Birr v. State

• Decision Date: 04 November 1987
• Docket Number: No. 86-325,86-325
• Citation: 744 P.2d 1117
• Parties: Charles Edward BIRR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1117

744 P.2d 1117

Charles Edward BIRR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-325.

Supreme Court of Wyoming.

Nov. 4, 1987.

Public Defender Program, Leonard D. Munker, State Public Defender, and Martin J. McClain, Deputy State Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., and John W. Renneisen, Sr. Asst. Atty. Gen., for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

Appellant Charles Edward Birr pleaded guilty to one count of accessory to felony murder, in violation of §§ 6-1-201 ¹ and 6-2-101, W.S.1977, ² and one count of accessory to aggravated robbery, in violation of §§ 6-1-201 ³ and 6-2-401(c)(ii), W.S.1977. ⁴ He was sentenced to the Wyoming State Penitentiary for life on the murder charge and for 20 to 25 years on the aggravated robbery charge. These terms were to run consecutively. Appellant appeals this sentence.

We affirm.

Appellant presents the following issue for our review:

"Whether the Judge's decision to sentence Appellant to consecutive sentences for felony murder and the underlying felony violated the double jeopardy clauses of the United States and Wyoming Constitutions."

Appellant, being short on money, got together with two friends, Fred Schultz and Frank Garcia, to plan a robbery. The intended victims, Robert Louis Bernard and Kathleen Ann Bernard, had been involved with appellant in drug transactions, and appellant was aware that they would be collecting money within the next few days. Since Schultz and Garcia were unknown to the Bernards, it was decided that they would commit the actual robbery.

On March 1, 1985, appellant supplied Schultz and Garcia with guns, rope, and duct tape and drove them to the Bernards' trailer, where he dropped them off. The plan was for Schultz and Garcia to threaten the Bernards and "rough them up" to get them to disclose where the money was hidden. Then Schultz and Garcia were to tie up the Bernards with the rope, gag them with the duct tape, take the money and the Bernards' car, and rejoin appellant. Approximately 20 minutes after dropping Schultz and Garcia off, appellant rendezvoused with them as planned. Schultz and Garcia left the Bernards' car and went with appellant.

Appellant claims he was not aware that the men had a knife until after he picked them up and he noticed Schultz wiping blood off himself. It was at that time that he was told the Bernards were dead. The men drove for a few miles and then stopped to get rid of the knife and bloody shirt. They split the money, about a thousand dollars, and used the cocaine taken during the robbery.

On August 27, 1986, pursuant to a plea agreement, appellant pleaded guilty to the charges contained in the amended information. ⁵ The court accepted the plea agreement and appellant's pleas of guilty. On October 28, 1986, prior to sentencing, appellant filed a motion to merge the offenses for purposes of the sentencing. The motion was denied at the sentencing hearing held November 4, 1986. Appellant was sentenced to consecutive terms of incarceration in the Wyoming State Penitentiary.

"While the respective double jeopardy provisions of the Wyoming State Constitution [Art. 1, § 11] and the Fifth Amendment to the Federal Constitution are dissimilar in language, they have the same meaning and are coextensive in application." Vigil v. State, Wyo., 563 P.2d 1344, 1350 (1977).

The double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy clause provides three protections. First, it prohibits a second prosecution for the same offense after an acquittal. Second, it prohibits a second prosecution for the same offense after conviction. Third, it prohibits multiple punishments for the same offense. Tuggle v. State, Wyo., 733 P.2d 610 (1987); Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764, reh. denied 473 U.S. 927, 106 S.Ct. 20, 87 L.Ed.2d 698 (1985); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is this third protection with which we are concerned in the present case.

"Where consecutive sentences are imposed at a single criminal trial, the role of the [double jeopardy clause] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

Further,

"the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where [the legislature] intended * * * to impose multiple punishments, imposition of such sentences does not violate the Constitution." Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981).

In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the defendant was convicted of rape and of murder in the commission of a rape. In determining legislative intent, the United States Supreme Court looked to the legislative history and applied the Blockburger test ⁶ discussed infra. In addition, the United States Supreme Court noted that the offenses were contained in separate statutes, that the punishment for each offense was provided for separately, and that a separate statute existed dealing specifically with whether sentences may run consecutively.

In Tuggle v. State, we similarly determined legislative intent in regard to multiple punishments. In that case, the defendant was sentenced consecutively for two assaults which took place at the same time and place but which were committed against different persons. We found that separate acts had occurred and that independent facts were needed to prove each act. We distinguished the Blockburger test which applies when a defendant commits one act which violates two different and separate statutes or provisions. We quoted Vigil v. State, 563 P.2d at 1351, which stated that " ' "any human being" is in the singular and there is no indication that the defendant can get a bargain rate if he assaults a group of human beings.' " 733 P.2d at 612. We found that the obvious intent of the legislature was to protect each individual.

As indicated in Tuggle v. State, the Blockburger test is the most commonly used test for determining when multiple punishments violate the double jeopardy clause. "[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182. Considerable confusion has arisen over the application of the Blockburger test. Some courts have applied the test as a constitutional requirement, e.g., State v. Haggard, Mo.banc, 619 S.W.2d 44 (1981), vacated 459 U.S. 1192, 103 S.Ct. 1171, 75 L.Ed.2d 423 (1983), while others have used it as a rule of statutory construction, e.g., Hunter v. State, Del.Supr., 430 A.2d 476, cert. denied 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 390 (1981). The United States Supreme Court, the author of the test, has clearly stated that it is merely a tool for determining legislative intent. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. at 340, 101 S.Ct. at 1142. We agree that the Blockburger test should be applied, but its result should be given meaning only as an indication of legislative intent and not as a rule of law which conclusively determines whether a punishment is inclusive or cumulative.

The Blockburger test can be applied by looking at the provisions of the statutes themselves and determining whether each statute calls for proof of a fact which the other does not. It also can be applied by looking at the facts of the particular case and determining if there is a different fact available to prove each of the separate offenses. Whether one of these approaches is more determinative of legislative intent is not completely clear. ⁷ In this case, the trial court applied the Blockburger test to the provisions of the statutes and to the particular facts. The trial court determined that, in order to prove felony murder, it must be shown that a human being was killed. No killing is necessary to prove aggravated robbery. To prove aggravated robbery, it must be shown either that the defendant intentionally inflicted or attempted to inflict serious bodily injury or that the defendant used or exhibited a deadly weapon. Proof of these facts is not necessary to prove felony murder. As to the particular facts of this case, the trial court found that the Bernards were killed and that appellant supplied deadly weapons in the form of .357 magnum pistols. That the Bernards were killed was unnecessary to prove aggravated robbery but was necessary to prove felony murder. The pistols were unnecessary to prove felony murder but were necessary to prove aggravated robbery. Each fact is necessary to prove one of the offenses but is not necessary for proof of the other. Applying this reasoning, the trial court correctly determined that the offenses were not the same under Blockburger v. United States and that separate punishments were intended. Albernaz v. United States, 450 U.S. at 339, 101 S.Ct. at 1142.

Legislative intent also is determined by looking to the purpose of each statute. "Where two statutes are intended to suppress different evils, the acquittal or conviction on one will not prevent prosecution of the other." Goodman v. State, Wyo., 601 P.2d 178, 185 (1979). If independent, but overlapping, statutes are "directed to separate evils," then cumulative punishment is intended. Albernaz v. United States, 450 U.S. at 343, 101 S.Ct. at 1144; Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84...