Land & Water Law Review

Volume 23 Issue 2 Article 17

1988

Criminal Procedure - Consecutive Sentences for Felony Murder

and the Underlying Felony: Double Jeopardy or Legislative Intent -
Birr v. State
Michael S. Rankin

Follow this and additional works at: https://scholarship.law.uwyo.edu/land_water

Recommended Citation
Rankin, Michael S. (1988) "Criminal Procedure - Consecutive Sentences for Felony Murder and the
Underlying Felony: Double Jeopardy or Legislative Intent - Birr v. State," Land & Water Law Review: Vol. 23 :
Iss. 2 , pp. 603 - 613.
Available at: https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17

This Note is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been accepted
for inclusion in Land & Water Law Review by an authorized editor of Law Archive of Wyoming Scholarship.
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

CRIMINAL PROCEDURE -Consecutive Sentences for Felony Murder

and the Underlying Felony: Double Jeopardy or Legislative Intent?
Birr v. State, 744 P.2d 1117 (Wyo. 1987).

Charles Edward Birr, Fred Schultz and Frank Garcia, agreed to rob
Robert and Kathleen Bernard. They planned for Schultz and Garcia to
go into the Bernards' house, tie them, and take their money. Birr gave
Schultz and Garcia guns, rope, and duct tape and dropped them off at
the Bernards' trailer.' About 20 minutes later, the three individuals met
as planned. Birr saw that Schultz had a knife and that he was wiping blood
off of himself. Schultz then told Birr that Garcia and he had killed Robert
and Kathleen Bernard.'
On August 27, 1986, Birr pleaded guilty to one count of accessory
to felony murder and one count of accessory to aggravated robbery,3 in
violation of Wyoming Statutes 6-1-201, 4 6-2-101,1 and 6-2-401(c).6 Before
sentencing, Birr moved to merge the offenses. The trial court denied the
motion, and on November 4, 1986, Birr received sentences to the Wyo-
ming State Penitentiary for life on the felony murder plea and 20 to 25
years on the aggravated robbery
7 plea. The district court ordered Birr's
terms to run consecutively.
On appeal, Birr argued that the consecutive sentences imposed for
felony murder and the underlying felony violated the double jeopardy
clauses of the United States Constitution and the Wyoming Constitution.,

1. Birr v. State, 744 P.2d 1117, 1118 (Wyo. 1987).

2. Brief of Appellant at 4, Birr v. State, 744 P.2d 1117 (Wyo. 1987) (No. 86-325).
3. Birr, 744 P.2d at 1119, 1119 n.5.
4. WYo. STAT. § 6-1-201 (1977, Rev. 1983) provides:
(a) A person who knowingly aids or abets in the commission of a felony, or
who counsels, encourages, hires, commands or procures a felony to be com-
mitted, is an accessory before the fact.
(b) An accessory before the fact:
Ji) May be indicted, informed against, tried and convicted as if he were a
principal;
(ii) May be indicted, informed against, tried and convicted either before
or after and whether or not the principal offender is indicted, informed against,
tried or convicted; and
(iii) Upon conviction, is subject to the same punishment and penalties as
are prescribed by law for the punishment of the principal.
5. WYo. STAT. § 6-2-101 (1977, Rev. 1983) provides:
(a) Whoever purposely and with premeditated malice, or in the perpetration
of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape,
resisting arrest or kidnapping, or by administering poison or causing the same
to be done, kills any human being is guilty of murder in the first degree.
(b) A person convicted of murder in the first degree shall be punished by death
or life imprisonment according to law.
6. WYo. STAT. § 6-2-401(c) (1977, Rev. 1983) provides:
(c) Aggravated robbery is a felony punishable by imprisonment for not less
than five (5)years nor more than twenty-five (25) years if in the course of com-
mitting the crime of robbery the person:
(i) Intentionally inflicts or attempts to inflict serious bodily injury; or
(ii) Uses or exhibits a deadly weapon or a simulated deadly weapon.
7. Birr, 744 P.2d at 1118.
8. Id

