Todd v. State

• Citation: 884 P.2d 668
• Decision Date: 21 October 1994
• Docket Number: No. A-4618,A-4618
• Parties: Robyn A. TODD, Appellant, v. STATE of Alaska, Appellee.
• Court: Court of Appeals of Alaska

Page 668

884 P.2d 668

Robyn A. TODD, Appellant, v. STATE of Alaska, Appellee.

No. A-4618.

Court of Appeals of Alaska.

Oct. 21, 1994.

Hearing Granted Jan. 10, 1995.

Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant.

Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

MANNHEIMER, Judge.

Robyn A. Todd and an accomplice, Joseph Harvey, robbed the Hub Bar in Anchorage. They forced their way into the office at gunpoint and threatened the owner, Lloyd Dahl, and two employees, Nancy Jourdan and George Gillis. Todd led Gillis to another area of the bar, while Harvey stayed with Dahl in the office. Harvey directed Dahl to give him the bar's cash receipts. When Dahl resisted, he was shot and killed. Jourdan heard the gun shot from outside the office; she fled the bar and flagged down a passing community patrol van. The police were quickly summoned and, after a brief armed confrontation, Todd and Harvey were arrested.

Todd was convicted of the first-degree robbery of Lloyd Dahl, AS 11.41.500(a)(1), the second-degree murder of Lloyd Dahl, AS 11.41.110(a)(3), and the third-degree assault of George Gillis, AS 11.41.220(a)(1). At his sentencing, Todd argued that the double jeopardy clauses of the Federal and State Constitutions ¹ barred separate sentences for the murder, robbery, and assault. Superior Court Judge Rene J. Gonzalez disagreed, ruling that Todd could constitutionally receive separate sentences for these three crimes.

On appeal, Todd renews his argument that he can only be sentenced for murder--that the double jeopardy clauses of the Federal and State Constitutions bar his receiving separate convictions and punishments for the robbery and assault. ²

The propriety of Todd's separate conviction and sentence for the third-degree assault of George Gillis is the easier issue. The Alaska Supreme Court has held that a defendant who victimizes two or more people by a single assaultive act commits a separately punishable assault for each victim. Cooper v. State, 595 P.2d 648 (Alaska 1979). Likewise, a single act of recklessness that kills two or more people constitutes a separately punishable manslaughter for each victim. State v. Dunlop, 721 P.2d 604 (Alaska 1986). Thus, even if the assault on Gillis had arisen from exactly the same act as the assault and killing of Dahl, it still would constitute a separately punishable crime under Alaska law.

We turn now to the constitutionality of Todd's robbery conviction. Todd's argument rests on two premises: first, that robbery is a lesser included offense of felony murder, and second, that it is unconstitutional to separately punish anyone for both a greater offense and an included offense.

Todd's most serious offense, felony murder, is a form of second-degree murder under AS 11.41.110(a)(3):

A person commits the crime of murder in the second degree if

....

(3) acting either alone or with one or more persons, the person commits or attempts to commit arson in the first degree, kidnapping, sexual assault in the first degree, sexual assault in the second degree, burglary in the first degree, escape in the first or second degree, or robbery in any degree and, in the course of or in furtherance of that crime, or in immediate flight from that crime, any person causes the death of a person other than one of the participants.

The State concedes that, under Alaska's cognate approach to lesser included offenses, announced in Elisovsky v. State, 592 P.2d 1221, 1225-26 (Alaska 1979), and in light of the way Todd's offenses were pleaded, first-degree robbery was a lesser included offense of felony murder in Todd's case. This concession would seem to resolve this litigation in Todd's favor because of two previous Alaska decisions: Tuckfield v. State, 621 P.2d 1350 (Alaska 1981), and Hughes v. State, 668 P.2d 842 (Alaska App.1983).

