Hunter v. State

H9 HUNTER, C. Defendant Sara

Below, Appellant, Delaware, Plaintiff

STATE

Below, Appellee. Court of Delaware. Oct. 1979.

Submitted March

Decided 1980. Reargument Motion

Submitted on

May 1980. Reargument on Motion

Decided

June Fairbanks, Jr. and Edward C.

Richard E. Defenders, Pankowski, Jr., Public Wil- Asst. below, appellant. mington, for defendant M. J. Dalton and Charles Bartholomew Gen., III, Attys. Wilming- Oberly, Deputy below, ton, appellee. plaintiff DUFFY, HERRMANN, J.,C. Before HORSEY, JJ., McNEILLY, QUILLEN, and constituting the Court En Banc. of 1447.4 charged violation II and Count HERRMANN, Justice: Chief single in a trial on both conviction Upon her decide, appeal, required we are On to in- sentenced Counts, was the defendant alia, C. whether the defendant Sara inter years 10 years-5 period carceration for cumulatively Hunter be sentenced years on and 5 613(1) conviction (1) Assault in one trial of: upon convictions consecutively. conviction, run the § Degree, in the First in violation of Del.C. reduction of for Later, to a motion pursuant (2) Deadly of a 613(1);1 and Possession § 613(1) con- sentence, on the § sentence of a Felo- Weapon During the Commission for 5 probation changed to viction was 1447.2 ny, in violation of 11 Del.C. § of the termination commencing upon years I. of incarceration term year minimum 5 1447 for the § by the Statute mandated upon indicted two The defendant was 3 the con- attacks The defendant of 613 conviction. charged I violation § counts: Count title, Notwithstanding “(b) of this 4205 provides: § 1. 11 613 § Del.C. of this sentence for a violation the minimum degree; B first class 613. Assault “§ years which than 5 shall be not less section felony. subject not be to sus- minimum sentence shall person guilty in the first “A is of assault person pension no convicted for a violation and degree when: eligible parole for or section shall be of this probation “(1) intentionally physi- He causes serious during years. such 5 injury person by a to another means of cal deadly weapon imposed upon “(c) Any conviction sentence instrument; dangerous or a weapon during deadly possession of a or felony run concur- a shall not commission of rently “(2) intentionally disfigures another He any any in- other sentence. seriously person permanently, or inten- felony, person of a a is convicted stance where together per- tionally destroys, amputates or disables possession of for the with a conviction per- manently organ of another a member or deadly weapon during commission of a body; or son’s felony, person the sen- shall serve such such “(3) recklessly engages in conduct He felony beginning the before itself tence a risk death to which creates substantial of deadly possession of sentence weapon person, thereby another causes serious during felony. such physical injury person; to another or charged “(d) Every person under this sec- “(4) In the course of or in furtherance of years age an shall be tried as of 16 tion over adult, notwithstanding any attempted commission or commission of contrary provision therefrom, felony flight a or immediate he any Family governing or Court of statutes intentionally recklessly or causes serious law. other state injury physical person; to another or may guilty “(e) person violat- be found A “(5) intentionally physi- He causes serious felony notwithstanding ing that the this section injury to a law officer who is cal enforcement during he which he is convicted duty. acting performance his in the lawful deadly weapon possessed is a lesser includ- degree first is a class B felo- “Assault (11 charged. originally felony of the one ed Del.Laws, 613; (11 ny. 497, c. Del.C. § 1; Del.Laws, 1447; c. § § Del.C. 1.)" § Del.Laws, Del.Laws, 203, 34; c. § c. injury” physical defined The term “serious is Laws, 2.)” 15; c. §§ 60 Del. § injury including “which creates a substantial as pro- or which creates serious and risk of death longed disfigurement.” Degree charged in viola- Assault First I 3. Count 222(20). § Del.C. 613, in that the defendant § tion of Del.C. felony, imprison- B the term of injury For Class physical intentionally cause serious “did by may impose is set ment which the Court deadly weapon, Terry by means of a Mutler years fine or Statute “from 3 to 30 and such Terry Mutler with a kitchen did slash to wit: carving other conditions as the Court order.” knife, thereby physical causing serious 4205(b)(2). Del.C. § [Specifically, prosecution injury.” this was a 613(1)]. under provides: 2. 11 Del.C. 1447 Deadly charged deadly weapon of a II Possession dur- 4. Count Possession of a “§ Felony in felony. Weapon during of a felony; ing Commission class B commission 1447,in that the defend- “(a) possession of 11 Del.C. person of a violation who is in A weapon, deadly knowingly possess a during deadly weapon fel- ant “did the commission of a knife, during carving deadly weapon kitchen ony guilty possession to wit: a is Degree as set forth felony. of Assault First during commission commission incorpo- which is deadly weapon during I this Indictment in Count of com- “Possession of a by felony. felony reference.” rated herein a class B mission of a ting vietions on in a wheel chair. The grounds, various and the evidence was irrelevant, conviction especially upon objected unduly prejudicial, and sentence to as State, Del.Supr., basis of inflammatory. Davis v. 400 A.2d We find no abuse of in the admis- discretion the Trial Court State, photograph.

