*1 testimony of 11 witnesses and included COOK, of words. numbers

countless Thomas R. Richard A. a/k/a competent Dowdell, verdict based jury Appellant (Defendant), undermines a spoken by a wit- upon a few words These out of context. few ness and taken Wyoming, The STATE of any of without words were uttered (Plaintiff). Appellee trial associated with conten- typical fanfare perfect, No trial is as is tious evidence. PETERSON, Appellant Paul J. here, pres- the record does evident but (Defendant), usurp jury’s evidence to ent sufficient authority. deputy sheriff’s Because many during one of statement was Wyoming, STATE lengthy and because the statement trial (Plaintiff). Appellee opinion than his as just was based on more credibility, impossi- I find it to the victim’s 91-100, Nos. 91-101. deputy’s that the statement ble believe Supreme Wyoming. Court of the next jury moved three so they to hear and days were unable consider Nov. fairly decide the case. the evidence and did not The statement affect substan- right important three

tial reasons.

First, the and manner of the admis- time the deputy sheriffs statement was

sion greater significance jury to the than

of no testimony. voluminous the other

Second, deputy sheriff’s statement and clearly grounded on

determination were opinion credibility than

more his Third, story.

the victim’s there was no must not

objection. Defense counsel have

thought important this court he as objection Lack of object.

did not invokes plain plain error doctrine. For error present, three elements must be estab- First, clearly record must show

lished:

what occurred at trial without resort Second,

speculation. the existence of a unequivocal of law must

clear and rule way.

have been violated an obvious

Third, adversely this violation must have right of the ac-

affected some substantial State, 811 P.2d

cused. Monn v.

(Wyo.1991); Rands (Wyo.1991). There was not violation of unequivocal rule of law as

a clear and plain error. convic-

would constitute affirmed.

tion should be *2 separate punish answered that authorized; and, therefore,

ments were imposing courts such sentences would not jeopardy provi violate constitutional double Acknowledging legal sions. doctrine of decisis, nevertheless, appellants, stare re quest a reexamination of that decision. multiple punishments im- We reverse the posed and overrule Birr.

Appellants ap- confine their consolidated peal to a issue: I. Did the consecutive sentences im- posed underly- for and the ing felony violate the double Wy- clauses of the United and the States oming Constitutions?

FACTS twenty-gauge shotgun, Armed with a Munker, D. Public Defend- Leonard State (a/k/a Richard A. Dowdell Thomas R. Gosar, Counsel, er, Appellate David Debo- Cook)(hereinafter Cook) and Paul Peter- J. (argued), Asst. Defend- rah Baumer Public (hereinafter Peterson) planned son a rob- Gabriel, Intern, er, Legal and Deborah bery and scouted a number of service sta- appellants. Greybull, Wyoming tions and businesses Gen., Sylvia Joseph Meyer, Atty. B. L. July pair on 1990. When the drove Gen., Hackl, Deputy Atty. Boy- Barbara L. Gasamat, they their into the saw black van Gen., Lauer, er, Atty. Asst. Theodore E. Sr. (Hanson), 69-year-old Darrel- Hanson Director, Prosecution Assistance Faculty manager, working pried alone. While Cook Walker, Jr., Program, and Herman Gene open, the cash drawer Peterson hit Hanson (argued), appellee. Intern Student over the head two times with the barrel of shotgun. stealing ap- After a sawed-off MACY, C.J., THOMAS, Before * ciga- proximately cash and some $360.00 CARDINE, GOLDEN, URBIGKIT and rettes, Cook returned to the van and saw JJ. attempting get up the sta- Hanson from Peterson, CARDINE, tion floor. told who was on Justice. Cook station, way his out of the to shoot Hanson. pleas guilty After complied, killing Peterson Hanson with a conspiracy to com aggravated A shotgun blast to his neck. local resident aggravated robbery, appellants each mit driving by evening Gasamat life, 20 to 25 sentenced to terms of were speeding away robbery noticed a black van years, the sentences to years, and 20 to from the station. Law enforcement au- consecutively. They appeal pres now run were notified of thorities across State issue of whether enting the central description. the van’s lawfully impose sentencing court could day, Wyoming highway patrol The next murder and a sentence driving felony, spotted officer Cook and Peterson sentence for the Wyo- van across southwestern robbery. their black case Birr being spotted, 80. After ming’s Interstate (Wyo.1987),cert. denied fifty- and Peterson led officers on L.Ed.2d 671 Cook argument. * chiefJustice at time of oral ty. Howard v. pair high-speed mile chase. The shot

two enforcement officers pursuing (Thomas, J., at the law (Wyo.1988) dissenting) (citing during Authorities were suc- the chase. States, v. United 684, 100 Whalen stopping arresting Cook cessful (1980) (Rehn *3 They obtained search warrant Peterson. J., dissenting)). quist, appraisal Such an twenty-gauge single shot and discovered easily emerges What documented. from inside shotgun and ammunition sawed-off survey precedent and federal state is a positively identi- the van. Ballistics tests path potholed mirage. to a In in this casing at the fied a shell found Gasamat stance, mirage is that icon “settled having fired from the sawed-off shot- been The pro travail comes not from the law.” gun found van. jeopardy tection accorded double but agreement not In return the State's analysis required to determine its from penalty, Peter- to seek the death Cook and applicability. Recent decisions Unit pled 6-2- guilty son W.S. Supreme ed States Court have clarified 101(a) robbery, (Supp.1991); aggravated compelling a required analysis reexamina 6-2-401(c)(i) (1988); conspiracy and W.S. decision Birr. our in tion of robbery, 6-1- aggravated commit W.S. Jeopardy Clause of the Fifth Double 303(a) (1988). each The court sentenced the United Amendment to States Constitu- count; 20 for the man to life provides constitutional tion three robbery and 20 years to 25 protections. protects against “It a second years conspiracy, to 25 the sentences Peterson, consecutively. run and after prosecution Cook for the same offense ac- action, appeal only the this consolidated against prosecution for quittal, a second imposition multiple punishments for the conviction, after and the same offense underlying felony of murder and the multiple punishments for the same against aggravated robbery. Municipal Justices Boston offense.” Lydon, 294, 306-07, 104 Court 466 U.S. beginning our discussion of Before 1805, 1812, (1984), 80 L.Ed.2d 311 issues, necessary to a note S.Ct. legal it is sound Vitale, 410, brief, 415, citing appellants refer Illinois In their 447 U.S. of caution. being (1980); “irrele- to the facts of this case as 100 S.Ct. a cal- accord, vant.” This characterization reflects 610, Tuggle v. P.2d impact we lous view of incident’s Jeopar- (Wyo.1987). As used the Double victim, his forcefully decry. must For Clause, offense” means “the dy “same in- suddenly violently life while ended transaction, acts, crime, not the same same meaningful employ- engaged nocently circumstances, Black’s Law or situation.” family, ment. For the victim’s friends 1990). (6th Dictionary ed. illu- community, death shatters violent from oth- peaceful lives sheltered sions of is enforce Fifth Amendment Peterson, problems. er’s For Cook and through the against states Four able crime, time their lives 19 at the both Maryland, Amendment. Benton teenth obviously changed Far from forever. were U.S. irrelevant, to the give reason facts Consti L.Ed.2d charg- discretionary use his prosecutor’s protections the same three tution assures pursuing charges ing authority multiple stating: any person be twice “nor shall Advocacy a client pleas. on behalf of offense.” put jeopardy for the same justice a more accurate and blind demand 11; Vigil Wyo. Const. Art. than “irrelevant.” portrayal of such events (Wyo.1977); Hopkin P.2d cert. (Wyo.), son II 262, 78 denied DISCUSSION protection Only the L.Ed.2d 246 at issue in punishments is “confused, against multiple The law of double inconsistent, present clari case. than a model of and less there of- to determine whether are two Lange, 18 Wall. 85 U.S. Ex Parte provi- one is whether the United States fenses or each L.Ed.