Published by Law Archive of Wyoming Scholarship, 1988 1

 Land & Water Law Review, Vol. 23 [1988], Iss. 2, Art. 17

LAND AND WATER LAW REVIEW Vol. XXIII

The Wyoming Supreme Court disagreed and affirmed the trial court's
order imposing consecutive sentences. The court held that aggravated rob-
bery and felony murder constituted distinct offenses, and consecutive sen-
tences did not subject Birr to double jeopardy 9 because the legislature
intended separate punishments. 10
The double jeopardy clauses of the United States and Wyoming Con-
stitutions provide three protections. The first protection bars a second
prosection for the same offense after acquittal. The second protection bars
a second prosecution for the same offense after conviction." The third pro-
tection bars multiple punishment for the same offense, unless the legisla-
ture intended multiple punishment.' 2 The Birr opinion just dealt with the
third protection that prohibits multiple punishment for the same offense.'3
The issue in Birr was whether the legislature intended for felony murder
and the underlying felony to be the same offense for the purposes of
punishment.
This casenote focuses on the interpretation of the legislature's
intended punishment for felony murder and the underlying felony. To
determine whether it is proper to impose consecutive sentences for felony
murder and the underlying felony, the primary question is what punish-
ment the legislature intended when it promulgated the statutes. Applica-
tion of rules of statutory interpretation indicates that given the availa-
ble information, the court could not properly ascertain legislative intent,
and that by default a Wyoming court should not impose consecutive sen-
tences for felony murder and the underlying felony.

BACKGROUND
Federal Case Law
In Blockburgerv. United States,4 the United States Supreme Court
reviewed consecutive sentences and cumulative fines imposed on Block-
burger for violating provisions of the Harrison Narcotic Act." The trial
court convicted Blockburger for selling, on two consecutive days, a form
of morphine not in the original stamped package or from the original

9. 1& at 1122.
10. Id at 1121.
11. Id at 1119 (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
12. The legislature can prescribe multiple punishment for the same offense unless the
punishment violates the eighth amendment. Coker v. Georgia, 433 U.S. 584, 592 (1976). The
court, however, cannot impose double punishment unless authorized to do so by the legisla-
ture. Whalen v. United States, 445 U.S. 684, 689 (1980).
13. Birr, 744 P.2d at 1119.
14. 284 U.S. 299 (1932).
15. Id at 300. The Act provided: "It shall be unlawful for any person to purchase, sell,
dispense, or distribute any of the aforesaid drugs except in the original stamped package
or from the original stamped package; .... Harrison Narcotic Act, ch. 27, 44 Stat. 97 (1926)
(codified at 26 U.S.C. § 692 (1926)). The Act also stated: "It shall be unlawful for any person
to sell, barter, exchange, or give away any of the drugs specified in section 691 of this title,
except in pursuance of a written order of the person to whom such article is sold, bartered,
exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner
of Internal Revenue." Harrison Narcotic Act, ch. 1, 38 Stat. 786 (1914) (codified at 26 U.S.C.
§ 696 (1926)).

https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17 2
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

1988 CASENOTES

stamped package. The trial court also convicted Blockburger for execut-
ing one of the sales without a written order by the purchaser. Blockburger
argued that since the two sales were made to the same person, he had
only committed one offense. Blockburger also contended that the sale
charge and the charge for failing to make the sale in pursuance of a writ-
ten order constituted the same offense.'8
To discern legislative intent, the United States Supreme Court exa-
mined the language set forth in the statutes. As to Blockburger's first
argument, the Court held that the two sales were distinct and separate
and therefore comprised two offenses.'" The Court reasoned that Congress
intended to create a punishable offense for every sale as opposed to a sin-
gle offense for continuous transactions."8 Addressing Blockburger's second
argument, the Supreme Court held that even though the two violations
occurred as the result of one act, Blockburger committed two offenses.
The Court stated that "where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test ... is whether each
provision requires proof of a fact which the other does not."' 9 One offense
required proof that the defendant sold drugs not in or from the original
stamped package. The other offense required proof that the defendant
sold drugs absent a written order from the purchaser. 0
In a more recent case, Brown v. Ohio," the United States Supreme
Court dealt with the protection afforded by the double jeopardy clause
against prosecutions under two statutes for the same act. 2 In that case,
Brown stole a car in eastern Cleveland. Nine days later police apprehended
him in Wickliffe, Ohio. A court convicted Brown for joyriding. Brown then
returned to East Cleveland for prosecution on charges of auto theft and
joyriding. Brown pleaded guilty to the subsequent charges. 3