sion of the Shantz II. Del.Supr., 344 A.2d 245 The basic facts will be generally stated as Secondly, the defendant contends facts, and briefly possible; other rele- the Trial committed reversible vant specific grounds of the appeal, will refusing testimony error in to allow either be detailed in specific the discussion of the expert blood an witness as to the alcohol contentions. failing content to in of the victim or charges against the defendant arose 4177(a).5 jury struct the 21 Del.C. under out of an altercation that occurred at the no We find error in this connection in view apartment. defendant’s The victim testi- of jury testimony the facts that the heard fied that requested by she had been her that the victim’s blood alcohol count cousin go to the defendant’s house to was and perhaps higher, .10% and that settle a difference between the cousin and there request was no an instruction for argument defendant. After an at the 4177(a). under § doorway apartment, the defendant’s ac- Finally, upon in general her attacks cording to testimony, the victim’s the de- convictions, argues the defendant that fendant jumped doorway, out of the threat- prosecutor’s in his rebuttal sum remark her, ened to kill and stabbed her with a regarding mation conviction” “prior falsely knife causing requiring cuts over 150 implied previous had a defendant stitches, face, including lacerations of the as to re prejudicial conviction and was so breast, back, arms and and a 4 inch stab quire find in this reversal. We no merit hand, under shoulder blade. On the other contention. that, the defendant testified while still in- In closing argument its the defense stat- side her doorway, by she was cut the victim ed: with a knife before she stabbed the victim episodes “The in two of violence self-defense. There was evidence that Hunter, you have heard about who the victim drinking during had been Sara which, felony, has never a day in been convicted of a according to the mother of defendant, episode five was the four to six position self-defense of re- weeks sulted in the before this one.” being victim’s intoxicated the time of the altercation. summation, prosecutor In his rebuttal stated: III. may prior “Don’t let someone who have a Disposing first of the defendant’s asser- conviction on less evidence be convicted tions of reversible errors the trial as in. prior have a than someone who doesn’t follows: required conviction. The evidence person They each is the same. stand new First, the defendant contends that every they of time front the law stand the Trial Court committed error in admit up here.” ting into photograph showing evidence a showing victim a short time after the of error in the stabbing, There has been no treatment, bandaged emergency after sit- trial to a new trial. justify 4177(a) pertains person’s 5. 21 Del.C. to the offense of blood has § reached a blood alcohol operating a vehicle while under the influence of of concentration one tenth of 1 or more % intoxicating liquor following weight analysis and contains the as shown a chemical of a provision: blood, sample breath or urine taken within alleged guilty hours of the offense shall be drives, “Any person operates who or has in under this section.” physical actual a vehicle control while such Davis, and lacks because § outlined

IV. enhancement-of-punish- “built-in” any ques- Turning now to the more difficult 832(c). comparable to provision § ment tion of whether the conviction and sentence Robbery Moreover, Statute unlike un- charge the felony-weapon possession on relationship 832(a)(2) in its § Davis, stand of der in the of a “display” of the mere which arises out apply does our conclusion is Davis Assault Stat- by the three deadly weapon, in this case. seeks to enhance Assembly utes the General The Davis case involved convictions state perpetrator’s punishment more Robbery First un- Attempted Degree injury of mind and the seriousness a der Del.C. and Possession of deadly weap- possession of than Deadly Weapon During the Commission of Degree Third Assault in the on used. The 1447; Felony separate under a sentence 611(2)] proscribes Del.C. § Statute [11 Davis, charge. each was deadly weapon of by means infliction example Simpson Court followed the negligence; criminal injury with physical 6, 11-12, 611(2) is misdemeanor. violation (1978): before Degree Statute Assault the Second [11 examination to determine whether cumula- in- 612(2) (3)] proscribes Del.C. §§ punishments for tive two offenses deadly weapon means fliction permissible, constitutionally it is neces- are or of serious injury intentionally, physical sary, policy avoiding consti- following ei- violation of injury recklessly; physical possible, tutional decisions to deter- when felony. C a class of sections is ther these mine the to Legislature whether intended Degree the First Finally, the Assault in subject multiple penalties the defendant to the 613(1)] proscribes Del.C. § Statute [11 the single criminal transaction in of deadly weapon infliction of a means engaged. analyzing compar- she After and intentionally; viola- physical injury serious 1447, 832(a)(2) ing the elements of and § § is felony. There 613(1) of is a class B tion § this Court concluded in Davis that “as to reason the of punishment no enhanced robbery, Assembly armed the has General deadly weapon built into the possession indistinguishable defined two crimes and therefore, it can- Clearly, Assault Statutes. weapons that it to the replace intended said, in regarding be as Davis not statute, 1447, special aggravated with § the 832(a)(2), and effect of purpose that the § first-degree robbery, crime of 832”. § as 613(1) is same 1447. § § govern approach The Davis does not case hold the Davis Accordingly, we therefore, that, instant Assault De- inapposite case because the First and § is in the instant Statute, 613, lacks the and sentence gree conviction § Statute, 832, fall reason thereof. history of as do not Robbery § impris- Robbery degree. degree a term of in shall be sentenced to the first “§ 832. 10 nor more than for not less than onment “(a) robbery person guilty first A of in the suspend years sen- shall not and the court robbery degree when he commits the crime of give person person, such of nor tence such when, degree in of in the second the course sentence, probationary of nor shall term the flight of or of immediate commission the crime imposed imprisonment this run under section therefrom, participant he in or another any imprison- concurrently term of other the crime: of for the such of- ment commission “(1) physical injury any person to Causes fense. crime; participant or who is not a “(c) imprison- minimum sentence “(2) deadly Displays appears to what be a required by this and 4205 of this § ment section weapon; or subject be to for a first offense shall not “(3) title Is armed with and uses or threatens person suspension, and no convicted under dangerous instrument. the use of a parole eligible probation be or degree section shall during “Robbery B is a class in the first (11 years such sentence. the first 3 felony. 1; Del.Laws, 497, 1953, 832; c. § “(b) 4205(b)(2) Del.C. Del.Laws, Notwithstanding § §§ Del.Laws, 1, 6; title, c. person §§ § c. a second 4215 of this convicted robbery 2.)” subsequent the first time for in or 613(1) and the need