Supreme protec requires proof first enforced sion of an additional fact Court against multiple Id., Ed punishments. tion which the other does not.” fine Lange received both a and a ward Applying at 182. this stan- post stealing of year prison sentence for dard, the Court held the statute created mail-bags. paying fice After fine “two distinct offenses” which were violated sentence, Lange filed for beginning jail his during by Block- the course of a sale corpus and certiorari. writs habeas burger. Id. court acted Supreme held the lower Court three-part analysis A framework *4 multiple sen authority imposing without subsequent emerged from United States statutory permitted the tences because Supreme refining ex Court decisions imprisonment. a fine punishment was or multiple punishment protec plaining the Lange, at 18 Wall. 178. step requires initial tion. The a determina juris- anything If is settled the there sepa legislative tion intent to authorize of America, England it is prudence of rate punishment. Albernaz v. United lawfully pun- no man can be twice that 333, 337, 1137, States, 101 450 U.S. S.Ct. though And ished for the same offence. 1141, (1981). language L.Ed.2d questions been nice in the there have “starting provides of the statutes the application of this rule to cases which point” apply of established rules statuto charged act such as to come the ry specific legislative A construction. Id. definition more than one within the of punishment is for cumulative authorization offence, bring statutory party or to the dispositive: jurisdiction more than one within the Where, here, legislature specifical- as court, has never doubt of there been ly punishment cumulative un- authorizes complete protection its entire and statutes, regardless der two of whether pro- party punishment a second when proscribe two the “same” (cid:127)those statutes court, posed same on the same Blockburger, under conduct a court’s facts, statutory the same offence. statutory construction is at an task at The Court directed that the Id. 168. prosecutor may end and seek and prevent “spirit” is “to a sec- Constitution’s impose jury may cumula- trial court punishment judicial proceedings under ond in a tive under such statutes crime, so far as the common same single trial. gave protection.” at law Id. 170. 368-69, Hunter, 359, 459 U.S. Missouri States, 284 Blockburger U.S. United 673, 679, 74 L.Ed.2d 535 S.Ct. 180, 299, 52 76 L.Ed. 306 an- S.Ct. In the absence of a “clear indication” statutory rule of construction to nounced a legislative multiple pun intent to authorize determining legislative intent to be used in ishments, Blockburger applied test is multiple punishments. authorize Blockbur- part analysis. as the second Whal selling morphine hy- ger was convicted of en, 691-92, at 1437- 445 U.S. S.Ct. at “in original or from the drochloride assumption appli 38. The selling stamped such a package” and cation of test Id., drug a “written order.” without “ordinarily pun branch does not intend to 303-04, at 52 S.Ct. at Both U.S. ish same under different offense two individual sections feder- crimes violated Blockburger is a statutes.” Id. The test Blockburger stamp legislation. chal- al tax statutory “rule of construction.” Alber being lenged consecutive sentences his naz, 1141; 337, 450 U.S. at at S.Ct. the same offense multiple punishments for Whalen, at 1437. U.S. at S.Ct. was in- only a transaction since Hunter, that, stated, explained In as a applicable Court “The The Court volved. construction, statutory Blockburger rule that, act or transac- where same rule requiring “is of two not a constitutional rule a violation distinct tion constitutes legisla- applied negate clearly expressed to be statutory provisions, the test courts noted, burger punish- precisely applying Court authorizing cumulative tive intent” Hunter, the test to the two offenses at issue: at 459 U.S. ment. requires created “Each of the offenses at 679. proof of a different element.” Blockbur confusing aspect of formerly A ger, 284 U.S. at (empha S.Ct. recently Blockburger test has clari been added). Reviewing Blockburger sis See, 769 P.2d Lauthern fied. decisions, Ian subsequent refers (Wyo.1989). The test 352-53 States, nelli v. United 785 n. requires proof provision “whether each 1284, 1293-94, n. 43 L.Ed.2d does other an additional fact (1975) explained applica “the Court’s Blockburger, 284 U.S. at not.” statutory on the tion of the test focuses added). (emphasis For some at 182 S.Ct. emphasis of the offense.” The on elements terminology judges, commentators re the “elements of two crimes” was Blockburger was a a belief that created Ohio, stated Brown test. We need look evidence” “same Blockburger adoption of Wyoming’s re The Corbin Court also reaffirmed its example an of the misunderstand test as Carter, jection of a “same transaction” test State ing. *5 protection charges jeopardy which some (Wyo.1986), this court held double 1220 Blockbur pos part of the and have believed to be delivery of controlled substance Corbin, 15, ger language. 495 U.S. at 5 n. in of a controlled substance with session v. In Garrett merge 110 at 2094 n. 15. for double S.Ct. to deliver did not tent States, 773, 790, for this United analysis 471 U.S. 105 S.Ct. The jeopardy purposes. (1985), 85 L.Ed.2d 764 the Court challenge, was holding, which we do not adopt “steadfastly has refused to cases. noted it primarily from two federal derived Orzechowski, ‘single view of the Double v. 547 the transaction’ Both United States Cir.1976), Wyoming formerly denied 978, (7th Jeopardy Clause.” fol cert. F.2d 986 Tobin, Wyo. 1701, 31 State 906, this rule. S.Ct. 52 L.Ed.2d 391 lowed 431 U.S. 97 Carcaise, 355, 367-68, (1924). P. 681 States (1977), 763 226 United 1328, (11th Cir.1985), applied F.2d 1333 analysis part of the concen- The third evidence” was termed the “different what protections. jeopardy on double trates “ test. Carcaise explained that the ‘differ im- respect to cumulative sentences "With its lead from the evidence’ test takes ent trial, Jeopardy posed in a the Double Blockburger.” decision in Supreme Court’s prevent the sen- more than Clause does no Carcaise, F.2d 1333 n. 18. The 763 at greater pun- prescribing tencing court from known test is also as “different evidence” legislature intended.” ishment than the Lauthern, 769 “same evidence” test. Hunter, 366, 678; at 459 at 103 S.Ct. U.S. 356. P.2d at 165, Brown, S.Ct. at accord 432 U.S. at Corbin, 508, analysis, of the how- portion In this Grady 110 S.Ct. 2225. 495 U.S. Blockburger ever, suggests precedent 2084, specifically 109 L.Ed.2d 548 applied in an inconsistent of Blockbur- test has been refuted characterization manner. ger as a ‘.‘same evidence” test. The Court Blockburger test has noth declared: “The ap- regarding proper confusion the evidence presented at do ing to with Blockburger test comes plication of the solely It is with the statu trial. concerned as a for determin- from its use both device charged.” offenses

tory elements of the intent, Whalen, 445 U.S. at ing legislative 12, Corbin, at n. 110 S.Ct. at 495 U.S. 1439, 693-94, a test of at S.Ct. accord, original); (emphasis n. 12 Brown, jeopardy protections, double _ Felix, States v. United U.S. 166, jurisdic- at 2225. The U.S. at _, _,112 118 L.Ed.2d 25 S.Ct. Supreme the United States limits of tional distinguish the use Court’s is consis- Court statutory elements focus reviewing a feder- Blockburger’s language and oth- test. When the Court tent Blockburger law, test is used The Block- precedent. al Supreme er Court pistols unnecessary prove to autho were Congressional intent determine Albernaz, multiple punishment. necessary but were rize 1143-44; 340-42, 101 prove aggravated robbery. S.Ct. at Gore Each at fact is U.S. 390-92, States, necessary prove one of the offenses United 1283-84, reh’g 2 L.Ed.2d proof not necessary S.Ct. but is 13, L.Ed.2d 358 U.S. S.Ct. denied Applying reasoning, other. trial However, the Court when correctly court determined the of- statutes, high reviewing state the state's fenses were not the same under Block- legislative intent. interprets the est court burger sepa- and that United States 679; Hunter, at 103 S.Ct. at 459 U.S. punishments rate were intended. Brown, at 2226. U.S. at Birr, Only at ap- 1120-21. after cases, Supreme the United States such test did the plying Blockburger court other federal analysis, that of Court question reach the intent. courts, a double is restricted to whether analysis determined: “The mur- protection violated. has been provide punish- der statute intended to Hunter, 103 S.Ct. at 679. murder; underlying felony ment for 1160, 1162 Shillinger, F.2d Birr v. provide is intended to statute (10th Cir.), cert. denied 496 U.S. variety of such as for a other evils sexual (1990), illus assault, arson, robbery, burglary, escape, preclusive fed the rule’s effect when trates arrest, resisting kidnapping.” Id. at Wyo are asked eral courts to review Specifically, found the court that the multi ming legislature’s intent to authorize protect murder statute was to an Therefore, ple jurisdic punishment. “interest in life” and the rob- Su tional limitation the United States *6 bery protect was an statute to “interest preme requires Court a careful evaluation property.” Id. of its to double application precedent and First, analysis of incorrect. The Birr is jeopardy cases. finding legislative of a intent to the autho- Birr, this court addressed whether felony separate rize for mur- punishments being an acces- cumulative for aggravated robbery der and was inade- accessary to felony murder and sory to quately specific language evaluated. The robbery in a double aggravated resulted discussed, the statutes never and of was Using Blockburger jeopardy violation. the aggravated robbery the conclusion that the test, majority agreed the trial the with protect property was intended to statute “particular of facts” evaluation the court’s Second, unsupported. the Birr was court’s the applied to statute. test, prior of the Blockburger initial use that, in order The trial court determined intent, legislative determination dis- a of felony it must shown prove misunderstanding closes both relevant being kill- killed. No that a human was requisite and of a precedent the absence prove ing necessary aggravated rob- is “clear indication” of intent au- robbery, it bery. prove aggravated To Whalen, thorizing multiple punishments. shown either that the defendant must be 691-92, 445 U.S. at 1437-38. in- intentionally attempted to inflicted or Third, incorrectly the Birr court used the bodily that the injury serious or flict “evidence test.” Blockburger test as an deadly used or defendant exhibited statutory the applied The test was never Proof of is not nec- weapon. these facts aggravated robbery felony and elements of prove felony murder. As to essary to Therefore, it is murder. we believe neces- case, facts of the trial particular the this sary question of whether to re-address the that the were killed court found [victims] legislature intended to Wyoming autho- the deadly weap- appellant supplied felony murder rize sentences pistols. magnum form of ons the .357 underlying felony. and the killed was unnec- That the were [victims] analysis Using three-part dis aggravated robbery but essary prove earlier, applica- necessary prove felony begin murder. we with cussed was statutory killing during tional rules of committed the commis- tion of our established language Using plain sion one of enumerated felonies does interpretation. purpose alter statutes, give the words their statute. Given we case, prosecutor meaning. the facts of this could plain ordinary Schultz (Wyo.1988). charged The have Cook and Peterson with first object degree purposely pre- murder and with examination should reveal pros- killing meditated malice Hanson. The purpose of the statutes. Id. ecutor’s decision reflect a that it view felony provisions are incor- murder felony easier to obtain a murder con- Wyoming’s degree first porated within Scott, supra, 7.7(b). viction. LaFave & purposely and “Whoever murder statute. malice, hypothetical example perpe- or in the A premeditated with of, any operation attempt perpetrate, or murder rule’s is useful. Postu- tration arson, assault, during robbery, burglary, robbery, late that course of a sexual perpetrator’s gun resisting kidnapping, accidently discharg- or kills escape, arrest killing any being guilty is of murder in the es a store clerk. Without a human 6-2-101(a) statute, perpetrator charged degree.” (Supp.1991). W.S. is first statutory authority involuntary manslaughter aggra- this applicable If robbery. guilty, ... in the vated found man- case would read: “Whoever slaughter by a robbery punishable ... kills term not perpetration ... years. 2—105(b) being twenty than guilty of murder more W.S. human 6— degree.” count first term punishable by would be of not more interpretation of felo The definitive years. 6-2-401(c) twenty-five than W.S. ny announced murder rule was (1988). Assuming multiple punishment no 554 P.2d 1217 court Richmond violation, possible the maximum sentence (1976), reh’g denied However, forty-five years. becomes version, Although upon an earlier based presence punishes of a murder rule operative language W.S. 6-54 imprison- the same conduct death life present statute is the same as 6-2-101(b) (Supp.1991). ment. W.S. interpreted Richmond. Richmond among those states which required court determined the elements *7 felony degree premeditation, imposition deliber limit the of murder first aforethought, imputed by listing specific underlying felonies. ation and malice rule traditional- by statutory presumption The list includes those offenses a conclusive regarded felony ly commits murder in the as “crimes violence.” when one Richmond, (6th 1990). ed. robbery. Dictionary a P.2d Black’s course of Law 1232; legislature’s of sexual as- 793 The selection Osborn v. 1051, 104 sault, escape, arson, robbery, burglary, re- cert. denied pur- sisting kidnapping a “The arrest or discloses homicide significant pun- providing a attempted pose from the more cannot be disassociated Richmond, P.2d or accidental robbery.” negligent at 1233. ishment for during killing the commis- which occur felony purpose is to The murder rule’s enumerat- sion of one of these crimes. The discourage killings or accidental negligent legislature are those which the ed felonies by committing one of under- individuals prospect “a significant found to involve Richmond, 554 P.2d at lying felonies. Scott, 7.5(b) supra, LaFave violence.” & § 1232; Wayne R. LaFave & Austin W. (1977)). (citing 6-2-101 W.S. Jr., Law, Scott Substantive Criminal definition, felony by is a which 7.7(b) felony Robbery, murder statute “significant prospect of vio- imposes responsibility a form of strict on involves a robbery may sum- Wyoming, perpetrating felonies lence.” those by force Richmond, larceny aggravated killings 554 marized as a they commit. P.2d prosecutor fact or fear. at 1232. The Cloman (Wyo.1978). Larceny is defined felony inten- 419 charge murder an chose 6-3-402(a) (1988) provides: successively greater “A with W.S. sentences as the carries, against person steals, leads violence increases. Cu- person who takes mulative is not authorized of another with away property or drives a “clear without indication” of pos- deprive owner or lawful intent to Whalen, 691-92, intent. 445 U.S. at larceny.” robbery guilty of sessor is Therefore, necessary S.Ct. at 1437-38.. it is larceny definition incorporates the statute part required to move to the second guilty robbery if in stating: person “A analysis apply Blockburger test as committing a crime defined the course statutory a rule of construction. (i) bodily inju- he: Inflicts by W.S. 6-3-402 another; (ii) ry upon or Threatens another Directing statutory our attention to the intentionally puts with or him fear of elements, Blockburger asks “whether each 6-2-401(a) bodily injury.” immediate W.S. provision requires proof of an additional (1988). Robbery, felony the enumerated in fact which the other does not.” In the statute, felony murder in- case, is a lesser felony context of this murder aggravated required proof cluded offense of the crime of provision of these facts or robbery. “Aggravated robbery is a elements: by imprisonment

