State ex rel. Wikberg v. Henderson

• Decision Date: 25 March 1974
• Docket Number: No. 53377,53377
• Citation: 292 So.2d 505
• Parties: STATE of Louisiana ex rel. Ronald G. WIKBERG and Jackie F. Craven v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
• Court: Louisiana Supreme Court

Page 505

292 So.2d 505

STATE of Louisiana ex rel. Ronald G. WIKBERG and Jackie F. Craven v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.

No. 53377.

Supreme Court of Louisiana.

March 25, 1974.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for defendants-respondents.

Anatole J. Plaisance, Lafayette, for plaintiffs-relators.

CALOGERO, Justice.

The defendants, Ronald G. Wikberg and Jackie F. Craven, were indicted for the murder of one Stanley Melancon. La.R.S. 14:30. Mr. Melancon was shot to death during an attempted armed robbery of his store in Lafayette on September 17, 1969. Defendant Craven was tried and convicted of murder on January 9, 1970. He was sentenced to death, which sentence was later commuted to life imprisonment. Defendant Wikberg entered a plea of guilty without capital punishment to the crime of murder, and was sentenced to life imprisonment.

Both defendants entered pleas of guilty to charges of attempted armed robbery arising out of the same incident. La.R.S. 14:64 and La.R.S. 14:27. Each was sentenced to be imprisoned for twenty-five (25) years on the attempted armed robbery charge, with those sentences to run consecutively with their life sentences for murder.

The statement of facts of the District Attorney, introduced into evidence by counsel for the defendants at the evidentiary hearing on this writ application in the district court indicates the following:

The defendants entered the store of the decedent and attempted to rob him of his money. Both defendants were armed. The decedent resisted the attempt to rob him and drew his own weapon, whereupon a gunfight ensued. During the gunfight, the decedent was fatally wounded. Ballistics examination revealed that the fatal shot was fired from the gun of the defendant, Wikberg.

In response to an application for a bill of particulars, the state indicated that both defendants were being prosecuted under the 'felony murder' provision of La.R.S 14:30,¹ which provided, at the time of this offense:

'Murder is the killing of a human being:

(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery or simple robbery, even though he has no intent to kill.'

We granted writs, 281 So.2d 750, to consider whether the conviction of these defendants for attempted armed robbery following their convictions for murder arising out of the same incident constitutes a violation of the prohibition against former jeopardy found in both the Louisiana and United States Constitutions.²

The Fifth Amendment to the United States Constitution provides, in pertinent part:

'. . . nor shall any person be subject For the same offense to be twice put in jeopardy of life and limb . . .'

Article I, Section 9 of the Louisiana Constitution likewise provides:

'. . . nor shall any person be twice put in jeopardy of life or liberty For the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.'

The Federal double jeopardy guarantee hs been held applicable to state prosecutions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This application is fully retroactive. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The scope of the dfederal constitutional guarantee is elaborated in North Carolina v. Pearce, Supra, wherein it was stated:

'That guarantee has been said to consist of three separate constitutional protections, It proteccts against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' (Emphasis added).

The Louisiana Code of Criminal Procedure defines double jeopardy in Article 591, which states:

'No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.'

The elusive concept of what constitutes 'the same offense' for determination of whether the prohibition against double jeopardy has been violated has led to multiple judicially-created tests as well as legislative enactments. Our statutory double jeopardy requirements to not attempt to define with precision what is meant by the term 'offense'.³ The many variations of the 'same evidence' test and the 'same transaction' test have been thoroughly discussed in the jurisprudence and by legal scholars, without a definite or satisfactory standard having emerged. See, e.g., the Official Revision Comment to Article 596 of the Code of Criminal Procedure; State v. Didier, 262 La. 364, 263 So.2d 322 (1972); Mayers and Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960); Comment, 75 Yale L.J. 271 (1965); Comment, 65 Yale L.J. 339 (1956); Comment, 32 La.L.Rev. 87 (1971); Comment, 21 La.L.Rev. 615 (1961).

These sources have extensively examined the history of the double jeopardy prohibition and the various tests used to implement in throughout our legal history, and no purpose would be served in embarking upon such a lengthy discussion here. Suffice it to say that none of the various tests has received universal acceptance.

Counsel for relators cites us to both the 'same evidence' test and the 'same transaction' test in support of defendants' claim that they have been twice placed in jeopardy.

The 'same transaction' test was first enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, it was staed:

'. . . 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 crimes, or only one is whether each provision requires proof of fact which the other does not.'

While this test has been applied by many state and federal courts, it was not applied by a majority of the members of the United States Supreme Court in the recent case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), despite its strong advocation by three members of that Court in a concurring opinion. 397 U.S. at 448, 90 S.Ct. at 1196. Nor has it been adopted by this Court, State v. Didier, Supra. It has, however, been applied by the United States Distrit Court for the Western District of Louisiana vacating a sentence previously upheld by a majority of the members of this Court. See Colle v. Henderson, 350 F.Supp. 1010 (W.D.La.1972). Cf. State ex rel. Colle v. Henderson, 262 La. 1172, 266 So.2d 449 (1972).

In actuality, the 'same transaction' test as applied does not very extensively from the variation of the 'same evidence' test traditionally applied in Louisiana. That test holds that offenses are 'the same' if the elements required to support a conviction upon one of the offenses would have been sufficient to warrant a conviction upon another.⁴ See State v. Roberts, 152 La. 283, 93 So. 95 (1922); State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Schneller, 199 La. 811, 7 So.2d 66 (1942). Stated differently, where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy. State v. Bonfanti,262 La. 153, 262 So.2d 504 (1972); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Richmond, 284 So.2d 317 (La.1973); State v. Pettle,286 So.2d 625 (La.1973).

Applying this test to the facts of the case before us, we conclude that to convict the defendants for attempted armed robbery following their conviction for felony-murder arising out of the same incident violates the prohibition against double jeopardy. This holding is required because of the nature of our felony-murder doctrine. In a prosecution under paragraph two (2) of La.R.S. 14:30, the state is relieved of proving intent to kill or inflict great bodily harm. This, in effect, deprives the defendant of several defenses which would be available in a prosecution for intentional murder. For example, a plea of accident, mistake and probably even self defense, is unavailing under the felony murder doctrine. The only requirements for conviction are the commission or attempted commission of the enumerated felony, and a resulting death. See, e.g., State v. Ghoram, 290 So.2d 850, La. decided Feb. 18, 1974.

It is therefore clear that, by definition, conduct which would not constitute the crime of murder under the first paragraph of R.S. 14:30 is punished as murder under the second paragraph of that statute. As a result, a defendant convicted of felony-murder is in fact being punished for the felony which he was perpetrating when the death occurred. He is 'in jeopardy' (i.e., exposed to punishment) for the offense in the murder trial since conduct which at worst would render him guilty of manslaughter, and which at best might be noncriminal is punished as murder dur to the existence of the enumerated felony.

Of course, an essential element of the state's proof of felony-murder is the commission or attempted perpetration of the enumerated felony. The enumerated felony is therefore a different grade of the same offense (or an included offense) for double jeopardy purposes. See C.Cr.P. Art. 596.

In most cases, the lesser grade or included offense is generically the same as the more severe crime charge, e.g., armed robbery and theft. In the case of felony-murder and felony-manslaughter, however, generically different offenses such as armed robbery and murder are combined into a single offense through a legal fiction, which fiction relieves the...