V. sue to evaluate Blockburger light 1447 in the test. A. The Double Fifth Jeopardy Clause per But that may conclusion not be Amendment, applicable to States mitted to end the in matter. Cases which Amendment, through pro- the Fourteenth “is able to prove State violations of two subject person vides no shall “be separate criminal with the statutes same put jeopar- in the same offense twice to be here, showing, prospect factual raise the of life Constitu- dy or limb.” The Delaware jeopardy of double need possible and the to tion, I, similarly provides Art. no evaluate the statutes in of the Blockb “for person put shall be twice urger7 test.” Simpson v. United helpful little have same offense”. We supra, 435 U.S. at pro- case law under Constitutional State at 76. Turner, vision, Del.Supr., g., see e. State v. entering Before into an examination of (1961); State v. Storey 168 A.2d 539 whether punishments cumulative for the Hamilton, (1974); Del.Super., A.2d 624 613(1) two under offenses 1447 are helpful pro- but are recent there several constitutionally permissible, just as in Davis by the subject nouncements on we considered preliminarily States Court. whether the intended Assembly General to The double jeopardy guarantee “serves subject the multiple penalties defendant pros courts and principally as a restraint on single for the criminal act which she free legislature ecutors. The remains un engaged. It is our conclusion that such was to define der the Double Clause legislative intent. There is no statutory punishments; fix but once the crimes and history the contrary; and the two Stat- impose not legislature has acted courts utes are clear and unambiguous, leaving no punishment more one than same application room for the rules of statuto- ordinarily may prosecutors offense and ry Compare Simpson construction. v. Unit- attempt to secure that more States, supra. nothing any- ed “There is Ohio, 431 than one trial.” Brown v. pertinent suggest where in the Statutes 161, 165, 2221, 2225, 187, 97 S.Ct. 53 L.Ed.2d statutory that one offense was intended to (1977). 193 “What lies at the heart deprived be of its as the basis status for Jeopardy prohibition Double Clause is prosecution by relationship reason of its to prosecutions for ‘the against multiple same Indeed, purpose another offense. the clear ”, States, 432 offense’ Jeffers v. United U.S. and intent of the Firearm Felon’s Posses- 137, 150, 2216, 2207, 168, 97 53 L.Ed.2d S.Ct. contrary.” sion Act is to State v. [§ 1447] (1977), multiple protection “against 180 and Honie, 872, Del.Supr., (1973).8 310 874 A.2d punishment for offense.” North the same For these reasons the reasons stated 711, 717, Pearce, Carolina v. 89 395 U.S. hereof, in Part IV that we conclude 1447 2072, 2076, 656, (1969). 23 665 S.Ct. creates an offense distinct from the under- 613(1) Blockburger, In Court set lying felony of Assault First De- determining out the test for “whether two gree, and that it legislative was the intent are subject sufficiently distinguishable offenses multiple penal- defendant punish- single permit imposition ties for the of cumulative criminal act in which she Ohio, engaged. supra, ment.” Brown v. 431 U.S. at Accordingly, in this we 166, 2225, reach the L.Ed.2d at 194. jeopardy constitutional double is- 97 S.Ct. at It States, 299, Blockburger superseded v. 7. 284 U.S. United come outmoded and quent subse 180, 1447, (1932). prohib explicitly 52 S.Ct. 76 L.Ed. 306 amendments of § iting sentencing requiring concurrent that 874) portions (310 felony 8. The A.2d at any underlying Honie deal- sentence for the be ing discretionary sentencing-within posses prior mandatory served to the term punish- proscription limits of the “double that deadly 306, weapon. sion of See 60 Del.L. ch. substantially ment for permissible offense is the same im- 308. eyes in the of the law”-have be- B. applicable rule is that there held that “[t]he consti- where the same act or transaction not mean But that does tutes a violation two distinct two Counts under the two convictions The Double stand. may not applied the test to be to deter- the Indictment provisions, “multiple prose prohibits Jeopardy Clause there are two offenses or mine whether offense, Jeffers v. the same cutions” for one, requires only provision is whether each 150-151, 137, States, 432 U.S. United other does not.” proof of a fact which the (1977). 2207, 2216, 53 L.Ed.2d S.Ct. States, supra, 284 Blockburger v. United pro of this constitutional the crux Since 182, 304, at 76 L.Ed.2d at U.S. at 52 S.Ct. multiple trials in the ordeal scription lies primary its Blockburger 309. “The test has same of multiple punishment context, jeopardy relevance in the double Pearce, supra, fense, v. North Carolina determining when guide where it is a dual 2089, indictments at dual S.Ct. crimes constitute separately two defined prose single, simultaneous convictions in jeopardy pur- the ‘same offense’ for double to the amounts act which cution for an States, Simpson supra, poses.” v. United do not statutes separate under same offense at at 55 L.Ed.2d Clause. See the Double violate elements of emphasizes 76. The test McDaniel, U.S.App. v. United States requires proof the two offenses. “If each (1976); United States D.C. 538 F.2d not, Block- of a fact that the other does (1979); F.Supp. 50 Redman, (D.Del.), 470 v. satisfied, notwithstanding a burger test Hearst, (N.D.Cal.), 412 v. United States overlap proof substantial offered to Simpson also v. (1976). See F.Supp. 877 establish the offenses.” Iannelli v. United States, Bu v. supra; United States 770, 785, cf. sic, (1978); but (3 Cir.), 587 F.2d 577 Cir.), (8 539 F.2d Eagle, n.17 United States when, here, multi It is imposed upon such punishments are ple case, instant it is clear that pro under statutes dual convictions Blockburger test not been satisfied has spectre the same offense that scribe multiple punishments and that arise. constitutional violations imposed. “same offense” have been Section to the federal double In addition 1447 required proof required of no fact not authorities, jurisdiction in this it is settled 613(1). required The elements to be charge under a weapon-possession proved under Count I and Count II of the separately indictment set out in the I, Indictment were identical: Count Under offense, will as here underlying from the State, for Assault to obtain a conviction conviction under support separate Degree, required prove in the First was to State, A.2d 625 Del.Supr., v Mackie serious intentionally (1978).9 that defendant caused means

physical injury person by to another II, the deadly weapon. of a Under Count af- convictions are Accordingly, both possession compelled prove State was to firmed. deadly weapon of the as well as all the underlying felony, elements of the Assault C. I. Degree, alleged

in the First in Count im sentences the cumulative Since Busic, Cir.), (3 Compare United States v. in the instant case by the Trial Court posed jeopardy 587 F.2d 577 For double stand, a remand for must be may not there conclusions purposes, undoubtedly resentencing. the two offenses are Under herein, under the the case returns reached “the same”. Mackie, prohibited included conviction of a lesser dual 9. In construed 11 Del.C. 206(b). upon sepa- § offense under 206 and held that conviction § charge constitute a rate under 1447 does not § proceedings remand with both for further convictions intact. consistent with this Adopting practice opinion. Third Circuit Appeals Court of on the remand of this case Justice, QUILLEN, concurring: resentencing, we direct that the State shall have proceed the election to under crimi- confusing There is no more area of either 613 or but not § both. See nal the issue of and constitutional law than Busic, United supra, States v. 587 F.2d at problems of and the related majority statutory interpretation. The opinion directly and tackles the thicket practice

