STATE of South Dakota, Plaintiff and Appellee, v. Jose Angel GARZA, Defendant and Appellant.
No. 26807.
Supreme Court of South Dakota.
Decided Sept. 24, 2014.
2014 S.D. 67; 854 N.W.2d 833
Considered on Briefs April 28, 2014.
Cheri Scharffenberg, Olson, Waltner & Scharffenberg, LLP, Tea, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice.
[¶ 1.] Defendant Jose Garza was convicted of first-degree arson and first-degree felony murder in a single trial for intentionally setting fire to an occupied structure and the resulting death of an unidentified victim in the fire. Arson served as the underlying felony to support the felony murder charge. Garza was given concurrent life sentences without parole for each conviction. The circuit court denied Garza‘s motion to correct an illegal sentence, rejecting his claim that the concurrent sentences violated the Double Jeopardy Clause. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶ 2.] The underlying facts of this case were described in State v. Garza, 1997 S.D. 54, ¶¶ 2-4, 563 N.W.2d 406:
At approximately 9:00 a.m. on the morning of February 24, 1995, Jose Sanchez (Sanchez) hosted a party at his apartment located at 231 South Spring in Sioux Falls, South Dakota. Throughout the morning and early afternoon hours, a large amount of alcohol was consumed by the occupants and guests. Garza arrived at Sanchez’ apartment around 4:00 p.m. and found the majority of the participants intoxicated. Garza consumed alcohol with the other guests after his arrival.
Later, Ansellmo Montinegro (Montinegro) and Garza had an altercation. After Montinegro broke the strings of a guitar, Garza grabbed it and broke it further. Another participant at the party attempted to stop Garza and a further altercation ensued. Next, the evidence showed that Garza went to the stove, turned on the gas, lit all four burners, and threatened he could burn down the house. Also, Garza was observed putting his lighter up to the fuse box in the apartment, but the fuse box door was closed by another person at the party to deter this act.
At approximately 9:30 p.m., Garza left the party. Garza was later identified as having purchased forty-five cents worth of gasoline at a nearby 7-11 store at 11:00 p.m. Within twenty minutes of his purchase, the apartment building at 231 South Spring was on fire. All of the occupants escaped the burning building, except for John Doe, who died of carboxyhemoglobin poisoning.
[¶ 3.] The State charged Garza with one count of first-degree felony murder, with arson as the underlying felony, and one count of first-degree arson.
ANALYSIS AND DECISION
[¶ 4.] 1. Whether this Court has jurisdiction over an appeal from an order denying a motion to correct illegal sentence.
[¶ 5.] As an initial matter, the State argues that this Court does not have jurisdiction over this matter because
[¶ 6.] However, Garza asserts that the proper remedy in this case would be to vacate both the conviction and sentence for first-degree arson, leaving the conviction for first-degree felony murder intact. South Dakota law authorizes a court to provide a more limited remedy.
[¶ 7.] 2. Whether imposition of sentences for felony murder and the underlying felony of arson violates the constitutional prohibition against double jeopardy.
[¶ 8.] Garza argues that the South Dakota Legislature did not intend to authorize multiple punishments for the single act of burning a building. Specifically, he argues that the Legislature intended arson and felony murder to be treated and punished as a single offense. Garza contends that “the murder charge is really ‘aggravated arson‘—arson plus a resulting death.” Consequently, he asserts that imposing multiple punishments for his single act violated the Double Jeopardy Clause. We disagree.
[¶ 9.] Because Garza alleges constitutional violations, raising issues of legislative intent and statutory interpretation, we review his claims under the de novo standard. State v. Long Fox, 2013 S.D. 40,
[¶ 10.] The double jeopardy prohibition in the Fifth Amendment to the United States Constitution, and Article VI, Section 9, of the South Dakota Constitution, “protect[s] against three types of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Johnson, 2007 S.D. 86, ¶ 12, 739 N.W.2d 1, 6 (quoting State v. Lafferty, 2006 S.D. 50, ¶ 4, 716 N.W.2d 782, 784). See also Jones v. Thomas, 491 U.S. 376, 380-81, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989). In the first two contexts—a second prosecution subsequent to acquittal or conviction—the United States Supreme Court has consistently found a violation of the Double Jeopardy Clause unless each of the charged offenses “requires proof of a 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) (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911)). If such proof is required, then the single act may be an offense against two statutes and “an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (Mass. 1871)).