On appeal, the Supreme Court held that the double jeopardy clause
of the fifth amendment protects against cumulative punishment not autho-
rized by the legislature. The Court cited the Block burger test as controll-
ing to determine whether violation of two statutes by a single continu-
ous act permits the imposition of cumulative punishment." The Court held
that violation of the Ohio joyriding and auto theft statutes constituted
the same offense because both required proof of the same facts. Because
the elements of the auto theft statute" included all of the elements in the
joyriding statute, 6 the Court labeled the provisions as greater and lesser
included offenses. The Court concluded that "the greater offense is there-

16. Blockburger, 284 U.S. at 301.

17. Id at 301-02.
18. Id at 302.
19. Id at 304.
20. Id at 303-04.
21. 432 U.S. 161 (1977).
22. Id at 162-63.
23. Id
24. Id at 166.
25. Id at 163 n.2.
26. Id at 162 n.1.

Published by Law Archive of Wyoming Scholarship, 1988 3

 Land & Water Law Review, Vol. 23 [1988], Iss. 2, Art. 17

LAND AND WATER LAW REVIEW Vol. XXIII

fore by definition 2the 'same' for purposes of double jeopardy" as any lesser
included offense. 1
In Whalen v. United States,28 the United States Supreme Court ruled
on a double jeopardy claim involving consecutive sentences for felony
murder and the underlying felony of rape. Whalen received a sentence for
20 years to life for first degree murder, and 15 years to29life for rape. The
trial court ordered the sentences to run consecutively.
The Court began its analysis by noting that consecutive sentences
did not violate the double jeopardy clause if the legislature intended
cumulative punishment. 30 The Court utilized the Blockburger test to
decipher legislative intent. The Court stated that when two offenses are
the same under the Blockburger test, consecutive sentences are prohibited
unless specially permitted by the legislature. 3' Therefore, the Court first
looked to the language of the statutes and the legislative history. The Wha-
len opinion concluded that Congress did not authorize consecutive sen-
tences because the conviction for felony murder could not be maintained
separate from the rape statute. Finally, the Court said that any doubt32
as to Congress's intent should be resolved by applying the rule of lenity.
The Supreme Court reversed the decision of the court of appeals and held
that consecutive sentences for felony murder33 and the underlying felony
of rape violated the double jeopardy clause.
In his Whalen dissent, Justice Rehnquist expressed great dissatisfac-
tion with the majority's application of the Blockburger rule in the felony
murder context.u He argued that legislative intent cannot be determined
by applying the Blockburger rule to statutes written as alternative
offenses. After Justice Rehnquist criticized Blockburger,he argued that
it should be applied to all the statutes contained in the felony murder sta-
tute and not to the statutes specified in the indictment.'3
Regardless of the Block burgertest, when the Court finds that the legis-
lature authorized cumulative punishment it will uphold the imposition of
consecutive sentences. In Missouri v. Hunter,6 the trial court convicted
Hunter of violating the Missouri statutes for first degree robbery and
armed criminal action. 7 The Supreme Court reaffirmed the principle that

27. Id at 168.
28. 445 U.S. 684 (1980).
29. Id at 685.
30. Id at 689.
31. Id at 693.
32. Id at 694.
33. Id at 695.
34. Id at 712 (Rehnquist, J., dissenting). Justice Rehnquist stated: "[W]hen applied
to compound and predicate offenses, the Bloch burger test has nothing whatsoever to do with
legislative intent, turning instead on arbitrary assumptions and syntactical subtleties." Id
Applied to the statutes in the abstract, proof of one of the underlying offenses is never neces-
sary for a felony murder conviction. When applied to the indictment the underlying felony
is necessary for a felony murder conviction. Id at 710-11 (Rehnquist, J., dissenting).
35. Id at 711.
36. 459 U.S. 359 (1983).
37. Id. at 361-62.

