Boulies v. People
| Citation | 770 P.2d 1274 |
| Decision Date | 27 March 1989 |
| Docket Number | No. 87SC372,87SC372 |
| Parties | Robert BOULIES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Supreme Court of Colorado |
Donald E. Janklow, Greeley, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for respondent.
The question in this case is whether in a single trial a defendant who has been convicted and sentenced to life imprisonment for felony murder based on his causing the death of the robbery victim during the commission of aggravated robbery may also be convicted and sentenced to a consecutive term of fifty years-to-life for the very same aggravated robbery on which the felony murder conviction was based. In People v Boulies, 746 P.2d 1385 (Colo.App.1987), the court of appeals affirmed the district court's judgment denying postconviction relief to the defendant, Robert Boulies, who claimed that his conviction and consecutive sentence for the crime of aggravated robbery violated the Double Jeopardy Clauses of the United States and Colorado Constitutions. We granted certiorari to review that part of the court of appeals decision rejecting the defendant's double jeopardy claim. We now hold that the Double Jeopardy Clauses of the federal and state constitutions preclude the imposition of a sentence for aggravated robbery consecutive to a life sentence for felony murder based on the defendant's causing of the robbery victim's death during the commission of the aggravated robbery, and further that the defendant's conviction for aggravated robbery was merged into the greater inclusive offense of felony murder.
The basic facts are not in dispute. On October 26, 1971, the defendant and two accomplices drove up to a liquor store in Greeley, Colorado. While the accomplices waited outside, the defendant entered the store armed with a .22 caliber pistol and took money from the store clerk, William L. Hamill. During the perpetration of the aggravated robbery the store clerk was shot and killed.
At the time of the homicide Colorado statutory law provided that any killing "which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary" is murder in the first degree and shall be punishable by life imprisonment or death. § 40-2-3(1), 1963 C.R.S. Section 40-5-1 of the 1963 Colorado Revised Statutes defined robbery, in pertinent part, as follows:
(1) Robbery is the felonious and violent taking of money, goods, or other valuable thing from the person of another by force or intimidation. Every defendant found guilty of robbery, except as hereinafter provided, shall be punished by confinement in the penitentiary for a term of not less than two nor more than fourteen years.
(2) (a) Every defendant found guilty of robbery shall be confined in the penitentiary for a term of not less than four years, or for life, if in the perpetration of such robbery:
(b) He is armed with a dangerous weapon with intent, if resisted, to kill, maim, or wound the person robbed or any other person.
§ 40-5-1, 1963 C.R.S. (1967 Perm.Supp.).
On October 28, 1971, the defendant was charged in a two-count information with the crimes of first degree murder and aggravated robbery. The murder count alleged that on October 26, 1971, the defendant killed and murdered William L. Hamill while committing the crime of aggravated robbery as defined by section 40-5-1 of the 1963 Colorado Revised Statutes, as amended. The second count alleged that on October 26, 1971, the defendant made an assault upon William L. Hamill and by force and intimidation took money from his person and that the defendant was then and there armed with a deadly weapon, a .22 caliber automatic pistol, with the intent, if resisted, to kill, wound or maim William L. Hamill or any other person. The defendant entered a plea of not guilty to the charges and was subsequently tried by a jury. The trial court submitted both charges to the jury and instructed the jury on the elements of each charge as follows:
The material allegations contained in count # 1 of the Information in this case are:
1. That defendant, ROBERT BOULIES, on or about the 26th day of October, 1971;
2. Did kill and murder one William L. Hamill;
3. While said ROBERT BOULIES was commit[t]ing the crime of aggravated robbery;
4. In Weld County, State of Colorado.
The material allegations contained in count # 2 of the Information in this case are:
1. That defendant, ROBERT BOULIES, on or about the 26th day of october, 1971;
2. Feloniously, unlawfully and violently took a thing of value, namely, cash;
3. From the person and against the will of William L. Hamill, by force and intimidation;
4. And that during such robbery, said ROBERT BOULIES was armed with a dangerous weapon, with the intent, if resisted, to maim, wound or kill William L. Hamill, or any other person;
5. In Weld County, State of Colorado.
The jury returned guilty verdicts to felony murder and aggravated robbery as charged. The court thereafter entered a judgment of conviction on the verdicts and sentenced the defendant to a term of life imprisonment for felony murder and to a consecutive term of fifty years-to-life for aggravated robbery.
After unsuccessfully appealing his convictions to the court of appeals on evidentiary rulings during the course of the trial, see People v. Boulies, 545 P.2d 1050 (Colo.App.1975) (), the defendant in 1982 filed a Crim.P. 35(c) motion alleging three grounds for postconviction relief, namely: the presence of an unauthorized person, the alternate juror, in the jury room during jury deliberations; the denial of the defendant's right to effective assistance of counsel at trial and on appeal; and the entry of a separate conviction and imposition of a consecutive sentence for aggravated robbery in violation of the Double Jeopardy Clauses of the United States and Colorado Constitutions. The district court granted relief on the basis of the presence of the alternate juror in the jury room during jury deliberations, and on appeal we vacated the district court's order and remanded the case for further proceedings. People v. Boulies, 690 P.2d 1253 (Colo.1984).
Upon remand of the case the district court denied postconviction relief, and the court of appeals affirmed the judgment, reasoning as follows with respect to the defendant's double jeopardy claim:
The established test for determining whether two offenses are, in fact, the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory 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 which the other does not...."
* * *
* * *
Felony murder, as defined by C.R.S. 1963, 40-2-3, required only that the murder occur during the perpetration or attempt to perpetrate a robbery. Therefore, it is possible to commit the offense of felony murder without also satisfying the elements of aggravated robbery which includes the elements of robbery but also includes the additional elements of a dangerous weapon and the intent, if resisted, to kill, maim, or wound another person. On the other hand, it is obviously possible to commit an aggravated robbery without satisfying all of the elements of felony murder. Therefore, these two offenses are not the same offense under the test set forth in Blockburger.
Because the General Assembly adopted this scheme in defining the elements of felony murder, we presume its intent was to allow separate sentences for felony murder and aggravated robbery. Therefore, we find no violation here of the state or federal constitutional provisions prohibiting double jeopardy.
Boulies, 746 P.2d at 1388-89. We thereafter granted the defendant's petition for certiorari to consider the court of appeals' resolution of his double jeopardy claim.
The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same crime. U.S. Const. amend. V; Colo. Const. art. II, sec. 18. The constitutional guarantee against double jeopardy serves several purposes: it protects against a second prosecution for the same offense after an acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Because the constitutional guarantee against double jeopardy is significantly different from other procedural guarantees, the United States Supreme Court has accorded retroactive effect to double jeopardy protections. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973).
While in some contexts we have adopted a more expansive standard under the Colorado Double Jeopardy Clause than the federal standard, e.g., People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (), we have adhered to the federal "same offense" standard for purposes of the double jeopardy prohibition against successive prosecutions for separate statutory crimes. People v. Williams, 651 P.2d 899, 902 (Colo.1982); see also People v. Bugarin, 181 Colo. 62, 65, 507 P.2d 875, 877 (1973). This standard focuses on the elements of each offense. If each offense requires proof of a fact which the other does not, the two offenses are sufficiently distinguishable for purposes of...
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