State v. Gordon

• Decision Date: 12 April 1983
• Docket Number: No. 81-2280-CR,81-2280-CR
• Citation: 330 N.W.2d 564,111 Wis.2d 133
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Barbara Sue GORDON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 564

330 N.W.2d 564

111 Wis.2d 133

STATE of Wisconsin, Plaintiff-Respondent, v. Barbara Sue GORDON, Defendant-Appellant.

No. 81-2280-CR.

Supreme Court of Wisconsin.

Argued Jan. 7, 1983.

Decided March 1, 1983.

Reconsideration Denied April 12, 1983.

Donna L. Hintze, Asst. State Public Defender, for defendant-appellant.

Kirbie Knutson, Asst. Atty. Gen., argued, Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-respondent.

ABRAHAMSON, Justice.

This is an appeal from a judgment of the circuit court for Milwaukee county, Michael D. Guolee, Circuit Judge, and from an order of the circuit court for Milwaukee county, Ralph Adam Fine, Circuit Judge. The circuit court entered a judgment adjudicating the defendant guilty of the crimes of kidnapping, robbery, burglary, and second-degree murder and sentencing the defendant as follows:

Kidnapping, 15 years;

Burglary, 8 years, to run concurrently with the kidnapping sentence;

Robbery, 8 years, to run concurrently with the kidnapping sentence;

Second-degree murder, 15 years, to run consecutively to the three other sentences.

At trial the circuit court specifically found that the kidnapping constituted the underlying felony for the second-degree murder conviction. It denied defendant's post-conviction motion to vacate the judgment of conviction for kidnapping and to resentence her on the other convictions. This court granted direct review of the judgment and order upon certification of the court of appeals. Secs. 808.05(2) and 809.61, Stats. 1979-80.

The sole issue raised on appeal is whether the defendant's conviction of and sentencing for second-degree murder (felony-murder), contrary to sec. 940.02(2), and kidnapping, contrary to sec. 940.31(1)(a), which is the felony underlying the felony-murder conviction, exposed the defendant to double jeopardy. The state concedes (brief, p. 3) that in this case kidnapping is a lesser-included offense of felony-murder under the additional element test set forth in sec. 939.66(1), Stats. 1979-80, and Schroeder v. State, 222 Wis. 251, 260-61, 267 N.W. 899 (1936). Proof of second-degree felony-murder under sec. 940.02(2) requires proof of all the elements of kidnapping and requires proof of additional elements, namely that the death of another human being was caused as a natural and probable consequence of the commission of or attempt to commit the kidnapping, and proof of kidnapping does not require proof of any element which is not necessary to prove the second-degree murder charge. ¹

We conclude that the legislature did not expressly authorize punishment for both the underlying felony and felony-murder and that multiple punishment in this case violates the defendant's federal constitutional guarantee against being twice put in jeopardy. Accordingly we vacate the judgment of conviction for kidnapping, we reverse the order denying defendant's motion for resentencing, we vacate the sentences imposed for each crime, and we remand to the circuit court for resentencing on the convictions for robbery, burglary, and second-degree murder.

The defendant argues that conviction of and sentencing for both felony-murder and kidnapping, the greater offense and its lesser-included offense, violate her right to be free from double jeopardy guaranteed to her by the fifth and fourteenth amendments of the United States Constitution ² and by Art. I, sec. 8 of the Wisconsin Constitution, ³ and violate her rights provided by the legislature under secs. 939.66(1) and 939.71, Stats. 1979-80. We need consider only the federal constitutional claim.

The federal constitutional guarantee against double jeopardy protects inter alia "against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The scope of this constitutional protection turns on the meaning of the words "same offense." The United States Supreme Court has determined that where a court imposes multiple punishments in a single trial for violations of two or more criminal statutes arising from the same criminal conduct, the constitutionality of the multiple punishment depends on whether the state legislature intended that the violations constitute a single offense or two offenses, that is whether the legislature intended one punishment or multiple punishment. Thus the court has said that "[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, ----, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). See also, Albernaz v. United States, 450 U.S. 333, 340, 344, 101 S.Ct. 1137, 1143, 1145, 67 L.Ed.2d 275 (1981); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

Since the defendant's federal constitutional rights in this case depend on whether the Wisconsin legislature intends to impose multiple punishment for felony-murder and the underlying felony, we must discern the legislature's intent. The United States Supreme Court has not defined the test to be used to determine legislative intent. We look for legislative intent in the language of the statutes and, where the statutes can reasonably be understood in more than one sense, in the legislative history or in both the statutory language and the legislative history. Albernaz v. United States, 450 U.S. at 340, 101 S.Ct. at 1143. But where there is no clear expression of legislative intent, the United States Supreme Court has set forth a rule of statutory construction to determine whether the legislature has authorized multiple punishment. This court must assume, says the supreme court, that the legislature "ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980) (Emphasis added.), quoted with approval in Missouri v. Hunter, --- U.S. ----, ----, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). The criterion to use to determine whether the two distinct statutory provisions proscribe the same offense was set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), as follows: "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." ⁴ The Blockburger test has been referred to as the "additional element" or "additional fact" test. State v. Rabe, 96 Wis.2d 48, 63, 64, 291 N.W.2d 809 (1980).

To determine whether the circuit court in this case committed constitutional error in imposing multiple punishment for kidnapping and felony-murder, we look first to the legislative intent as reflected in the language of the statutes. The legislature has set forth separate statutory offenses for kidnapping, sec. 940.31(1)(a), Stats. 1979-80, ⁵ and killing a person in the course of kidnapping, sec. 940.02(2), Stats. 1979-80, ⁶ and each statute authorizes punishment for violation of its terms. The statutory language does not, however, clearly express the legislative intent to impose multiple punishment when the violations of the statutes arise from the same criminal conduct. The fact that both statutes exist does not provide a sufficient basis to support the conclusion that there is a "clear" legislative intent to allow two convictions and two sentences where the same criminal conduct violates both statutes.

Since the statutes setting forth the substantive offenses do not clearly reveal legislative intent to impose multiple punishment, we look to other sections of the criminal code to shed light on the legislature's intent. Sec. 939.71, Stats. 1979-80, proscribes two prosecutions for two offenses arising out of the same criminal act unless each statute setting forth the substantive crime "requires proof of a fact for conviction which the other does not require." This section substantially enacts the Blockburger test and reads as follows:

"939.71 Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require."

Since sec. 939.71 refers to a subsequent prosecution for the same offense after acquittal or conviction, it does not directly apply to this case which involves multiple punishment in a single prosecution. The statute does, however, reflect the legislative intent to forbid multiple prosecution (and thus punishment) for a single offense using the same test to define a single offense that the United States Supreme Court used in Blockburger. In enacting sec. 939.71, the legislature codified this court's statement of the "additional element" test adopted in Schroeder v. State, 222 Wis. 251, 260-61, 267 N.W. 899 (1936), interpreting this state's constitutional guarantee against double jeopardy. See, Wisconsin Legislative Council, V Judiciary Committee Report on the Criminal Code (February 1953), p. 55; State v. Rabe, 96 Wis.2d 48, 63, 64, 291 N.W.2d 809 (1980). Both Schroeder and Blockburger involved multiple counts in a single prosecution. ^{7 7} Thus, sec. 939.71 codifies this state's constitutional rule relating to multiple punishment in a single prosecution to protect against multiple prosecutions (and multiple...