Hughes v. State, 5217

• Citation: 668 P.2d 842
• Decision Date: 02 September 1983
• Docket Number: No. 5217,5217
• Parties: Michael Allen HUGHES, Appellant, v. STATE of Alaska, Appellee.
• Court: Court of Appeals of Alaska

Page 842

668 P.2d 842

Michael Allen HUGHES, Appellant, v. STATE of Alaska, Appellee.

No. 5217.

Court of Appeals of Alaska.

Sept. 2, 1983.

John Marston Richard, Jr., and Phillip P. Weidner, Drathman & Weidner, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

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

OPINION

COATS, Judge.

Michael Hughes appeals to this court raising issues concerning his conviction and sentence of twenty years imprisonment for the crime of manslaughter, and his conviction and sentence of seven and one-half years imprisonment for the crime of attempted armed robbery. We affirm Hughes' manslaughter conviction and sentence and reverse the attempted armed robbery conviction and sentence.

Early on the morning of September 30, 1978, Michael Hughes, Jeffrey Murdock and Manuel Robinson forcibly entered Michael Cornett's Anchorage apartment. Cornett and his guest, Dennis Vandelaar, had earlier allegedly sexually assaulted two teenage prostitute friends of Hughes and Robinson. Cornett and Vandelaar were robbed and beaten by the three intruders. That night, Hughes, Murdock and Robinson attempted an armed robbery of Chino's Restaurant. Hughes claimed he was intoxicated from alcohol and drugs at the time. Owner Joseph Hochong began shooting at the robbers, and Hughes attempted to flee. Attacked by Hochong and Hochong's brother, George, Hughes shot Joseph Hochong to death in the ensuing struggle. He then successfully fought off George Hochong by shoving a candleholder into his face, and fled the scene of the crime. He was arrested on October 2, 1978.

On October 6, 1978, Hughes was indicted on two counts of armed robbery (former AS 11.15.240; former AS 11.15.295), arising out of the apartment robbery conducted with Murdock and Robinson. He was also indicted for attempted armed robbery (same statutes as above and former AS 11.05.020), assault with a dangerous weapon (former AS 11.15.220), and first degree murder (former AS 11.15.010), all arising out of the attempted restaurant robbery conducted with the aforementioned accomplices. Hughes was tried on all counts and found guilty of the two counts of armed robbery of Cornett and Vandelaar in the apartment and one count of attempted armed robbery at the restaurant. The jury was unable to reach a verdict on the murder and assault counts, and the judge declared a mistrial on those counts. Hughes subsequently pleaded no contest to a reduced charge of manslaughter (former AS 11.15.040), reserving his right to appeal under Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska 1974). On February 22, 1980, Judge Ripley sentenced him to concurrent terms of twenty years for manslaughter, ten years for both of the apartment armed robbery counts, and seven and one-half years for the attempted armed robbery at the restaurant.

MULTIPLE PUNISHMENT DOUBLE JEOPARDY

Hughes argues that the trial judge erred in allowing him to be convicted of both attempted armed robbery and manslaughter. ¹ Hughes argues that his conviction of both these offenses constitutes a violation of the double jeopardy clauses of the United States and Alaska Constitutions. ²

Hughes argues that in his case attempted armed robbery was a lesser-included offense of manslaughter and that convicting him of both offenses violated the double jeopardy rule of Tuckfield v. State, 621 P.2d 1350 (Alaska 1981). Tuckfield held that "double jeopardy is violated by conviction of both an offense and a lesser-included offense" arising from the same criminal conduct. Id. at 1352; See Tookak v. State, 648 P.2d 1018, 1022 (Alaska App.1982).

The state concedes that Tuckfield seems to hold that if attempted robbery is a lesser included offense of manslaughter, then Hughes cannot be punished for both offenses. Without any analysis, the state simply contends that attempted armed robbery is not a lesser included offense of manslaughter. We disagree. Hughes was indicted for the murder of Joseph Hochong on a felony-murder theory. ³ The indictment charged that Hughes purposely ⁴ killed Hochong in attempting to commit a robbery. The principle that an underlying felony is a lesser-included offense of a felony homicide is well supported by federal ⁵ and state ⁶ case law. In Hughes' trial, the court charged that if the jury found Hughes not guilty of felony murder, it could find him guilty of manslaughter as a lesser-included offense of felony murder. The court further instructed the jury that the elements of the manslaughter offense were that, on or about the thirtieth day of September 1978, (1) Joseph Hochong was killed, and (2) that Hochong was killed during the perpetration of an attempted robbery of which Hughes is guilty.