[¶ 11.] The analysis is different, however, in the context of multiple punishments for the same criminal act. When “it is not contended that [a defendant‘s] right to be free from multiple trials for the same offense has been violated[,]” but rather where cumulative sentences are imposed in a single trial, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 365-66, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Accordingly, “[t]he question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed.” Id. at 368, 103 S.Ct. at 679 (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981)); State v. Simons, 313 N.W.2d 465, 467 (S.D. 1981) (quoting Albernaz, 450 U.S. at 344, 101 S.Ct. at 1145). While a question of multiple prosecutions, then, is a constitutional question that must be resolved according to the Blockburger test, the determination of whether the same criminal act can be punished under two separate statutes in one trial is a question of state law to be determined in state courts. See Hunter, 459 U.S. at 368, 103 S.Ct. at 679 (citing O‘Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 743, 38 L.Ed.2d 702 (1974)) (acknowledging that the United States Supreme Court was bound by the Missouri Supreme Court‘s conclusion that Missouri statutes authorized multiple punishments for one criminal act). Thus, the primary issue before this Court is whether the South Dakota Legislature intended first-degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test.
[¶ 12.] We have an “[e]stablished double jeopardy jurisprudence[, which] confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Deneui, 2009 S.D. 99, ¶ 65, 775 N.W.2d 221, 247 (quoting State v. Dillon, 2001 S.D. 97, ¶ 13, 632 N.W.2d 37, 43). “The true intent of the legislature is ascertained primarily from
Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, or when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.
Any person who intentionally sets fire to or burns or causes to be burned any occupied structure, knowing the same to be occupied at the time, is guilty of arson in the first degree. Arson in the first degree is a Class 1 felony.
[¶ 13.] However, a “second inquiry follows when legislative intent to impose multiple punishments is uncertain.” Dillon, 2001 S.D. 97, ¶ 18, 632 N.W.2d at 45. In discerning legislative intent, “we employ the Blockburger analysis.”
[¶ 14.] According to our application of the Blockburger test in this case, and for the purpose of ascertaining the intent behind South Dakota law, the plain language of the statutes reveals that each statutory offense requires proof of an element not required to establish a violation of the other. It is possible to commit a felony murder without committing a first-degree arson and vice versa.4 First-degree felony murder requires the State to prove that the death of an individual occurred, an element not required to prove first-degree arson. First-degree arson requires the burning of an occupied structure, which is not a required element of felony murder. First-degree felony murder does not necessarily require proof of the burning of an occupied structure because first-degree felony murder can instead be proven with any of a number of enumerated completed or attempted crimes.
[¶ 15.] Garza argues that, under the United States Supreme Court‘s decision in Whalen v. United States, we should conclude that multiple punishments in this case would violate double jeopardy. 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980). In Whalen, the defendant was convicted of rape and felony murder with rape as the underlying felony. The Supreme Court, interpreting a Dis
[¶ 16.] Garza argues that this Court should come to the same result as Whalen.5 Although Whalen presented the United States Supreme Court with a similar statutory scheme to the one challenged in this case, we decline to apply the holding of Whalen. First we point out that, as a federal enclave, the laws of the District of Columbia derive from acts of Congress and are inherently federal in nature. Consequently, the Supreme Court determined that Congress intended the “rule of statutory construction stated by [the Supreme Court] in Blockburger v. United States” to apply when determining whether two statutes punish the same offense in the District of Columbia. Whalen, 445 U.S. at 691, 100 S.Ct. at 1437. Second, and in contrast, we again note that questions of legislative intent are left to the determination of state courts. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. See also Whalen, 445 U.S. at 687-88, 100 S.Ct. at 1435 (recognizing that the United States Supreme Court is “barred from reviewing a state court‘s interpretation of a state statute“). Thus, we are not bound by the United States Supreme Court‘s application of Blockburger to the District of Columbia statutes. See id. (noting that the Supreme Court had “utilized [the Blockburger] rule only to limit a federal court‘s power to impose convictions and punishments when the will of Congress is not clear” (emphasis added)). Looking to this Court‘s application of Blockburger, we conclude that the Whalen analysis is not in line with our precedent of interpreting statutes for double jeopardy purposes.
