STATE OF IOWA, Appellee, vs. TRAVIS RAYMOND WAYNE WEST, Appellant.
No. 17-0784
IN THE SUPREME COURT OF IOWA
Filed March 1, 2019
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Defendant seeks further review of a decision by the court of appeals affirming his conviction and sentence. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, John Sarcone, County Attorney, and Andrea Petrovich and Joseph Danielson, Assistant County Attorneys, for appellee.
APPEL, Justice.
Travis West was convicted of delivery of a controlled substance,
We transferred West‘s appeal to the court of appeals. The court of appeals held that there was sufficient evidence to support the verdict, that there was no error in the admission of certain challenged evidence, and that the crimes of involuntary manslaughter by a public offense and delivery of a controlled substance did not merge.
We granted further review. We consider only the merger question. We decline to review the rulings of the court of appeals that there was substantial evidence to support the verdict and that certain evidence was properly admitted. On these issues, the ruling of the court of appeals stands. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (recognizing our discretion to consider all issues raised in initial appeal but considering on further review only one of those issues and allowing the court of appeals decision to stand on other issue).
On the question of whether the offenses merge, we conclude, for the reasons expressed below, that they do not. As a result, the district court ruling on the merger question is affirmed.
I. Procedural and Factual Background.
A jury could have found the following facts. Bailey Brady died from a drug overdose
West lived about two hours away. West occasionally used heroin, which he obtained from a man named “Snap” in Des Moines. In the past, West had obtained heroin from Snap for Bailey‘s use. West knew that in July 2014, Brady had overdosed on heroin. He drove her to the hospital on that occasion.
Cell phone records reveal that Brady talked to West at 2:49 a.m. on the morning of June 5, 2015. Eight seconds later, West began a series of phone calls with Snap, his heroin supplier.
After the West brothers arrived at Brady‘s apartment, West and Brady went to a convenience store to purchase food a few minutes after 4:00 a.m. They returned to the apartment. West‘s brother later found Brady slumped over the bathtub in the apartment and not breathing. West called 911 a few minutes after 5:00 a.m. Paramedics transported Brady‘s body to the hospital where she was pronounced dead. An autopsy revealed blood alcohol “below . . . legal limit” as well as a fatal amount of heroin. Medical testimony at trial indicated that “without the heroin, she would have been fine.” The heroin that killed her was likely ingested within thirty minutes of death. After the 911 call, phone records reveal six actual or attempted calls between West and Snap.
The State charged West with delivery of a controlled substance,
II. Standard of Review.
West‘s claim that the district court erred in failing to merge convictions can be raised at any time because any unlawful failure to merge results in an illegal sentence. State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). Review of an illegal sentence for lack of merger is for correction of errors at law. Id.
III. Discussion.
A. Introduction. The question of when one offense is a lesser included offense of another has perplexed courts for centuries. The question of what constitutes lesser included offenses has been characterized as a “many-headed hydra,” as an issue that “has challenged the effective administration of criminal justice for centuries,” and as one “not without difficulty.” Fuller v. United States, 407 F.2d 1199, 1228 (D.C. Cir. 1967) (third quotation); Brown v. State, 206 So. 2d 377, 380 (Fla. 1968) (second quotation), abrogated on other grounds by In re Use by Trial Cts. of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594, 596-97 (Fla. 1981); Dorean Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1975 Det. C. L. Rev. 41, 63 (first quotation). Sometimes, the doctrine is said to turn on analysis of legal elements of the crimes, sometimes on the facts and evidence, and sometimes based on the interrelationship of the crimes involved. See generally Christen R. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am. Crim. L. Rev. 445, 447-51 (1984).
As is apparent, the proposition that a lesser included offense merges into the greater offense is related to the constitutional concept of double jeopardy.1 Although no constitutional issue is raised in this case, the double jeopardy cases provide a backdrop to analysis of statutory provisions implementing the merger rule.
B. Relevant Statutory Provision and Rule on Lesser Included Offenses. In 1976, the Iowa legislature enacted
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
Iowa Rule of Criminal Procedure 2.6(2) uses language that is similar but not identical to
C. Federal Caselaw Related to Double Jeopardy and “Necessarily Included” Offenses.
1. Double jeopardy caselaw. A brief review of federal cases provides background for our consideration of the statutory issue in this case. In Blockburger v. United States, 284 U.S. 299, 301 (1932), the United States Supreme Court considered whether two crimes-selling forbidden drugs not from an original stamped package and selling such drugs not pursuant to a written order-were one offense. In answering the question, the Blockburger Court employed an elements test, declaring that the test is whether “each provision requires proof of a fact which the other does not.” Id. at 304.