The allowing prosecutori such is constitutional- clearly. I think the result choice, al regard without for the “rule of ly current standards. But mandated under lenity”, is in pronounce accord with recent customary in the opinion also is limited ments of Court, the United States in that judicial sound restraint tradition of Batchelder, v. States appeal. My it the instant considers (1979), 60 L.Ed.2d 755 involv isolated, limited, case fear is that ing two overlapping statutes that contained subsection, case, approach subsection provisions prohibiting convicted felons from area, may, counterproductive in this be firearms, receiving but authorizing each general purpose of the Code “[t]o different maximum penalties. The Court be- grounds differentiate reasonable upon there stated: and to tween serious and minor offenses long “This Court has recognized that therefor”. prescribe penalties proportionate when an act violates more than one crimi- 201(4). express my 11 Del.C. I therefore statute, nal prose- Government suggest concern uncharacteristi- briefly cute under long either so as it does not attempt to cally that we should at least against any discriminate class of defend- * * in an effort to assure sweep take a broader prosecute ants. *. Whether * * * adminis- a more rational orderly and more charge bring what to file or as a whole. penal provisions tration of the are generally decisions that rest * * prosecutor’s [Tjhere discretion. *. appeal The in this raises a appreciable is no difference between the by this Court in factually akin to that faced prosecutor discretion a exercises when de- State, Del.Supr., Davis v. 400 A.2d ciding charge whether under one of (1979) State, Bey Del.Supr., 402 A.2d two statutes with different elements and cases, as a matter of those he choosing discretion exercises when construction, this Court deter- one of two statutes with identical ele- that, alleged mined it is- that a “[w]hen * * * prosecutor may ments. be weapon”, displayed deadly robber penalties influenced upon available replace Assembly General “intended conviction, standing but this fact alone statute, weapons special with the give does not rise to a violation of the aggravated degree robbery, crime first — Equal Protection or Due Process Clauses. State, supra, 400 A.2d 832”. Davis v. * * * Just as a defendant has no con- 297; Thus, 832(a)(2), 1447.1 Del.C. § right stitutional to elect which of two 1447 were reversed. the convictions under § applicable federal statutes shall be the case, present In the the Court determines basis of his prosecution, indictment and for assault in the first de- convictions neither is he to choose the penal- entitled gree 613(1) pos- under 11 and for Del.C. § ty scheme under he will be sen- deadly weapon during session of a the com- * * tenced. *.” 99 at S.Ct. 2204-5. felony mission of a under 11 Del.C. §

can stand. But the holds that Court also subjected Affirmed as to the The the to two convictions. sen- defendant cannot be tences are set aside and the cause remanded sentences on due to the the dual convictions purposes point attempted robbery. separate 1. For of the volved But see Smith v. of this opinion, State, necessary compli- Del.Supr., it is not to further A.2d by considering cate the issues that Davis in- by constitutional limitation received a motion defendant jeopardy of double proscribes multiple punishments opinion of the reargument and clarification Thus, the same offense. the case is re- resentencing in on the issue of manded for resentence on one of the convic- 16, 1980, April Davis.3 On and before this tions with the op- selection at the State’s motion, upon Court acted the defendant’s tion. decided the United States opinion in the instant case decides the case of Whalen v. United the following points with which I am in agreement: nothing suggest there apparent In conflict view of the Assembly the General intended that either Whalen, foregoing opinion and between the deprived statute was to be of its status as a Court, sponte, requested this additional sua prosecution basis of due to its relation to concerning parties memoranda from the other; both convictions can withstand conclusions reached effect of Whalen on the attack; constitutional there can be but one opinion. foregoing sentence due to constitutional limitations of jeopardy (a point double conceded State at oral argument); resentencing I. should be on the conviction the State elects. of Whalen. up We take first the effect But, because the Davis case has been from convic- appeal That case involved an urged by the as a ground defense for rever- for the tions in the District Columbia

sal and because it is frequently difficult in rape felony crimes of murder based on an isolated case to appreciate impact case con- rape. The defendant in that a decision on general administration of merged felonies tended that the two the codified law and disposition because the purposes punishment and that cumula- here leaves two viable approaches similar punishment tive for these crimes violated results, situations with serious anomalous I resort, think the the Fifth sitting Jeopardy State court of last the Double Clause banc, judicial en with responsibility for uni- Finding the Double Amendment. formity in interpretation, criminal law in cumulative Jeopardy Clause should, State, urged by as reconsider cases at minimum a determina- involves Davis on its appeal.2 merits in this For this intent, legislative tion of the Court stated: reason, I merely concur in the decision of “The Double Clause separate the Court opinion. courts from very precludes least federal imposing sentences unless au- consecutive UPON MOTION FOR REARGUMENT Amendment thorized to do so. The Fifth AND CLARIFICATION em- guarantee against HERRMANN, (for Chief Justice the ma- aspect of respect simply bodies in this one jority): principle the basic that within our federal legislative constitutional framework the

