STATE оf Arizona, Appellee, v. George Roosevelt EAGLE, Appellant.
No. CR-98-0221-PR.
Supreme Court of Arizona.
Feb. 23, 2000.
994 P.2d 395 | 196 Ariz. 188
Dean W. Trebesch, Maricopa County Public Defender, By Anna M. Unterberger, Deputy Public Defender, Phoenix, Attorneys for Appellant.
OPINION
ZLAKET, Chief Justice.
¶1 Defendant George Roosevelt Eagle was convicted on two counts of kidnapping, three counts of sexual assault, one count of sexuаl abuse, and one count of aggravated assault in connection with an attack on two women in their home. Details of these crimes are set forth in State v. Eagle, 196 Ariz. 27, 992 P.2d 1122 (App.1998), and need not be repeated here. The trial judge sentenced the defendant to presumptive terms of imprisonment on all counts, with those for the aggravated assault and one of the kidnapping charges running concurrently. The remaining sentences were imposed consecutively. See id. at 29 ¶7, 992 P.2d at 1124 ¶7.
¶2 The only issue upon which we granted review is Eagle‘s claim that consecutive sentences for his kidnapping and sexual assault convictions amount to double jeopardy. At the heart of this argument is the contention that completion of a sexual offense, as enumerated in
¶3
A. A person commits kidnapping by knоwingly restraining another person with the intent to:
- Hold the victim for ransom, as a shield or hostage; or
- Hold the victim for involuntary servitude; or
- Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
- Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person.
- Interfere with the performance of a governmental or political function.
- Seize or exercise control over any airplane, train, bus, ship or other vehicle.
B. Kidnapping is a class 2 felony unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest and prior to accomplishing any of the further enumerated offenses in subsection A of this section in which case it is a class 4 felony. If the victim is released pursuant to an agreement with the state and without any physical injury, it is a class 3 felony. If the victim is under fifteen years of age kidnapping is a class 2 felony punishable pursuant to
§ 13-604.01 . Thе sentence for kidnapping of a victim under fifteen years of age shall run consecutively to any other sentence imposed on the defendant and to any undischarged term of imprisonment of the defendant.
(Emphasis added).
¶4 Division One of the Court of Appeals upheld Eagle‘s convictions and sentences, concluding that kidnapping is a completed class 2 felony once the requirements of
Double Jeopardy
¶5 Eagle argues that his consecutive sentences violate both the state and federal Double Jeopardy Clauses. The former provides that a person may not “be twice put in jeopardy for the same offense.”
¶6 The Double Jeopardy Clause prohibits the imposition of multiple punishments for the same offense. See Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). Thus, courts will generally presume that the legislature did not intend to authorize cumulative or consecutive sentences when two statutory provisions proscribe the same conduct. See id. at 692, 100 S.Ct. at 1438. On the other hand, when statutes describe different offenses, consecutive sentences are permissible without implicating the prohibition against double jeopardy. See id. at 693, 100 S.Ct. at 1438. In deciding whether a defendant has been punished twice for the same offense, it is necessary to examine the elements of the crimes for which the individual was sentenced and determine “whether each [offense] requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Thus, in evaluating Eagle‘s double jeopardy claim, we must decide whether our kidnapping and sexual аssault statutes each contain an element not present in the other.
The Arizona Kidnapping Statute
¶7 A convenient starting point for our analysis is the formal title of
¶8 Subsection (B) deals entirely with clаssifications of punishment. Its language presupposes that the required elements of a kidnapping, as set forth in subsection (A), have been proven. The crime is punishable as a class 2 felony unless certain mitigating but nonessential conditions are found, in which case it may be punished less severely.1
¶9 As the defendant would have us read the statute, the absence of
¶10 We reject this reading of the statute. If the lеgislature‘s intent was to create separate crimes having distinct “elements,” it could easily have said so in clear, direct, and positive language. Instead, as we have noted, the legislature chose to define a single crime known as kidnapping, and to treat it presumptively as a class 2 felony. “Degrees” of kidnapping are nowhere mentioned. Cf.