While Blockburger involved a question of statutory interpretation, the linkage between statutory interpretation and the Double Jeopardy Clause was explicitly made in Whalen v. United States, 445 U.S. 684, 688 (1980). In Whalen, the question was whether the Double Jeopardy Clause of the United States Constitution barred sentences for both the crime of rape and the separate crime of killing in the course of perpetration of the rape. Id. at 685-87.
In Whalen, the Supreme Court emphasized that “the petitioner‘s claim under the Double Jeopardy Clause cannot be separated entirely from a resolution of the question of statutory construction.” Id. at 688. According to the Whalen Court, “if Congress has not authorized cumulative punishments for rape
The Whalen Court concluded that Congress did not intend to impose consecutive punishments for rape and unintentional killing in the perpetration of rape. Id. at 690. The Whalen Court noted that the criminal statutes themselves did not state whether Congress intended multiple punishments. See id. But the Whalen Court referred to a general sentencing statute that obliquely seemed to stand for the proposition that multiple punishments arising out of the same criminal transaction cannot arise unless each offense “requires proof of a fact which the other does not.” Id. at 691-92 (emphasis omitted) (quoting D.C. Code § 23-112 (1973)). This is, of course, the Blockburger elements test. See id. The Whalen Court stated that “[t]he assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes.” Id. at 691-92.
The qualifier “ordinarily” is noteworthy. The Whalen Court declared that if the Blockburger test is met, Congress presumptively did not wish to impose cumulative punishment “in the absence of a clear indication of contrary legislative intent.” Id. at 692. If the Blockburger test indicates that the offenses are the same, cumulative punishments cannot be imposed “unless elsewhere specially authorized by Congress.” Id. at 693. Based on review of the statutory language of the crimes, the legislative history, and the lack of other authorization, the Whalen Court concluded that Congress did not intend for the imposition of multiple punishments for the crimes of rape and unintentionally killing in the perpetration of rape. Id. at 692-95.
The primacy of legislative intent was emphasized in Albernaz v. United States, 450 U.S. 333, 336 (1981). In Albernaz, the Supreme Court considered whether cumulative punishments for conspiracy to import marijuana and conspiracy to distribute marijuana amounted to a violation of double jeopardy. Id. at 334-35. The Albernaz Court employed the Blockburger elements test and concluded that because each crime had an element which the other did not, no double jeopardy problem was present. Id. at 339.
But the Albernaz Court did not stop with the Blockburger analysis. The Albernaz Court went on to employ additional reasoning to reject the notion that Congress intended to prohibit multiple punishments. Id. at 339-44. Among other things, the Albernaz Court noted that “the two conspiracy statutes are directed to separate evils presented by drug trafficking.” Id. at 343. The Albernaz Court closed with the observation that where Congress intended to impose multiple punishments, such sentences do not violate the Double Jeopardy Clause. Id. at 344.
The bread crumbs in Whalen and Albernaz suggesting that multiple punishments might be imposed in some circumstances even if the Blockburger test was met led to the final destination in Missouri v. Hunter, 459 U.S. 359, 368 (1983). In Hunter, the Missouri
The Hunter Court emphasized that simply because two statutes may be construed to proscribe the same conduct under Blockburger, the double jeopardy analysis is not complete. Id. at 368. The Hunter Court held that even when the two offenses amounted to the same offense under Blockburger, double jeopardy did not prohibit cumulative punishments if there was a clear indication of legislative intent to impose them. Id. at 368-69.
The trend away from Blockburger as a double jeopardy anchor continued in Garrett v. United States, 471 U.S. 773, 778-79 (1985). In Garrett, the Supreme Court considered whether a defendant could be convicted of a “continuing criminal enterprise” based in part upon a prior criminal conviction. Id. at 775. In this case, the Supreme Court declared “the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense.” Id. at 778. The Garrett Court emphasized that in Hunter the Court indicated that the Blockburger test “is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Id. at 779. Based on its review of the language, structure, and legislative history of the relevant statutes, the Garrett Court concluded that Congress plainly intended the criminal provisions in question to be separate violations. Id. at 779. Under the circumstances, the Garrett Court noted that “the Blockburger presumption must . . . yield to a plainly expressed contrary view on the part of Congress.” Id.
The bottom line is that the double jeopardy cases of the United States Supreme Court have moved away from heavy reliance on the Blockburger elements test and now give greater emphasis to legislative intent in determining whether the state may impose multiple punishments on a defendant for crimes arising out of the same transaction. Although the Blockburger test has been characterized as giving rise to a presumption of sorts, that presumption may be overcome by a clear expression of legislative intent to impose multiple punishments.