punishable less (1) Killing being; a human (5) years twenty- more than than five nor (2) stealing, taking carrying, while (25) years if in the course of commit- five leading driving away or another’s (i) ting robbery person: the crime of property; Intentionally attempts inflicts or to inflict (3) owner; deprive intent with (ii) bodily injury; serious or Uses or exhib- (4) intentionally inflicting while serious weapon deadly deadly its a or a simulated bodily injury; or 6-2-401(c) (1988). weapon.” W.S. (5) using exhibiting deadly weapon. or purpose statute aggravated robbery provision required evident the form of the cascade which proof of these facts or elements: it exists. As the threat of or use of vio- (1) Stealing, taking carrying, leading increases, against person lence the se- driving away property; or another’s verity legislatively punish- authorized (2) owner; deprive intent Robbery, punish- ment increases. which is (3) intentionally inflicting while serious by imprisonment for not more than ten able bodily injury; or years, the crime of becomes robbery by injury the nature of the inflict- (4) using exhibiting deadly weapon. weapon. type ed or the The culmination required The additional fact or element protection degree of this is the first killing for a murder conviction is the perpetrator of a for a conviction However, being. aggravat- of a human during robbery. murder committed We *8 robbery provision require proof ed not does hold, therefore, purpose robbery of the proven of additional facts from those protect punish statute is lives a felony Blockburger, for murder. Under crime of violence. The codification of rob- legislative intent to authorize cumulative bery against person sup- anas offense punishment is found when each stat- ports position. this The Birr court errone- requires proof ute of an additional fact. ously determined that the statute Wyoming legislature We hold the autho- protect prop- was intended an interest felony rized for the offense of Birr, erty, 744 P.2d at 1121. murder; multiple punishment for the but Wyoming legislature The has not underlying felony supplies pre- disclosed, language felony in the of the meditation, pre- deliberation and malice statutes, aggravated robbery murder or an sumption legisla- was not authorized express pun authorization for cumulative Turning part ture. then to the third of the framework, ishments when both statutes have analysis imposition been hold the we Instead, legislature multiple violated. has cho punishments of murder punish violence, robbery, underlying felony sen to a crime of and the violates the Dou-

1353 decisions, judicial ters reliance on and con of the United States Jeopardy Clauses ble Const., perceived integri tributes to the actual and Wyoming constitutions. U.S. Tennessee, Payne judicial process.” Const., 11; ty of the V; Wyo. Art. 1 Amend. U.S. _ 2597, _, _, Hunter, 366, 678; 111 S.Ct. at at 459 U.S. S.Ct. _ 720, 2609, reh’g denied 2225; 115 L.Ed.2d Brown, 165, S.Ct. at U.S. at _, 28, U.S. 112 S.Ct. 115 L.Ed.2d 1110 State, (Wyo. Duffy v. 789 P.2d Stare weigh decisis considerations 1990). involving heavily property most cases support in position finds The court’s rights, and contract where reliance inter holding in Supreme States Court’s United at _, Id. ests are created. at S.Ct. Interpreting a Colum- District of Whalen. policy, As not inex principle 2610. a of an specif- felony murder statute that listed bia command, stare decisis should orable felonies, held "Con- the Court ic a create mechanical formula for adherence gress consecutive sen- did not authorize especially the latest decisions constitu killing rape for a committed tences for at _, Id. 2609- tional cases. S.Ct. at Whalen, rape....’’ in the course 10. at The U.S. at of stare decisis should not rule be The that, imposing purposes noted Court Burns, Burns v. rigid its application. sentences, Congress had “in- cumulative Wyo. The 224 P.2d considered a lesser of- rape tended clarify inappropriate application need to an within the offense of a kill- fense included of a traditional rule creates reason Whalen, rape.” ing in the course Mostert CBL & depart precedent. from at n. 8. n. Associates, 1090, 1094 (Wyo.1987). 741 P.2d Oklahoma, also Harris v. See Stare decisis will not be followed when (1977) 682, 97 required showing departure made that a (holding prevents Jeopardy Double Clause “to vindicate precedent necessary from prosecution underlying felony after remedy plain, principles of obvious law murder). conviction v. Bd. Gueke injustice.” continued practical support for our deci- Additional Comm’rs, (Wyo. County 728 P.2d recognition pun- from a sion comes Worthington v. 1986); 598 P.2d first-degree imposed for a murder ishment (Wyo.1979). not come to Wisdom does under the rule. conviction does, em us When it we should often. sentencing are death or alternatives of a slavishly reject it because brace —not 6-2-101(b) imprisonment. (Supp. W.S. life legal questionable application of doctrine. 1991). punishments finality of both principles our consider- Applying these effectively precludes need to resort an outcome. Birr ation of Birr directs Wyoming, punishment. if cumulative margin spir- on a narrow over was decided imprisonment, there is is life sentence Birr, (Urbig- at 1122 dissent. 744 P.2d ited parole. Kennedy v. 595 P.2d no J.). Cardine, J., dissenting, joined kit (Wyo.1979). The academic nature of ques- Birr validity decision was imposition punishment, cumulative Birr’s appeal subsequent tioned instance, possi- exposed. is thus co-conspirator, Schultz bearing an additional sentence ble J., (Urbigkit, specially (Wyo.1988) regarding gubernatorial on decision have J.), Cardine, concurring, and later joined by *9 and of speculative would be commutation 821, Duffy v. P.2d cases. See 789 intent. See no moment to J., (Urbigkit, dissent- (Wyo.1990) 840-41 J., Birr, (Urbigkit, 1122 dis- 744 P.2d at 350, v. 359 Lauthern ing); 769 senting). J., dissenting). (Urbigkit, (Wyo.1989) urges given upon that we the reconsideration State Based Birr wrongly decided. heed the doctrine of stare decisis opinion, and avoid this was re- decisis analytical provided clarification Birr. Stare overruling promotes prece- Supreme “evenhanded, Court predictable, and consis- cent United States for this court provides sufficient basis development legal principles, fos- dent tent 1354 precedent usually policy, multi- “is the wise be in Birr that holding our

