State v. Dunlop
| Decision Date | 13 June 1986 |
| Docket Number | Nos. S-923,S-1163,s. S-923 |
| Citation | 721 P.2d 604 |
| Parties | STATE of Alaska, Petitioner, v. James DUNLOP, Respondent, STATE of Alaska, Petitioner, v. Ozzie THOMAS, Respondent. |
| Court | Alaska Supreme Court |
Robert D. Bacon, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch (S-923), and Harold M. Brown, (S-1163), Attys. Gen., Juneau, for petitioner.
William B. Oberly and James E. Gorton, Jr., Gorton & Oberly, Anchorage, for respondent Dunlop.
Kevin M. Carey, Asst. Public Defender, Kenai, Dana Fabe, Public Defender, Anchorage, for respondent Thomas.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
This case arises out of two separate criminal actions, State v. Dunlop and State v. Thomas, consolidated because they raise similar claims under the Alaska Constitution's double jeopardy provision. Alaska Const. art I., § 9. 1 The main issue is whether a defendant can receive multiple sentences for injuring or killing more than one person while driving under the influence of alcohol. The state requests that we overrule or modify our holdings in Thessen v. State, 508 P.2d 1192 (Alaska 1973), and State v. Souter, 606 P.2d 399 (Alaska 1980), where we held that separate punishments for multiple deaths resulting from a single criminal act are impermissible under the state's double jeopardy clause. We conclude that Alaska's constitutional prohibition against double jeopardy does not bar multiple sentences for multiple victims where one statute has been violated several times.
The facts in both cases are undisputed. They come to us on petitions for hearing from the Alaska Court of Appeals' decisions in Dunlop v. State, 696 P.2d 687 (Alaska App.1985), and State v. Thomas, Memorandum Opinion & Judgment, No. 902 (Alaska App. September 4, 1985).
A jury convicted James Dunlop of two counts of manslaughter. AS 11.41.120(a)(1). 2 He also pled no contest to leaving the scene of an injury accident in violation of AS 28.35.050(a) and AS 28.35.060. 3 Dunlop, 696 P.2d at 689. Dunlop left a bar extremely intoxicated. In spite of his intoxication, he drove. He hit two pedestrians at a nearby intersection. Id. at 688-89 n. 1. Judge Brian Shortell sentenced Dunlop to consecutive five-year presumptive terms on the manslaughter counts pursuant to AS 11.41.135. 4 Id. at 689. Dunlop argued to the court of appeals that AS 11.41.135 and Judge Shortell's ruling violated the Alaska Constitution's double jeopardy provision as interpreted by this court in Thessen and Souter. Id. at 689-90. The court of appeals held that Thessen "compels [the] conclusion that separate sentences may not be imposed under the circumstances" of this case. Id. at 688.
Ozzie Thomas pled no contest and was convicted of three counts of third degree assault under AS 11.41.220(a)(2); 5 one count of driving on a revoked driver's license under AS 28.15.291; and violation of conditional release under AS 12.30.060(2). Thomas, MO & J No. 902 at 1. Thomas was arrested at the scene of a multiple vehicle collision, which he had started by hitting a pickup truck from the rear. The chain reaction that followed involved the pickup, a school bus, and a passenger car. A number of people were injured. Thomas was intoxicated; his alcohol level was measured at .18 by a blood test. Judge Cranston sentenced Thomas to five years imprisonment with three and one-half years suspended on each assault count, six months imprisonment with five months suspended on the revoked driver's license conviction, and one year imprisonment with all but 150 days suspended for violating a condition of release. The sentences were to be served consecutively. Id. at 1-2. Thomas argued to the court of appeals that Thessen and Souter allowed only one sentence for the three assault counts. The court of appeals agreed and remanded for resentencing. Id. at 2. We granted the State's petitions in both cases to resolve this important constitutional issue.
We must first determine both the legislature's intent in authorizing multiple sentences and whether such an authorization was within its power. 6
The starting point for statutory analysis is the language of the statutes in question. At issue here are AS 11.41.120, 7 AS 11.41.220, 8 and AS 11.41.135. 9
In the manslaughter statute, AS 11.41.120, and the criminal assault statute, AS 11.41.220, the legislature expressly sought to punish a person for deaths and assaults caused by reckless behavior. 10 The legislature, therefore, has defined as manslaughter the loss of life which results from a person's conscious disregard of a substantial and unjustifiable risk.
In order to ensure that those who kill more than one person are held responsible for their deeds, the legislature has enacted AS 11.41.135. That statute provides:
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. 11
The legislature explicitly set out the purposes of AS 11.41.135 in commentary accompanying its passage:
The intent of [AS 11.41.135] is to reverse the outcome in cases similar to Thessen v. State, 508 P.2d 1192 (Alaska 1973). In Thessen the Alaska Supreme Court held that only one homicide conviction may result when a defendant is convicted of setting a fire that kills 14 people. Under [this section] the defendant could be convicted of 14 counts of homicide--one for each death. Multiple convictions would also result in Manslaughter cases where multiple deaths are caused by a defendant who drives while intoxicated, thus reversing the Alaska Supreme Court's holding in cases similar to the factual situation in State v. Souter, 606 P.2d 399 (Alaska 1980).
3 1982 House Journal, Supp. No. 63, 2 (June 1, 1982). 12
In Thessen we held that "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." 508 P.2d at 1195. This broad language potentially applies to the violation of any single statute where there are multiple victims. On its face AS 11.41.135 does not directly authorize multiple punishments for multiple victims of reckless assaults. It does, however, imply such intent. We do not believe that the legislature sought to single out homicide defendants for special treatment. At the time AS 11.41.135 was enacted only homicide cases had been decided. See 3 1982 House Journal, Supp. No. 63 at 2. It would be inconsistent to hold that where deaths occur multiple punishments are possible but where only injuries or a combination of deaths and injuries occur, a court would be required to only punish once for multiple assaults. We do not believe the legislature intended such an anomaly.
By defining manslaughter and third degree assault to include responsibility for reckless behavior and defining "recklessness" to include the risk that a result will occur, the legislature sought to hold people criminally responsible for the results of their behavior that are within the scope of the risk created by that behavior. 13 Our decisions and those of other courts uniformly recognize the inherent authority of the legislative branch to define and punish crimes absent constitutional violations. 14
Absent proof of a constitutional violation we will uphold a legislative imposition of punishment. We must, therefore, ascertain whether the legislature's actions are constitutionally permissible.
In Whitton v. State, 479 P.2d 302 (Alaska 1970), we were required to define "same offense" for purposes of Alaska's double jeopardy clause. 15 There a jury convicted the defendant of robbery and of using a firearm during the commission of that robbery. The defendant was sentenced for both counts and argued on appeal that he was placed in jeopardy twice for the same offense. We considered a number of tests formulated by other jurisdictions for defining the "same offense" and ultimately rejected them all. 16 479 P.2d at 308-12. We found that all the tests failed to determine when separate statutory violations constitute the same offense. Id. at 312. Our test, ultimately, focused on the quality of any differences between the statutory violations and how those differences relate to the basic societal interests protected by the statutes. Id.
We described the application of the standard:
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal, property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes.
Id. If differences in intent or conduct exist as to the different statutes, and if those differences are significant or substantial in relation to the social interest involved, multiple sentences may be imposed and double jeopardy principles are not violated. Id. We concluded that robbery and use of a firearm were the same offense under this test and hence only one sentence could be imposed. Id. at 314. 17
Three years later we were presented with a very different double jeopardy issue in Thessen v. State, 508 P.2d 1192 (Alaska 1973). There a jury convicted ...
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