State v. McCovey

Dam, Thompson, R. David Paul Van B. City, plaintiff appellee. Salt Lake for and Utah, Appellee, Plaintiff and STATE of HALL, Chief Justice: aka Charles Kenneth McCOVEY McCovey Defendant Charles Kenneth Hodges, Kenneth Charles (felony) degree was convicted of second Appellant. and Defendant felony,1 a first The robbery, felony.2 vated No. 890137. McCovey trial court sentenced for both Supreme Court of Utah. crimes, appeals aggravated he now sentence, claiming it is a less- Dec. er included offense of second murder. 22, 1988, April McCovey

On robbed Kearns, During Utah video store. he killed a course of shot and McCovey in the store. main- customer throughout the trial that the shoot- tained accident. McCovey with murder The State robbery. the first trial, prove At the State intentionally knowingly he the cus- killed robbery. The trial tomer gave jury instructions on murder homicide) (capital murder). (felony in the second jury instruction informed the court’s convict for second that it could following der elements if it found the beyond a reasonable doubt: April in Salt

1. On or about Utah, County, defen- State of Lake aka McCovey, Kenneth dant Charles of Anna Hodges caused the death Holmes; attempt- While ed commission person. of another causes death McCovey second jury convicted robbery. degree murder and for McCovey was The fact that convicted pursuant 76-5-203(l)(d) (Supp. Utah Code undisputed. During sentencing hearing on merge Valdez, Remal, moved to March A. Lisa J. Joan Andrew Watt, City, Uday, Lake Richard G. Salt C. The trial degree murder conviction. appellant. defendant and 76-5-203(l)(d) (Supp.1988). (Supp.1988). 2. Utah Code Ann. Ann. §

1. Utah Code and, therefore, McCovey’s denied motion and sen murder he should not be tenced him to two five consecutive terms of punished for both offenses. to life. The sole issue on We have addressed the issue lesser of appeal aggravated robbery is whether is a cases,8 included a offenses in number of