to overrule impor in most matters it is more cause felony murder and for the punishments ple applicable rule of law be tant legislatively au- underlying were Burnet right.” than it be settled settled thorized. Co., Oil v. Coronado & Gas 285 U.S. 393, 406, 443, 447, 52 S.Ct. 76 L.Ed. 815 Ill (Brandéis, J., (1932) dissenting). Never theless, governing when are un decisions CONCLUSION reasoned, “this badly or are workable sentences, imposed years, of 20 to 25 fol has never felt constrained to Court underlying for the upon Cook Peterson Allwright, 321 precedent.” Smith v. low vacated. aggravated robbery are felony of 665, 649, 64 88 L.Ed. U.S. S.Ct. imprison- remaining life sentences of Stare decisis is (1944). not an inexo years 20 to 25 murder and ment for command; rather, principle it “is a rable consecutively, conspiracy, to be served not a formula of policy mechanical are undisturbed. Hel adherence to latest decision.” Hallock, 119, 106, vering v. 309 U.S. GOLDEN, J., concurring opinion. files a 451, (1940). This 84 L.Ed. 604 S.Ct. particularly true in constitutional is URBIGKIT, J., specially files a cases, cases “correction because such concurring opinion. practically through legislative action is C.J., THOMAS, J., MACY, each file Oil & Burnet Coronado impossible.” dissenting opinions. Co., supra, U.S., Gas (Brandéis, J., S.Ct., dissenting). at 447 Justice, GOLDEN, concurring. of stare decisis Considerations favor pleased to concur the well-rea- I am prop involving their acme in are at cases opinion for the court soned authored rights, contract where reliance erty and only I to assure Cardine. write Justice & Co. v. involved, are see interests Swift disagree opinion that it with that those who Wickham, 86 S.Ct. U.S. casually embraced. 261-262, (1965); Ore homework, I have After considerable gon ex rel. State Land Board Corval for both that when convictions concluded Co., 429 U.S. lis & Gravel Sand felony of felony-murder and the Burnet (1977); L.Ed.2d 550 obtained, the de Co., supra, v. Coronado Oil & Gas only for the be sentenced fendant 405-411, S.Ct., U.S., at at 446-449 charge. my judgment, In greater J., States (Brandeis, United dissenting); intended. Wyoming legislature what Co., 472, 44 S.Ct. v. Title Ins. 265 U.S. Birr v. I Consequently, would overrule The Genesee (1924); 68 L.Ed. cert. de (Wyo.1987), P.2d 1117 443, 458, 13 Fitzhugh, 12 How. Chief nied, opposite is true L.Ed. L.Ed.2d involving present such as the cases evidentiary rules. procedural and studying problem, this I have legal Tennessee, Payne the doctrine of stare attention paid close 2597, 2609-11, _, _ - _, 115 L.Ed.2d decisis. personal no axe 736-37 have decisis is the course be Stare preferred cases; personal no grind in these I take evenhanded, pre promotes it cause overruling decision of delight previous dictable, development and consistent court, years five old whether judi principles, reliance on legal fosters My cases fifty. decision in these decisions, and to the ac cial contributes law, my understanding of the on based judi perceived integrity of the tual and nothing more. Hillery, Vasquez *10 process. See cial in Birr 254, 265-266, 106 problem solved legal 624- The to be in- legislature (1986). Adhering to the was whether my judgment legislature the multiple punishments. intended impose to tended intent, to address the of harm court both statutes evil to legislative the To determine beings; human both are concerned with the Blockburger’s judicial several tools: used to interest life. The common thread run- test, statute, of and the loca- purpose each ning through provisions an both is intent to the proscribed the offenses within tion of deter criminal behavior harms human statutes. beings punish and to those actors whose ask whether each Blockburger we Under presents risk harm anti-social behavior a of proof of statutory requires an provision being during a the fellow human steal- statutory the other additional fact which ing property. In Richmond v. felony-murder pro- The provision does not. (Wyo.1976), this court requires facts: proof of these vision “[fjelony-murder observed that is an un- killing being; a 1. A human arising the usual offense death out prop- during taking 2. the another’s robbery purely is an incident of the erty, taking by is attended which offense. It makes no difference basic deadly weapon using a or 3. the actor’s or not an intent to kill.” whether there was inflicting of the actor’s intentional accidental; killing may purely it be bodily injury upon another. serious is cold-blooded. requires robbery provision aggravated regardless of the inherent nature the same these proof of facts: killing. act of The reason for this is causing high degree of risk death Taking property 1. another’s attended underlying using act of a involved deadly weapon property. to take another’s using deadly weapon a the actor’s Thus, primary evil addressed both inflicting intentionally bodily serious aggra- felony-murder provision and the upon injury another. high degree robbery provision is the vated tell, felony-murder far I can So as being to a human involved of risk harm requires proof of the additional provision deadly weapon using to take in the act killing; but the rob- fact of property. another’s require proof of an bery provision does not respect the interest-to-life con- With felony-murder additional fact which legisla- me cept, significant is that the Therefore, the answer provision does not. provisions chapter placed both ture is, no, question each Blockburger to the Against the Person.” entitled “Offenses statutory require proof provision does not robbery ag- underlying felonies of fact the other statu- of an additional robbery primarily con- gravated both rather, not; tory only one of provision does Larceny, to life. as cerned with interests statutory provisions, felony- the two robbery and its offense of lesser-included one, requires proof of an additional murder chapter aggravated sibling, placed is Consequently, Blockburger’s under fact. Against Property.” entitled “Offenses test, only there is one offense. disagree I with Birr’s rea- Consequently, Moving next used to judicial to the tool provisions are soning robbery that the intent, purpose of determine property. interest Cer- concerned with statute, Birr concludes that the felo- each tainly, part constituent larceny as address ny-murder statute intended to robbery, robbery is somewhat concerned murder the evil of while however, consid- property; interest with intended to address non- felony statute is harm/ ering high degree of risk of arson, assault, evils, sexual such robbery, I conclude rob- involved death robbery, concludes the felo- etc. Birr also the in- concerned with bery is much more ny-murder statute concerned with life. terest to underlying aggra- to life interest while the place- legislature’s respect the With is concerned with vated statute felony-murder provision and disagree these ment of property. interest statutes, robbery provisions conclusions. *11 bodily injury showing/us- I inflict or punishment provision, serious its own each with deadly weapon, in- the actor kills the legislative ing from this a conclude do not But, Rath- multiple punishments. may the death have been acci- permit victim. tent in er, revealing caused; our exercise dentally I find it more it have been cold- immaterial; intent to consider determining legislative it caused is blood. How was elements progression of both offense is, happened. pun- all that matters punishments as we move and associated imprison- either death or life ishment is larceny provision to the from the basic ment, being possibility of the latter without aggravated rob- robbery provision to the parole. punishment That is the heaviest felony-murder provi- bery provision to the punishment, my society can exact. That takes another’s larceny In the actor sion. only property tak- judgment, covers not behaviorally does not interact property but ing element but also the harm-to-human punishment property owner. with being element involved in the actor’s be- property of a value of taking another’s Thus, interaction with the victim. havioral imprisonment of not more or more is $500 larceny, offense of where from the basic years, a fine of not more than than ten property, legislative the interest is $10,000, robbery, In the actor or both. progressed through of- scheme interacting property another’s while takes fenses, paramount interest is where is, person. That behaviorally with life, felony- the “unusual offense” of (the larceny respect person to a vic- with paramount interest where tim), bodily injury, inflicts the actor either Through progression, life. also bodily injury, or with immediate threatens corresponding punishments have increased puts in immediate bod- intentionally fear of extent to which the interest to life is to the imprison- ily injury. The jeopardy. years regardless ten ment of not more than considering In addition to the above and property taken. of the value judicial in Birr foregoing tools used actor, again aggravated robbery, the tak- intent, I also determine have interacting ing property another’s employed in considered a few others not element, either person, introduces a new I have considered the case law of Birr. intentionally or tries to the actor inflicts criminal jurisdiction from which our bodily injury or the actor inflict serious Apodaca v. statutes derived. pun- deadly weapon. or uses a shows (Wyo.1981). have also imprisonment of not less than ishment is try an intent remembered that we to avoid twenty-five years. more than five nor or leads to an absurd unreasonable respect progression from larce- With result; relating to the we read all statutes robbery, the actor’s ny subject having general or the same same towards the victim increases the behavior and, law, constituting purpose as victim, corre- risk of harm to the there is a harmoniously possible, construe where punish- sponding increase in the amount of conflicting and con them order to avoid punish- ment meted out to the actor. That Safeway fusing results. Johnson ment, my judgment, covers Stores, Inc., (Wyo.1977). 568 P.2d also the risk- property-taking element but general part statutes as of a We read these punishment pack- It is a of-harm element. system jurisprudence, and uniform Civic age. Fuels, Wyo. Railway Motor Ass’n v. pres- punishment package notion is This robbery/aggravated ent also when the rob- proscribing Our criminal statutes felony-murder. bery progresses In felo- appear to have come from Indiana. See ny-murder, the actor has interacted behav- (1899), which refers to Wyo.Stat. way iorally exactly the same with the rob- § degree mur- before, R.S.Ind. Indiana’s first im- bery as he did with one § victim felony-murder statute. also der and See inflicting Instead of or portant difference. (1910). Researching ear- putting bodily Wyo.Stat. threatening or fear of cases, through inflicting trying ly Indiana from injury and instead of

I357 felony consequences sue he must take the punishment for that one finds the added). (Emphasis results. pun also the That was murder was death. after Wyoming law state under ishment This was the state of the law in Indiana Thus, early are there no hood in 1890. Wyoming felony borrowed the mur- when question the we that decided Indiana cases Moynihan sug- statute from Indiana. der early Although Indiana with. gests legislative are faced a intent that the heaviest death, felony (including exact, society murder punishment cases concerned can is de- obviously no instances the to life robbery), signed there were twin interests and punishment mind. The im- punishments property death was in multiple of since clearly “great wrong is to the prescribed. Wyo posed related the” in the commission of felo- ming’s felony statute remained murder ny. century. It Indiana’s well into this same as today. Ind.Code remains similar even See respect legislative With whether in- (Burns 1985). I believe

