Whitton v. State

Decision Date23 December 1970
Docket NumberNo. 1153,1153
Citation479 P.2d 302
PartiesRaymond David WHITTON, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Thomas E. Fenton, Jackson & Fenton, Fairbanks, for appellant.

G. Kent Edwards, Atty. Gen., Gerald J. Van Hoomissen, Dist. Atty., Thomas F. Keever, Asst. Dist. Atty., Fairbanks, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

OPINION

DIMOND, Justice.

A jury found appellant guilty of the crime of robbery and of the crime of using a firearm during commission of the same robbery. Appellant raises several points on this appeal in support of his contention that a new trial should be ordered.

Double Jeopardy.

In Count I of the indictment appellant was charged with robbery. This was in accordance with a statute making one guilty of the crime of robbery if he steals or takes anything of value from a person by force or violence or by putting such person in fear. 1 In Count II of the indictment, appellant was charged with the crime of using or carrying a firearm during the commission of a robbery. This was in accordance with another statute which makes it a felony to use or carry a firearm during the commission of robbery or other designated offenses. 2 Appellant argues that the two separate statutory offenses are essentially one crime, and that when he was sentenced for both he was placed in jeopardy twice for the same offense in violation of his constitutional rights. 3

It is within the traditional scope of legislative power to deter anti-social behavior by enacting laws proscribing, under the pain of punishment certain courses of human conduct considered to be detrimental to an ordered society. In the course of regulating authoritatively the essential relations between the members of society, the legislature has allocated certain property rights to individuals, groups or collective units. It is in recognition and for the protection of those rights that laws have been enacted which provide for the infliction of punishment upon one who takes the property of another.

In criminal laws of this nature, society is asserting its basic interest in the protection of the person and his property. This interest may vary according to the circumstances in which the person is unlawfully deprived of his property. Such varying degrees of interest are expressed in criminal statutes which prescribe different punishments for what may be considered as one basic offense against a person's property rights, but which, because of the circumstances in which the property is taken from the person, are considered by society to be more or less grave.

This is exemplified by the statutes pertinent to this case. The legislature has made it a crime to steal or take from another anything of value. When this crime is committed without force or violence, and without putting the victim in fear, it is called larceny from the person, punishable by imprisonment for not less than one year nor more than five years. 4 When the crime is committed by force or violence, or by putting the victim in fear, it is called robbery, and the punishment is increased to a maximum of 15 years imprisonment. 5 And when the robbery is committed while using or carrying a firearm, the punishment is even more severe-imprisonment for not less than 10 years for the first offense, and for not less than 25 years for a second or subsequent offense. 6

The varying degrees of punishment, depending upon the manner or circumstances in which the act of stealing takes place, reflect society's legitimate interest in the protection of the person. We recognized this in Miller v. State 7 where we referred to the necessity of controlling man's destructive and aggressive impulses and of the need of developing rules to inhibit violence. In Gray v. State 8 we commented upon the obvious fact that when one commits a robbery with a firearm, he has created a situation fraught with peril, with an immediate threat of violence, and because of this is precluded from claiming self-defense to any act of violence that results from such a crime. As the threat of fear and force and violence increases, so must the deterrent to behavior creating this danger to the person, in order that life in society may be tolerable.

We cannot question the wisdom of the legislature in imposing a more stringent penalty for robbery where a firearm is involved. The inherent nature and purpose of a firearm is such as to create a danger of loss of life or serious injury to the person so as to merit the inhibiting force of a law imposing a minimum prison term of 10 years for one who commits a robbery in this manner. The question that we must decide is whether, where there is a single criminal event, one may be punished for two crimes-robbery, and robbery while using or carrying a firearm.

We acknowledge it is not entirely clear that two distinct offenses were intended by the legislature. The House Judiciary Committee report on the bill which was enacted as AS 11.15.295 in 1968 9 stated:

This bill imposes mandatory sentences on the first and subsequent convictions for the commission of certain serious crimes if the individual is carrying a firearm. There is a 10-year minimum sentence for the first offense and 25 years for a subsequent offense. 10

This might be construed as showing that the legislature intended only to modify the penalty provisions of robbery and other crimes to provide for mandatory, minimum sentences where such crimes were committed by a person using or carrying a firearm.

On the other hand, the committee report used the word 'offense' in relation to the bill, and the statute states that one who commits designated offenses while using or carrying a firearm 'is guilty of a felony.' This is an indication that the legislature did not mrerly intend to provide for more severe penalties, but contemplated that when one committed, e. g., a robbery while using or carrying a firearm, he would have committed an offense different from the crime of robbery not involving a firearm.

