Ingram v. Com., SC-336-DG

• Decision Date: 27 December 1990
• Docket Number: SC-336-DG
• Citation: 801 S.W.2d 321
• Parties: Paul INGRAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. 90-
• Court: United States State Supreme Court — District of Kentucky

Page 321

801 S.W.2d 321

Paul INGRAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

90-SC-336-DG.

Supreme Court of Kentucky.

Dec. 27, 1990.

Stephen P. Durham, Appellate Public Advocate, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Ann Louise Cheuvront, Asst. Atty. Gen., Frankfort, for appellee.

COMBS, Justice.

By a multi-count indictment, appellant Ingram was charged with three offenses involving the sale, and possession for intended sale, of marijuana. In a single trial, he was found guilty on all counts. Two of those convictions constitute the subject matter of this review, which presents the question of whether Ingram has been twice put in jeopardy for the same offense, in violation of Kentucky Constitution Sec. 13.

The factual premise is simple. Ingram--an adult--sold two ¹ marijuana cigarettes to a minor. This exchange happened to occur within one thousand yards of a school building. The transaction produced two convictions, one for selling marijuana to a minor, ² another for trafficking within one thousand yards of a school; ³ consecutive five-year sentences were imposed. Appellant insists that multiple convictions for a single act are prohibited by the Double Jeopardy Clause. ⁴

We have by dictum expressed a view that the protections against double jeopardy afforded by the Kentucky Constitution are co-extensive with those guaranteed by the Fifth Amendment of the Constitution of the United States. Jordan v. Commonwealth, Ky., 703 S.W.2d 870, 872 (1986). But notwithstanding the almost identical language of the two provisions, our interpretation of the one has not in fact mirrored the United States Supreme Court's reading of the other.

The doctrine operates to bar subsequent prosecution for an offense, once the defendant has been acquitted or convicted, and to prohibit multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Jordan v. Commonwealth, supra. To determine whether two charged offenses are in law the same offense, in the context of multiple punishments, the U.S. Supreme Court established the following test:

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.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). This test, which has been codified in Kentucky, ⁵ is essentially whether either offense is included in the other.

The Supreme Court has painstakingly distinguished the successive prosecutions context as raising grave concerns "beyond merely the possibility of an enhanced sentence...." Grady v. Corbin, --- U.S. ----, ----, 110 S.Ct. 2084, 2091, 109 L.Ed.2d 548, 562 (1990). Where the issue is subsequent prosecution, inquiry may proceed beyond the Blockburger analysis:

[A] subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Id., at ----, 110 S.Ct. at 2093, 109 L.Ed.2d, at 564. Cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

The Court has not, however, supplemented the Blockburger criteria when the issue is multiple punishments imposed in a single trial. See Ohio v. Johnson, supra; Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). It has even said that in such cases, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 495 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

This Court holds the Kentucky Constitution superordinate to legislative intent. Moreover, we have at times, in a series of multiple punishment cases, inclined to the view that a single impulse or a single act constitutes but one offense. ⁶ This view of Sec. 13 is obviously broader than the "included offense" approach of Blockburger and KRS 505.020.

Although the facts were very different, the situational posture in Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983), was closely analogous to that in the present case. Hamilton was convicted of both rape and incest for a single act of sexual intercourse with his ten-year old daughter. Clearly, neither offense was included in the other. The father-daughter relationship necessary to the offense of incest, was extraneous to the charge of rape; the age of the victim, very material to the non-consent element of rape, was immaterial to incest. Departing from strict application of Blockburger, we reversed one of the convictions on double jeopardy grounds.

In Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984), we held that a conviction for theft of property precludes a simultaneous conviction for knowingly receiving (the same) stolen property. In reversing, we emphasized that the defendant had been twice convicted for the same act.

In Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984), we affirmed convictions for burglary in the first degree and assault in the first degree. Apart from separate elements, these offenses involved separate acts:

The question is whether in each offense there are additional acts of criminal misconduct which are unnecessary to the commission of the other offense. [Emphasis added.]

Id., at 233. The burglar's stabbing the home dweller was an additional act constituting the separate offense of assault. Polk effectively substituted the requirement of additional acts for the additional facts of Blockburger, although the different standard did not alter the result.

In Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985), we affirmed multiple convictions for conspiracy to commit robbery in the first degree and accomplice to assault in the second degree. It was again clear that the offenses involved multiple acts. We quoted the "additional acts of criminal misconduct" language of Polk as the "determinative question." Id., at 859.

By a unanimous decision in Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986), we affirmed separate convictions for burglary and robbery, and held that a guilty plea to the included offense of theft does not attach jeopardy to a prosecution for robbery, although the theft conviction must fall. Apparently aligning our course with that of the U.S. Supreme Court, and relying on Blockburger, Missouri v. Hunter, supra, and Ohio v. Johnson, supra, we "noted" the identity of the Kentucky and United States double jeopardy protections, and stressed the distinction between single- and multiple-prosecution cases. On the other hand, it may be noted that the outcome, if not the rationale, was as consistent with the additional acts approach as with the additional facts standard. Interestingly, we quoted the following language from Blockburger:

The distinction stated by Mr. Wharton is that "when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all united in swelling a common stream of action, separate indictments lie." Wharton's Criminal Law, 11th ed. Sec. 34. Or, as stated in note 3 to that section, "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately ... if the latter, there can be but one penalty."

Id., 703 S.W.2d at 873; Blockburger, supra, 284 U.S. at 302, 52 S.Ct. at 181.

Next came Wager v. Commonwealth, Ky., 751 S.W.2d 28 (1988). Quoting the venerable Blockburger rule and KRS 505.020, we held that the defendant might be convicted of both rape in the first degree and assault in the second degree, since neither offense is included in the other. ⁷

Then, in Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988), we again abandoned strict adherence to the traditional "different facts" test. We held that conviction for robbery prohibits conviction for possession of the stolen property, even though each offense contains elements not common, and even though the charges are tried together. While we concluded that possession of stolen property is, like theft, an extra-statutory included offense of robbery, our reasoning was imbued with the idea that a single act constitutes a single offense. From Wharton via Blockburger and Jordan: "[W]hen the impulse is single, but one indictment lies...." Id., at 463. From Milward, Kentucky Criminal Practice, Sec. 5.07 (1984):

Section 13 of the Kentucky Constitution, which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two or more offenses.

Id., at 463. Our interpretation of Sec. 13:

The Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses.

Id., at 463.

Our recent decision in Smith v. Lowe, Ky., 792 S.W.2d 371 (1990) is only tangentially relevant here, but we note it for completeness' sake. There we held that the collateral estoppel element of the double jeopardy principle, as codified by KRS 505.050(2), barred a state prosecution based on a single act after a jury had acquitted the defendant of federal charges deriving from the same act. We reasoned that the acquitting jury had in all likelihood determined that the defendant had not committed the act.

Like Hamilton, supra, the instant case presents a single impulse and a single act, having no...