Ann. 35-42-1-1 punishments multiple likely, tent of is I § State, Ind. 363 N.E.2d v. Candler possibility think that leads to an absurd on the first occasion death, is If imprisonment. sentence is it Supreme punish- Court had which the Indiana absurd to tack on an additional is years imprisonment. an armed convic ment of “X” If the decide whether of imprisonment, Wyoming life in merged felony murder convic sentence is tion into State, Kennedy parole. v. consisted of a there no tion when the murder Thus, (Wyo.1979). again, P.2d it killing an armed rob in the commission of punish- is absurd to tack on an additional recognized. deci bery. Merger That was years imprisonment. To ment of “X” of like Indiana followed all sion has been argument that life sentence can be State, e.g., McCurry cases since. See governor Wyo. under commuted (Ind.1990); 558 N.E.2d Huffman Const, simple answer art. (Ind.1989), State, cert. 543 N.E.2d is of no moment the context of 3257, 111 denied, determining legislative intent. com- (1990); L.Ed.2d 767 Hicks strictly a matter within power mutation (Ind.1985); Eddy N.E.2d prerogative constitutional of execu- (Ind.1986); Elmore v. 496 N.E.2d department concern this tive and does not (Ind.1978). 269 Ind. 382 N.E.2d 893 Kennedy, court. Thus, multiple punishments in Indiana underlying felony proscribing of- murder statutes and found within against person, fenses as prohibited. title, relate to the same chapter 2 of law, leaving Indiana consider Before general purpose. subject have the same and State, 70 Moynihan said in what was read them one Accordingly, we should (1880), concerning the Ind.Rep. and, possible, them construe law where underlying felonies of perpetration of the confusing harmoniously order avoid arson, robbery, burglary: rape, must conflicting We read results. * * * these offences perpetration sys- part of a uniform provisions as these * * * depravity moral great involves Reading par- these jurisprudence. tem rights disregard per- an utter light, I find that the ticular statutes legislature, property; and son and only the impose intent legislative protection society and for wise for The punish- multiple greater punishment, necessary ends, make thought have ments, felony-murder situation. Giv- taking perpetration of life in the punishment as graduated levels en the * * * offences, in the first those murder offense progress from the basic the crimes in- degree, any larceny through without reference rob- (against property) property) party (offense against person the homicide. The bery tent to commit ** * person (offense against those offences perpetrates who * * * system of uniform property), see a great wrong the com- and intends a convinced that offence, and am jurisprudence if en- death mission punishment, intent was a It is even more unfortunate which, earlier, as noted and destructive in its is the severest our contaminative effect society impose category can whole of cases addressing on one of its members. *13 concept sepa- that an accused cannot be Finally, penal we know that statutes are rately concepts sentenced under of double and, strictly to be construed in case of jeopardy principal for a offense and also at doubt, lenity a may applied. rule of be offense, the same time for a lesser included Application of these rules would assist in e.g., more than one life sentence or death resolving question in a favor of penalty for the same murder. greater punishment. nothing my Stare decisis has to do with closing, thought In I would offer this disfavor for Birr. Schultz and Garcia agree: I with which right wrong. were and Birr was All three spring full-grown decisis does not [S]tare of those cases were decided at about the “precedent” precedents from a from but time. identically same For an determined principle which reflect and doctrine ra- case, Elliott, see State 186 W.Va. course, tionally evolved. Of it would be 412 S.E.2d 762 hardy recognize fool not to that there is frequent A validating test of well- potential jurisprudential in a scandal by reasoned decision is juris- citation other way day court decides one and which dictions in later cases. Birr has been next; way just another but it is subsequent Utah, cited once in a case in every scandalous to treat errant foot- principal but then not for the concern re- print barely overnight hardened as an garding jeopardy. double Conversely, a inescapable mold for future travel thorough analysis law, developing Hobson, People v. 39 N.Y.2d including cases, more recent discloses a N.E.2d 384 N.Y.S.2d clear in trend favor of our decision today. URBIGKIT, Justice, specially Birr, Schultz, The issue Garcia and concurring. now here in simple, this case is well ex- join cogently-reasoned I in the decision of plained factually. and limited When a felo- Justice Cardine and the concurrence of Jus ny charged murder is and a conviction ob- my tice Golden. continue consistent tained, can the accused be sentenced for opinion that Birr v. 744 P.2d 1117 more than the life sentence with a concur- (Wyo.1987),cert. denied 496 U.S. felony rent sentence for both the involved (1990) wrong S.Ct. 110 L.Ed.2d 671 felony murder and also for the un- and that this determinatively court should derlying felony presump- created the follow the well-reasoned co-actor cases of permits tion of malice and mur- (Wyo.1989) Garcia v. der conviction? Schultz First, given consideration will be J., (Wyo.1988), Urbigkit, specially concur reappeared Wyoming where Birr has ring. law and then current national examination my perception, Birr misunderstands pursued regarding will be the defined con- misapplies Blockburger v. cepts jeopardy United merger. double It is States, appropriate U.S. 76 L.Ed. first fallacy to restate the sense, sentencing 1. In a pale this is a continued inane academic eluded dual results. The rem- Wyoming, exercise. In a life sentence is for life protection against jeopardy nants of double subject only to commutation the Governor. egregious body would have suffered one more commute, If Governor decided to the dou- Tragically, although wound. the effort be bled-up likely parti- sentence would not make a academic, deeply the issue is embedded within problem cle of difference. The law, is that rules of protection the basic constitutional can be, they may. invalid or subverted as have a traced back before the time of Christ world way escaping from a limited context into history. simple. The issue is Double applications other equally faulty where more effective and is, case, questioned in this to be —sentenced fallacy in use. The Birr could twice for same criminal conduct. have, unfortunately, directly fit into lesser in- high analy- judiciary teetion from the federal Blockburger determined Birr. jeopar- lighted subsequent intent that double sis of consideration charged if each avoided dy Shillinger, violation was Birr v. 894 F.2d element from the (10th Cir.), had different offense cert. denied 496 only half of the formula Birr took (1990) where, other. upon murder result hav- was based reference to Blockburger, without element, although obviously ing different per court’s curiam stated: to be used Here, majority Su- intrinsically incorporated without a Court, preme affirming petitioner’s *14 into the conviction. Obvi- element the convictions and sentences over dis- underlying felony the does have ously, Wyo- justices, sent of two held that the it is functional element since different legislature ming intended cumulative presumption of malice providing the factor accessory felony to mur- for degree required the first to reach accessory der to felo- status. Birr, ny aggravated robbery. half-right misapplication of Block- This majority’s P.2d at 1120-22. The inter- indigenous result. the Birr burger created legislative pretation of the intent for the definition, As cannot a matter of punishments imposition multiple element from the murder have a different irrespective binding on this court fashion, and, the lesser included in identical Therefore, views of the dissenters. since have the murder cannot offense within requisite legislative impose intent to principally element from different exists, multiple punishments find no we charged crime. Out of this half-use of jeopardy violation of the double clause. punishment ex Blockburger; the Birr dual that there is no The obvious concern is created. ception jeopardy to double was law, history, Wyoming statutory in where Note, Rankin, Michael S. CRIMINAL See legislative activity or other informational Sentences PROCEDURE — Consecutive material, any affirmative evidence Felony Underlying Murder and legislature Wyoming intended create a Jeopardy Legislative Felony: Double life murder and to add sentence State, 744 P.2d 1117 Intent? Birr years on a term of constituent (Wyo.1987), XXIII Land & Water L.Rev. Only by improper application felony. (1988), which states: juncture Blockburger did we reach this Although court the Birr utilized Wyo exception of a court-created by United standard formulated Wyo. jeopardy preclusion. ming double legisla- Supreme Court discern States art. Const. intent, analysis the court’s failed. tive out of murder into The diffusion did not conclu- analysis, In its court concepts is illustrated sively legislative intent. lesser included determine in statutory construction fail in Howard v. rules of citation of Birr dissent When intent, State, (Wyo.1988). prefer- courts must to discern 762 P.2d 28 in those statutes favor multiple construe for the same ence for convictions a result defendant. While such to mainte- course of conduct aversion Supreme with United States accordance concept of dou- nance of the millennium-old pre- standards and the defendant’s Court Lauthern jeopardy ble is well illustrated. innocence, the sumption Su- State, (Wyo.1989) demon- 769 P.2d 350 preme ignored this Court well estab- potential of Birr the contaminative strated By neglecting apply principle. lished concepts, into the lesser included extend in fa- statutory rule of construction application and though unnecessary in even subjected Birr the court lenity, vor of different, fact, the sentences were since violation consecutive sentences Baum v. not consecutive. concurrent and clause. double is also dis- State, (Wyo.1987) P.2d 877 criminal differentiated similar since two at time of Birr The fallaciousness in- without lesser pro- were considered constitutional events regression continued Oklahoma, Birr was ris v. application. then concept eluded 433 U.S. 97 S.Ct. Garcia cited in 777 P.2d (1977) analysis (Wyo.1989) opposite for the of its majority by of both the Kennedy Justice holding Wyo a rather unusual idea for and the dissent Jones Justice Scalia ming “A defendant cannot law: receive Thomas, 491 U.S. multiple punishments for a offense.” (1989) might provide L.Ed.2d direction See, however, Nowack v. Harris, adjudicative responsibility. (Wyo.1989) compared to Grady v. Cor 433 U.S. at United bin, Supreme recognized: States Court L.Ed.2d 548 here, When greater conviction of a of Birr capacity deny The extensive crime, murder, cannot be had without jeopardy protection forcefully double crime, robbery conviction of the lesser Duffy presented firearms, Jeopardy the Double (Wyo.1990). Duffy conceptualizes why the prosecution Clause bars for the lesser prosecutorial originally lim- discretion was greater crime after conviction of the one. English ited in law some four or more *15 Duffy ago by jeopardy. centuries double Thomas, 387, in 491 U.S. at question why raised the academic of limit 2528, 109 S.Ct. at stated: filings expected proof criminal and trial to jeopardy Double is an area of the law Why and defined offenses? not claim ev- rules, protec- filled with technical and ery in crime the criminal code and let the might tion it affords defendants at times system at trial sort out whether the con- perceived be as technicalities. This is embezzlement, tended misconduct was important irrelevant whether ancient and only jay walking? homicide or This then is law of Birr history Wyoming principles in Jeop- embodied in the Double regression the recent of denied constitu- ardy implicated. Clause are “Violations protection against jeopardy.2 tional double Jeopardy of the Double Clause are no less serious than violations of other con- logic theory provide any If and reasoned protections.” stitutional [Morris v.] structuring Wyoming relevance for law for Matthews, [237], 255, 475 generations, U.S. at 106 future consideration of the prosecution conclusions in Har [1032], consecutive at 1043 L.Ed.2d [89 187] aspect 2. One unfortunate found in some of the Murder in Kansas — The Prosecutor’s New Device: Goodseal, recognize (1977); cases is failure of the court to State v. 26 Kan.L.Rev. 145 Note, felony premedi- Single difference between murder and Consecutive Sentences in Prosecu jeopardy tated murder. The double Multiplication Statutory issue and tions: Judicial ties, Penal of subject merger (1958); the entire does not occur 67 Yale L.J. 916 and Charles L. proof something Cantrell, when homicide is other than Jeopardy Multiple Double Punish felony example, premeditated murder —for mur- Analysis, ment: An Historical and Constitutional (5th Taylor Whitley, der. F.2d Cir. (1983). 933 325 George 24 S.Tex.L.J. 735 C. Thomas Cf. 1991); States, Harling III, v. United 460 A.2d Punbhment, 571 Theory Multiple A 47 Unified (D.C.App.1983). (1985). U.Pitt.L.Rev. 1 dysfunction theory jeopar in and double merger applied felony doctrine when dy application can be found Kansas and New Barton, Comment, Applica Russell R. Mexico, apparently reject both of which Merger Felony tion Doctrine to the Murder Blockburger precluded thesis of consecutive sen Muddle, Merger Baylor Rule in Texas: The 42 sepa tences each (1990), where offense does not have a L.Rev. also 535 addresses the differenti element, yet applies merger rate to determine subject ated creation of murder in Lucas, existence of the murder. State v. dual stead of sentences for murder and 462, (1988), 243 Kan. 759 P.2d felony, 90 244 Kan. its constituent but confusion exists and aff’d 193, (1989); Prouse, 767 P.2d 1308 State v. 244 approved some dual sentence decisions are 292, (1989) compared merger. Kan. principles 1308 denied in terms of General 330, Bailey, non-multiplied prose State v. 247 Kan. 799 P.2d 977 of lesser included offense denied-U.S.-, 2022, are also involved. cert. cutions Schmuck United States, (1991). U.S. See abo State v. Mar 103 L.Ed.2d Comment, tinez, (1989); (1981) Hoagland, Jennifer N.M. P.2d Dou Jeopardy Pennsylvania’s Merger Stephens, ble State v. (1979) Doc 93 N.M. trine, Pierce, Temple compared L.Rev. 663 See abo S. to State v. 110 N.M. Weinlood, Note, Felony Jill CRIMINAL LAW — (BLACKMUN,J., concurring prosecu- to a (1986) autre convict second ] [ fois This judgment). right tion the offense. is made amendment; constitutional it de- in dissent: Justice Sealia stated person “no subject clares that shall be Jeopardy and has Double Clause put same offense to be twice been, designed to provision always not limb”; which, jeopardy of life or accord- in the justice particu- assure reason and ing Wall, parte to the 18 Lange ex case, embodiment techni- lar but the (1873)], U.S. L.Ed. 872 means cal, require the [85 rules that prophylactic put he jeopardy shall of a square turn corners. Government punishment second same offense. applied it to release a crimi- Whenever provision deserving This of the amendment nal frustrates erects case, particular upon subject but for the common law justice into repose greater purpose assuring sanctity. constitutional totality prosecutions of criminal and sen- States, 2 Wyo. McCann v. United tences. (Wyo.1880). Thomas, 491 109 S.Ct. at 2533. opinion The seminal case in an written Wyoming’s double constitution- Blume, Tobin, Wyo. Justice State v. protection, from al derived since statehood (1924) Byrne P. (quoting Const, Wyo. art. is well anchored 525), recited: Wis. conceptual understanding and historical that, “The rule well settled where a precedent: statute makes either of two or more dis- if The law is well settled that a defen- acts, gen- tinct connected with the same *16 convicted of a lesser than dant is subject eral the offense and same indictment, charged that he cannot punishment, measure and of kind indict- again greater, a tried for the nor can be crimes, separately able and as distinct trial the defendant claim new on by when each shall have been committed ground jury guilty that found him of times, persons or at different different in grade charged the offense lesser of by they may, when committed the same than the evidence war- the indictment time, coupled in person at the same ranted. count, constituting altogether one but 82, (Wyo. 1 Phillips Territory, Wyo. v. 84 one offense.” 1872). earliest court discussed the Our State, by Loddy This was followed v. 502 and, recog sufficiency of in an indictment 414 (Wyo.1972), P.2d 194 cert. denied nizing particular, it in failed another (1974) 1134, 877, 94 S.Ct. then observed: and various other cases.3 facts, does iden- alleging Not those it not then, Carter, in v. 714 record; This court State tify upon the offense Urbigkit, (Wyo.1986),Cardine & in P.2d 1217

