State v. Jurden

Decision Date01 July 2016
Docket NumberNo. CR–15–0236–PR,CR–15–0236–PR
PartiesState of Arizona, Appellee, v. Samkeita Jahveh Jurden, Appellant.
CourtArizona Supreme Court

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Christopher M. DeRose (argued), Special Assistant Attorney General for Appeals, Criminal Appeals Section, Phoenix, Attorneys for State of Arizona.

Maricopa County Public Defender's Office, Jeffrey L. Force (argued), Deputy Public Defender, Phoenix, Attorneys for Samkeita Jahveh Jurden.

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.

JUSTICE BOLICK, opinion of the Court:

¶ 1 We granted review to determine whether multiple convictions under Arizona's resisting arrest statute, A.R.S. § 13–508

, that arise from a single, uninterrupted course of conduct constitute multiple convictions for the same offense in violation of the Double Jeopardy Clause. We hold that, regardless of the number of officers involved, § 13–2508 only permits one conviction when a defendant resists an arrest in the course of a single, continuous event.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 In September 2012, Samkeita Jahveh Jurden walked into a department store shirtless, shoeless, and with an unleashed dog. The store's security guard contacted the police after Jurden refused to leave. Jurden remained even after two officers arrived and also asked him to leave. When the officers attempted to arrest Jurden, he resisted by biting and kicking one officer and flailing and pulling his arms away from the other. The officers struggled with Jurden for nearly four minutes before subduing and handcuffing him. The resistance and arrest formed one, uninterrupted course of conduct.

¶ 3 A grand jury indicted Jurden on two counts of aggravated assault, one count of criminal trespass, and two counts of resisting arrest under A.R.S. § 13–2508(A)(1)

—one for each officer resisted. A jury found Jurden guilty on all charges except one aggravated assault count.

¶ 4 The trial court sentenced Jurden to concurrent rather than consecutive terms of imprisonment. In accordance with A.R.S. § 13–711(A)

, the trial judge explained his reasoning:

[A]ll the more when I watch the video in this case, it's all one incident and it starts and it just continues. ... Perhaps, if there were some lengthy delay between one event and another, there might be a better justification of the idea of consecutive sentences. But this all starts and ends in just one big melee, really, and so the idea of consecutive sentences here doesn't seem appropriate to me, under the circumstances.

¶ 5 On appeal, Jurden argued that his two convictions under § 13–2508

for resisting arrest arose from a single offense and, therefore, his second conviction arose from the same offense and violated the Double Jeopardy Clause. In a split decision, the court of appeals agreed and vacated one of the convictions. State v. Jurden , 237 Ariz. 423, 429 ¶ 21, 352 P.3d 455, 461 (App. 2015).

¶ 6 We granted review because whether § 13–2508

authorizes multiple convictions and punishments for resisting arrest in one, uninterrupted course of conduct that involves more than one officer presents a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

¶ 7 This case presents an issue of statutory interpretation, which we review de novo. Lubin v. Thomas , 213 Ariz. 496, 498 ¶ 13, 144 P.3d 510, 512 (2006)

. However, it also implicates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Because Jurden failed to raise the double jeopardy objection in the trial court, we review only for fundamental error. See

State v. Miller , 234 Ariz. 31, 36 ¶ 7, 316 P.3d 1219, 1224 (2013) ; State v. Bolton , 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995). A conviction or sentence that violates the Double Jeopardy Clause constitutes fundamental error. State v. McGill , 213 Ariz. 147, 153 ¶ 21, 140 P.3d 930, 936 (2006).

¶ 8 The parties disagree whether a defendant may be convicted under § 13–2508

of multiple counts of resisting arrest resulting from a single, continuous act of resistance involving multiple officers. Section 13–2508 states:

A. A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest by:
1. Using or threatening to use physical force against the peace officer or another.
2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.
3. Engaging in passive resistance.
B. Resisting arrest pursuant to subsection A, paragraph 1 or 2 of this section is a class 6 felony. Resisting arrest pursuant to subsection A, paragraph 3 of this section is a class 1 misdemeanor.
C. For the purposes of this section, “passive resistance” means a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest.

¶ 9 The State argues that § 13–2508(A)(1)

is victim-directed, meaning a separate offense is committed for each peace officer against whom physical force is directed. Jurden argues that the statute is event-directed, so that the single, continuous act of resisting arrest constitutes one offense, regardless of how many officers were resisted. If Jurden is correct, then subjecting him to conviction and punishment for two counts of resisting arrest violates the prohibition against double jeopardy.

¶ 10 The Double Jeopardy Clause protects against multiple punishments for the same offense. State v. Eagle , 196 Ariz. 188, 190 ¶ 6, 994 P.2d 395, 397 (2000)

; see also

Whalen v. United States , 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).1 The protection against double jeopardy may be triggered in two contexts. First, if the same conduct is held to constitute a violation of two different criminal statutes, “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.” Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; accord

United States v. Dixon , 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) ; see also

Eagle , 196 Ariz. at 190 ¶ 6, 994 P.2d at 397 ; cf. A.R.S. § 13–116 (requiring concurrent sentences for a single “act or omission which is made punishable in different ways by different sections of the laws”).

¶ 11 Second, if multiple violations of the same statute are based on the same conduct, there can be only one conviction if there is a single offense. See, e.g. , State v. Powers , 200 Ariz. 123, 125 ¶ 5, 23 P.3d 668, 670 (App. 2001)

, approved , 200 Ariz. 363, 26 P.3d 1134 (2001). In such cases, the statutory definition of the crime determines the scope of conduct for which a discrete charge can be brought, which the United States Supreme Court has referred to as the “allowable unit of prosecution.” United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952). Because our decisions have not definitively addressed the analysis pertaining to “unit of prosecution cases, we endeavor to do so here.

¶ 12 The seminal United States Supreme Court case is Ladner v. United States , 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958)

, in which the Court reviewed a consecutive sentence on a second assault charge where the defendant discharged his weapon once but wounded two officers. Examining the federal assault statute, the Court asked: “Did Congress mean that the single discharge of a shotgun would constitute one assault, and thus only one offense, regardless of the number of officers affected, or did Congress define a separate offense for each federal officer affected by the doing of the act?” Id. at 173, 79 S.Ct. 209. The Court examined the statutory language, history, and purpose, which it found inconclusive. Id. at 173–77, 79 S.Ct. 209. The Court reasoned, [A]n interpretation that there are as many assaults committed as there are officers affected would produce incongruous results.” Id. at 177, 79 S.Ct. 209. Under such a reading, a defendant who seriously injured an officer would receive a maximum sentence of ten years, “but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years' imprisonment, even though he does not fire the gun and no officer actually suffers injury.” Id. Finally, the Court applied the “policy of lenity,” in which the Court “will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Id. at 178, 79 S.Ct. 209. These factors caused the Court to conclude that the discharge of the shotgun constituted only one assault. Id.

¶ 13 Other state supreme courts have applied these criteria in “unit of prosecution cases. In Commonwealth v. Rabb

, the Massachusetts Supreme Judicial Court instructed:

The appropriate inquiry in a case like this ... asks what “unit of prosecution was intended by the Legislature as the punishable act. ... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor.

431 Mass. 123, 725 N.E.2d 1036, 1041 (2000)

; accord

State v. Schoonover , 281 Kan. 453, 133 P.3d 48, 65 (2006) ([I]n unit of prosecution cases the Court applies a rule of lenity.”).

¶ 14 The Arizona cases cited...

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