In Tuckfield, the defendant had been convicted of both rape and assault with intent to commit rape arising from a single assault. The supreme court ruled that, under the theory of Tuckfield's prosecution, assault with intent to commit rape had been a lesser included offense of the completed rape. The court then held that the double jeopardy clause prohibited separate convictions for both the greater offense and the lesser included offense:

It is well settled that [the] double jeopardy [clause] is violated by conviction of both an offense and a lesser included offense, unless the convictions arise from separate conduct. E.g., In re Dennis B. , ... 135 Cal.Rptr. 82, 557 P.2d 514 (Cal.1976); People v. Brown , ... 523 P.2d 986, 988 (1974). [This] rule is related to, but distinguishable from, the question considered in Whitton v. State [479 P.2d 302 (Alaska 1970) ] ... concerning when separate punishment[s] may be imposed for separate statutory offenses arising out of the same conduct.... A lesser included offense may differ in terms of conduct or intent from the greater offense [for Whitton purposes]. However, a conviction of both will still be proscribed by the double jeopardy bar.

Tuckfield, 621 P.2d at 1352.

Two years later, this court applied the Tuckfield holding in Hughes v. State. Hughes was charged with first-degree murder and attempted armed robbery under Alaska's former criminal code. A jury found him guilty of attempted armed robbery but was unable to agree on a first-degree murder verdict. Hughes, 668 P.2d at 843. To resolve the murder charge, Hughes entered a plea to manslaughter. However, he argued that, under Tuckfield, the double jeopardy clause barred separate convictions for manslaughter and robbery because the robbery had been a lesser included offense of the manslaughter. Id. at 843-44. ³

The State attempted to avoid Tuckfield by arguing, "[w]ithout any analysis, ... that attempted armed robbery is not a lesser included offense of manslaughter." Id. at 844. This court rejected the State's argument, declaring:

The principle that an underlying felony is a lesser-included offense of a felony homicide is well supported by federal and state case law.... Under [the] theory of manslaughter [presented by the State (that is, that an unintentional killing occurred during Hughes's commission of armed robbery) ], the attempted armed robbery is a lesser included offense of the manslaughter charge. We therefore hold that Tuckfield requires us to find that convicting Hughes of both attempted robbery and manslaughter violated double jeopardy....

Hughes, 668 P.2d at 844-45 & n. 6.

In the present appeal, Todd relies heavily on Tuckfield and Hughes. The State, for its part, argues that Tuckfield should be limited to its facts and that Hughes was wrongly decided. The State's argument, like the trial court's ruling, rests on the supreme court's decision in Whitton v. State, 479 P.2d 302 (Alaska 1970).

Whitton is the supreme court's seminal decision on the issue of "whether separate punishments may be imposed for the commission of separate statutory offenses arising from a single criminal event". 479 P.2d at 305. After surveying the United States Supreme Court's decisions on this issue, our supreme court chose to adopt a different approach as a matter of state constitutional law:

In determining whether several statutory violations constitute the same offense for double jeopardy purposes, we will no longer follow the same-evidence test as enunciated in Blockburger v. United States [284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).] ... We now meet the problem in another way, ... by focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes.

The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether [they] involved differences in intent or conduct. [The judge] would then [analyze] any such differences ... in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered ... include the nature of personal, property[,] or other rights sought to be protected, and the broad objectives of [the] criminal law[,] such as punishment of the criminal for his crime, rehabilitation of the criminal, and prevention of future crimes.

Whitton, 479 P.2d at 312.

Here, when Todd raised the double jeopardy issue in the superior court, Judge Gonzalez agreed that robbery was a lesser included offense of felony murder in Todd's case; that is, if Todd committed felony murder as alleged, he perforce committed first-degree robbery. Nevertheless, Judge Gonzalez ruled that the differences in intent and conduct between robbery and felony murder were substantial enough to justify separate convictions and sentences under Whitton.

Todd asserts that the trial court's ruling violates both Alaska law and federal law. With regard to Alaska law, Todd argues that the Alaska Supreme Court's decision in Tuckfield establishes the hard-and-fast rule that separate convictions are never allowed when one of a defendant's crimes is a lesser included offense of the other, even though the two offenses arguably have sufficient differences in intent and conduct to satisfy the Whitton test. With regard to federal law, Todd argues that Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), establishes the same rule--that a defendant can never be convicted of two offenses when one is a lesser included offense of the other.

Federal Double Jeopardy Law

The double jeopardy clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, Benton v....