therefore does not secure the accused JJ., dissenting, its historical plead acquit his or abandoned right autre fois court, 197-98, general plea finding verdict or Loddy, cited on a of In 502 P.2d at Tobin was impose separate penalties quoted guilty, approval further 24 C.J.S. of with counts, 1567(5) by way separate at § Law 434-437: whether Criminal several successively, single gross run or a sentences to “If on the several counts of indictment penalties. lumping sentence the several effect accused stands convicted in subject only ato such case accused is offense, charge charge only one or in differ- constituting penalty on all the counts offense, ways the of the same ent commission * * entire offense charge the of different crimes or commission per providing identical Other cases which, degrees by reason of the or crime State, Jerskey 173 spectives v. 546 P.2d include: they of the character and fact that grow same State, Boyd (Wyo. transaction, (Wyo.1976); 287 v. 528 P.2d same are in effect out 137, 871, 1974), offense, 46 denied 423 U.S. 96 cert. parts aspects of one or where or State, (1975); 522 P.2d Jackson v. charged necessarily L.Ed.2d 102 in one count em- crime State, 1974); (Wyo. v. Howard, 520 charged and Dorador an- 1286 or includes the crime braces count, in, 1974). (Wyo. 762 See also merged P.2d 230 the crime other or another, charged P.2d 28. is erroneous for 1362 law, approxi complete protection entire and existent

structure rule’s] century, explanation party when a mately a without second adopt evidence in the same on the same proposed examination court ” test which facts, test instead transactional statutory for the same offense.’ result did historically That 717-718, had existed. Id. (quot 89 S.Ct. at 2076-77 Wyo injury most provide the serious Wall.) Lange, Parte (18 Ex ing 85 U.S. avoiding ming’s interest constitutional (1873)). 21 L.Ed. 872 Birr, jeopardy. It was double (8th McIntyre Trickey, v. F.2d only separate evi half of the where Cir.1991). “What is is the double critical Blockburger was rule was used and dence relationship alleged of- cited, brought misapplied, us but statute, indictment, evidence fenses under pen juncture creating dual present this Herrera, State v. jury charge.” crimi completely for one self-defined alties (Tex.App.1988). S.W.2d anomaly offense. absurdi nal compelling majority rule which we Birr, was ty, previously anticipated from today adopt that one sentence can be Duffy, P.2d 821 illustrated best felo given to a defendant of both convicted the Birr fallacy make a differ did where and the in ny murder constituent Birr did not ence which exist illustrative, not even inclu cludes but initially im felony murder life sentence v. time, Hall inventory: sive current posed. (1989); Ark. 772 S.W.2d 317 recog As Cardine and this writer Justice Richie v. Ark. 767 S.W.2d nized, Birr, really 744 P.2d at did not McClendon v. (1989); Ark. change in anything possible but create a do (1988); People S.W.2d Guf parameters philosophic review fie, (Colo.App.1987); People power under of commuta the Governor his Horton, Peo (Colo.App.1984); P.2d 358 danger Wyo. 5. The tion. Const. art. ple Raymer, (Colo.1983); P.2d 1066 that Birr would have been followed Wood, 545 A.2d State Conn. multiplication where future cases 1026, cert. denied subject only imagina penalties were Usry, (1988); State 102 L.Ed.2d *17 prosecution tion of the and the contribution 298, Har (1987); 205 Conn. 533 A.2d 212 eviscerating century-old this court States, ling v. United A.2d 571 460 solemnly of our tradition law which State, Rainwater v. (D.C.App.1983); 260 in the as emplaced Constitution Thomas v. 807, (1991); 400 S.E.2d 623 Ga. against jeopardy. preclusion double State, 176, (1986); 350 256 Ga. 345 S.E.2d stated, Simply when one criminal we take State, 575, v. 246 306 Gore Ga. 272 S.E.2d mandatory life offense — 330, Hopper, Atkins v. (1980); 234 Ga. 216 penalties sentence —and create two without Choy, 70 (1975); State v. Ah S.E.2d 89 reason, abrogate a con rhyme or we basic v. 618, (1989); Sivak 780 P.2d Haw. 1097 right. stitutional State, 112 Idaho 197, (1986). 731 P.2d 192 The Fifth states that Amendment “[n]o Additional cases which follow the double person subject shall ... for the same regarding dual sen jeopardy rule of life put offence to be twice ” People tencing include: murder v. North Carolina limb.... Trimble, 338, v. Ill.Dec. IlI.App.3d 220 162 Pearce, 2072, 711, 23 395 U.S. 89 S.Ct. (1991); People v. 790, N.E.2d 580 1209 (1969), L.Ed.2d 656 the Court labeled 719, Cook, 531, Ill.App.3d 84 Ill.Dec. 129 jeopardy clause a “basic constitu- double Holman, (1984); People v. N.E.2d 856 718, 472 at id. guarantee,” tional at 89 S.Ct. 133, 585, 82 469 N.E.2d 103 Ill.2d Ill.Dec. 2077, quoted stat- an 1873 case that “ (1984), 1220, 105 cert. denied 469 U.S. 119 ‘If anything ed: there settled 1204, America, (1985); 84 L.Ed.2d 347 England it S.Ct. jurisprudence Huff State, (Ind.1989), man v. 543 lawfully man N.E.2d 360 is that no can be twice 3257, 1011, cert. denied And 497 U.S. 110 S.Ct. punished for the same offense. ... Jones, v. (1990); 525 State any has never been doubt of there [this