lesser included of offense but the first time the issue has been thereby making sen in regard raised to the second felo- tence a jeopardy violation of the double ny murder statute. Resolution of issue clause of the fifth amendment to the Unit requires a determination of whether ed States Constitution3 and Utah Code aggravated robbery intended to (1978).4 be a lesser offense included of second de- imposed by The sentence gree felony murder.9 court is not be disturbed unless the court The United States Court de discretionary powers.5 abused An fined lesser included offenses in Blockbur judge abuse of discretion results when the ger v. United States10 by stating: “The legally “fails to consider relevant applicable rule is that where the same act if imposed factors”6 the sentence or transaction constitutes a of violation two “clearly McCovey excessive.”7 claims statutory provisions, distinct imposed clearly sentence test be excessive applied in because is a determine whether there are lesser one, cluded of provi- offense offenses whether each Gerrard, Russell, 3. The fifth amendment states: 7. see also P.2d at 192-93. person capi- No tal, shall be held to answer for a crime, or otherwise infamous on a unless presentment Jury, 460, indictment Grand Larocco, (Utah 8. See State v. 794 P.2d except arising cases in in land or naval 1990) (possession a of a stolen vehicle is lesser forces, Militia, when in actual ser- vehicle); included offense of theft of State v. public danger; vice in time of War or nor 390, Bell, (Utah 1989) (aggrava- 785 P.2d 392-95 person any subject shall be for the same of- ted is not a lesser included offense of put jeopardy be fense to limb; twice in of attempted murder the commission of a compelled nor shall be criminal 1187, felony); State v. 743 P.2d 1191-92 himself, against case to a witness be be nor (Utah 1987) (aggravated assault is a lesser not life, deprived liberty, property, of without aggravated robbery; included offense of ever, how- law; process private the due nor shall is a theft lesser included offense of use, property public just be taken for presented); vated Hansen, under facts State v. compensation. 421, (Utah 1986) (sec- 734 P.2d 423-27 applicable The fifth amendment ond murder is a lesser included through states the fourteenth amendment. Ben murder); offense State v. 784, 787, Maryland, ton v. S.Ct. 395 U.S. 1301, (Utah 1986) (the aggra- 725 P.2d 1313-14 (1969). 23 L.Ed.2d 707 vating circumstances listed in the first 76-1-402(3) murder statute are included lesser offenses perti- 4. Utah Ann. § Code states in murder); State v. 671 P.2d part: may nent "A defendant convicted of (Utah 1983) (criminal trespass is a charged 152-60 offense included in the offense burglary); included State lesser be convicted (Utah (theft 1983) 96-98 is a and the included offense." aggravated robbery); included pleaded has neither nor briefed Mane, (Utah see also clause, jeopardy Utah’s double Utah violation Const, aggrava- Ct.App.1989) (attempted homicide and I, art. which states: "The accused ted assault not lesser included offenses compelled give against shall not be himself; evidence capital either homicide or second testify compelled a wife shall not be presented). husband, der under against against a husband his her nor wife, any person put jeopar- twice nor shall added.) dy (Emphasis See, Tillman, (Utah same e.g., offense." (courts context must conclude from the See, Russell, history likely the most intent of (Utah 1990); Shelby, drafting adopting the stat- the ute). Gerrard, (Utah 1986); State v. Gibbons, 76 L.Ed. 306 requires proof of a fact which the to determine whether a can be sion defendant does not.” other convicted and for two different crimes committed in connection with a lesser The definition of single episode, criminal the court must fense has been codified Utah Code Ann. the evidence to determine 76-l-402(3)(a) (1978) reads perti- § greater-lesser relationship whether the part as nent follows: specific exists between variations (3) A defendant be convicted of actually proved at trial.15 crimes charged in the offense offense included may not be convicted both compare statutory Accordingly, we of- charged and the included charged. crimes elements of the Second An so included when: fense. offense is in Utah codified (a)It by proof established (Supp.1988) Code Ann. 76-5-203 required or all the facts same less than pertinent part reads in follows: as to establish the commission of the of- (1) Criminal homicide constitutes murder charged.... fense in the second if the actor: 76-l-402(3)(a) interpreted We have (a) intentionally knowingly causes the two crimes are to mean “where another; the death of greater ‘such that the cannot be committed (b) intending bodily to cause serious having necessarily committed another, an act injury to he commits lesser,’ they then as of law stand a matter dangerous to clearly human life relationship greater and lesser another; the death of causes offenses, and the