People v. Raymer, 77-886

• Decision Date: 11 December 1980
• Docket Number: No. 77-886,77-886
• Citation: 626 P.2d 705
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott Elliott RAYMER, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 705

626 P.2d 705

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Scott Elliott RAYMER, Defendant-Appellant.

No. 77-886.

Colorado Court of Appeals, Div. III.

Dec. 11, 1980 Rehearings Denied Jan. 22, 1981 Certiorati for Appellant Denied April 6, 1981 Certiorari for Appellee Granted April 6, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, John Daniel Dailey, Asst. Attys., Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Steven H. Denman, Jody Sorenson Theis, Deputy State Public Defenders, Denver, for defendant-appellant.

STERNBERG, Judge.

The defendant, Scott Elliott Raymer, appeals his convictions of felony murder and aggravated robbery. We reverse the conviction of aggravated robbery and remand the cause to the trial court for additional findings regarding the felony murder.

On December 12, 1976, Raymer and two cohorts robbed a self-service gas station. The three men drove up to the pay booth where one of Raymer's companions, armed with a shotgun, demanded and received the cash drawer from the attendant. As they drove away Raymer fired a shot through the pay booth window, fatally wounding the attendant. After a jury trial, he was found guilty of aggravated robbery and felony murder and sentenced to life imprisonment for the first degree felony murder and to a term of not less than 36 nor more than 40 years for aggravated robbery.

I.

Raymer contends that the sentence for the aggravated robbery must be vacated because, for purposes of punishment, the underlying felony of aggravated robbery merged with the felony murder offense. We agree.

Under the felony murder statute, § 18-3-102(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8), if a death is caused in the course of a "robbery" then the perpetrator of the robbery may be convicted of first degree murder. Consequently, conviction of both "robbery" and felony murder arising from the same incident is precluded by the constitutional protection against double jeopardy because the two charges merge. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974).

Here, however, defendant was convicted of the class 3 felony of "aggravated robbery" under § 18-4-302, C.R.S. 1973 (1978 Repl. Vol. 8), as well as felony murder. Thus, the question is whether "aggravated robbery" also merged in the felony murder offense. If so, Raymer's conviction of aggravated robbery as well as felony murder would be unconstitutional.

If the term "robbery" as used in the felony murder statute means only the class 4 felony defined in the simple robbery statute, § 18-4-301(1), C.R.S. 1973 (1978 Repl. Vol. 8), then "aggravated robbery," not being one of the specified felonies in the felony murder statute, would not be merged in the felony murder. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974). And, as a consequence, double jeopardy would not bar prosecution for both aggravated robbery and felony murder.

We conclude that aggravated robbery, as well as robbery, merges in a felony murder charge. The crime of robbery is defined in § 18-4-301(1), C.R.S. 1973 (1978 Repl. Vol. 8), and the crime of aggravated robbery is set forth in § 18-4-302(1), C.R.S. 1973 (1978 Repl. Vol. 8). Aggravated robbery is the crime of robbery committed in a particular manner, and subject to greater punishment. See Atwood v. People, 176 Colo. 183, 489 P.2d 1305 (1971); People v. Bartsch, 37 Colo.App. 52, 543 P.2d 1273 (1975).

Indeed, an anomalous result would follow from an interpretation that robbery is merged in felony murder but aggravated robbery is not. Under such construction, where a death is caused during a simple robbery, the perpetrator could be convicted of first degree murder, without showing deliberation, by prosecution under the felony murder statute. If, however, a death occurred during the commission of the more serious crime of aggravated robbery, then the felony murder statute could not be used as a basis for the homicide prosecution, and the perpetrator could be convicted of first degree murder only if the element of deliberation were established. We believe that no such inconsistent result was intended by the General Assembly, and thus, we reject this interpretation.

Instead, we conclude that the term "robbery," as used in the felony murder statute, is to be construed as meaning this type of felony in its generic sense, including all types of robbery as defined in the statutes. Under such interpretation, any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge. This interpretation is consistent with the underlying purpose of the felony murder statute which is to imply the element of deliberation where the commission of certain crimes of violence result in a death. See Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966).

Because aggravated robbery is merged into the offense of felony murder, Raymer's conviction of the offense of aggravated robbery cannot...