1363 offense, v. State v. En lesser included State Stew (La.App.1988); So.2d 1149 mund, v. v. (Fla.1985); art, State (La.1981); 476 So.2d 165 Shabazz 400 633 So.2d 330, Bailey, (1990), 247 Com., 291, Kan. 799 P.2d 977 439 N.E.2d 760 Mass. 387 — U.S.—, 2022, cert. denied 68, 111 Zeitler, v. Mich.App. People (1982); 183 (1991); Wilder, L.Ed.2d legisla 114 108 determined (1990); People v. N.W.2d 192 454 Close, intent, 229, v. State 191 Mont. Peo (1981); tive 328, 112 Mich. 308 N.W.2d 411 State, v. (1981); Talancon P.2d 623 940 Anderson, 475, Mich.App. 233 ple v. 62 294, (1986); P.2d legisla 102 Nev. 721 764 Fratzke, v. (1975); 354 State 620 N.W.2d Blackburn, v. interpretation, State tive 694 Lane, (Minn.1984); State v. N.W.2d 402 (Tenn.1985); legislative 934 inter S.W.2d v. (Mo.1982); State Con S.W.2d 343 629 Com., 223 615, pretation, Fitzgerald v. Va. nell, 688, N.J.Super. 506 A.2d 829 208 cert. denied 459 U.S. (1982), 292 S.E.2d 798 (1986). 1228, 1235, (1983). 75 103 S.Ct. L.Ed.2d 469 Castillo, People v. continues: list v. Stephens, However, see State 93 N.M. 113, (1991); 178 A.D.2d 576 N.Y.S.2d 855 458, (1979) compared to State 601 P.2d 428 also manslaughter and constituent as see Pierce, 76, v. P.2d 408 110 N.M. 792 410, Garland, 177 v. sault, People A.D.2d Martinez, Then, 421, v. see State 95 N.M. Bokun, (1991); People v. 848 576 N.Y.S.2d (1981) 622 P.2d 1041 and the vic (1989); 548 N.Y.S.2d 604 145 Misc.2d Neely, State v. tim examination 112 Quesinberry, v. N.C. 354 319 State 249 Gaskin N.M. Cf. cert. denied 373 S.E.2d S.E.2d 446 (Fla.1991), felony v. 591 So.2d 917 judg cert. (N.C.1988), granted 554 and premeditated murder murder cannot be issue, ment vacated on different separate offenses death. 1465, 108 L.Ed.2d 603 Logic, theory, consistency constitutional (Okl. P.2d Tibbs (1990); 819 1372 application of rational Cr.1991); Munson 758 P.2d 324 establishing felony murder intent cert. denied (Okl.Cr.1988), 488 first crimes degree requires of two (1989); 820, 102 L.Ed.2d 809 present majority’s sim- decision. As Fish, State Or. stated, mur- plistically as it can be Tarver, (1978); Pa. Com. cannot be committed without commis- der Powers, (1981); State v. 566 A.2d A.2d felony. intrinsically included sion (R.I.1989); Herrera, 795; S.W.2d “ ‘ words, impossible “In other to com- McCovey, State necessarily greater offense without mit Julius, 1990); State v. (Utah 185 W.Va. ’ ” Trimble, committing lesser also.” Tesack, (1991); State v. S.E.2d N.E.2d Ill.Dec. at El (1989); W.Va. 383 S.E.2d Garza, *18 (quoting People v. Ill.App.3d liott, S.E.2d Ill.Dec. 465 N.E.2d 595 Taylor also, in federal court cases: See decision, I (1984)). concurring in this Cir.1991); (5th Whitley, v. 933 F.2d 325 application of well- continue consistent Butler, (5th Neville v. F.2d 886 Cir. legal principles. determined Lynaugh, 845 F.2d 1266 1989); Rubino v. Chalan, Cir.1988); v. (5th United States MACY, Justice, dissenting. Chief (10th Cir.1987); Wiman F.2d 1302 provisions of the The double Cir.), Lockhart, 797 F.2d 666 cert. (8th Wyoming Constitutions United States and denied pun- against multiple protect an individual Blackburn, (1986); Sekou L.Ed.2d 728 offense, same criminal ishments for the Cir.1986). (5th F.2d 108 Legislature intends Wyoming the unless minority Thus, in a recognized deceptively simple that a rule the otherwise. It is upon Wyo- founded this is: Did the question state courts does exist before Court few felony not an explanation ming Legislature that does intend that individual the the felony within murder be sentenced a lesser included offense convicted of constitute underlying Dugger, felony murder and the Fallada for both felony the law); years ago, differently com- Cir.1987) (Florida felony? not Five (11th F.2d 1564 felony ny murder be sentenced for both question prised court answered underlying In the felony. 1117 murder and the Birr affirmative. denied, legislative was de corpus sessions since Birr (Wyo.1987), habeas five Cir.), denied, cided, Legislature not (10th 496 U.S. the did cert. F.2d correct is dubbed take action to what contrary obviously holds the Today, majority today being the an erroneous de that Because I believe fact legislative and overrules Birr. intent. This termination the correctly Birr court ascertained speaks the for itself. and that Wyoming Legislature’s intent ad- I also that the Birr decision believe of the purpose furthers the

Birr decision felony- purpose vances the statute, I felony-murder dissent. that majority murder statute. The states using the disagree majority felony-murder statute is purpose of the though Blockburger test as “enlightened” kill- discourage negligent accidental formula for some talismanie were during the ings which occur commission not! intent. It is divination example As an violent felonies. tool of merely test is Blockburger The effect, pos- majority statute’s deterrent used in the trade of many which be hypothetical a crimi- its a situation which majority ap- statutory The construction. killing a gun accidently discharges, nal’s Blockburger test plies “enlightened” robbery. during clerk the course of a store proof requires that murder observe sen- majority aggregate notes that the required an element which not imposed con- which for the tence could be robbery, aggravated not vice proving but aggravated robbery and stituent crimes— upon Extrapolating this observa- versa. years, manslaughter forty-five —would tion, assumption invokes the statute, but, felony-murder because of the “ordinarily intend legislatures do[ ] be sentenced to life the defendant would offense two dif- punish the same under con- imprisonment death for the same States, statutes,” ferent Whalen United duct. majority’s deci- result of curious to conclude that L.Ed.2d exposed by the this case. sion is facts of Wyoming Legislature did not intend Here, intentionally killed Peterson murder be criminals convicted robbing a during clerk store course and the sentenced both aggregate sentence station. Gasamat underlying felony. imposed upon Peter- could have been an majority ignores I believe that for the son constituent crimes— re far more aspect of this case which is first-degree murder —would in vealing Wyoming Legislature’s twenty- imprisonment plus have been life “enlightened” Blockburger than is the tent However, years or death. since five is the aspect of which I write test. felony-murder stat- prosecutor invoked the Birr Wyoming Legislature’s reaction to ute, today’s is that the result of decision many has on This Court stated decision. a lesser sentence than Peterson will receive Wyoming Legislature’s occasions that the con- he would received had he been have interpretation statute response to of a an *19 the Personal- victed of constituent crimes. government is rele by co-equal a of branch killing more ly, I feel that an intentional is legislative intent. inquiry of to the vant negligent an accidental or egregious than See, v. State e.g., Pine Town of Bluffs felony- killing purpose and the of the Wyoming, Board Control State of of of statute, I is to deter murder which believe (Wyo.1982); Districts P.2d 1365 School felonies, fur- violent is the commission of 3, 10, County and in Nos. of by decision. the Birr thered Cook, (Wyo. Campbell v. P.2d note, justifies its majority a final the As Brown, Wyo. 1967); and Sanders v. noting to part by that whether decision (1959). The Birr decision P.2d 85 felony, an impose a sentence for Wyoming Legislature clearly held that the for sentencing only the alternatives felo when convicted of did intend that criminals ality defining imprisonment life the statute the crime murder are to, pled State, only. Armijo 678 P.2d death, of academic interest is applies, how- argument (Wyo.1984) 867-68 failure of the indict majority’s academic offense, ever, against disturbing equal force ment or information to state an with Tompkins law is consistent with the jeopardy. which and double settled State, and which Wyoming Legislature’s (Wyo.1985), intent 705 P.2d cert. felony-murder purpose nom., of the Wyo furthers the Tompkins denied sub statute. ming, 475 U.S. 106 S.Ct. L.Ed.2d 585

Consequently, dissent. Davila, at 205-06. 831 P.2d Justice, dissenting. THOMAS, Tompkins readily A discloses review of too, disposition the reference would I, dissent from the double must only multiple prose- majority the of the court. I occur in the context of case this cutions, opinion of sen- dissenting multiple Justice not in the context of join tencing. has made the case Macy very ably who precedent.

following Wyoming Birr v. ma- analysis Some and dissection (Wyo.1987), cert. de approach ap- is jority this case likewise nom., Shillinger, Birr v. U.S. nied sub necessary. point of de- propriate and parture majority opinion is that there dissection, analysis to subject may be is clear of a inten- no indication should not be is result and but it sound robbery, tion that the armed which serves casually Where is Cassandra so overruled. invoking mur- predicate as a the need arises? when statute, punished separately der from be will be Perhaps a Cassandra killing. majority Consequently, neglected rule of to mourn the heard application a proceeds then to second level decisis, day it is sad indeed but a stare approach in Blockburger v. United the same our declarations within when States, 284 L.Ed. judicial If subject are to revision. case analysis This involves level seriously unwilling take we what comparison of elements of the statu- a write, expect we others to how can we tory in the concur- proscriptions, as done seriously? take us in order to draw an inference ring opinion, separate Jones respect to existence of with (Wyo.1990) (Cardine, J., dissenting). perceived If to be the elements are crimes. identical, presumption arises then matter, it must be noted As a threshold legislature did not intend to law that the entered, pur- that both Cook and Peterson punishments. authorize plea agreements, pleas guilty suant to aggra- the offenses of justifies majority its decision robbery. is made vated No mention claiming Wyoming legislature cannot to how the consecutive majority opinions as punish separate- to have intended said imposed jurisdictional sentences became robbery the murder ly armed rule Our usual in these cases. predicate defect serves as nonjurisdic- plea guilty waives all that a killing crime the definition tional defects. Davila degree My primary difficul- murder. first As (Wyo.1992), cases cited. we position in this case is ty in that case: legisla- said an intention that it attributes experi- contrary human very “the ture which claims involve