This appears to establish an offense which is similar to the felony-murder cases in the sense that proof of the fact that Hughes engaged in the attempted armed robbery establishes everything necessary to convict him of manslaughter, assuming that the jury found that Joseph Hochong was killed during the attempted armed robbery. There may have been other theories on these facts under which the state could have convicted Hughes of manslaughter, however, no instructions were given on any other theory at Hughes' trial nor has the state argued a different manslaughter theory on appeal. ⁷ Under these facts, we assume Hughes entered his plea to the misdemeanor manslaughter theory with which the judge charged the jury in the trial. Under this theory of manslaughter, the attempted armed robbery is a lesser included offense of the manslaughter charge. We therefore hold that Tuckfield requires us to find that convicting Hughes of both attempted robbery and misdemeanor manslaughter violated double jeopardy and that Hughes should not have been sentenced for both crimes.

SUCCESSIVE PROSECUTION DOUBLE JEOPARDY

Hughes points out that when he was tried for the felony-murder charge he was placed in jeopardy and that, although the jury was unable to agree on verdicts on the felony-murder or manslaughter charges, it was allowed to return a verdict of guilty on the attempted armed robbery charge. Hughes contends that he was therefore convicted of a lesser-included offense of manslaughter, and his jeopardy should have ended at that point. ⁸ He argues that "since the state refused to move for a mistrial as to the jury conviction of attempted armed robbery, it was bound to said conviction and sentence and could not reprosecute Mr. Hughes for the greater offense of manslaughter." The state contends that "if this court determines that both convictions cannot stand, the proper remedy is simply to vacate the conviction and sentence for attempted armed robbery."

The double jeopardy prohibition protects against both multiple punishment for the same offense and a second prosecution for the same offense after conviction or acquittal. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); Calder v. State, 619 P.2d 1026, 1028 (Alaska 1980). If Hughes had been convicted of both offenses at his trial, he would not have faced a second prosecution. It is clear that this court could have obviated the multiple punishment double jeopardy problem by reversing the lesser-included offense conviction. Tuckfield v. State, 621 P.2d 1350, 1353 (Alaska 1981); Tookak v. State, 648 P.2d 1018, 1023 (Alaska App.1982). On the other hand, if the state had initially prosecuted and convicted Hughes for the attempted armed robbery and subsequently prosecuted and convicted him for the homicide, it appears that the subsequent greater offense conviction would be unconstitutional. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Yother v. State, 182 Mont. 351, 597 P.2d 79, 82-83 (1979).

Here, the court faces an unusual factual situation. The state initially prosecuted the offenses simultaneously. Because of the mistrial on the greater offense, Hughes was reprosecuted for the greater offense in a separate prosecution subsequent to the guilty verdict on the lesser-included offense. However, judgment and sentence for both offenses were simultaneous.

In Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982), the Supreme Court of Georgia resolved a similar situation in a manner that would allow Hughes' manslaughter conviction to stand. In Bell, the defendant was convicted by jury verdict of the lesser-included offense of arson, but the jury was unable to reach a verdict on the greater charge of felony murder. The trial court declared a mistrial on the felony-murder charge at the defendant's request because of prejudicial publicity. Bell was later sentenced to twenty years on the arson charge. The trial judge then rescheduled the felony murder charge for trial. Bell argued that a retrial on the felony-murder charge violated double jeopardy where he had already been convicted and sentenced on the lesser-included charge of arson. The trial judge ruled against Bell, and he appealed the decision to the Supreme Court of Georgia. The court admitted that it had never before been presented with a double jeopardy claim based upon this factual situation, Id. at 404, and cited no on-point cases. The court unanimously held that:

[W]here the State sought to prosecute a defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense.

If the State retries appellant for felony murder and receives a conviction, however, the trial court must set aside the conviction for the underlying felony of arson in the first degree.

Id. at 405. Thus the court treated this situation as if the greater and lesser-included offense convictions were to be secured in a single trial. It cited three well-established principles in support of this holding: a) the general rule that a...