defendant cannot be con- (c) both.” victed acting under circumstances evi- depraved to hu- dencing a indifference greater- In order to determine whether a life, engages in which man he conduct between two of- relationship exists grave risk to anoth- creates a of death fenses, two-part test. In we undertake thereby er and the death of Hill,13 causes we stated: another; or purposes conclude that for of the We prohibition against “of (d) commission, attempted while in the the offense commission, flight from immediate fense,” relationship greater-lesser commission or commis- by comparing the must be determined aggravated robbery, sion of statutory the two as elements of crimes sodomy, rape, object rape, forcible and, theoretical matter where neces- assault, sexual sary, by proved to the facts at reference arson, arson, aggravated burglary, trial.14 burglary, aggravated kidnaping, kid- child, rape naping, kidnaping, child under which “refer- The circumstance child, sodomy upon a object rape of a trial” proved to the becomes ence child, abuse, specific sexual “necessary” is are vari- forcible sexual when there Hill, child, aggravated committed. sexual ations of crimes abuse child, abuse, further as stated: abuse of a child 76-5-109(2)(a), in Subsection defined comparison A theoretical younger than 14 having multiple when the victim elements of two crimes of an- age, causes the death will insufficient. In order variations 1983). 182; see also Brown v. 13. 674 P.2d 96 Id. at 52 S.Ct. at 2226-27, Ohio, U.S. States, (1977); L.Ed.2d 187 Iannelli United (citation omitted); Id. see also at 97 1289-94, U.S. 95 S.Ct. 1191-92; Hansen, P.2d at States, v. United L.Ed.2d 616 Gore 1313-14; Baker, P.2d at 2 L.Ed.2d 154-55. at 97. (quoting at 97 person party other other than a nature than other criminal defined in Section 76-2-202. statutes. For example, theft has been held to be a lesser included of aggrava- added.) (Emphasis theft, ted by very because its na- Aggravated robbery is codified in Utah ture, has overlap aggravated elements that (Supp.1988) Code Ann. robbery.16 Yet reason pertinent part reads as follows: encompassed within the defini- (1) person A commits rob- tion of lesser included bery if in committing the course of murder is that the legislature designated it bery, he: enhancing as an offense. Aggravated rob- (a) firearm a Uses a facsimile of a not, bery nature, does have over- firearm, knife or a facsimile of a knife lapping any elements with traditional form a deadly weapon, or of murder. (b) bodily upon injury causes serious An intentional and knowing killing is another. punishable degree as second murder17 un- comparison, ag- Under a strict theoretical accompanied by less aggravating some gravated robbery does not have the “same factor, in which case is enhanced to first any or less than all” of the elements in of degree aggravating murder.18 ofOne degree the first three variations of second factors will enhance a murder from (l)(a), (c), (b), under murder subsections degree degree aggravated to first is (d), qualify but does under subsection robbery. felony murder rule. In order to a obtain v. Shaffer,19 we addressed the conviction, prosecution murder aggravating issue of whether the factors prove must first that the murder com- degree that enhance second murder to first commission, attempted mitted degree murder lesser are commission, flight from the commission fenses. We stated: Ag- of a felony. commission [Pjroof aggravated robbery was a nec- gravated robbery necessary is one of the proof essary element to of first predicate offenses murder. felony murder. There can no doubt part requires The second of the Hill test that, alone, standing aggra- the crimes of a determination whether evidence of the robbery vated and first murder lesser included offense was separate are offenses. offenses are undisputed trial. It is elements sections, found of the code. aggravated robbery proven were at trial First murder is an offense and that was convicted of the against person, aggravated whereas undisputed crime. Also is fact that the robbery against property. is an offense place during murder took separate- under the test for aggravated robbery. 76-1-402(3), ness found Despite the fact that under the Hill robbery vated a becomes lesser included robbery analysis aggravated degree felony be a would first murder murder, where, lesser included offense of as the situation such case bar, recognize predicate felony that enhancement for first de- (Utah See, e.g., 17. Second murder is a first 1987) (aggravated not a punishable by assault is lesser includ years a sentence of 5 to life however, aggravated robbery; ed offense of 76-3-203(1) pursuant to Utah Code Ann. § aggravated theft is a lesser included offense of robbery presented); under facts (Utah 1983) (theft a lesser included murder, known as 18. First otherwise robbery); aggravated Laroc offense co, also capital punishable by death or life (Utah 1990) (possession P.2d at of a imprisonment pursuant Code to Utah a stolen vehicle is lesser included offense of 76-3-206(1) (1978). vehicle); theft motor (criminal trespass lesser 19. 