Subsequent publication to the of the fore going opinions power on March to define power, including this Court remains, law, however, bery 2. In this area of and the case will be it is doubtful all anomaly Superior resentencing can be eliminated. But anomalous remanded to Court for by statutory interpretation, charge. resentencing, results created on that At the Trial Davis, give pause mandatory should one one Judge cause will not be limited to the truly leg- whether the results were initially imposed for the at- minimum sentence islatively conviction, intended. tempted robbery sentence but the the combined duration exceed 3. Davis this Court stated: appeal. imposed This two before this terms require- appears comply “Because we have determined that 832 is limitation Pearce, indistinguishable replaced from and has North ments Carolina robbery, in cases of armed defendant’s convic- weapons tion under the stand. (1969).” statute cannot 400 A.2d at attempted first-degree His conviction for rob- 128 (1978); States, 70 Whalen v. punish- L.Ed.2d United prescribe

criminal offenses and to 1432, imposed upon 684, ments to be those found 63 100 S.Ct. them, guilty wholly of resides with the States, (1980); 715 Busic v. United - U.S. Congress. ... If a federal court -, 1747, L.Ed.2d 381 100 S.Ct. 64 by imposing authority exceeds its own g., e. posture. We are not alone in this See multiple punishments not authorized 674, Mich.Ct.App. Hughes, v. People Congress, specific it violates not Drubel, To (1978); Western & N.W.2d 567 against jeopardy, but guarantee Jeopardy, Double Theory ward a General of separa- of principle also the constitutional 81, REV. COURT SUPREME powers tion of in a manner that trenches cases, and thought We particularly harshly on individual liber- therefrom, foregoing cited in the quotations ty.” case, law constituted settled opinion in this 1436-1437, at 63 L.Ed.2d at 722 100 S.Ct. jeopardy. But the subject on the of double concluded, (citations omitted). It then on decision in Whalen majority recent Court’s history poli- legislative the basis of and the and, perhaps, a new seems to have added not intend to cy lenity, Congress did to cumulative structure contrary analysis therefore, and, punish doubly reversed any attempt punishment cases without affirming the Appeals Court of decision de prior its clarify, distinguish, or overrule consecutive sentences. forego upon cisions the basis of which The contends that Whalen man- State within It is ing opinion was formulated.5 opinion dates that in this case foregoing our asked to decide this vacuum that we are argues that in be withdrawn. The State of Whalen the instant case. effect cumulative cases the bounds of con- distinguish That case We Whalen. are defined and Double Clause intended to Congress had not cluded legislature.4 controlled the will of the rape doubly crimes punish for the defendant, hand, contends on the other Thus, stopped analysis felony murder. from this distinguishable that Whalen is the District of foregoing opinion should with the determination that case and that agree. stand. We its Appeals had exceeded Columbia Court affirming con- authorization in legislative reaching Before the substance of the hand, the other our secutive sentences. On matter, we to note that in- compelled are but, terminate analysis here does in this area of creasing uncertainty exists fact, a determination only begins with law, am- resulting from the somewhat 613 and intent behind legislative us, least, biguous puzzling pro- and to at presented with 1447. We are nouncements in recent United States Su- in Whalen. posed different than that wholly preme Compare Simpson v. Court cases. There, scope of the States, the concern was the United U.S. S.Ct. imposed by punishments apparently a court after a er 4. This is a shared Justices view upon charges Rehnquist. criminal Blackmun and See 100 S.Ct. at defendant’s conviction unconstitutionally multiple also 63 L.Ed.2d at 728. See cannot be re- are - States, -, -, determining punishments Busic v. United U.S. what solved without 1758-1759, -, 1747, 1756-1758, Legislative 100 S.Ct. Branch has authorized.” L.Ed.2d 381 the basis at 721. On 63 L.Ed.2d might holding it be in Whalen of the later States, example, Simpson analysis Simpson 5. For v. United argued procedural that the (1978) overruled, U.S. 98 S.Ct. 55 L.Ed.2d 70 de- impliedly c. f. Busic has been “[bjefore - an is made to -, clared examination -, punishments determine whether cumulative constitutionally permissible, are 1758-1759, (Rehnquist, (1980) necessary, it is fol- J., recently dissenting), Simpson however has avoiding lowing practice our constitutional States, supra. reaffirmed. Busic v. United been possible, decisions where to determine whether compare contradictory conclusions For other subject Congress intended to the defendant to language that of the deci- in Whalen with multiple penalties single transaction foregoing opinion in- sions cited in the engaged.” Whalen which he 98 S.Ct. at 913. case. stant concluded, however, question wheth- that “the “For of what avail is the constitutional Jeopardy Double when cumulative Clause more than one trial if protection against punishment for the identical crime is im- sentences number of any there can be posed to contrary the intent of the Con- Why is the same verdict? pronounced on Here, gress. we are confronted with the that, tried and found having it once been scope Jeopar- of the of the Double again for never be tried guilty, he can dy punishment Clause when cumulative is it is Manifestly not that offense? meted out for the “same offense” consistent being of a second danger or Assembly. with the will of the General punishment guilty. It is the time found distinction, governing view of this we can- the second con- follow legally that would apply to this case certain conclusions danger guarded viction which is the real opinions statements various if, But after against by the Constitution. ambiguous, say Whalen which we find to con- judgment been rendered on the has least, previous when read in the viction, judg- of that and the sentence opinions of the Court which it has criminal, he ment executed on the can be not renounced. that conviction to an- again sentenced on guarantee The of the Double or to en- punishment, other different long Clause existed before it was institu- time, punishment a second dure the same tionalized in the Fifth Amendment. It any is the constitutional restriction prominence mitigate arose to to the harsh- spirit its intent and its value? Is not severity punishment pre- ness and of the as if a new such a case as much violated scribed for the various common-law felo- and, con- trial had been had on a second danger nies and as a means to diminish “the viction, punishment inflicted? second governmental tyranny.” Sigler, A Histo- irresistible, argument “The to us seems ry Jeopardy, of Double 7 Am.Jur.L.Hist. and we do not doubt the Constitu- 283, 293, Note, (1963); n.57 57 Yale L.J. prevent the designed tion was as much to pro- While at common law the being punished criminal from twice pleas tection was limited to the of autrefois being as from twice same offense (former attaint pardon), autrefois convict tried for it.” (former conviction), acquit and autrefois reaffirmed in protection recently This was (former acquittal), protected against 711, 717, Pearce, 395 U.S. North Carolina v. multiple prosecutions, protection against multiple punishment recog- was early country. nized on in this In Ex Parte safeguard- primary responsibility Lange, (18 Wall.) 21 L.Ed. 872 con- ing protection, any as with of the (1873), it was stated: mandates, lies with the Judici- stitutional that, “If we reflect the time this principle has exist- ary. This fundamental existence,

