State v. Franklin, 18052

• Decision Date: 19 March 1987
• Docket Number: No. 18052,18052
• Citation: 735 P.2d 34
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Joseph Paul FRANKLIN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 34

735 P.2d 34

The STATE of Utah, Plaintiff and Respondent, v. Joseph Paul FRANKLIN, Defendant and Appellant.

No. 18052.

Supreme Court of Utah.

March 19, 1987.

David E. Yocom, Martin Verhoef, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Defendant appeals from a conviction of two counts of first degree murder under U.C.A., 1953, § 76-5-202 (Supp.1986). We affirm.

On August 20, 1980, defendant, an avowed racist, shot and killed two black men who were jogging in Liberty Park with two white women. On March 4, 1981, a jury in the United States District Court for the District of Utah convicted defendant of violating the civil rights of his victims in contravention of 18 U.S.C.A. § 245(b)(2)(B) (1969). Defendant was sentenced to two life sentences. After the federal prosecution, defendant was charged and tried by the State of Utah for two counts of first degree murder. During that trial, the prosecution called Detective Jesse Baker as a witness. Detective Baker testified that he had interviewed defendant in Florence, Kentucky, after defendant had been arrested there on suspicion of possessing a stolen vehicle. Detective Baker said that defendant appeared unperturbed by questions concerning the stolen vehicle charge, but became emotional when he was questioned about the Utah murders. During a break in the questioning, defendant escaped through a window. At trial, defendant's counsel cross-examined Detective Baker at length and brought up two robberies in which defendant was a suspect at the time of the Kentucky arrest. Defense counsel chose to discuss the robberies in order to offer a motive, other than guilt in the Salt Lake murders, for defendant's escape. The jury in Utah district court convicted defendant, but was unable to reach a unanimous verdict for death. The trial judge therefore sentenced defendant to two consecutive life terms to be served at the end of the federal sentences.

Defendant appeals on two grounds: he claims first that his trial in state court after his conviction in federal court violated the prohibitions against double jeopardy contained in the United States Constitution and in the Utah Constitution and Code; he also asserts that the Utah district court erred in admitting evidence concerning his flight from custody in Florence, Kentucky.

Double Jeopardy

The fifth amendment of the United States Constitution provides that no person "shall ... be subject for the same offense to be twice put in jeopardy of life or limb...." The Utah Constitution also prohibits double jeopardy. It states: "[N]or shall any person be twice put in jeopardy for the same offense." Utah Const. art. I, § 12. U.C.A., 1953, § 77-1-6(2)(a) provides similar protection. It states: "No person shall be put twice in jeopardy for the same offense." Common to all these provisions is the term "same offense." Defendant argues that the murders and the federal civil rights violations should be considered the same offense for purposes of double jeopardy. He contends that because the killings and the civil rights violations arose from the same event (his shooting of two men in Liberty Park on August 20, 1980), the double jeopardy clause bars his prosecution for the separate violations of law.

The prohibition against double jeopardy protects defendant against three things: prosecution for the same offense after acquittal, prosecution for the same offense after conviction, and the infliction of multiple punishments for the same offense. State v. James, 631 P.2d 854, 856 (Utah 1981) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

Neither the state nor the federal double jeopardy clause is violated when a defendant is tried for different offenses arising out of the same incident as long as each offense requires proof of a fact that the other does not and is therefore a separate legal offense. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); State v. Sosa, 598 P.2d 342, 346 (Utah 1979); see also State v. Thatcher, 108 Utah 63, 71-73, 157 P.2d 258, 261-62 (1945). For example, writing a bad check and forgery are not the same offense even if both charges are premised on the same incident, because they are not defined by the same legal elements. State v. Harris, 30 Utah 2d 354, 355-56, 517 P.2d 1313, 1314 (1974).

Each of the offenses of which defendant has been convicted requires proof of facts that the other does not. In order to establish a violation of 18 U.S.C.A. § 245(b)(2)(B) (1969), a federal prosecutor must prove that a defendant, by threat or force, willfully injured, intimidated, or interfered with another person because of the other's race, color, or national origin and because he was enjoying a benefit, service, privilege, program, or activity provided or administrated by a state or a political subdivision of a state. In this case, the federal prosecutor proved that defendant had prevented his victims from using a city park because of their race. The state prosecutor proved that defendant violated U.C.A., 1953, § 76-5-202(1)(b) and (c) (1978) by intentionally or knowingly killing both victims at the same time or in a manner that endangered the lives of persons other than himself or his victims. Thus, the federal and state statutes under which defendant was convicted require proof of different elements and do not define the same offense. We note also that the two statutes have different purposes: the federal statute is intended to protect the rights of all citizens to enjoy the benefits of citizenship regardless of race; the Utah first degree murder statute is intended to punish those who intentionally or knowingly murder another person under certain enumerated aggravating circumstances. See Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979) (interpreting an Arkansas statute that codifies the Blockburger definition but adds a requirement that the two statutes must be intended to prevent substantially different types of harm); see also Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998, 1000 (1978) (interpreting a Pennsylvania statute using the same language as the Arkansas statute).

Defendant's convictions are also separate offenses because they were imposed under the laws of different sovereigns.

The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141 [142-43], 67 L.Ed. 314 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable." Id. at 20.

Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). See also United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Screws v. United States, 325 U.S. 91, 114-18, 65 S.Ct. 1031, 1041-44, 89 L.Ed. 1495 (1945) (Rutledge, J., concurring); Westfall v. United States, 274 U.S. 256, 258, 47 S.Ct. 629, 71 L.Ed. 1036 (1927).

Defendant asks us to abandon the dual sovereignty doctrine and hold that the State of Utah may not try him because he has already been tried by the federal government. Defendant offers two reasons why we should so hold: he argues that U.C.A., 1953, § 76-1-404 (1978) compels that result and that other state courts have properly chosen to curtail the right of their states to try defendants who have already been tried by another sovereign. We are not persuaded by either argument.

U.C.A., 1953, § 76-1-404 provides:

If a defendant's conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if (1) the former prosecution resulted in an acquittal, conviction, or termination of prosecution, as those terms are defined in section 76-1-403, and (2) the subsequent prosecution is for the same offense or offenses.

(Emphasis added.) As the discussion above indicates, the federal and state crimes do not constitute the same offense. Defendant cites cases from other jurisdictions in which courts have held that their statutes barred subsequent prosecutions. Those cases are all distinguishable because the statutory language they construe is broader than that contained in section 76-1-404, which uses the term "offense." When the legislature uses a word with a well-established legal meaning, we assume that the legislature is aware of that meaning and has used the word in its proper sense. Section 76-1-403, immediately preceding the section defendant relies on here, forbids state prosecution for "offenses" arising out of "the same criminal episode." This language, which differentiates between "offenses" in the strict Blockburger-Sosa meaning of that term and "criminal episodes," is indicative of the legislature's awareness of double jeopardy terminology and its intent to use that terminology precisely. It is therefore appropriate to view section 76-1-404 as a legislative codification of traditional double jeopardy interpretation. By contrast, the statutes from other jurisdictions that defendant insists are similar to section 76-1-404 do...