¶11 Interestingly, Division Two of the Court of Appeals seems to have followed similar reasoning in State v. Mendibles, 126 Ariz. 218, 613 P.2d 1274 (App.1980), a case not expressly overruled by its later Sterling decision. In Mendibles, the court upheld a conviction for unlawful imprisonment, a lesser included charge of kidnapping. The relevant subsection in the applicable statute is almost identical to
¶12 In Rainwater v. State, 189 Ariz. 367, 943 P.2d 727 (1997), we observed that “[k]idnapping remains a class 2 felony and was made subject to the two-step reduction as an expression of legislative policy to encourage the voluntary and safe release of victims by their kidnappers before actual injury or death might occur,” thus attempting to dispel the notion that “kidnapping is presumptively a class 4 felony . . . and is raised to class 2 if the victim is not voluntarily and safely released.” id. at 368, 943 P.2d at 728; see also State v. Atwood, 171 Ariz. 576, 661-63, 832 P.2d 593, 678-80 (1992) (Corcoran, J., specially concurring) (rejecting Sterling‘s reading of the statute, stating that the prosecution needs to prove only those elements contained in
¶13 Other states have reached similar conclusions. In 1980, the Supreme Court of North Carоlina considered a kidnapping stat-
¶14 We recognize that states may lack “the discretion to omit ‘traditional’ elements from the definition of crimes and instead to require the accused to disprove such elements.” Jones, 526 U.S. at 242, 119 S.Ct. at 1223. Here, however, the Arizona legislature has not removed a traditional element from the crime of kidnapping. At common law, kidnapping involved the forcible taking of a person to another country, usually to be used for labor. See John L. Diamond, Kidnapping: A Modern Definition, 13 Am. J. Crim. L. 1, 2-3 (1985). Consistent with the cоmmon law view, most modern definitions of the offense still focus on movement or confinement of the victim. See id. at 3.
¶15 As noted above, other states with similar kidnapping statutes have held that voluntary release factors are not elements of the crime. Indeed, some jurisdictions specifically identify such considerations as sentencing factors or as affirmative defenses. See, e.g.,
¶16 Admittedly, a few states have provided that harm to the victim or completion of an enumerated offense are elements of an aggravated form of kidnapping, see, e.g.,
¶17 We hold that the voluntary release of a victim “without physical injury in a safe рlace prior to arrest and prior to accomplishing any of the . . . enumerated offenses in subsection A,” is a mitigating factor relevant solely for sentencing purposes.
¶18 Because we find that sexual assault is not an element of “class 2 kidnapping,” we can easily dispose of Eagle‘s double jeopardy claim. The two statutes define distinct crimes under the Blockburger test, see 284 U.S. at 304, 52 S.Ct. at 182, because each offense requires proof of an element that thе other does not: the sexual assault statute
¶19 In sum, a jury found the defendant guilty of both crimes beyond a reasonable doubt. He was properly sentenced on the kidnapping charges according to the guidelines for a class 2 felony. It was within the trial judge‘s discretion to impose consecutive sentences for the kidnapping and sexual assault offensеs. The judgments of the trial court and of the court of appeals are affirmed.
CONCURRING: CHARLES E. JONES, Vice Chief Justice, FREDERICK J. MARTONE, Justice, and RUTH V. McGREGOR, Justice.
FELDMAN, Justice, concurring in part, dissenting in part.
¶20 The kidnapping was complete when Defendant restrained the victims “with the intent” to inflict a sexual offense.
¶21 Under
¶22 The significance of the court‘s holding is this: if failure to voluntarily release the victim, unharmed and in a safe place, is not an element of the crime, then the state need not prove beyond a reasonable doubt thаt the victim was harmed, the release was involuntary, or release was not made in a safe place. Further, the court need not submit these questions to the jury but may, instead, find these facts itself and thus determine whether the defendant is guilty of a class 2 or only a class 4 felony. But if these factual matters are elements of the crime described as second-degree kidnapping, then due process is violated if the state is not given the burden to prove thеse matters to the jury beyond a reasonable doubt. This, indeed, was the holding in State v. Sterling, 148 Ariz. 134, 713 P.2d 335 (App.1985).