maxim came every into almost the birth of our fed- unquestioned ed since punished offense was with death or other system. eral punishment touching person, and that province emphatically “It felonies, pleas these are now held valid in say to duty judicial department crimes, alike, minor and misdemeanors apply the what the law is. Those who and on difficulty deciding when cases, necessity must of particular rule to systems statute under modern does or If two interpret that rule. expound and felony other, does not describe a when it defines the courts laws conflict with each offense, punishes an we see each. operation shall on the must decide ample holding princi- reason for that the to opposition if a law be in “So ple intended to be asserted the consti- constitution; if the law and both provision applied case, must all tutional be to particular so apply constitution to a cases where a second is at- court must either decide law, disregarding be for the same of- tempted conformably inflicted constitution; conformably or by judicial fense sentence. law; punishment for constitution, impose the same of- disregarding the fense, punish- why triple quadruple not or which of these con- court must determine ment for the same offense? flicting governs rules the case. This is of very judicial duty.” essence of opinion We are of the that the Double Madison, 137, prevent was intended to (1 Cranch) Jeopardy Clause Marbury regardless proce- of the 177-178, 60, punishment double (1803). 2 ac- L.Ed. 73-74 To in it is found. We can dural context which cept regarding contentions State’s basis, elsewhere, in Whalen or find no sound bounds of the Double Clause from Legislature adherence exempt require would its this Court to abdicate doctrine instant to this constitutional responsibility constitutional and remove the same trial Multiple in case. sentences system from our fundamental of checks and abhorrent to equally are same act on balances the most effective limitation view, as guarantee, in our the constitutional legislative power-judicial review. act result- for the same multiple sentences argued It is that the differences between ing multiple from trials. punishment for the same offense via the Whalen con- We are not convinced that pun- vehicle of two statutes and enhanced ambigu- the instant case in view of the trols statute, clearly ishment one which is which we find in ities contained therein constitutional, illusory. disagree. We prior jeop- unexplained conflict Punishment for the same offense via two thought settled. ardy principles which we separate merely statutes does more than princi- those unwilling We are to abandon one offense. punishment cumulate for that Supreme Court ples until the United States parole profound It has collateral effects definitely abandoned clearly has more and considerations, treatment as an ha- future them.6 offender, may bitual lead to harsher Nevertheless, we have the fact that Schwartz, sentences for later offenses. See distinguishable does found Whalen to be Multiple Punishment “Same Of- on our construction of not lessen its effect with the Michigan Grapples fense”: Defini- foregoing In the Blockburger rule. Problem, Wayne tional 25 L.Rev. 825 Blockburger we concluded that the opinion, illusory. hardly These differences are law for deter- rule was a rule of substantive Moreover, aegis if the of the Double proscribed the mining whether two statutes in this substantive area Jeopardy Clause jeopardy pur- offense” for double “same prosecutors to acts extends This, poses. thought, we was consistent courts, (Blackmun, J., 100 at 1441 con S.Ct. great weight authority on this with the “spillover” have a curring) may this not Simpson v. subject. Hunter with Compare cases? multiple prosecution effect into Can States, Jeffers v. United supra; negate ap Legislature specifically 137, 2207, States, 53 432 U.S. estoppel, the rule of collateral plication of (1977); Blockburger v. United L.Ed.2d 168 protect since it was intended to apparently 180, States, 76 L.Ed. U.S. S.Ct. against prosecutorial abuses in discretion? (1932); and v. United Gavieres 436, 445, Swenson, Ashe v. See U.S. L.Ed.2d 489 S.Ct. 476 n. 10 S.Ct. however, Whalen, (1911). In punish doubly in one may Since it enunciated has that the rule declared trial, multiple Legislature require can the rule of Blockburger in is not a substantive law; charges arising trials for various from the con- rather it is “a rule struction”, may at 1438. Legislature same offense? And if the land”, I, Certainly have unless application would Article 8 of the Delaware Con- the law stitution, punishment person cases shall be in cumulative which states that “no put we such as this. Because of construction for the same offense twice in I, provi- placed constitutional and Article have on the federal life and limb . . however, sions, scope prosecu- provides we need not decide criminal all “[i]n provisions at this time. tions . . the accused . shall not of these . life, liberty property, deprived . . . be or Davis, only appeal. While for this somewhat the “convic- the reasons first-degree robbery sudden shift are obscure we re- emphasis tion attempted are, nevertheless, bound to follow the Su 400 A.2d at main[ed].” preme Court’s of its own case construction resentencing on that was remanded for mean, however, law. That does not we was the one convic- charge. since And Blockburger adopt rule of remained, obviously it was the tion which —like substantive when sen law to determine two sentence could be only basis on which a tences constitute “same Hunter, we have deter- imposed. But Indeed, offense". note that the rule in we remain mined convictions that both a rule Blockburger was drawn from of sub proceed whether to on State has an election determining pun stantive law whether both). (but not under 613 or 1447 § multiple ishment for offense” in the “same have, however, arguments The prosecution violates the principles situations which should be identified one modification Morey double v. jeopardy. Common See sentencing proce Davis-type made to a wealth, (1871); Mass. 433 Mass.Supr., 108 dure, to make it here. appropriate and it is 29 Mass.Supr. Commonwealth v. Roby, In Davis we held that: 12 (1832); People Pickerings’ Rep. 496 v. Goodwin, Trial resentencing, Judge 18 “At will not N.Y.Supr., Johns.Rep. 187 (1820). Compare 208(1)(b)(1).7 mandatory 11 Del.C. be limited to the minimum We multiple imposed initially therefore conclude that sentence the at- sen conviction, tences at the same not tempted robbery trial be had but the sen- required statutory unless the elements of tence may not exceed the combined dura- proof for each an offense contains element tion of the two terms before this that the other does not. appeal. appears to com- This limitation ply requirements imposed by with the