725 P.2d 1301 burglary). included offense of robbery. Second, law, gree murder is No at common are der doctrine did envision additional facts elements death; punishment required prove aggravated robbery for murder than af- therefore, degree murder there was no need ter based on the whether the should also predicate offense of Thus, Similarly, punished. involved is shown. murder Shaffer capital pursuant predicate murder of aggra- based on statute, Utah’s first under greater vated stands rela- designated which tionship to lesser included imprisonment.21 in- death and life In the aggravated robbery. greater If case, McCovey pursu- stant was convicted proven, crime is then the lesser crime ant to the second U.C.A., merges Consequently, into it. statute, for punishment under which the 76-1-402(3) prevents the defen- Therefore, murder is five to life. being dant from convicted and sentenced instant case it not be needless in addition to surplusage underlying to consider aggravat- first degree murder where the felony as a separate offense. circumstance' bery.20 The determination to be made whether intended the in Similarly, predicate the felonies listed bery the in sub- of felonies listed —or the second murder statute (l)(d) of- lesser included —to enhancing factors. it not for also Were felony of second murder.22 fense statute, accidental, felony the murder step determining legislative in The first negligent, or reckless homicide committed purpose the intent is nature and felony commission of a the felony of the murder statute.23 punishable manslaughter, as a sec- homicide, negligent degree felony, ond purpose The traditional common law felony class A misdemeanor. murder doctrine has the been the State to obtain a allow many the there are Despite fact proving any murder conviction without similarities between the first de- functional rea, or The form of mens mental state. gree factors and the aggravating murder automatically en- felony murder statute felony murder enhance- pun- the offense and hances the ments, stark differences there are some necessity ishment without consider- present case and between Shaffer state, i.e., or mental wheth- ing a mens rea First, in the victim of the case. er the felon intended to commit murder.24 of the murder were robbery and victim essence, liability In it is strict case, present person. the same In that enhances an otherwise unintentional robbed, and a customer video store killing to second murder.25 in This sets out base was killed. distinction felony purpose A further murder relief differences in the nature the distinct is to the use of force or robbery and murder deter weapons felony.26 victims. because there are omitted). (W.Va.1983); Sims, (footnote 162 W.Va. 20. Id. at 1313-14 S.E.2d yet address the issue of whether 21. We have punishment im- State, 25. v. P.2d See Richmond parole. possibility prisonment envisions the (Wyo.1976). See, Corp., e.g., Clark Clinic P.2d Millett v. (Utah 1980). See, State, e.g., Talancon Nev. State, Birr Tillman, See, e.g., Note, (Wyo.1987); Diminished Felony-Murder, Capacity 23 Stan.L. Defense (1970-1971). Hansen, See, Rev. 425 n. Williams, 251, 267 also 305 S.E.2d If a felon knows that a homicide committed such sentences does not violate the Consti- during the commission of a felony, whether tution.” unintentional, accidental or will be treated appear It would that the Utah Leg- as a first addition to the islature did not intend the multiple crimes committed, underlying felony being he or murder to be a single apt she will be deadly less to use force or crime, rather, homicide be dangerous weapons. Conversely, if the enhanced to second felony murder underly- intended to make the in addition the underlying felony. To ing felony offense, a lesser included then a conclude otherwise would be to defeat the felon could receive a windfall two-for-one purpose deterrent of the felony murder by convincing jury the homicide statute and unjust consequences. result in was unintentional or accidental. A true lesser included relationship does not split Jurisdictions are over the controver- exist murder statute under sy of whether an is a test, either the analysis, the Hill included offense of murder.27 Blockburger Allowing punish- test. cases, however, courts, appellate ment for the un- federal, whether state or looked to the in- derlying felony violates neither the double legislatures tent of the state and deferred jeopardy principles of fifth amendment police Indeed, powers.28 to the states’ Constitution, the United States nor Utah States,29 Albernaz v. United the United 76-1-402(3) (1978). Code Ann. States Court ques- stated: “[T]he tion of what are constitution- judgment and sentence ally permissible is not from court are affirmed. question Legisla- of what the tive Branch imposed. intended to be intended, here, HOWE, C.J., Congress

