Swaite v. State, CR
| Citation | 272 Ark. 128,612 S.W.2d 307 |
| Decision Date | 09 March 1981 |
| Docket Number | No. CR,CR |
| Parties | Walter Talmadge SWAITE and Tommy Lynn Swaite, Appellants, v. STATE of Arkansas, Appellee. 80-222. |
| Court | Supreme Court of Arkansas |
E. Alvin Schay, State Appellate Defender by Jackson Jones, Deputy Public Defender, Little Rock, for appellants.
Steve Clark, Atty. Gen. by C. R. McNair, III, Asst. Atty. Gen., Little Rock, for appellee.
After a trial by jury, appellants, Walter Swaite and Tommy Swaite, were each convicted and sentenced to five years for aggravated robbery and ten years for the attempted capital murder of Bill Junkin, and to one year for the aggravated assault of Glenda Junkin, and to one year for the aggravated assault of Connie Craft.
On the night of January 4, 1980, two men wearing ski masks entered a liquor store in Harrisburg. One had a .38 caliber revolver and the other had a .45 caliber automatic pistol. Bill Junkin, the owner of the store, saw them and told Glenda Junkin, his wife, and Connie Craft, his daughter to lie on the floor. One of the robbers pointed a pistol at Bill Junkin who whipped out a pistol and yelled, "Hold it or I will blow your head off." The robber with the .38 caliber pistol fired and the bullet broke a half-gallon of whiskey sitting on a shelf right over Junkin's head. Junkin then shot at the robber holding the .45 caliber automatic, who instantaneously returned one shot; Junkin ducked behind a counter. The robber with the .45 then fired two more rounds which hit the counter. These latter shots passed close to the head of Junkin's wife and all of the shots were within ten feet of his daughter.
At the time the shots were being fired, the victims heard a third person running behind the store. Then all three robbers ran to a parked car where a fourth person was waiting. Junkin fired two shots at the car as the four escaped.
Appellants argue that they committed only one crime during this criminal escapade and to convict them of more than one violates the United States Constitutional prohibition against double jeopardy and Ark.Stat.Ann. § 41-105(1)(a), (2)(a) (Repl.1977), which provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); ...
. . . .
(2) ... An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ...
Appellants are correct in their argument that to convict, under these circumstances, of attempted capital murder under Ark.Stat.Ann. § 41-1501 (Repl.1977) and Ark.Stat.Ann. § 41-701 (Repl.1977), and aggravated robbery under Ark.Stat.Ann. §§ 41-2102 and -2103 (Repl.1977) for the same conduct is prohibited by the provisions of § 41-105 quoted above.
The issue is whether one of these offenses is included in the other and is established by proof of the same or less than all the elements required to establish the commission of the other offense. If so, an entry of judgment of conviction on both of these charges will fall under the prohibition of Ark.Stat.Ann. § 41-105(1)(a), (2)(a) (Repl.1977).
In determining this issue we must examine the language of our capital murder statute which provides:
Ark.Stat.Ann. § 41-1501 (Repl.1977): Capital murder. (1) A person commits capital murder if:
(a) acting alone or with one or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ...
The language of our capital murder statute requires that a death be caused in the furtherance of the commission or attempt to commit any one of seven specific felonies. Proof of the elements of that specific felony, or its attempt, must, by definition, be had to support a conviction of the capital crime, or its attempt. It follows logically that, in proving the specified felony, there must be proof of "the same or less than all the elements required to establish the commission" of the capital offense (in this case, the attempted capital murder) and the specified felony is thus an "included" offense within the double-conviction prohibition of Ark.Stat.Ann. § 41-105(1) (a), (2)(a); therefore, § 41-105 prohibits the conviction of both an attempt to commit a greater offense and a lesser included offense arising from the same conduct.
The same principle applies, where, for the same conduct, a conviction is sought for attempted aggravated robbery and robbery. By way of clarification, the statutory provisions for these crimes are:
Ark.Stat.Ann. § 41-2102 (Repl.1977): Aggravated robbery. (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person....
Ark.Stat.Ann. § 41-2103 (Repl.1977): Robbery. (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
The aggravated robbery statute, like the capital murder statute, by definition includes a specified lesser offense. It is obvious here that a conviction cannot be had under these statutes for attempted aggravated robbery and robbery when the same conduct establishes the commission of both offenses.
Appellants, also, correctly distinguish Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), where proper objections were not made in the trial court and where reliance was upon subsection (1)(e) of Ark.Stat.Ann. § 41-105 rather than subsection (1)(a).
Therefore, for the reasons stated, the convictions for attempted capital murder and aggravated robbery are remanded to the trial court to set aside judgment of conviction for one of these offenses which was entered contrary to the provisions of Ark.Stat.Ann. § 41-105.
Appellants are incorrect in their contention that there exists a statutory or constitutional prohibition against convictions for the aggravated assaults committed against Glenda Junkin and Connie Craft. Although these crimes were committed in the same escapade, they were not of the same conduct because they were committed against different persons. By statutory definition there are added elements of proof different victims.
The United States Supreme Court stated in Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980) that:
(M)ultiple punishments cannot be imposed for two offenses arising out of the same criminal transaction (escapade) unless each offense 'requires proof of a fact which the other does not.' The clause refers, of course, to a rule of statutory construction stated by this Court in Blockburger v. United States, 284 U.S. 299, (52 S.Ct. 180, 76 L.Ed. 306) and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.
The United States Supreme Court addressed the issue of multiple offenses arising from one escapade in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery; the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused in a subsequent proceeding for robbing the other victims. Later, in Brown v. Ohio, 432 U.S. 161, 166 n.6, 97 S.Ct. 2221, 2226 n.6, 53 L.Ed.2d 187 (1976), the Supreme Court concluded that separate convictions for the robbery of each victim in Ashe could have been had under the Blockburger test since each case required proof that a different individual had been robbed.
Appellants next contend that, if there was no double jeopardy, the evidence presented was insufficient to support the various convictions. On appellate review we affirm if there is...
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