II. Pearce, North 395 89 Carolina v. Turning (1969).” now to the motion for clarifica- S.Ct. 23 656 L.Ed.2d tion regarding the proper resentencing pro- 400 A.2d 297. cedures to be under the adopted foregoing Pearce, In North the United Carolina v. opinion in quoted the above Supreme power held that States Court statements in Davis: a to an State to resentence defendant As sentencing procedures to the under originally imposed, increased term over that State, (and Davis Bey v. Del.Supr., 402 A.2d contravening guaranty against without (1979), 362 apply a they do not to Hunter double when the de- jeopardy, arises case. We distinguished prosecu- Davis for fendant’s and sentence original conviction purposes torial also and it is different from “nullified,” have been and a second convic- purposes. Hunter sentencing has been following tion a retrial obtained. Davis, persuaded

In We are now that such circum- we held that “defendant’s con- legally viction differ- factually under the stances are so weapons statute [§ 1447] stand,” 297; here, -type cannot ent a Davis 400 A.2d at how- from those found in ever, and, guide does a useful provide conviction stand Pearce does not indeed, it part ruling sentencing process. is affirmed as of our 208(1 )(b)(1) 7. 11 set aside or in a conviction as defined in Del.C. states: subsequent prose- of this title and prosecution 208. When is barred “§ former cution is for: prosecution for offense. different conduct, unless: “b. The same “Although prosecution is for a violation of which the “1. The offense for defendant statutory provision a different or is based on subsequently prosecuted requires proof facts, prosecu- different it is barred a former required by jurisdiction former offense and having fact not tion in a court over the defining subject prosecution of the offenses is in- matter the law each of the second under substantially following prevent circumstances: tended to different * * * “(1) evil, prosecution The .” former resulted in an harm or or acquittal subsequently which has been of the Chief Justice behalf of the Court proper apply rule to is the one a de- mandated under cur- prohibits increasing constitutionally a sentence after “[was] necessary serve it. find it fendant has commenced to rent standards.” I now Turner, Cir., concurring opinion United v. 518 F.2d 14 and to States withdraw that (1975), from said: view take a most hesitant different light of the recent majority that of the increasing

“The law is well settled that decision of the United States sentence com- after the defendant has S., Court Whalen v. U. menced to serve it is a violation of the I against constitutional guaranty because, unlike hesitantly enter jeopardy, fray [citations omitted]” the double I find Rehnquist, Mr. Justice States, Cir., Compare Chandler v. United from far of his Court jeopardy opinions (1972); 468 F.2d 834 v. Wel- United States clear.1 Cir., (1970); ty, 3 426 F.2d 615 Adams, Cir., (1966); v. 362 F.2d 210 States I Brown, Pa.Supr.,

Commonwealth (1974); 314 A.2d 506 4 Wharton’s Criminal re- troubled Initially, I am still (12 ed.) Procedure § majority in approach by stricted taken the that it opinion case. The limited in Thus, any post-appeal sentence statutory sec- considers in isolation in Davis-type a not exceed the appeal. My instant tions involved in the imposed for the convic- originally sentence isolated, and subsec- fear is that the limited remains, tion which if the defendant has subsection, may, in this approach tion begun Any ruling to serve the sentence. to area, in of a counterproductive be contrary opinion in the Davis is aban- differen- general of the Code purpose “[t]o doned. seri- between upon grounds tiate reasonable prescribe and to ous and minor offenses McNEILLY, (concurring part; in Justice 11 proportionate penalties therefor.” dissenting part): concern 201(4). express I therefore Del.C. § forego- I concur in Part II of the Court’s we, uncharacteris- suggest perhaps and that ing Reargument Opinion the Motion a attempt to take tically, should at least Otherwise, join I in the and Clarification. a more sweep broader in an effort to assure Quil- following dissenting opinion of Justice orderly more rational administration len. as a whole. penal provisions appeal in this case raises Specifically, the Justice, QUILLEN, dissenting: faced factually akin to that question State, Del.Supr., 400 crimi- v. confusing There is no more area of this Court Davis State, Del.Supr., (1979) v. Bey nal and constitutional law than the issue of A.2d 292 cases, as a (1979). In those jeopardy problems double and the related 402 A.2d 362 construction, this Court majority opin- matter of statutory construction. that, alleged it is I boldly depart ion tackles the thicket determined “[w]hen deadly weapon”, respect. displayed robber expresses from the views it replace Assembly “intended original decision in this General At the time of the statute, special 14, 1980, with the expressed weapons I case on March § robbery, first-degree opinion aggravated crime of view that the result reached punishments Rehnquist in the same criminal cumulative 1. Justice summarized Whalen on ques double-jeopardy proceeding presented jeopardy following no double manner: States, - whatsoever.” Busic v United held that tion Members of this Court Con- “[S]ix gress’ -, impose punishments 381 U.S. (1980). 100 S.Ct. 64 L.Ed.2d intent to cumulative summary single completely surprisingly, proceeding his conclu criminal con- Not at a possible jeopardy. strongly as to his own . sions lean as point trolled the of double Court, including view on the merits. Three other Members of this argued permissibility myself,