2. Necessarily included offenses under Federal Rule of Criminal Procedure 31(c)(1). Federal Rule of Criminal Procedure 31(c)(1) provides that “[a] defendant may be found guilty of . . . an offense necessarily included in the offense charged.”
In Schmuck v. United States, 489 U.S. at 715, the Supreme Court examined the divergent interpretations of the rule. The Schmuck Court considered whether, under the rule, the offense of odometer tampering was a lesser included offense of mail fraud. Id. at 721-22. In answering the
D. Iowa Caselaw.
1. Lesser included offenses. Our Iowa cases dealing with the problems of lesser included offenses have not been linear. Our older cases relied on an elements test similar to that enunciated in Blockburger, 284 U.S. at 304. See State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928). In State v. Everett, 157 N.W.2d 144, 148-49 (Iowa 1968), we cited Marshall as authority in applying an elements test in determining that operation of a motor vehicle without the owner‘s consent was not a lesser included offense of larceny of a motor vehicle. Four members of the Everett court, however, dissented. Id. at 149 (LeGrand, J., dissenting). According to the dissent, whether offenses are included should not be determined by the elements of the crimes, but on the facts of the particular case. Id. at 149-50.
The Everett dissent demonstrated that the test for determining what offenses are “included” in the greater offense was contested terrain. Indeed, five years later, in State v. Hawkins, 203 N.W.2d 555, 557 (Iowa 1973) (en banc), Everett was overruled. A majority of the court now held that the manner of determining whether an offense was included in a greater offense must be determined not by the elements of the offenses but by the evidence in each case. Id. at 557-58.
The evolution of our caselaw regarding what crimes are included in greater crimes was hardly finished. In State v. Smith, 223 N.W.2d 223, 225 (Iowa 1974), we held that there are two steps in determining whether one offense is necessarily included within another. According to Smith, the first step was the legal elements test, and the second step was “an ad hoc factual determination.” Id. In Smith, we held the elements test was not met and, therefore, there was no need to make any factual determinations. Id. at 226.
We again revisited the question of what constitutes a necessarily included offense in State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988). In Jeffries, we canvassed the various differing approaches to determining when an offense is a lesser included offense of a larger crime. Id. at 730-35. At the time of Jeffries, the court had the benefit of
2. Double jeopardy cases. In several cases after Jeffries, however, we considered the question of what crimes were necessarily included in larger offenses for purposes of double jeopardy. In State v. McKettrick, 480 N.W.2d 52, 57-58 (Iowa 1992), we noted that because the elements of the crimes involved in the case were not the “same,” a presumption arose under the Blockburger approach that McKettrick could be subject to multiple punishment for the crimes. The McKettrick court, however, emphasized that the application of the Blockburger test was not the end of the matter under United States Supreme Court precedent and that the court was required to examine whether there is a clear indication of contrary legislative intent. Id. at 58. In McKettrick, the defendant argued that it was simply impossible for him to be guilty of both assault with intent to inflict serious injury and assault without the intent to inflict serious injury. Id. We found the logic persuasive and held that prosecution for both offenses would violate double jeopardy notwithstanding the fact that the offenses did not involve the same elements under Blockburger. Id.
We again confronted a double jeopardy challenge in State v. Gallup, 500 N.W.2d 437, 441 (Iowa 1993). In Gallup, the defendant was found guilty of delivery of a controlled substance and distribution of a taxable substance without a drug tax stamp. Id. In considering the double jeopardy issue, we noted that “the Blockburger legal elements test is determinative of double jeopardy only when legislative intent is not clearly expressed by statute.” Id. at 443. Based on a statutory provision stating that the chapter was not “a defense or affirmative defense to or immunity for a dealer from criminal prosecution pursuant to Iowa law,” we concluded that the legislature clearly authorized multiple punishments. Id. (emphasis omitted) (quoting
Notably, the defendant in Gallup also brought a challenge under
Finally, we considered a double jeopardy challenge in State v. Lewis, 514 N.W.2d 63, 64 (Iowa 1994). In Lewis, the crimes involved were criminal gang participation and terrorism. Id. We concluded that terrorism was a lesser included offense of criminal gang participation as terrorism was the underlying offense for criminal gang participation. Id. at 69. Yet, we concluded that the legislature intended to authorize multiple punishments. Id. We came to this conclusion because under the statutory scheme a prosecutor would never charge gang participation using various predicate offenses. This is because the sentence for gang participation is either the same or less than the penalty for the underlying crime. Id. The effect of merger would be to effectively nullify or make useless the charge of gang participation. Id.
