Bunch v. StateBunch v. State
- Reporters:
- ,
- Before:
- Crabtree
A jury sitting in Wаshington County found appeEant Henry Jay Bunch guüty of aggravated robbery, three counts of attempted capital murder, felon in possession of a firearm, theft by receiving, possession ofmethamphet-amine, possession of pseudoephedrine with intent to manufacture methamphetamine, and simultaneous possession of drugs and a firearm. AppeEant was sentenced by the trial court to thirty years in prison for aggravated robbery, which was run consecutively to concurrent sentences totahng forty years for the remaining offenses, except that the twenty-five year sentence for simultaneous possеssion of drugs and a firearm was to run consecutively to aE the other sentences, for a total of ninety-five years in prison. AppeEant raises two issues on appeal. He contends that the trial court erred in failing to merge the aggravated robbery sentence into one of the counts for attempted capital murder. He also contends that the trial court erred by failing to instruct the jury that he would be eligible for parole after serving seventy-percent of his sentence for aggravated robbery. We affirm as modified.
On November 14, 2004, appellant was suspected of shoplifting from the Wal-Mart store in Fayetteville. Appellant was confronted outside the store by two employees, manager Nathan Skelton, and Jarrod Nelson, the loss prevention officer. Appellant ran from them, but the employees tackled appellant and pinned him to the ground. Skelton let go of appellant’s arms so that he could use his cell phone to call for additional help. As he did so, Skelton heard a loud poр and then felt something jabbing him in the stomach. Seeing that it was a gun, Skelton quickly rolled away. Nelson thought that Skelton had been shot, and he continued to struggle with appellant, trying his best to keep his finger behind the trigger to prevent appellant from firing the gun. As they scuffled, appellant put the gun to Nelson’s head and also to his chest, saying “I’m going to get you,” and “Do you want some of this”? Nelson managed to fling the gun out of appellant’s hand, and then he retreated behind a pick-up truck. Appellant retrieved the gun and fired two shots at Nelson before running away.
The police had arrived by this time and Officer Thomas Reed chased after aрpellant. During the chase, appellant turned and fired a single shot at Reed. A short time later appellant was found hiding behind a bush at a nearby house. Appellant was wearing two pairs of pants. The legs of the inside pair of pants were tied at the ankles with speaker wire. Numerous packages of pseudoephedrine were stuffed inside the inner pair. A baggie containing methamphetamine and a .38 rеvolver were found. It was later determined that the revolver had been reported as stolen.
The court’s decision was based on its interpretation of
The appellant in this case argues that Flowers mandates that his conviction for aggravated robbery must be merged into one of his convictions for attempted capitаl murder. In response, the State contends that the jury was instructed on three distinct grounds for conviction of attempted capital murder, such that the jury’s verdict need not necessarily have rested on the charge of attempted capital murder with aggravated robbery as the underlying offense.
The State is correct that the jury was given alternative theories upon which to convict appellant of attеmpted capital murder. The jury instruction read:
Henry Bunch is charged with the offense of attempted Capital Murder. A person commits the offense of Capital Murder if one, a person committed or attеmpted to commit the crime of aggravated robbery and two, that in the course and in furtherance of that crime or attempt or in immediate flight therefrom he caused the death of another persоn under circumstances manifesting extreme indifference to the value of human life or that he had the premeditated and deliberated purpose of causing a death of a law enforcement officer when such person was acting in the line of duty and with that purpose he caused the death of the victim or that with the premeditated and deliberated purpose of causing the death of anothеr person he caused the death of another person.
(Emphasis supplied). Along with this instruction, the jury was given separate verdict forms for each count of attempted capital murder. The jury returned vеrdicts finding: (1) “We, the Jury, find Henry Bunch guilty of the charge of Attempted
The State bases its argument on the decision in Griffin v. United States, 502 U.S. 46 (1991). A close reading of that case, however, reveals that it is not supportive of the State’s position. In Griffin, the jury rendered a general verdict of guilty on a multi-object conspiracy charge. The question on appeal was whether there was sufficient evidence to sustain the guilty vеrdict when there was clearly insufficient evidence to support one of the objects of the conspiracy. The Court held that the general verdict was valid so long as it was legally supportable on any one ground.
In the course of the opinion, the Court discussed its earlier decision in Stromberg v. California, 283 U.S. 359 (1931), which appeared to take a contrary view. In Stromberg, a general verdict of guilty was enterеd when the jury was instructed on alternative theories for conviction. One of those theories, however, was deemed unconstitutional. The Stromberg Court wrote:
The verdict against appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause .... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.
Id. at 367-68. With respect to Stromberg, the Court in Griffin stated that “[t]his language, and the holding in Stromberg, do not necessarily stand for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” Griffin, 502 U.S. at 53.
Unlike Griffin, the case at bar does not concern the sufficiency of the evidence. The error complained of here is rooted in the Constitutional prohibition against double jeopardy. Thus, this case falls within the holding in Stromberg, and we are not able to speсulate as to whether a certain verdict might have rested on a permissible ground. Based on the supreme court’s decision in Flowers that double jeopardy precludes a conviction and sentenсe for both attempted capital murder and its underlying felony, we hold that the aggravated robbery conviction must be merged with one count of attempted capital murder.
Affirmed as modified.
Gladwin and Robbins, JJ., agree.