133 State, should, State, supra, urged by 832”. Davis v. A.2d reconsider § 297; Thus, 832(a)(2), Del.C. 1447.2 appeal.3 Davis on in this its merits the convictions under 1447 were reversed. case, In present the Court determines II that convictions for assault in the first de- Since, case, unanimously have in this we

gree 613(1) under 11 pos- Del.C. decided, view, correctly my that the quite deadly weapon during session of a the com- to authorize Assembly General intended felony mission of a under 11 Del.C. § and cumulative prosecution simultaneous can stand. But the Court also holds that degree for assault in the first subjected defendant cannot be to two 613(1) possession under 11 and for Del.C. § sentences on the dual due convictions weapon during the commission deadly of a constitutional limitation of double 1447, must felony under 11 Del.C. we proscribes multiple punishments for jeopar- face problem the difficult Thus, the same offense. the case is re- dy. manded for resentence on one of the convic- tions with the selection at op- the State’s case, in this opinion the initial tion. majority made a noble effort to follow fed See, reaching eral law in its conclusion. agree I nothing there is suggest Pearce, example, North Carolina U.S. Assembly General intended that either 711, 717, 2072, 2076, L.Ed.2d S.Ct. deprived statute was to be of its status as a States, (1969), Simpson v. United prosecution basis of due to its relation to 11-12, U.S. the other and that both convictions can (1978); Jeffers v. United But, withstand constitutional attack. even 137, 150, 97 2207,2216, 53 accepting arguendo the conclusion of the 168, (1977). The that double conclusion majority jeopardy as to double and resen- jeopardy proscribed punishment, tencing, I do not think Davis should be in by which had been conceded the ignored. State I note that: the Davis case has must, recog the en argument, banc oral as urged been the by ground defense as a reversal; nized in by majority, the be re-examined it frequently is difficult in an the of Whalen. It is clear from Whal isolated case to appreciate impact the en decision on the that four Justices of the United States general administration of law; White, Blackmun, the Supreme codified and the Court disposition here [Justices leaves approaches Rehnquist Burger] two viable and Chief Justice would in similar situ- ations with jeopardy serious anomalous hold that the double limitation of results. I resort, think the sitting imposed State court of last the federal constitution banc, en judicial responsibility does by for uni- states the Fourteenth Amendment in formity criminal law interpretation, prohibit not in this case. two sentences present purposes necessary sequence, 2. For it is not to did not the same Code that enacted complicate by considering further robbery simultaneously the issues statute enact attempted robbery. that Davis involved But weapons legislative in- statute? Was not the State, Del.Supr., see Smith v. A.2d clearly expressed tent in the 1976 amendment 1447(c) providing adding present for con- year sentencing? manda- secutive Is not the 3 law, anomaly perhaps In this area of the all tory robbery in sentence for the first offense cannot be eliminated. But anomalous results 1975, by degree, in the first added amendment by construction, Davis, statutory created as in weapon applicable deadly is not even when a give pause ques- should one and cause one to apparently displayed? Was not the truly legislatively tion whether the results were by jeopardy in construction Davis influenced position majority, intended. Given the it concepts punishment? not of double Does necessary engage is neither nor desirable to in 6, Simpson v. United 435 U.S. 98 S.Ct. But, a reconsideration of Davis in this dissent. (1978) 55 L.Ed.2d 70 relied on in Davis frivolous, thought lest this view be I note the sentencing? Compare relate to dual Busic following questions might be included in States, supra. v. United regard temporal a reconsideration. With approach defining lead to a different member

It is not clear from the five ap- what those than elemental majority in Whalen “same offense” decision ques- years. instant proach members would hold on the of recent not- Rehnquist’s summary tion. Justice Whalen, the Court has taken a As I read to believe withstanding, I find it difficult turn, decipherable. ninety degrees, but not held or that Justices Brennan and Marshall that recent recognition a There has been impose intent to Congress’ would hold “that “[demanding] more of have been opinions criminal single at a punishments cumulative capa it is than Jeopardy the Double Clause ques- proceeding completely controlled Drubel, To Western & supplying.” ble of three jeopardy.” tion of double That leaves Jeopardy, Double Theory of ward a General Stewart, Justices Stevens [Justices Review, 81, 113. Fur Powell], it, implicit thermore, there as I see things can be It seems to me that certain prop support for some majority Whalen majority opinion Whalen. said about the may be punishments osition that cumulative First, remembered that it should be defined Congress if trial imposed single in a case, writing not deciding Court was authorized separately the offenses Second, majority, a achieving treatise. Brown also punishments. See cumulative task, appears prop- opinion worthwhile Ohio, perhaps erly to be one of accommodation on this 2225, 153 (1977). Based the comment that best illustrated “[t]he blind rises above reading, hope which I very least Double Clause at surmise, I speculation to at least educated con- imposing courts from precludes federal jeopardy as concept of double conclude the authorized secutive sentences unless Amendment of in the Fourteenth embodied Congress to so.” 445 at do not does Constitution the United States (emphasis 63 L.Ed.2d at 722 punishments consecutive proscribe added). Third, not while the Court “is in this case.4 imposed which were there are not constitu- [ready] say violation, I am Finding no upon [Congress’ ‘power tional limitations proce- appropriate to decide the compelled prescribe criminal offenses and to define points resentencing.5 As to other dure upon those to be punishments in the conclu- join I appeal, raised them’]”, support its citations to guilty of find no reversible majority sions selected narrowly were such limitations I would affirm Accordingly, error. did not extend to the dou- design Superior of the Court. judgment in this case. present ble situation at at ftnt. See Fourth, the Court 63 L.Ed.2d at 722. solu- open for and to different searching concepts. For ex- relating existing

tions of the recognition there is a clear

ample, the constitutional

legislative role under and a separation powers

principle judicial suggestion problem

clear well could

usurpation. recognition This however, say, not to argued in this case. This is on the basis 4. This case has been limits Barring special be State constitutional circum- there could not Federal Constitution. stances, interpre- But it cases. some cumulative such as federal constitutional emphasized has been shocking that this case conscience of civilized should be tation legal scholarship to the develop- law. historic of federal or diverse submitted in the context ment, interpreta- certainly preferable that it is provisions corresponding in state and supra, tions of ftnt. Compare Busic v. constitutions, - which share a common federal -, at record, history, I be the same. On the instant at 393. any special present do not find circumstances

Case Details

Case Name: Hunter v. State

Court Name: Supreme Court of Delaware

Date Published: Jun 24, 1980

Citation: 420 A.2d 119

Court Abbreviation: Del.