Jurisdictional decision The effect of court’s bring the defen- ence. of the State power sentencing, that, multiple in the context of charge *20 court to answer the dant into killing the is rewarded Blackledge perpetrator the brought against him.” depre- court decision the victim. This Perry, 417 U.S. free right the to be life and Juris- cates human L.Ed.2d that agree I do not acts. from criminal unconstitution- defects include: dictional statutory presumption when one commits appraisal legislative this is an accurate robbery.” murder in the course of a intent. question Op. at 1351. The that must be opinions, the majority set forth As why legislature pos- addressed is the could up the lad- way working one’s exercise of multiple pun- authorize sess an intention to fascinating, robbery is larceny and der of charged hav- ishments if the murder is as fascinating to work more it is even but ing “purposely been committed and with of homicide of- the ladder way up one’s malice,” retain premeditated but would not charge example of a majority fenses. intention the murder is the same when aggravated robbery manslaughter and charged having committed in the been sentencing is leading consecutive reveal- felony, simply course of a results suggestion multiple that a ing. There is a presumption that the elements conclusive found in such an penalty violation could be killing “purposely premeditated and with instance, I am satisfied consecutive but Why legis- present. malice” are would the imposed those two could be sentences disparate lature have intended this result? the conclusion Logic leads to violations. legislature ma- did not. The submit of second same would be true prefers jority simply has reached a result it aggravated robbery degree murder and product as a of an academic exercise. The instance, sentencing and, in such an result, to reach this majority wanted but by the a term for life followed could be for logical fallacy recognize failed to inher- for armed rob- twenty-five year sentence ent it. bery. one reaches the most serious When however, homicide, Nothing and Peter- degree first demands that Cook degree of switches, of a legislative son receive the benefit twofer rule intention majority other than the decision of the majority can find no “clear indica- permit conform to decisions elsewhere and be con- intention to tion” of foreign jurisdictions. majority opin- sistent with those separate punishments. that, legislature prose- if The contention that the did not apparently concedes ion these possessed charge the acumen to intend dual offenses cutor had purposely simply an effort to share the blame with murder as committed malice, legislature the two sen- for a rule this court chooses premeditated with notes, adopt. majority ques- explanation No is of- As tences could stand.1 because, theory, may be academic why as to it would be consistent with tion fered permit punishment for neither nor Peterson will ever serve legislative intent to Cook instance, robbery. This not in the the sentence for armed crimes but both fact, validity always in court does not maintain the alluded to other. convictions, however, nothing and if that were to degree murder statute is the first case, predicate for the murder occur in this or a similar the consecu- more than a prior is for the tive sentence would not be academic. charge, like a conviction of the habitual criminal sen- invocation keep always that We need to before us simply and Peterson were tence. Cook govern- engaged we are the business of justify invoca- the status of robbers to ment, rights exercises. The not academic degree murder statute. tion of the first people important all the are too to be (Wyo. P.2d 1214 Evans v. See at level other than serious addressed 1982). people reality. We write and decide for the Wyoming, not for the acade- majority cites Richmond v. of the State of here, denied, (Wyo.1976), my. The conclusion of the reh’g 554 P.2d 1217 explaining preservation rights secured (Wyo.1977),as that the required degree of first mur- the Fifth Amendment to the Constitu- “the elements der, and malice tion of the United and art. 11 of premeditation, deliberation States requires the ab- aforethought, imputed by a conclusive the Constitution case, prosecutor degree pre- purposely the facts of this first murder for 1. "Given killing Op. charged Cook and Peterson with meditated malice Hanson." could have

1367 robbery- punishment conviction and on two counts sentence for armed rogation of the Peterson, simply though imposed upon Cook and occurs even both acts were com- pragmatic gov- my judgment, during In overkill. mitted same encounter with stand as both sentences statutes, ernment demands separate two the victim. Under rights of the citizens of a vindication separate criminal acts can be two statement to those Wyoming and a clear charged, tried, punished. during the may commit murders who Rivera, P.2d at 840 Wyo- State course of robberies imply rejection clearly These cases a seriously obligation pun- ming its takes concept, major- same transaction which this all separately different ish violations specifically rejects. ity decision statutes. like that Our rule is articulated Peo rewards decision Hairston, 263 ple v. Ill.2d N.E.2d and Peterson for malefactors such Cook denied, cert. killing by limiting the available their victim (1971), in Wyoming I sanctions. cannot believe held or the court that two more have possibly could intended legislature from the distinct offenses emanate If Cook and Peterson had that result. act, victim, is little and the I think there same transaction rule wounded their they put Wyoming person jeopardy cases that twice in doubt under a cannot be punishment subjected applicable been would have for the same offense is not In this they each crime committed. separate distinct crimes where two instance, the crime of rob- they committed by one and the same act. are committed I bery and the crime State, (Wyo. In Hamill v. 602 P.2d than no barrier other can discern inherent 1979), example we re have clear fascination that forestalls academic peated of the same statute in violations for each crime. As Justice perpetration of sexual assaults. We out, legislature if not Macy points did legislature held there that the intended separate punishments for agree each protect against the victim identi crimes, oppor- they ample had penetration. Consequently, fiable sexual policy posi- tunity articulate a different though continuing course of con even tion. involved, penetration each con duct cases, separate and distinct crime. correctly promul- we stituted a In other have Baum, that, crime held if different crimi gated rule that each committed we issue, v. separately. supported Rivera differ punished can be nal acts are at State, evidence, v. (Wyo.1992); though they P.2d 933 Baum ent factual even State, (Wyo.1987); 745 P.2d Hamill separated by only in time a few sec State, (Wyo.1979). P.2d onds, included in the offense not victim, charged properly can be each Rivera was other. “The defendants [A]s different, 6-2-302(a) [all], and 14-3- or the punished

with violation under §§ Baum, same, 105. These statutes define different statutory provisions.” P.2d 288 Molitoni, McArtor v. (quoting crimes. State [6 They sup- (Wyo.1985). are intended to (Ha Haw.App. 711 P.2d 77] evils; acquittal an press different App.1985), in turn quoting State waii prevent does under one not conviction Pia, Haw. 514 P.2d 584-85 [55 14] under other. prosecution Goodman 1973)). (Hawaii (Wyo.1979). In Rivera, P.2d at 943. (Wyo.1987), Baum legislature If is correct that did is no violation of a we held that there separately punish these offenses intend to right fundamental to not defendant’s (which necessary then it not dispute), placed twice in under the Fifth constitutional potential of a consider Amendment the Constitution The academic discussion of the violation. or under art. of the Con- United States viola- majority relating to constitutional of the State of when stitution *22 leg- dictum, cross-reference is evidence of a and such a more than nothing tions that the listed crimes are not islative intent compulsion to be simply demonstrates provi- defined in other necessarily those law. constitutional respect to erudite with statutes, leading to a sions responsibility to avoid majority prefers The legislature sepa- intended conclusion erroneously attrib- for its choice of rules punishments. rate that legislature uting an intention to separately, punished these crimes not be assumption by majority is that The enlight- the credit for an wants to claim but specific, language of the statute is case interpretation of the constitutional ened look to the elements of and one should rights of the defendants. robbery in this case in order to aggravated jeopardy. double form a conclusion about appli- in the majority decision results pro- the statute I have read and re-read rule, even transaction cation of a same I cannot scribing degree first and By specifically eschewed. at- though it is any aggravated reference there to rob- find legislature the intention tributing to the bery. majority undoubtedly would felony robbery and that the two offenses respect argument the same with to make only punishment, to one murder lead analysis simple robbery, but I submit the only is treated as one one transaction fact, majority fails to account for the majority If look at what the crime. we majority opinion, in the that a included must confused what says we then be injury upon inflicted bodily serious any justifi- decision does. I cannot find he killed. It is clear the victim before was attributing an intention to the cation for robbery aggravated crime of had for legislature merge these offenses completed the victim was killed been before except that it serves as a con- punishment, as an incident of that crime.2 make the court’s choice venient excuse to legislature. appear the fault of the to be majority appreciate that fails have minds. there.are those who criminal legisla- contemplate analyze As we separate punish- to maintain The failure intent, Wyo.Stat. that tive we must note regard- crimes will ments for these two be (1988) killing “in the 6-2-101 describes a § victory by these malefactors and ed as a of, attempt perpetrate, or perpetration likely They of a like ilk. others assault, arson, robbery, burgla- sexual robbery kill assume it is better to vic- resisting kidnapping” ry, escape, arrest only pun- tim because one will receive added). majority opinion (emphasis that a life sentence ishment. The fact “any simply that the reference to assumes * * * impact imposed will have little because be robbery defined in robbery” is to a as anyhow. they perceive consequences do not (1986). Yet, Wyo. Wyo.Stat. 6-2-401 Furthermore, what if these life sentences Offenses, Title is re- Stat. Crimes some violation of should be set aside for legisla- plete with demonstrations that it not rights of the defendants? Would provi- to refer to another ture knew how comforting society have the sen- be Wyo.Stat. 6- E.g., of the statutes. sion §§ robbery still to served? tence for the 6-2-107; 6-2-303; 2-105; 6-2-106; 6-2- elsewhere, conviction Perhaps, here or 6-2-306; 6-2-307; 6-2-312; 6-2-401; 305; life predicate as the for a would serve 6-4-102; 6-2-503; 6-3-402; 6-4-101; 6-4- an habitual criminal. sentence as that, 201; me if and 6-4-402. It is clear to really murder lan- choices. Cook the references This case about statutory to rob a convenience guage were to definitions and Peterson chose offenses, store, they chose to kill the elder- a cross-reference would and then several ly clerk. This court then had a choice as in the statute. The absence of be found drawing comparison in which the victim does not die out a of the elements an instance offenses, prosecution proceed quickly, must has demonstrated of these robbery aggravated robbery aggravated aggravated perceived assault or must be as attempted in such an murder. When the victim lesser included offense of the crime of dies, prosecution the most later instance murder committed problem foreclosed. predicate. serious offense is This result creates legisla- pun- guilty. would further hold the malefactors should be these whether of their crimes or ture intended that murder and for both ished *23 predicate pun- It almost seems should separately of them. crime the rule of to create a rule so needed affirm court ished. would the sentences cases, invoked. I cannot avoid lenity could be both crimes both is an instance which that this belief right has overridden

compulsion to be justice.

obligation to administer hold that Cook and Peterson

I would they plea agreements entered by the

bound chal-

into, they right to waived their pleas rule Birr their

lenge the