Cook v. State

Decision Date20 November 1992
Docket Number91-101,Nos. 91-100,s. 91-100
PartiesThomas R. COOK, a/k/a Richard A. Dowdell, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Paul J. PETERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender, David Gosar, Appellate Counsel, Deborah Baumer (argued), Asst. Public Defender, and Deborah Gabriel, Legal Intern, for appellants.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Theodore E. Lauer, Faculty Director, Prosecution Assistance Program, and Herman Gene Walker, Jr., Student Intern (argued), for appellee.


CARDINE, Justice.

After pleas of guilty to felony murder, aggravated robbery and conspiracy to commit aggravated robbery, appellants each were sentenced to terms of life, 20 to 25 years, and 20 to 25 years, the sentences to run consecutively. They appeal now presenting the central issue of whether the sentencing court could lawfully impose a sentence for felony murder and a separate sentence for the underlying felony, in this case aggravated robbery. Birr v. State, 744 P.2d 1117 (Wyo.1987), cert. denied 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990), answered that separate punishments were authorized; and, therefore, courts imposing such sentences would not violate constitutional double jeopardy provisions. Acknowledging the legal doctrine of stare decisis, appellants, nevertheless, request a reexamination of that decision.

We reverse the multiple punishments imposed and overrule Birr.

Appellants confine their consolidated appeal to a single issue:

I. Did the consecutive sentences imposed for felony murder and the underlying felony violate the double jeopardy clauses of the United States and the Wyoming Constitutions?


Armed with a twenty-gauge shotgun, Richard A. Dowdell (a/k/a Thomas R. Cook) (hereinafter Cook) and Paul J. Peterson (hereinafter Peterson) planned a robbery and scouted a number of service stations and businesses in Greybull, Wyoming on July 26, 1990. When the pair drove their black van into the Gasamat, they saw Darrel Hanson (Hanson), the 69-year-old manager, working alone. While Cook pried the cash drawer open, Peterson hit Hanson over the head two times with the barrel of a sawed-off shotgun. After stealing approximately $360.00 in cash and some cigarettes, Cook returned to the van and saw Hanson attempting to get up from the station floor. Cook told Peterson, who was on his way out of the station, to shoot Hanson. Peterson complied, killing Hanson with a shotgun blast to his neck. A local resident driving by the Gasamat the evening of the robbery noticed a black van speeding away from the station. Law enforcement authorities across the State were notified of the van's description.

The next day, a Wyoming highway patrol officer spotted Cook and Peterson driving their black van across southwestern Wyoming's Interstate 80. After being spotted, Cook and Peterson led officers on a fifty-

two mile high-speed chase. The pair shot at the pursuing law enforcement officers during the chase. Authorities were successful in stopping and arresting Cook and Peterson. They obtained a search warrant and discovered a twenty-gauge single shot sawed-off shotgun and ammunition inside the van. Ballistics tests positively identified a shell casing found at the Gasamat as having been fired from the sawed-off shotgun found in the van

In return for the State's agreement not to seek the death penalty, Cook and Peterson pled guilty to felony murder, W.S. 6-2-101(a) (Supp.1991); aggravated robbery, W.S. 6-2-401(c)(i) (1988); and conspiracy to commit aggravated robbery, W.S. 6-1-303(a) (1988). The court sentenced each man to life for the felony murder count; 20 to 25 years for aggravated robbery and 20 to 25 years for conspiracy, the sentences to run consecutively. Cook and Peterson, in this consolidated action, appeal only the imposition of multiple punishments for the felony murder and the underlying felony of aggravated robbery.

Before beginning our discussion of the legal issues, it is necessary to sound a note of caution. In their brief, appellants refer to the facts of this case as being "irrelevant." This characterization reflects a callous view of this incident's impact which we must forcefully decry. For the victim, his life ended suddenly and violently while innocently engaged in meaningful employment. For the victim's family, friends and the community, violent death shatters illusions of peaceful lives sheltered from other's problems. For Cook and Peterson, both 19 at the time of the crime, their lives were obviously changed forever. Far from irrelevant, the facts give reason to the prosecutor's discretionary use of his charging authority in pursuing multiple charges and pleas. Advocacy on behalf of a client and blind justice demand a more accurate portrayal of such events than "irrelevant."


The law of double jeopardy is "confused, inconsistent, and less than a model of clarity." Howard v. State, 762 P.2d 28, 40 (Wyo.1988) (Thomas, J., dissenting) (citing Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting)). Such an appraisal is easily documented. What emerges from a survey of federal and state precedent is a potholed path to a mirage. In this instance, the mirage is that icon of "settled law." The travail comes not from the protection accorded by double jeopardy but from the analysis required to determine its applicability. Recent decisions of the United States Supreme Court have clarified the required analysis compelling a reexamination of our decision in Birr.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides three separate constitutional protections. "It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311 (1984), citing Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); accord, Tuggle v. State, 733 P.2d 610, 611 (Wyo.1987). As used in the Double Jeopardy Clause, "same offense" means "the same crime, not the same transaction, acts, circumstances, or situation." Black's Law Dictionary 1081 (6th ed. 1990).

The Fifth Amendment is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The Wyoming Constitution assures the same three protections in stating: "nor shall any person be twice put in jeopardy for the same offense." Wyo. Const. Art. 1, § 11; Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977); Hopkinson v. State, 664 P.2d 43, 68 (Wyo.), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Only the protection against multiple punishments is at issue in the present case.

In Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873), the United States Supreme Court first enforced the protection against multiple punishments. Edward Lange received both a fine and a one year prison sentence for stealing post office mail-bags. After paying the fine and beginning his jail sentence, Lange filed for writs of habeas corpus and certiorari. The Supreme Court held the lower court acted without authority in imposing multiple sentences because the permitted statutory punishment was a fine or imprisonment. Lange, 18 Wall. at 178.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

Id. at 168. The Court directed that the Constitution's "spirit" is "to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection." Id. at 170.

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), announced a rule of statutory construction to be used in determining legislative intent to authorize multiple punishments. Blockburger was convicted of selling morphine hydrochloride not "in or from the original stamped package" and of selling such a drug without a "written order." Id., 284 U.S. at 303-04, 52 S.Ct. at 182. Both crimes violated individual sections of federal stamp tax legislation. Blockburger challenged his consecutive sentences as being multiple punishments for the same offense since only a single transaction was involved. The Court stated, "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 an additional fact which the other does not." Id., 284 U.S. at 304, 52 S.Ct. at 182. Applying this standard, the Court held the statute created "two distinct offenses" which were violated during the course of a single sale by Blockburger. Id.

A three-part analysis framework emerged from subsequent United States Supreme Court decisions refining and explaining the multiple punishment protection. The initial step requires a determination of legislative intent to authorize separate punishment. Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137,...

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