https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17 4
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

1988 CASENOTES

the double jeopardy clause prohibits prescribing greater punishment than

the legislature permitted." The Court held that even though first degree
armed robbery and armed criminal action constitute the same offense
under the Blockburger test, the Missouri legislature intended to allow
cumulative punishment." As refined in Hunter,the Whalen rule gave pri-
ority to the legislature's intent to create separate offenses even though
the offenses existed as one offense under the Blockburger test. Hunter
did not overrule Blockburger, yet it ignored the Blockburger test where
the Court deciphered
0
a clear legislative intent to authorize cumulative
punishment.4
When tools of statutory interpretation fail to indicate clear legisla-
tive intent, the court is faced with an ambiguous statute. The Supreme
Court has consistently interpreted ambiguous penal statutes strictly
against the government and in favor of the defendant.41 The Court has
characterized this construction as the rule of lenity. 2 The rule of lenity
provides that if the court cannot clearly ascertain the intended punish-
ment, the doubt will be resolved against the imposition of multiple punish-
ment. 3 The rule of lenity is based on fundamental policies of criminal law.
First, every individual deserves fair notice of the law and the resulting
punishment if it is violated. Second, because criminal punishment is reflec-
tive of societal standards, an individual should be punished according to
a legislative act and not judicial construction. Hence, individuals are pro-
tected against arbitrary discretion by judges." If the court imposes greater
punishment than permitted by the legislature, then it has exceeded its
constitutional power.45
In Simpson v. United States,46 the United States Supreme Court
applied the rule of lenity in a case involving cumulative punishment. In
that case, Simpson was convicted for armed bank robbery, and for com-
mitting a felony with the use of a firearm. The trial court sentenced Simp-
son to consecutive prison terms. On appeal, Simpson argued that the
charges merged for the purposes of sentencing and therefore consecutive
sentences were barred. 47 The Court examined the statutory language and
legislative history and determined that Congress did not clearly express
its intent on the issue of cumulative punishment. The Court resolved the
ambiguity in favor of Simpson and held that consecutive sentences con-

38. I& at 368.

39. The Court relied on the Missouri Supreme Court's interpretation of legislative intent
in a prior case. Id. In Sours v. State, 593 S.W.2d 208, 216 (Mo. 1980), the Missouri Supreme
Court held that the convictions for first degree armed robbery and armed criminal action,
arising out of the same transaction, violated the double jeopardy clause of Missouri's con-
stitution.
40. Hunter,459 U.S. at 368.
41. N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION §§ 59.03-.06 (4th ed. 1986).
42. Bell v. United States, 349 U.S. 81, 83 (1955).
43. Id at 83-84.
44. United States v. Bass, 404 U.S. 336, 348 (1971).
45. Whalen, 445 U.S. at 688.
46. 435 U.S. 6 (1977).
47. Id at 9.

Published by Law Archive of Wyoming Scholarship, 1988 5

 Land & Water Law Review, Vol. 23 [1988], Iss. 2, Art. 17

LAND AND WATER LAW REviEw Vol. XXlIII

stituted double punishment in violation of the double jeopardy clause.' 8

In its conclusion, the Simpson opinion emphasized the Supreme Court's
reluctance to increase punishments "absent a clear and definite legisla-
tive directive."' 9

Wyoming Case Law

The double jeopardy clause of the fifth amendment applies to the
states through the fourteenth amendment.50 The question of double
punishment, however, depends on the state legislature's intent to create
such punishment.' The analysis employed by the United States Supreme
Court in Blockburger provides state courts with a method of discerning
legislative intent. Because the Supreme Court has not declared Block-
burger as a constitutional mandate, state courts are not obligated to
adhere to the Block burger test. Nevertheless, because most states have
little or no legislative history, the Blockburger test is a valuable guide-
line for determining legislative intent.
Although states can provide greater constitutional rights than
afforded by the United States Constitution, the Wyoming Supreme Court
held that the double jeopardy clause of Wyoming and United States Con-
stitutions provide an equal measure of protection against double jeopardy.
In Vigil v. State,1 the Wyoming Supreme Court addressed the issue of
double jeopardy. The state charged Vigil with five counts of assault with
a deadly weapon for firing a handgun at a vehicle containing five people.
The trial court allowed the jury to return verdicts on all five counts.5 Vigil,
however, received only one sentence. 5' On appeal, the court affirmed all
five verdicts and held that the Wyoming Constitution and the United
States Constitution "have the same meaning and are coextensive in appli-
cation." 5 Therefore, the Wyoming court adopted the United States
Supreme Court's analysis of double jeopardy protection.
In 1986, the Wyoming Supreme Court adopted a variation of the
Block burger rule, labeled the same-evidence rule, for determining the num-
ber of offenses involved in a single transaction.6 In State v. Carter,57Carter
was charged with delivery of a controlled substance and possession with