¶23 The court today rejects Sterling, adopting instead the view that kidnapping is a single crime, that it is a class 2 felony, and that voluntary release of the victim, unharmed and in a safe place, is a mitigating factor that the defendant may try to establish. See majority opinion at ¶¶ 10 and 13. Thus, the court concludes, the group of facts in question is “a mitigating factor relevant solely for sentencing purposes” and that “it is proper to place the burden of proving them on the defendant.” Id. at ¶18. But due process may still require the state to bear the burden of disproving a factor that reduces or justifies a crime. See State v. Duarte, 165 Ariz. 230, 798 P.2d 368 (1990) (in murder prosecution in which there is any evidence of self-defense, state has burden of proving beyond a reasonable doubt that defendant did not act in self-defense).
¶24 It is true, as the majority notes, that the legislature wrote
¶25 I do not agree the question can be answered solely by looking to see whether the statute labels the facts to be found as aggravаtors or mitigators. Think of this scenario painted by Justice Scalia:
I do not believe that [the] distinction [between elements and sentencing factors] is (as the Court seems to assume) simply a matter of the label affixed to each fact by the legislature. Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, “knowingly causing injury to another,” bearing a penalty of 30 days in prison, but subject to a series of “sentencing enhancements” authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the state then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he “knowingly cause[d] injury to another,” but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be, to borrow a phrase from Justice Field, “vain and idle enactment[s], which accomplished nothing, and most unnecessarily excited Congress and the people on [their] passage.”
Monge v. California, 524 U.S. 721, 737, 118 S.Ct. 2246, 2255, 141 L.Ed.2d 615 (1998) (Scalia, J., dissenting) (quoting Slaughter-House Cases, 83 U.S. 36, 16 Wall. 36, 96, 21 L.Ed. 394 (1892)).
¶26 Justice Scalia‘s comments are, of course, just as relevant to the mitigators in the present case as the enhancers in Monge. Could Arizona establish one violent crime—“knowingly causing injury to another“—punishable as a class 1 felony, subject only to a wide variety of factors that would reduce punishment to lesser levels by a series of sentencing mitigators to be determined by the judge and not the jury?
¶27 Unfortunately, we сannot find an answer in the United States Supreme Court‘s decisions. Its jurisprudence on the issue is conflicting at best. It serves no purpose to review the decisions here. They are discussed in detail in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (invoking doctrine of constitutional doubt, Court treats enhancing factor of serious bodily harm to victim of carjacking as element of crime); Monge, 524 U.S. at 727-31, 118 S.Ct. at 2250-51 (recidivism enhancer is sentencing factor). It is puzzling that the question of bodily harm becomes an element of the crime, so that the state must prove it beyond a reasonable doubt and to a jury, when labeled as an enhancing factor but, as in the present case, not when labeled as a mitigating factor.
¶28 Another recent case involving a charge of unlawful possession of a firearm presents the question of whether proof of a so-called hate crime motive was a sentencing factor or must be treated as an element of the crime. New Jersey v. Apprendi, 159 N.J. 7, 731 A.2d 485 (1998). The New Jersey court held that the question of whether racial animus was the motive for the crime need not be treated as an element, so the state did not have the burden of proving it to a jury beyond a reasonable doubt. Instead, the judge could make the finding and increase the sentence accordingly. Id. at 494-95.3 The United States Supreme Court has now granted certiorari. Apprendi v. New Jersey, — U.S. —, 120 S.Ct. 525, 145 L.Ed.2d 407. Hopefully, the Court will tell us by summer how to differentiate between an element and an enhancer or mitigator.
¶29 Until then, I would be inclined to follow Sterling4 because the presence or ab-
FELDMAN, Justice