At best the legislative intent in this regard is obscure. Since it is conceivable that separate, distinct offenses may have been intended, we feel we must pass upon the question of whether separate punishments may be imposed for the commission of separate statutory offenses arising from a single criminal event. 11

It is a fundamental concept, expressed in cirminal statutes providing a single sentence of imprisonment for each distinct crime, that a defendant may not be punished more than once for the same offense. 12 But frequently the legislature will isolate and make criminal a number of steps arising out of one transaction, so that a defendant may be convicted and punished for multiple offenses arising out of a single activity. This type of legislation promotes the law-making body's legitimate objective of attacking a basic, unitary social evil by differnt legal devices, to the end that such evil will be entirely obliterated and all avenues of escape for offenders will be closed. 13

The need to protect the individual from being punished more than once for the same offense, and the necessity of allowing the legislature freedom to effectively deal with a social evil in a variety of ways reflect the competing interests of the individual and society. How to fairly balance such interests has been a perplexing problem. One attempt to solve the problem has been through a rule of law which is applied for the purpose of determining whether a single criminal activity or transaction constitutes more than one offense. If there are, for example, two distinct statutory offenses arising out of one transaction, and one offense requires proof of an additional fact which the other does not, then according to that rule there are two separate offenses and not just one, and the defendant may be punished for both.

This rule was enunciated and applied by the Supreme Court of the United States in Blockburger v. United States in 1932. 14 There the defendant had been charged with violations of federal narcotics legislation. He was convicted on one count of having sold a drug not in or from the original stamped package in violation of a statutory requirement, and on another count, of having made the same sale of the same drug not pursuant to a written order of the purchaser as required by the same statute. He contended that the two statutory crimes constituted but one offense for which only a single penalty could be imposed. The Supreme Court of the United States held that although both sections of the same statute had been violated by one sale, two offenses were committed because different evidence was needed to prove each of the violations, and therefore the defendant could be punished for both violations.

The rule in Blockburger is commonly referred to as the 'same-evidence' test because, put another way, it means that different violations constitute one offense only when proof of all of them is established by the same evidence. Although this test has been widely used by the courts, it has been increasingly criticized as not coping satisfactorily with the problem it was designed to solve. Legislative refinement of an essentially unitary criminal episode into numerous separate violations of the law has resulted in a proliferation of offenses capable of commission by a person at one time and in one criminal transaction. Since each violation by definition will usually require proof of a fact which the others do not, application of the same-evidence test will mean that each offense is punishable separately. But as the separate violations multiply by legislative action, the likelihood increases that a defendant will actually be punished several times for what is really and basically one criminal act. 15

Recognizing the limitations of the same-evidence rule, attempts have been made to meet the problem in other ways. Some courts have adopted the same-transaction test. This means that there...

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26 cases
  • State v. Lonergan, 13640
    • United States
    • Connecticut Supreme Court
    • November 28, 1989
    ...increases that a defendant will actually be punished several times for what is really and basically one criminal act." Whitton v. State, 479 P.2d 302, 306 (Alaska 1970).In fact, a commentator has noted that the Blockburger test would permit six successive trials for a single act of sexual i......
  • Edmond v. State
    • United States
    • Florida District Court of Appeals
    • June 27, 1973
    ...States, 1967, 129 U.S.App.D.C. 17, 390 F.2d 432; Davenport v. United States, 1965, 122 U.S.App.D.C. 344, 353 F.2d 882; Whitton v. State, Alas.1970, 479 P.2d 302; Neal v. State, Cal.1960, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700; DeB......
  • Sours v. State
    • United States
    • Missouri Supreme Court
    • January 15, 1980
    ...of the use of a firearm in the commission of a felony and of the underlying felony violates the double jeopardy clause. Whitton v. State, 479 P.2d 302 (Alaska 1970); State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974); State v. Hudson, Tenn., 562 S.W.2d 416 (1978). In Hudson, the defendant......
  • People v. Lowe
    • United States
    • Colorado Supreme Court
    • February 28, 1983
    ...of manslaughter. 447 U.S. at 421, 100 S.Ct. at 2267. Third, the Blockburger test has fallen into considerable disfavor. In Whitton v. State, 479 P.2d 302 (Alaska 1970), the Alaska Supreme Court "Although this test has been widely used by the courts, it has been increasingly criticized as no......
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