State v. McCovey, 890137
| Decision Date | 18 December 1990 |
| Docket Number | No. 890137,890137 |
| Citation | 803 P.2d 1234 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Charles Kenneth McCOVEY aka Charles Kenneth Hodges, Defendant and Appellant. |
| Court | Utah Supreme Court |
Andrew A. Valdez, Lisa J. Remal, Joan C. Watt, Richard G. Uday, Salt Lake City, for defendant and appellant.
R. Paul Van Dam, David B. Thompson, Salt Lake City, for plaintiff and appellee.
Defendant Charles Kenneth McCovey was convicted of second degree (felony) murder, a first degree felony, 1 and aggravated robbery, a first degree felony. 2 The trial court sentenced McCovey for both crimes, and he now appeals the aggravated robbery sentence, claiming that it is a lesser included offense of second degree felony murder.
On April 22, 1988, McCovey robbed a Kearns, Utah video store. During the course of the robbery, he shot and killed a customer in the store. McCovey maintained throughout the trial that the shooting was an accident.
The State charged McCovey with murder in the first degree and aggravated robbery. At trial, the State attempted to prove that he intentionally or knowingly killed the customer during the robbery. The trial court gave jury instructions on murder in the first degree (capital homicide) and murder in the second degree (felony murder). The trial court's instruction informed the jury that it could convict for second degree murder if it found the following two elements beyond a reasonable doubt:
1. On or about April 22, 1988, in Salt Lake County, State of Utah, the defendant Charles Kenneth McCovey, aka Hodges caused the death of Anna Holmes;
2. While in the commission or attempted commission of aggravated robbery causes the death of another person.
The jury convicted McCovey of second degree murder and aggravated robbery. The fact that McCovey was convicted for second degree felony murder pursuant to Utah Code Ann. § 76-5-203(1)(d) (Supp.1988) is undisputed.
During the sentencing hearing on March 13, 1989, McCovey moved to merge the aggravated robbery conviction with the second degree murder conviction. The trial court denied McCovey's motion and sentenced him to two consecutive terms of five years to life. The sole issue presented on appeal is whether aggravated robbery is a lesser included offense of second degree felony murder, thereby making the sentence a violation of the double jeopardy clause of the fifth amendment to the United States Constitution 3 and Utah Code Ann. § 76-1-402 (1978). 4
The sentence imposed by the trial court is not to be disturbed unless the court abused its discretionary powers. 5 An abuse of discretion results when the judge "fails to consider all legally relevant factors" 6 or if the sentence imposed is "clearly excessive." 7 McCovey claims that the sentence imposed was clearly excessive because aggravated robbery is a lesser included offense of second degree felony murder and, therefore, he should not be punished for both offenses.
We have addressed the issue of lesser included offenses in a number of cases, 8 but this is the first time the issue has been raised in regard to the second degree felony murder statute. Resolution of the issue requires a determination of whether the legislature intended aggravated robbery to be a lesser included offense of second degree felony murder. 9
The United States Supreme Court defined lesser included offenses in Blockburger v. United States 10 by stating: "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." 11
The definition of a lesser included offense has been codified in Utah Code Ann. § 76-1-402(3)(a) (1978) and reads in pertinent part as follows:
(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged....
We have interpreted section 76-1-402(3)(a) to mean that "where the two crimes are 'such that the greater cannot be committed without necessarily having committed the lesser,' then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both." 12
In order to determine whether a greater-lesser relationship exists between two offenses, we undertake a two-part test. In State v. Hill, 13 we stated:
We conclude that for purposes of the prohibition against conviction "of both the offense charged and the included offense," the greater-lesser relationship must be determined by comparing the statutory elements of the two crimes as a theoretical matter and, where necessary, by reference to the facts proved at trial. 14
The circumstance under which "reference to the facts proved at trial" becomes "necessary" is when there are specific variations of the crimes committed. In Hill, we further stated:
A theoretical comparison of the statutory elements of two crimes having multiple variations will be insufficient. In order to determine whether a defendant can be convicted and punished for two different crimes committed in connection with a single criminal episode, the court must consider the evidence to determine whether the greater-lesser relationship exists between the specific variations of the crimes actually proved at trial. 15
Accordingly, we compare the statutory elements of the crimes charged. Second degree felony murder is codified in Utah Code Ann. § 76-5-203 (Supp.1988) and reads in pertinent part as follows:
(1) Criminal homicide constitutes murder in the second degree if the actor:
(a) intentionally or knowingly causes the death of another;
(b) intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another;
(c) acting under circumstances evidencing a depraved indifference to human life, he engages in conduct which creates a grave risk of death to another and thereby causes the death of another; or
(d) while in the commission, attempted commission, or immediate flight from the commission or attempted commission of aggravated robbery, robbery, rape, object rape, forcible sodomy, or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnaping, kidnaping, child kidnaping, rape of a child, object rape of a child, sodomy upon a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, or child abuse, as defined in Subsection 76-5-109(2)(a), when the victim is younger than 14 years of age, causes the death of another person other than a party as defined in Section 76-2-202.