Where STEWART, as it did Associate to impose J., multiple punishments, imposition of concur. jurisdictions (Colo.1989) (first murder,

27. Those cases that felony 1281 the to be prison); People Raymer, offenses in sentenced to life in v. felony 1066, (Colo.1983) (first their murder statutes the include follow 662 P.2d 1070 Schad, 411, ing: murder, State v. Ariz. 163 788 P.2d death sentence and re- reversed 1162, Williams, (1989); People v. State, 1168 195 Cal. grounds); manded on other Sivak v. 112 717, 398, (1987); App.3d Cal.Rptr. 197, 192, 240 (1986) 719-21 (first degree Idaho murder, 731 P.2d 206 Enmund, 165, (Fla. State v. reversed, 476 So.2d 167-68 original sentence of death 1985); Gonzales, 691, State v. 245 Kan. 783 P.2d Jones, resentencing); remanded for State v. 525 1239, Dunn, 414, (1989); 1249 1149, v. 243 Kan. (La.Ct.App.1988); People So.2d 1151 v. 718, Talancon, (1988); Wilder, 758 328, 112, 411 Mich. 308 N.W.2d 116 768; 458, Stephens, at 93 N.M. (1981) (first murder, degree felony impris- life 428, Blackburn, 433 694 S.W.2d onment); Bokun, 860, People v. 145 Misc.2d 548 934, (Tenn.1985); Fitzgerald 937 v. Common 604, State, (Sup.Ct.1989); Perry N.Y.S.2d 607 v. wealth, 798, 615, 223 Va. S.E.2d 292 892, (first (Okla.Crim.App.1988) 898 (1982); Birr, 744 P.2d at murder, imprisonment); life Williams, (first degree 305 S.E.2d at 267-68 felo- jurisdictions holding Those that the offenses murder, ny imprisonment). life Thomas, 376, merge Jones include v. 491 U.S. 384, 3, 2522, 3, & n. 109 S.Ct. 2527 & n. 105 Thomas, 384-87, 28. See Jones v. 491 U.S. at 322, (1989) (interpreting L.Ed.2d 333-34 & n. 3 109 S.Ct. at L.Ed.2d 105 at 333-341 (first murder, law) degree felony Missouri life law); (interpreting v. Missouri Whalen United States, imprisonment); v. Whalen United States, 686, at 445 U.S. 100 S.Ct. at 1434-35 684, 693-94, 1432, 1438-39, U.S. 100 S.Ct. law); (interpreting District of Columbia Harris (1980) (interpreting L.Ed.2d 715 District Co 682, Oklahoma, v. 433 U.S. at 97 S.Ct. 2912- Oklahoma, law); 682, lumbia 682-83, Harris v. U.S. law). (interpreting Oklahoma 2912, 2912-13, 97 S.Ct. 53 L.Ed.2d 1054 (1977) law); (interpreting Oklahoma Sekou v. 1137, 333, 29. 450 U.S. 101 S.Ct. 67 L.Ed.2d 275 Blackburn, 108, (5th Cir.1986); F.2d (1981). Beverly, (Ala.1986); Ex Parte 497 So.2d State, (Ala.Crim. Connolly v. 539 So.2d (first App.1988) im Id. also Missouri State, Hunter, Hughes prisonment); v. 459 U.S. (Alaska 1983); (1983). People, Boulies v. 74 L.Ed.2d 535 DURHAM, (dissenting): some defendants. Under indeterminate Justice sentencing, one first convic- respectfully majority I dissent. to tion results a sentence of five plain language opinion overrides Par- life. It does not credit Board of 76-l-402(3)(a). This Utah Code Parole much sense dons and with common stated, previously has “Where statu they do suggest not review plain tory language unambiguous, of a act actual circumstances criminal beyond to this Court will not look divine (rather than the numerical “count” of Instead, legislative guided intent. convictions) deciding time when on actual by the rule that should be con I leave be content be served. according plain language.” strued plain language burden where the Legion Allisen American Post No. leaves it. I would reverse. plain 76-l-402(3)(a) language indicates of section ZIMMERMAN, (dissenting): Justice “is proof if an offense established re of the same or less than all I dis- Reluctantly, join Justice Durham’s quired establish commission of majority that agree sent. I charged” the defendant quite legislature probably did not intend the offense an of convicted of both that one convicted of possible It fense so included. is not a sanction no harsh- murder would receive killing while convict commit- defendant er one than convicted ing proving an aggravated without plain sec- bery. language the facts rob 76-l-402(3)(a) gives no indication that tion bery. The United States Court issue. Given addressed in Whalen v. Unit reached similar result background the rather unusual historical States, ed 684, 100 S.Ct. murder, see, 445 U.S. the crime of kill L.Ed.2d 715 “A conviction for Hansen, (Utah 1986), 734 P.2d 421 rape cannot had course quite likely seems proving all the elements of the unique conceptual entirely unaware of Whalen, rape.” offense of problems by the offense when it at 1438-39. passed the criminal code. If there were plain language way to construe the give duty It is court to effect argued the result statute reach plain meaning language legis to the by justice, join opin- I would his the chief agree into I law. lature has written ambiguity ion. I find no majority that if had our prior precedents. in our statute or merger considered the issue cases, likely it would question McCovey’s probable On the provide that of have intended to if McCo- punishment, we were reverse merge. felony-murder do not fenses vey’s I conviction for 1—402(3)(a)dem wording of section sanguine that am not as as Justice Durham 76— however, onstrates, if the legisla that even keep McCovey prison board intent, incorpo it did not ture had such an degree felony as it would long for one first The flaw in the rate it the statute. into ignore no for two. But reason majority opinion is that approach of the language of the statute affirm- plain no principle that “the has ignores the convictions. We should follow the to make it con to rewrite power parole law trust board will expressed.” to an intention form underlying crime examine the details of Tel. Tel. Co. Public Mountain States & counting instead of convictions. ’n, 107 Utah Comm Serv. Finally, disagree majority’s with the I existing

assertion permits a so-called “windfall” scheme

Case Details

Case Name: State v. McCovey

Court Name: Utah Supreme Court

Date Published: Dec 18, 1990

Citation: 803 P.2d 1234

Docket Number: 890137

Court Abbreviation: Utah