[¶ 17.] Whalen departed from an abstract approach of applying the Blockburger test to the statutory elements and instead applied the test to how the crimes were actually charged. 445 U.S. at 694, 100 S.Ct. at 1439 (“In the present case, however, proof of rape is a necessary element of proof of the felony murder....“). See also id. at 711-12, 100 S.Ct. at 1448 (Rehnquist, J., dissenting) (noting that the majority opinion “chooses instead to apply the test to the indictment“). As indicated above, this Court has clearly stated that, when applying the Blockburger test to ascertain legislative intent, we do not consider how the offenses were proven at trial. Dillon, 2001 S.D. 97, ¶ 18, 632 N.W.2d at 44-45. See also Johnson, 2007 S.D. 86, ¶ 17, 739 N.W.2d at 7 (applying Blockburger to statutes in the abstract). “The test is whether the same act or transaction may constitute two distinct offenses if each offense as defined by statute requires the proof of some fact or element not required to establish the other.” Augustine, 2000 S.D. 93, ¶ 13, 614 N.W.2d at 798 (emphasis added) (quoting Seidschlaw, 304 N.W.2d at 106) (internal quotation marks omitted).
[¶ 18.] Our primary focus when determining legislative intent is on the language used in the statute. See, e.g., Lafferty,
[W]e must not lose sight of the fact that the Blockburger test is a tool to be used to ascertain legislative intent. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements.
People v. Ream, 481 Mich. 223, 750 N.W.2d 536, 545 (2008) (rejecting double jeopardy claim where the defendant was convicted of both felony murder and the predicate felony of criminal sexual conduct). We therefore decline Garza‘s request to apply Whalen‘s conclusion that felony murder and the underlying felony are the same offense, under South Dakota law, for the purpose of imposing multiple punishments.
[¶ 19.] The conclusion that the Legislature intended felony murder and arson to be separate offenses is reinforced by the separate evils addressed by the homicide and arson statutes in South Dakota. “Statutes that are ‘directed toward protecting different social norms and achieving different policies can be viewed as separate and amenable to multiple punishments.‘” Johnson, 2007 S.D. 86, ¶ 18, 739 N.W.2d at 8 (quoting Armendariz, 141 P.3d at 533-34). See also Albernaz, 450 U.S. at 343, 101 S.Ct. at 1144 (noting “separate evils” of drug importation and distribution as supporting a finding of no double jeopardy violation in a conviction for both). The homicide statutes seek to protect human life by prohibiting the killing of another human being. See
CONCLUSION
[¶ 20.] Under our application of the Blockburger test, felony murder and first-degree arson are not the “same offense” for the purpose of cumulative punishment analysis. The imposition of punishment under both statutes, in the same prosecution, does not exceed the punishment prescribed by the South Dakota Legislature and, consequently, does not violate the
[¶ 21.] ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶ 22.] KONENKAMP, Justice, concurs in result.
KONENKAMP, Justice (concurring in result).
[¶ 23.] Although I agree with the result the Court reaches, I disagree with its declaration that “[i]t is possible to commit a felony murder without committing a first-degree arson and vice versa.” See supra Majority Opinion ¶ 14. Under the Blockburger rule, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all the elements of the lesser offense.7 Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). For felony murder, the United States Supreme Court has consistently treated the conviction of a predicate felony and a conviction of the felony murder charge itself as the same offense under the Double Jeopardy Clause. See Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S.Ct. 2912, 2912-13, 53 L.Ed.2d 1054 (1977) (per curiam) (defendant convicted for felony murder based on underlying offense of robbery with firearms; subsequent prosecution for robbery with firearms precluded by the Double Jeopardy Clause); see also Payne v. Virginia, 468 U.S. 1062, 1062, 104 S.Ct. 3573, 3573-74, 82 L.Ed.2d 801 (1984) (per curiam) (same).
[¶ 24.] In South Dakota, arson is one of the necessary predicate offenses of first-degree felony murder.
[¶ 25.] Nor do I agree with the Court‘s reasons for declining to follow Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Whalen is distinguishable for different reasons. First, it can be read narrowly to apply only to consecutive sentences. Here the sentences were concurrent. Second, the Whalen Court construed District of Columbia law, in which the Court found that a district sentencing statute “clearly confirms that Congress intended the federal courts to adhere strictly to the Blockburger test when construing the penal provisions of the District of Columbia Code.” Id. at 692, 100 S.Ct. at 1438. South Dakota has no equivalent statute.
[¶ 26.] Yet, as the Court points out, application of the Blockburger rule does
[¶ 27.] I agree with the Court‘s rationale for concluding that our Legislature intended felony murder and arson to be separately punishable offenses. Other courts have reasoned likewise. See, e.g., State v. Greco, 216 Conn. 282, 579 A.2d 84, 89-92 (1990); State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990).