48. Id. at 10-16.

49. Id. at 15-16.
50. Benton v. Maryland, 395 U.S. 784, 796 (1969).
51. Brown, 432 U.S. at 165.
52. 563 P.2d 1344 (Wyo. 1977).
53. Id. at 1346.
54. Id at 1349.
55. Id. at 1350.
56. The Wyoming Supreme Court first addressed the Blockburger test in Tuggle v. State,
733 P.2d 610, 611-12 (Wyo. 1987). In that case, Tuggle received consecutive sentences for
aggravated assault and battery charges involving two different individuals. The court declined
to hold that Tuggle suffered double punishment for a single offense. Id at 613. The court
relied on a rule stated in Blockburger that permitted separate punishment if the defendant
was convicted for individual acts prohibited by one criminal statute. Id at 612 (citing Block-
burger, 284 U.S. at 302, which was citing WHARTON'S CRIMINAL LAW § 34 n.3 (11th ed.)).
The case did not involve a single criminal act violating separate statutory provisions.
57. 714 P.2d 1217 (Wyo. 1986).

https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17 6
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

1988 CASENOTES

intent to deliver a controlled substance.6 ' Carter attempted to sell mari-

huana and hash oil. At the time of the arrest, he had completed the mari-
huana sale, but remained in possession of the hash oil. On appeal, Carter
argued that the charges had merged. The court disagreed and held that
two offenses existed because separate evidence supported each offense.6 '
First, the marihuana supported delivery, and second, the hash oil sup-
ported possession. The state did not use the same evidence to obtain both
convictions. Thus, the charges did not violate double jeopardy protection.
As an additional tool of statutory interpretation, the Wyoming
Supreme Court has adopted the rule of lenity. In Horn v. State,6 the court
applied the rule of lenity. In that case, the trial court convicted Horn of
willfully destroying a telephone and removing a telephone belonging to
the telephone company. 1 On appeal, Horn claimed that the phone belonged
to him and therefore he could not receive a conviction for the offense. The
court determined that the statutory language "belonging to" demon-
strated ambiguity because Horn rented the phone. 62 Thus, the court gave
meaning to the words most favorable to Horn and reversed the convic-
tion.6

THE PRINCIPAL CASE

In Birr, the Wyoming Supreme Court determined whether consecu-

tive sentences for felony murder and the underlying felony violated the
double jeopardy clauses of the United States and Wyoming Constitu-
tions. 6 The court first examined the application of the double jeopardy
clauses of the fifth amendment and the Wyoming Constitution. 6 Citing
Vigil, the court reiterated that double jeopardy has the same meaning
under both constitutions even though they use different language.66 Cit-
ing Brown,' 7 the court concluded that the double jeopardy clause prohibits
the court from imposing multiple68
punishment for the same offense unless
authorized by the legislature.
The supreme court used three methods to determine if the legislature
intended multiple punishment: the Block burgersame-facts rule, an anal-
ysis of statutory purpose, and an examination of statutory presumptions.
First, the court applied the Blockburger test as a method of comparing
elements of each crime. The court recognized that courts in various juris-

58. WYo. STAT. § 35-7-1031(a) (1977 & Cum. Supp. 1987) states: "Except as authorized
by this act it is unlawful for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance."
59. Carter, 714 P.2d at 1220.
60. 556 P.2d 925 (Wyo. 1976).
61. Id at 926.
62. Id. at 927.
63. Id at 928.
64. Birr, 744 P.2d at 1118.
65. WYo. CONST. art. 1, § 11 provides: "[Nior shall any person be twice put in jeopardy
for the same offense."
66. Birr, 744 P.2d at 1119 (citing Vigi4 563 P.2d at 1350).
67. Brown, 432 U.S. at 165.
68. Birr, 744 P.2d at 1119.

