State v. MurrayState v. Murray
- Reporters:
- ,
- Before:
- Per Curiam (per curiam)
PER CURIAM:*
In this prosecution on two counts of attempted first degree murder, respondent pursued his avowed purpose “to blow up all of [the] shit” removed from their marital domicile by his estranged wife, Olga Murray, by аrming himself with a .410 gauge sawed-off shotgun and a pocket full of shells and invading the trailer of Preston Blackwell in Pearl River, Louisiana, on the evening of October 27, 1997. After separating from her husband, Murray had gone to live in the trailer with Blackwell, her adult son by another marriage. In rapid succession within the narrow confines of the trailer‘s back bedrоom, respondent shot his stepson in the hip and, after reloading the weapon and pointing it at Blackwell‘s six-year-old daughter, shot his wife in the abdomen as she cowеred on the floor next to the bed. After eluding a second shot aimed at his head, Blackwell charged respondent, wrestled the shotgun away from him in a struggle which spilled out of the bedroom through the adjoining kitchen and into the livingroom, and held respondent on the floor until the police arrived in response to a 911 call placed by Olgа Murray just before the shooting started.
In a single proceeding, a twelve-person jury convicted respondent on two counts of attempted first degree murder under an instruction from the trial court requiring jurors to find on each count that respondent had had the specific intent to kill more than one person when he fired the shots which struсk both Blackwell and Olga Murray. See
The Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also “protect[ ] against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). When the same act or transaction constitutes a violation of two distinct statutory provisions, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the оther does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (selling narcotics not in original stamped package and selling narcotics not in pursuance to a written order of the purchaser constitutеd two different offenses although arising from a single delivery of narcotics); see Texas v. Cobb, 532 U.S. 162, ___, 121 S.Ct. 1335, 1343, 149 L.Ed.2d 321 (2001) (“We have since applied the Blockburger test to delineate the scope of the Fifth Amendment‘s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the `same offense.‘“) (citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (barring successive prosecutions of greater and lesser included offenses)). Louisiana‘s somewhat broader “same evidence” test considers not only the material elements of each offense but also whether the evidence required to convict of one crime would also support conviction of the other, focusing “on the evidence necessary for conviction, not all the evidenсe introduced at trial.” State v. Steele, 387 So.2d 1175, 1177 (La.1980). The test precludes the state from “relabeling the offense to charge defendant a second time with the same criminal conduct.” Steele, 387 So.2d at 1178. Applying both the Blockburger and sаme evidence tests, the courts of appeal have divided over the question of whether the state may obtain separate convictions and sentenсes for each victim of a criminal episode charged under the provisions of
However, when different acts violate the same statute, the test of whether the offender has committed one or several offenses simply “`is whether the individual acts are prohibited, or the course of action which they constitute. If the fоrmer, then each act is punishable separately. * * * If the latter, there can be but one penalty.‘” Blockburger, 284 U.S. at 302, 52 S.Ct. at 181 (quoting Wharton‘s Criminal Law (11th Ed.) § 34, n. 3). The test hinges on legislative intent. Blockburger, 284 U.S. at 303, 52 S.Ct. at 182 (citing by example proseсution on several counts of wilfully tearing mail bags with intent to rob under a statute which “plainly indicate[d] that it was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation.... The offense as to each separate bag was complete when the bag was cut, irrespective of any attack upon, or mutilation of, any other bag.“) (internal quotation marks and citation omitted).
This aspect of the Blockburger opinion, and not its more familiar statement of the appropriate test for determining whether a single act which violates two distinct statutory provisions constitutes one or two offenses, or Louisiana‘s traditional same evidence test, сontrols the outcome in the present case.
With respect to cumulative punishments imposed in a single proceeding, “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, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). In the present case, the legislature has authorized cumulative penalties as a means of protecting each victim of a murder or attempted murder “from felonious injury and mutilation.” Blockburger, 284 U.S. at 303, 52 S.Ct. at 182. The court of appeal erred in concluding otherwise. The decision below is therefore reversed, the respondent‘s convictions and consecutive sentences are affirmed, and this case is remanded to the district court for execution of sentence.
JUDGMENT REVERSED; CASE REMANDED.
ON APPLICATION FOR REHEARING
REHEARING GRANTED
The order of this court‘s original opinion is amended to affirm the defendant‘s convictions but to remand the case to the court of appeal for consideration of the defendant‘s remaining assignment of error, which was pretermitted on original appeal.