3. Post-Gallup cases involving
We first recognized in Halliburton that, under the elements test, “the possession of an offensive weapon is a lesser included offense of possession of an offensive weapon by a felon.” Id. But that was not the end of the analysis. We then proceeded to consider whether the legislature had intended cumulative punishments. Id. We concluded that it did. Id. We observed that both crimes were class “D” felonies. Id. If multiple penalties were prohibited, there would never be a reason to bring a charge of possession of an offensive weapon by a felon as it would always merge with the lesser offense. Id. We further noted that the legislative intent to impose cumulative punishments was reflected in the different purposes of the statutes. Id. at 344-45. One statute focuses on “particularly harmful weapons” while the other focuses on “potentially harmful persons.” Id. at 345.
We continued this approach to
A contrary view soon emerged to interpreting
Justice Carter concurred specially. Id. at 685 (Carter, J., concurring specially). Justice Carter asserted that
Since Daniels, Lambert, and Reed, we have decided a number of cases under
E. Analysis. West asserts that the offenses of involuntary manslaughter by commission of a public offense under
In addition, West acknowledges that the involuntary manslaughter offense is a class “D” felony while the offense he claims is merged into involuntary manslaughter, delivery of a controlled substance, is a class “C” felony. West argues, however, that under our decision in Gallup, 500 N.W.2d at 442, it makes no difference that the greater offense is subject to a lesser penalty than the included offense.
After the court of appeals affirmed his conviction, West sought further review. In his application for further review, West reprises his prior arguments but also explicitly asks us to revisit our approach to lesser included offenses and follow the approach of Justice Carter in Lambert, 612 N.W.2d at 816-17, and Daniels, 588 N.W.2d at 685-86. West thus argues that because the elements of delivery are necessarily included in the greater offense of involuntary manslaughter by public offense, the judgment and sentence for the conviction that merges should be vacated.
The State counters with a two-pronged argument. With respect to the Blockburger elements test, the State notes that the jury instruction regarding the delivery charge specifically stated that in order to find the defendant guilty the jury was required to find that the defendant “knew that the substance delivered was heroin.” The State suggests that because it is possible to commit the crime of involuntary manslaughter by public offense through delivery of a drug other than heroin, the offenses do not merge.
In the alternative, the State relies on the second step of Halliburton, namely, legislative intent. The State notes that, in Halliburton, the court emphasized that the crimes of possession of an offensive weapon and possession of an offensive weapon by a felon were both class “D” felonies. 539 N.W.2d at 344. The Halliburton court reasoned that if merger occurred for crimes with identical punishment, there would never be a reason to charge a defendant with the greater offense. Id.
The State points out that reasoning similar to Halliburton was employed in Lewis, 514 N.W.2d at 69. In Lewis, the State asserts, we concluded that the “greater” crime of criminal gang participation did not merge with the “lesser” crime of terrorism because the penalty of the greater offense was less than the included offense. Id. The State argues that Lewis stands for the proposition that a penalty scheme providing that the greater offense has a lesser punishment than the included offense indicates a legislative intent that multiple punishments be permitted.
We agree with the State‘s latter argument. In Halliburton and Lewis, we determined that while the legal elements test is a useful tool, it is not determinative. 539 N.W.2d at 344; 514 N.W.2d at 69. Halliburton and Lewis both stand for the proposition that where the greater offense has a penalty that is not in excess of the lesser included offense, a legislative intent to permit multiple punishments arises. 539 N.W.2d at 344-45; 514 N.W.2d at 69. Otherwise, there would be little point to the greater offense.
In this case, if the offenses merged, a person convicted of both involuntary manslaughter
That leaves the question of whether we should abandon our two step approach to
As demonstrated above, however, the question of what constitutes a necessarily included offense is a difficult issue. What constitutes a necessarily included offense has given rise to multiple tests and varied analysis, both in Iowa and elsewhere. In the context of merger of offenses, the term “necessarily included” contains a heavy dose of ambiguity. See Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa 1995) (discussing the court‘s approach to resolving statutory ambiguity).
In Halliburton and Gallup, we decided to approach the statutory question under
The Gallup and Halliburton approach is reasonable. Relying on federal double jeopardy caselaw to suggest an interpretive approach to a state statute to address the merger of crimes is neither required nor prohibited. The question is not whether we would have decided the question differently if this were a question of first impression but whether our intervention twenty years later is required to correct an error.
Because our approach in Gallup and Halliburton coherently addresses a statutory ambiguity, is not unworkable, and amounts to a highly visible approach to statutory interpretation of the relationship between criminal offenses that the legislature has chosen not to revise over a twenty-year period, we decline to disturb this line of cases.
IV. Conclusion.
For the above reasons, the decision of the court of appeals and the judgment of the district court are affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
All justices concur except Wiggins, J., who takes no part.