Published by Law Archive of Wyoming Scholarship, 1988 7

 Land & Water Law Review, Vol. 23 [1988], Iss. 2, Art. 17

LAND AND WATER LAW REVIEW Vol. XXIII

dictions have used the Blockburger test as a rule of law. The Birr court,
however, chose to follow Hunter,which employed the Blockburger test
as a tool of statutory interpretation. 9 Previous decisions also revealed
confusion as to whether the Blockburger rule applies to statutory provi-
sions or to the particular facts of the case. In Birr,the trial court applied
the test to the statutes and to the facts of the case. On appeal, the supreme
court upheld that application. 0
Applying Block burger, the trial court examined each statute to deter-
mine if one provision required proof of an additional fact which the other
did not. The trial court reasoned that proof of aggravated robbery, unlike
felony murder, required proof of the infliction of serious bodily injury, or
the use or exhibition of a deadly weapon. The trial court also concluded
that proof of felony murder, unlike aggravated robbery, required proof
of a killing. Applying the Blockburgerrule to the specific facts of the case,
the trial court explained that felony murder required a showing of the Ber-
nards' deaths, and aggravated robbery required a showing of the use of
handguns. The supreme court accepted the trial court's analysis and con-
cluded that the violation of both statutes did not constitute the same
offense under Blockburger.Therefore, the7 court presumed that the legis-
lature intended separate punishment. '
Second, the supreme court looked at the purpose of each statute to
determine legislative intent. The court reasoned that the legislature
created the felony murder statute to relax the prosecutor's burden of proof
when a killing occurs during the commission of a felony. Premeditated
malice is assumed 2by the defendant's willingness to participate in the
unlawful conduct.
The court concluded that the legislature promulgated the felony
murder statute to protect life and to suppress the evil of murder. The court
found that the felony murder statute protected life, while the aggravated
robbery statute protected property. The court relied on Tuggle v. State
to conclude that if the legislature intended to protect different interests,
it also intended separate punishment.
Third, the Birr court noted that felony murder and aggravated rob-
bery are set forth in two separate statutes. To illustrate the significance
of this statutory scheme, the court cited Garrett v. United States." The
GarrettCourt declared that the creation of two distinct offenses raised
a presumption that the legislature intended cumulative punishment.5

69. Id. at 1120.

70. Id. at 1121.
71. Id.
72. Id. (citing Richmond v. State, 554 P.2d 1217 (Wyo. 1976), reh'g denied, 558 P.2d
509 (Wyo. 1977)).
73. Id.
74. Id. at 1122 (citing Garrett v. United States, 471 U.S. 773, 793 (1985)).
75. The United States Supreme Court most recently applied the Blockburger test in
Garrett.In that case, Garrett pleaded guilty and received punishment in the Western Dis-
trict of Washington for importation of marihuana. Two months later in the Northern Dis-
trict of Florida, a court convicted and sentenced Garrett for engaging in a continuing criminal
enterprise (CCE). The sentence for the CCE conviction ran consecutively to the sentence

https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17 8
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