(Emphasis added.)
Aggravated robbery is codified in Utah Code Ann. § 76-6-302 (Supp.1988) and reads in pertinent part as follows:
(1) A person commits aggravated robbery if in the course of committing robbery, he:
(a) Uses a firearm or a facsimile of a firearm, knife or a facsimile of a knife or a deadly weapon, or
(b) causes serious bodily injury upon another.
Under a strict theoretical comparison, aggravated robbery does not have the "same or less than all" of the elements in any of the first three variations of second degree murder under subsections (1)(a), (b), or (c), but does qualify under subsection (d), the felony murder rule. In order to obtain a felony murder conviction, the prosecution must first prove that the murder was committed during the commission, attempted commission, or flight from the commission or attempted commission of a felony. Aggravated robbery is one of the necessary predicate offenses of felony murder.
The second part of the Hill test requires a determination of whether evidence of the lesser included offense was presented at trial. It is undisputed that all elements of aggravated robbery were proven at trial and that McCovey was convicted of the crime. Also undisputed is the fact that the murder took place during the commission of aggravated robbery.
Despite the fact that under the Hill analysis aggravated robbery would be a lesser included offense of felony murder, we recognize that enhancement statutes are different in nature than other criminal statutes. For example, theft has been held to be a lesser included offense of aggravated robbery because theft, by its very nature, has elements that overlap aggravated robbery. 16 Yet the only reason aggravated robbery is encompassed within the definition of lesser included offense of felony murder is that the legislature designated it as an enhancing offense. Aggravated robbery does not, by its nature, have overlapping elements with any traditional form of murder.
An intentional and knowing killing is punishable as second degree murder 17 unless accompanied by some aggravating factor, in which case it is enhanced to first degree murder. 18 One of the aggravating factors that will enhance a murder from second degree to first degree is aggravated robbery.
In State v. Shaffer, 19 we addressed the issue of whether the aggravating factors that enhance second degree murder to first degree murder are lesser included offenses. We stated:
[P]roof of aggravated robbery was a necessary element to proof of first degree felony murder. There can be no doubt that, standing alone, the crimes of aggravated robbery and first degree murder are separate offenses. The offenses are found in different sections of the code. First degree murder is an offense against the person, whereas aggravated robbery is an offense against property. However, under the test for separateness found in section 76-1-402(3), aggravated robbery becomes a lesser included offense of first degree felony murder where, in the situation such as the case at bar, the predicate...
To continue reading
Request your trial
-
Cook v. State
...Com. v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); State v. Powers, 566 A.2d 1298 (R.I.1989); Herrera, 754 S.W.2d 795; State v. McCovey, 803 P.2d 1234, 1238 (Utah 1990); State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991); State v. Tesack, 181 W.Va. 422, 383 S.E.2d 54 (1989); Elliott, 412 S.......
-
State v. Wood
...as a theoretical matter and, where necessary, by reference to the facts proved at trial." 674 P.2d at 97; see also State v. McCovey, 803 P.2d 1234, 1236 (Utah 1990); State v. Branch, 743 P.2d 1187, 1191-92 (Utah 1987). We applied that test in State v. Shaffer, 725 P.2d 1301, 1312-14 (Utah 1......
-
State v. Bond
...“determination to be made is whether the legislature intended” an offense to be a lesser included offense of another. State v. McCovey,803 P.2d 1234, 1238 (Utah 1990); see also Albernaz v. United States,450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)(“[T]he question of what punishm......
-
Engberg v. Meyer
...N.E.2d 772 (1989), reh'g 557 N.E.2d 1325 (Ind.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991); State v. McCovey, 803 P.2d 1234 (Utah 1990). See, in current review, Comment, Application of the Merger Doctrine to the Felony Murder Rule in Texas: The Merger Muddle, 4......
-
A critical analysis of objectivity in the legal sphere.
...State v. Johns, 615 P.2d 1260 (1980). State v. Johnson, 821 P.2d 1150 (1991). State v. Jones, 823 P.2d 1059 (1991). State v. McCovey, 803 P.2d 1234 (1990). State v. Myers, 606 P.2d 250 (1980). State v. Pierre, 572 P.2d 1338 (1977). State v. Ramirez, 817 P.2d 774 (1991). State v. Salmon, 612......