whalen v. United States, supra. In Whalen, the defendant was sentenced to two consecutive terms for his convictions for rape, and for killing the same victim in the course of the rape, following a single trial. He argued that those two sentences constituted "multiple punishment" for the "same offense" in violation of the Double Jeopardy Clause. The Court initially noted that the defendant was correct in contending that the rape and the killing in the course of the rape were the "same offense" for purposes of the Double Jeopardy Clause, under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). In Blockburger, the Court held that "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. In applying this test in Whalen, the Court noted that proof of a rape was a necessary element of the crime of killing in the course of a rape, and the Court was not persuaded that the case should be treated any differently from other cases in which "one criminal offense requires proof of every element of another offense." Whalen, 445 U.S. at 694, 100 S.Ct. at 1439.

The Court in Whalen, however, cautioned that double jeopardy will not always be violated simply because a defendant is convicted and sentenced under two statutory offenses which may be viewed as one offense under the Blockburger test. Instead, the Court noted that cumulative sentences would be permissible in such a circumstance, where the legislature specifically authorized cumulative sentences. Whalen at 688, 100 S.Ct. at 1435. The Whalen Court went on to note, however, that the Blockburger test does serve to guide a court in determining whether the legislature intended that separate sentences should be imposed for two particular statutory offenses. Thus, the Court determined that where two statutory offenses can be viewed as only one offense under the Blockburger test, double jeopardy prohibits the imposition of separate punishments for the two offenses following a single trial, only in the absence of a clear legislative expression of intent to the contrary. The Court then concluded that because Congress had failed to expressly indicate an intent to impose cumulative sentences for rape and for killing in the course of rape, cumulative sentences for those two offenses were prohibited under the Double Jeopardy Clause.

Later, in Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981), the Court again clearly stated that the Blockburger test was not dispositive of a double jeopardy claim and that the test is only a "rule of statutory construction," to be used "as a means of discerning Congressional purpose." Thus, in Albernaz, because the Court discerned a clear legislative purpose in favor of cumulative sentences for the two statutory offenses the defendant had committed, it upheld the imposition of such sentences against a double jeopardy attack.

Finally, in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court stated even more emphatically that the question of whether double jeopardy is violated by cumulative sentences for the same offense depends solely on the legislature's intent in authorizing such sentences. Further, the Court noted that the question of legislative intent is best left to the individual state courts to decide. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

In Koza, we based our conclusion that double jeopardy did not prohibit the imposition of cumulative sentences for a felony-murder conviction and the underlying felony offense following a single trial on two considerations. First, we noted that in a previous case, Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977), we held that felony murder and the underlying felony are two separate and distinct offenses, and did not qualify as the "same offense" under the Blockburger test. Appellant correctly points out that this conclusion is subject to dispute in view of the United States Supreme Court's decision in Whalen, which held that a rape and a killing in the course of a rape are one and the same offense under the Blockburger test. See also Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (Court rules that felony-murder and the underlying felony are the same offense under the Blockburger test). ²

Nevertheless, we did not limit our holding in Koza to the question of whether felony-murder and the underlying felony are the "same offense" under the Blockburger test. Instead, we went on to review the legislature's intent in enacting the felony-murder statute, and we concluded that the legislature had indeed intended for a defendant to receive separate sentences for a felony murder conviction and the underlying felony conviction. Koza 100 Nev. at p. 255-56, 681 P.2d 44.

Appellant, however, asserts that our interpretation of the legislature's intent in this regard is in direct conflict with the above...