Todd v. State

• Decision Date: 21 June 1996
• Docket Number: Nos. S-6709,S-6807,s. S-6709
• Parties: Robyn TODD, Petitioner, v. STATE of Alaska, Respondent. Joseph HARVEY, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 674

917 P.2d 674

Robyn TODD, Petitioner, v. STATE of Alaska, Respondent.

Joseph HARVEY, Petitioner, v. STATE of Alaska, Respondent.

Nos. S-6709, S-6807.

Supreme Court of Alaska.

June 21, 1996.

Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Rene J. Gonzalez, Judge.

G. Blair McCune, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for Petitioner Todd.

Mitchel J. Schapira, Anchorage, for Petitioner Harvey.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Respondent.

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ.

OPINION

As Revised on Rehearing

COMPTON, Chief Justice.

I. INTRODUCTION

Robyn Todd and Joseph Harvey seek review of the court of appeals' opinion affirming their convictions and corresponding sentences for both second-degree (felony) murder and first-degree robbery in connection with an armed robbery during which a man was killed. They assert that the Double Jeopardy Clauses of the United States and Alaska Constitutions bar conviction and punishment for both felony murder and the predicate felony. We affirm.

II. FACTS AND PROCEEDINGS

The underlying facts are not in dispute. Armed and wearing ski masks, Todd and Harvey entered a bar in downtown Anchorage early one morning while the bar's owner, Lloyd Dahl, and his employees, George Gillis and Nancy Lee Jourdan, were cleaning up and counting the evening's receipts.

While Todd guarded Gillis in the kitchen area at the back of the bar, Harvey went into the bar office where Dahl was counting the money. Dahl tried to prevent Harvey from taking the money and was shot and killed. Jourdan heard the gunshot from outside the office. She fled the bar and flagged down a passing community patrol van. The police were alerted. They confronted Todd and Harvey as the pair left the bar and apprehended them a short time later.

At a joint trial, Todd and Harvey were convicted of the first-degree robbery of Dahl, the second-degree (felony) murder of Dahl, the third-degree assault of Gillis, and Misconduct Involving Weapons in the First Degree. Todd also was convicted of the third-degree assault on police officer Pam Nelson.

At sentencing, Harvey and Todd argued that the Double Jeopardy Clauses of the United States ¹ and Alaska Constitutions ² barred separate convictions for second-degree (felony) murder and the predicate offense of first-degree robbery. The court disagreed. Todd was sentenced to twenty years imprisonment for the second-degree murder charge, consecutive to twelve years imprisonment for the first-degree robbery charge. Harvey was sentenced to thirty years for the murder, consecutive to twelve years for the robbery.

On appeal, the court of appeals determined that the underlying felony "may be" a lesser-included offense of felony murder under Alaska law, Todd v. State, 884 P.2d 668, 686 (Alaska App.1994), but held that Todd's and Harvey's convictions and consecutive sentences for felony murder and the predicate robbery were fully consistent with federal double jeopardy law and the Alaska Constitution as interpreted in Whitton v. State, 479 P.2d 302 (Alaska 1970). Todd, 884 P.2d at 682, 685-86. The court of appeals observed that its holding at least facially conflicted with Tuckfield v. State, 621 P.2d 1350 (Alaska 1981), in which this court observed that "double jeopardy is violated by conviction of both an offense and a lesser included offense, unless the convictions arise from separate conduct," and its own holding in Hughes v. State, 668 P.2d 842 (Alaska App.1983). Todd, 884 P.2d at 680-82. However, the court interpreted more recent Supreme Court decisions to supersede Tuckfield 's analysis and therefore declined to follow Tuckfield and overruled Hughes. Todd, 884 P.2d at 682, 686.

Todd and Harvey separately petitioned this court for review of the court of appeals' decision. Appellate Rule 302(a). We granted the petitions and consolidated the cases for review.

III. DISCUSSION

A. Standard of Review

The issue before the court involves questions of constitutional law and statutory interpretation which we resolve by applying our independent judgment. Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992); Norton v. Alcoholic Beverage Control Board, 695 P.2d 1090, 1092 (Alaska 1985). Our duty is to adopt the rule of law which is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

B. Federal Double Jeopardy Law

The Double Jeopardy Clause of the Fifth Amendment protects against multiple prosecutions and 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). As Todd and Harvey were convicted of all charges in a single proceeding, the only issue is whether their consecutive sentences impermissibly subject them to multiple punishments for the same offense. See Missouri v. Hunter, 459 U.S. 359, 365-66, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court laid out the test to determine whether the violation of two statutory provisions constitutes two offenses or only one. It is "whether each provision requires proof of an additional fact which the other does not." Id. The Supreme Court consistently has applied the Blockburger test for this limited purpose. See Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980) (rape and felony murder where the rape was the predicate crime are the same offense under Blockburger ); Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977) (crimes of joyriding and auto theft are " 'the same statutory offense' within the meaning of the Double Jeopardy Clause"); see also U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (test applied to determine whether conviction of criminal contempt of court barred subsequent prosecution for the offense which was the basis for the contempt prosecution); Albernaz v. United States, 450 U.S. 333, 338-39, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981) (consecutive sentences for conspiracy to import marijuana and conspiracy to distribute marijuana permissible because "although the objects of the conspiracies may partially overlap," Blockburger was satisfied by the fact that the statutes necessitated the proof of different, non-overlapping ends of the conspiracy).

Any indication the Court once may have given that Blockburger provided a unitary test for determining whether offenses were the same and whether the Double Jeopardy Clause was violated has since been disavowed. In a series of cases beginning with Brown v. Ohio and culminating with Missouri v. Hunter, the Supreme Court has stated that, at least in multiple punishment cases, the role of the Double Jeopardy Clause is limited to protecting a defendant against receiving more punishment than the legislature intended. See Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 ("Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."); Whalen v. U.S., 445 U.S. at 688, 100 S.Ct. at 1436 ("[T]he question whether punishments ... are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized."); Missouri v. Hunter, 459 U.S. at 366, 103 S.Ct. at 678 ("With 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."); see also United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1902-03, 104 L.Ed.2d 487 (1989). ³

In the later cases, the Supreme Court has employed the Blockburger test as a statutory interpretation screening tool to educe the intent of the legislature. See Hunter, 459 U.S. at 366-67, 103 S.Ct. at 678; Albernaz, 450 U.S. at 340, 101 S.Ct. at 1143; Whalen, 445 U.S. at 691, 693-95, 100 S.Ct. at 1437, 1438-39. If the statutes pass muster under the Blockburger test, cumulative punishment is presumptively allowable. See Hunter, 459 U.S. at 367, 103 S.Ct. at 678-79 ("[C]umulative punishment can presumptively be assessed after conviction for two offenses that are not the 'same' under Blockburger."). If they fail it, cumulative punishment is presumptively barred. See Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38 ("The assumption underlying the rule [of statutory construction from Blockburger ] is that Congress ordinarily does not intend to punish the same offense under two different statutes."). The presumption against multiple punishment is, however, rebuttable. Thus, the analysis continues with a determination of whether the legislature intended to allow multiple punishments for those offenses that fail the Blockburger test. See Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985) ("We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history."); Albernaz, 450 U.S. at 340, 344, 101 S.Ct. at 1143, 1145 ("[T]he [Blockburger ] rule should not be controlling where ... there is a clear indication of contrary legislative intent."; "Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution."); Whalen, 445 U.S. at 692, 100 S.Ct. at 1438 ("[W]here two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative...