Dunlop v. State

• Decision Date: 15 March 1985
• Docket Number: No. A-278,A-278
• Parties: James DUNLOP, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 687

696 P.2d 687

James DUNLOP, Appellant, v. STATE of Alaska, Appellee.

No. A-278.

Court of Appeals of Alaska.

March 15, 1985.

James E. Gorton, Jr. and William B. Oberly, Gorton & Oberly, Anchorage, for appellant.

James E. Dunlop, pro se.

Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

In this case we are presented with the difficult question of whether two sentences may be imposed for two manslaughter convictions arising out of the same conduct. A careful reading of the Alaska Supreme Court's decision in Thessen v. State, 508 P.2d 1192 (Alaska 1973), compels our conclusion that separate sentences may not be imposed under the circumstances presented here.

At approximately 3:00 a.m. on March 18, 1983, James Dunlop left a local bar. He was extremely intoxicated, but he agreed to drive a friend's car. Shortly thereafter, Dunlop hit two pedestrians at an intersection. At trial, the superior court concluded that the physical evidence at the scene was "consistent with the prosecution's theory that Dunlop had not seen the pedestrians until immediately before or just as the car he was driving hit them." ¹

Dunlop was convicted by jury trial of two counts of manslaughter. AS 11.41.120(a)(1). He also pled no contest to leaving the scene of an injury accident. AS 28.35.050(a) and AS 28.35.060. Superior Court Judge Brian C. Shortell found that no statutory aggravating or mitigating factors had been established. He also concluded that AS 11.41.135 allowed separate punishment on the two manslaughter counts, and that other applicable sentencing statutes required that the sentences be consecutive. Accordingly, Judge Shortell sentenced Dunlop to consecutive five-year presumptive terms on the manslaughter counts, and a non-presumptive sentence of five years for leaving the scene, to run concurrently to the second manslaughter term.

Dunlop appeals, arguing that the sentence violated the constitutional prohibition on being placed "in jeopardy twice for the same offense." Alaska Const., art. 1, § 9. In Thessen v. State, 508 P.2d 1192 (Alaska 1973), the supreme court held that this prohibition would be violated by imposition of more than one sentence for a single act of arson, despite the fact that fourteen people were killed in the fire, and the arsonist stood convicted of fourteen counts of manslaughter. The court began its analysis by pointing out that, because Thessen had been acquitted of first-degree murder as to each victim on a felony-murder theory, the jury had necessarily concluded that Thessen lacked the intent to kill anyone when he set fire to a hotel. Id. at 1194. The court then proceeded to analyze the case under Whitton v. State, 479 P.2d 302, 310 (Alaska 1970). Its discussion is worth quoting at length:

Courts have long wrestled with the multifaceted problem of determining what constitutes one offense. Many such cases involve statutes which define separate crimes for piecemeal portions of one transaction. In the posture of this case, however, we are confronted with the violation of but one statute involving multiple victims. The answer to the question will depend in part on whether we focus on the single act of arson or the consequence involving multiple victims. We look first to Whitton for guidance in solving this dilemma. After discussing the "same evidence", the "same transaction" tests and other recommended criteria, Whitton adopted a more flexible standard than either. The different statutes are to be compared as applied to the facts of the case in order to ascertain whether they involve differences in intent or conduct. If such differences exist, they are to be judged in light of the basic interests of society to be vindicated or protected. A decision must then be made as to whether those differences are substantial enough to warrant multiple punishments.

The initial inquiry under Whitton is thus directed at a comparison of the different statutes violated as applied to the facts of the case in order to ascertain whether there are differences in intent or conduct. But in the subject case, only one statute is involved. We can compare one count with another and still apply the test. The sole difference between each count was the name of the victim involved. Thessen's intent and conduct were identical as to each count. Since there is an absence of any difference in intent and conduct, we do not reach the other considerations set forth in Whitton--the judging of the differences "in light of the basic interests of society to be vindicated or protected". The Whitton test for ascertainment of double jeopardy when applied to the multiple counts charged against Thessen dictates the conclusion that but one offense was committed. Where there has been but one statute violated by a single act, without intent to harm multiple victims, the Alaskan constitutional prohibition against placing a person in jeopardy twice for the same offense prevents imposition of multiple punishments.

Thessen v. State, 508 P.2d at 1194-95 (footnotes omitted).

The holding of Thessen was affirmed in State v. Gibson, 543 P.2d 406 (Alaska 1975), and again in State v. Souter, 606 P.2d 399 (Alaska 1980). In State v. Souter, a defendant was convicted of three counts of drunk-driving manslaughter. The state acknowledged that Thessen precluded multiple punishments, but asked the court to reconsider Thessen. 606 P.2d at 400. The court declined to do so. Id.

If this case were to be decided solely under Thessen, the result would be clear. Alaska Statute 11.41.120(a)(1) provides:

A person commits the crime of manslaughter if the person ... intentionally, knowingly or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree.

While Dunlop acted recklessly with regard to the lives of his victims, the focus under Thessen is upon intent and conduct. 508 P.2d at 1195. ² As in Thessen, "[t]he sole difference between each count was the name of the victim involved." Id. Since Dunlop hit both pedestrians at once, but intended to hit neither, it follows that Dunlop's intent and conduct were identical as to each count.

In 1982, however, the legislature enacted AS 11.41.135, which provides that:

If more than one person dies as a result of a person committing conduct constituting a crime specified in AS 11.41.100-11.41.130, each death constitutes a separately punishable offense.

The state correctly points out that AS 11.41.135 was enacted in direct response to Thessen and Souter. ³ The state argues that Thessen merely stated the rule to be applied when the legislative intent is in doubt, and that AS 11.41.135 clears up any doubt. The state further argues that recent decisions of the United States Supreme Court make it clear that "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, 285 (1981). See also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Despite the state's argument, we can reach no other conclusion except that the holding in Thessen was based squarely on the Alaska Constitution. References in the opinion are to "our constitutional inhibition," "the Alaskan constitutional prohibition" and "the Constitutional prohibition" against double jeopardy. 508 P.2d at 1194, 1195 and 1197. While the court did discuss cases from other jurisdictions, it explained that each of those cases could be distinguished by the fact that there was an apparent intent to affect more than one victim.

In the subject case, however, there was no intent to harm anyone and consequently, no intent to harm more than one person. Under these circumstances, it would be a violation of the Alaska double jeopardy prohibition to impose multiple punishments for Thessen's single act, despite its horrendous consequences.

Id. at 1197.

Similarly, we must reject the state's contention that the court in Thessen specifically invited the legislature to pass a statute like AS 11.41.135 if it wished to have multiple punishments imposed. The court did state:

A different question would be presented if the Legislature had seen fit to increase the punishment for a single act of manslaughter by means of arson of a multiple-family dwelling. Although the jury's verdict absolved Thessen of any intent to kill, they did find that he intended to burn the Lane Hotel, and his conduct was such that he did so. Setting fire to a hotel where numerous people sleep does not involve the same conduct or intent as setting fire to a single family dwelling or an abandoned shed. The most grave of societal interests, preservation of the sanctity of life, is involved. If the Legislature so desired, it could recognize this interest by increasing the penalties for this offense. The Legislature has not seen fit to make this distinction.

508 P.2d at 1195. Also, in Thessen, the court said:

Within constitutional limits, the Legislature has the power to impose whatever punishments it deems appropriate for specific crimes. In fact, it has had little difficulty in expressing distinctions where it has seen fit to do so. If the Legislature so desired, it could...