1988 CASENOTES

ANALYSIS

The central focus of Birr is the determination of legislative intent.7 6

Because Wyoming has no legislative history, the court's task is difficult.
By applying the Blockburgertest, and examining the surrounding circum-
stances, a Wyoming court can only presume legislative intent. Legisla-
tive intent establishes the parameters of double jeopardy protection
against the imposition of consecutive sentences for the same offense. Yet,
if the court is unable to ascertain intent, then the court is faced with a
statutory ambiguity. Because the court is not at liberty to guess what
the legislature intended, the ambiguity must be resolved in favor of lenity.
To determine legislative intent, the Birrcourt used the Blockburger
test as a method of statutory interpretation. In his Whalen dissent, Justice
Rehnquist criticized the Blockburger test on the basis that it does not
indicate legislative intent when a court examines a statute containing alter-
native grounds for violation. Justice Rehnquist stated that the result is
purely arbitrary because it depends on how a court chooses to utilize Block-
burger.77 Under the Rehnquist approach, a court may apply Blockburger
in the abstract by looking only to the wording of the felony murder sta-
tute and the statutes defining the alternative felonies. Under this appli-
cation, proof of felony murder does not require proof of any one of the
seven alternative felonies listed in that statute. Conversely, if a court
applies Blockburger to the statutes specified in the indictment, then proof
of felony murder necessarily includes proof of that particular alternative
felony. As an example, a defendant can only commit a killing in the course
of an aggravated robbery by committing aggravated robbery.
Although Justice Rehnquist questioned the validity of the Block-
burgertest, he also argued that the Supreme Court should only apply it
to the statutes in the abstract and not in relation to the indictment.
Rehnquist argued that the statutory language is more indicative of legis-
lative intent than the wording of the indictment. 8 Justice Rehnquist based
his argument on the assumption that a legislature cannot anticipate which
alternative felony will be specified in an indictment.

from the Washington proceeding. A conviction under the CCE statute is based on proof of
three elements in addition to proof of predicate offenses that demonstrate continuing crimi-
nal conduct. Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 848 (1970).
In that case, the CCE conviction partially relied on evidence presented against Garrett in
Washington. Garrett 471 U.S. at 776. Garrett argued that each of the predicate offenses
constituted a lesser included offense and therefore a different prosecution for the greater
offense amounted to double jeopardy. Id. at 778. The Court held that the Blockburger rule
did not control because of clear legislative intent permitting cumulative punishment. Id at
779. Thus, the Court affirmed the punishment. I& at 795.
76. The practical effect of the Birr decision may be inconsequential. Under Wyoming
law, an individual serving a life sentence is not eligible for parole. Wvo. STAT. § 7-13-402(a)
(1977, Rev. 1987) (providing that "The Board may grant a parole to any person imprisoned
in any institution under sentence, except a life sentence .... "). Unless a defendant's life
sentence is commuted, the consecutive sentence for the underlying felony will not affect a
defendant's aggregate punishment. Wvo. CONST. art. 4. § 5 (governor's power to commute
sentences).
77. Whalen, 445 U.S. at 712 (Rehnquist, J., dissenting).
78. Id. at 711 (Rehnquist, J., dissenting.

Published by Law Archive of Wyoming Scholarship, 1988 9

 Land & Water Law Review, Vol. 23 [1988], Iss. 2, Art. 17

LAND AND WATER LAW REVIEW Vol. XXIII

The majority in Whalen examined the indictment to determine which

alternative felony statute established the felony murder conviction. The
Court labeled the charge a "killing in the course of a rape."19 This approach,
adopted by the Whalen majority, allowed the Court to apply Block burger
to the statutory provisions for felony murder and rape. The Whalen major-
ity's approach is preferable because it gives the legislature credit for
anticipating the effect of the statutes it enacted. Every legislature must
understand that the felony murder indictment involves a felony murder
statute and one of the specified alternative felonies. This conclusion is
evident from the fact that the legislature placed particular felonies in the
felony murder statute. Therefore, the analysis used by the Whalen major-
ity leads to a more persuasive determination of legislative intent.
As in Whalen, the Bin- court dealt with two statutory provisions that
applied to one act. The Whalen Court applied the Blockburger test, and
then utilized the greater and lesser included offense analysis.80 Following
the analysis in Whalen, aggravated robbery requires no proof greater than
the proof required for felony murder. The Bin- court correctly determined
that proof of aggravated robbery did not require proof of a killing. The
court erred, however, by concluding that proof of felony murder did not
necessarily include proof of aggravated robbery.8 ' Both convictions
required proof of an intentional infliction or an attempted infliction of seri-
ous bodily injury, or the use or exhibition of a deadly weapon. Further-
more, the premeditation requirement for first degree murder is satisfied
by proof of the underlying felony. Thus, as an example of greater and lesser
included offenses, felony murder and aggravated robbery are the same
offense for the purpose of double jeopardy protection.
Courts may also establish legislative intent by ascertaining the pur-
pose of each statute. The Bin-court stated that the purpose of the felony
murder statute is to deter accidental or negligent killings during the com-
mission of the specified felonies.2 As a result, the prosecutor is relieved
from the burden of proving premeditated malice. This purpose, however,
does not indicate whether the legislature intended the punishment for the
underlying felony to be included within, or in addition to, the punishment
for felony murder.
In addition, the Bin- court examined the purpose of the aggravated
robbery statute. The court stated that because the legislature intended
to suppress different evils, it also intended cumulative punishment. To
support this conclusion, the court compared the interest in life protected
by the felony murder statute and the interest in property protected by
the aggravated robbery statute." The supreme court's analysis, however,
does not clearly demonstrate that the legislature intended consecutive sen-
tences for felony murder and aggravated robbery. The court failed to

79. Id. at 694 n.8.

80. Id at 691-94. The Whalen Court used the greater and lesser included offense anal-
ysis adopted in Brown. Id at 692 (relying on Brown, 432 U.S. at 168).
81. Birr, 744 P.2d at 1121.
82. Id (citing Richmond, 554 P.2d at 1232).
83. Id

https://scholarship.law.uwyo.edu/land_water/vol23/iss2/17 10
 Rankin: Criminal Procedure - Consecutive Sentences for Felony Murder and

1988 CASENOTES

acknowledge that the aggravated robbery statute also protects life. This
protection is evident because aggravated robbery requires proof of at least
a threat of physical harm to a person."
In contrast to aggravated robbery, the language of the kidnapping
statute seems to indicate that a sentence under the felony murder sta-
tute should not run consecutively. The kidnapping statute is the only alter-
native statute that expressly refers to the felony murder statute. It states
that kidnapping is punishable by a minimum of 20 years or a maximum
of life in prison "except as provided in" the felony murder statute.8 This
phrase suggests that the legislature intended alternative, but not addi-
tional punishment when kidnapping is the basis for a felony murder con-
viction. In the aggravated robbery context, the underlying felony does
not go unpunished merely because its punishment is subsumed in the
felony murder sentence. Yet the felony murder statute does not provide
conclusive guidance for either position. Because the felony murder and
aggravated robbery statutes lend no persuasive indication of legislative
intent, statutory ambiguity is properly resolved under the rule of lenity.
In its final statement, the Wyoming Supreme Court held that the legis-
lature is presumed to permit cumulative sentences when two distinct
offenses are created8 Despite the fact that the Wyoming legislature
created separate statutes, it also integrated several offenses in the felony
murder statute. Nevertheless, merely because several statutes are inte-
grated as one does not establish that the legislature intended a single
punishment. As a result, courts are faced with two equally plausible yet
irreconcilable interpretations. These opposing interpretations indicate a
manifestly ambiguous statute. The Birr court presumed legislative intent
from this statutory ambiguity. The ambiguity is correctly settled in the
defendant's favor by applying the rule of lenity.

CONCLUSION

Although the Birr court utilized a standard formulated by the United

States Supreme Court to discern legislative intent, the court's analysis
failed. In its analysis, the court did not conclusively determine legisla-
tive intent. When rules of statutory construction fail to discern legisla-
tive intent, courts must construe those statutes in favor of the defendant.
While such a result is in accordance with United States Supreme Court
standards and the defendant's presumption of innocence, the Wyoming
Supreme Court ignored this well established principle. By neglecting to
apply the statutory rule of construction in favor of lenity, the court sub-
jected Birr to consecutive sentences in violation of the double jeopardy
clause.
MICHAEL S. RANKIN

84. WYo. STAT. § 6-2-401(c) (1977, Rev. 1983) (stated in full, supra note 6).
85. WYo. STAT. § 6-2-201(d) (1977, Rev. 1983) states: "[K~idnapping is a felony punish-
able by imprisonment for not less than twenty (20) years or for life except as provided in
W.S. 6-2-101."
86. Bin, 744 P.2d at 1122 (citing Garrett, 471 U.S. at 793).

Published by Law Archive of Wyoming Scholarship, 1988 11