The defendants, Ronald G. Wikberg and Jackie F. Craven, were indicted for the murder of one Stanley Melancon. La.R.S. 14:30. Mr. Melancon was shot to death during an attempted armed robbery of his store in Lafayette on September 17, 1969. Defendant Craven was tried and convicted of murder on January 9, 1970. He was sentenced to death, which sentence was later commuted to life imprisonment. Defendant Wikberg entered a plea of guilty without capital punishment to the crime of murder, and was sentenced to life imprisonment.
Both defendants entered pleas of guilty to charges of attempted armed robbery arising out of the same incident. La.R.S. 14:64 and La.R.S. 14:27. Each was sentenced to be imprisoned for twenty-five (25) years on the attempted armed robbery charge, with those sentences to run consecutively with their life sentences for murder.
The statement of facts of the District Attorney, introduced into evidence by counsel for the defendants at the evidentiary hearing on this writ application in the district court indicates the following:
The defendants entered the store of the decedent and attempted to rob him of his money. Both defendants were armed. The decedent resisted the attempt to rob him and drew his own weapon, whereupon a gunfight ensued. During the gunfight, the decedent was fatally wounded. Ballistics examination revealed that the fatal shot was fired from the gun of the defendant, Wikberg.
In response to an application for a bill of particulars, the state indicated that both defendants were being prosecuted under the "felony murder" provision of La.R.S.
"Murder is the killing of a human being:
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We granted writs, 281 So.2d 750, to consider whether the conviction of these defendants for attempted armed robbery following their convictions for murder arising out of the same incident constitutes a violation of the prohibition against former jeopardy found in both the Louisiana and United States Constitutions.
The Fifth Amendment to the United States Constitution provides, in pertinent part:
Article I, Section 9 of the Louisiana Constitution likewise provides:
The Federal double jeopardy guarantee has been held applicable to state prosecutions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This application is fully retroactive. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The scope of the federal constitutional guarantee is elaborated in North Carolina v. Pearce, supra, wherein it was stated:
The Louisiana Code of Criminal Procedure defines double jeopardy in Article 591, which states:
The elusive concept of what constitutes "the same offense" for determination of whether the prohibition against double jeopardy has been violated has led to multiple judicially-created tests as well as legislative enactments. Our statutory double jeopardy requirements do not attempt to define with precision what is meant by the term "offense".
These sources have extensively examined the history of the double jeopardy prohibition and the various tests used to implement it throughout our legal history, and no purpose would be served in embarking upon such a lengthy discussion here. Suffice it to say that none of the various tests has received universal acceptance.
Counsel for relators cites us to both the "same evidence" test and the "same transaction" test in support of defendants' claim that they have been twice placed in jeopardy.
The "same transaction" test was first enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, it was stated:
While this test has been applied by many state and federal courts, it was not applied by a majority of the members of the United States Supreme Court in the recent case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), despite its strong advocation by three members of that Court in a concurring opinion. 397 U.S. at 448, 90 S.Ct. at 1196. Nor has it been adopted by this Court, State v. Didier, supra. It has, however, been applied by the United States District Court for the Western District of Louisiana vacating a sentence previously upheld by a majority of the members of this Court. See Colle v. Henderson, 350 F.Supp. 1010 (W.D.La. 1972). Cf. State ex rel. Colle v. Henderson, 262 La. 1172, 266 So.2d 449 (1972).
In actuality, the "same transaction" test as applied does not very extensively from the variation of the "same evidence" test traditionally applied in Louisiana. That test holds that offenses are "the same" if the elements required to support a conviction upon one of the offenses would have been sufficient to warrant a conviction upon another.
Applying this test to the facts of the case before us, we conclude that to convict the defendants for attempted armed robbery following their conviction for felony-murder arising out of the same incident violates the prohibition against double jeopardy. This holding is required because of the nature of our felony-murder doctrine. In a prosecution under paragraph two (2) of La.R.S. 14:30, the state is relieved of proving intent to kill or inflict great bodily harm. This, in effect, deprives the defendant of several defenses which would be available in a prosecution for intentional murder. For example, a plea of accident, mistake and probably even self defense, is unavailing under the felony murder doctrine. The only requirements for conviction are the commission or attempted commission of the enumerated felony, and a resulting death. See, e. g., State v. Ghoram, 290 So.2d 850, La. decided Feb. 18, 1974.
It is therefore clear that, by definition, conduct which would not constitute the crime of murder under the first paragraph of R.S. 14:30 is punished as murder under the second paragraph of that statute. As a result, a defendant convicted of felony-murder is in fact being punished for the felony which he was perpetrating when the death occurred. He is "in jeopardy" (i. e., exposed to punishment) for the offense in the murder trial since conduct which at worst would render him guilty of manslaughter, and which at best might be noncriminal is punished as murder due to the existence of the enumerated felony.
Of course, an essential element of the state's proof of felony-murder is the commission or attempted perpetration of the enumerated felony. The enumerated felony is therefore a different grade of the same offense (or an included offense) for double jeopardy purposes. See C.Cr.P. Art. 596.
In most cases, the lesser grade or included offense is generically the same as the more severe crime charge, e. g., armed robbery and theft. In the case of felony-murder and felony-manslaughter, however, generically different offenses such as armed robbery and murder are combined into a single offense through a legal fiction, which fiction relieves the state of proving intent to kill or inflict great bodily harm. This difference may account for some of the confusion in the jurisprudence dealing with felony-murder and double jeopardy.
The district court and the state in brief both rely heavily on the decision of this Court in State v. Calvo, 240 La. 75, 121 So.2d 244 (1960), cert. denied, 364 U.S. 882, 81 S.Ct. 170, 5 L.Ed.2d 103. That reliance is misplaced.
Calvo also involved a prosecution under the felony murder statute. The defendants were tried and acquitted for a robbery-murder. They were then brought to trial on charges of simple robbery and conspiracy to commit simple robbery. Pleas of former jeopardy were entered and sustained by the trial judge and the State appealed. This Court reversed, holding essentially that since simple robbery and conspiracy to commit simple robbery were not responsive verdicts to a charge of murder, the defendants were never in jeopardy for the robbery charges in their murder trial.
It has already been pointed out that the penalties for felony-murder do take into account the commission of the enumerated felony, and therefore the defendant is "in jeopardy" (insofar as punishment is concerned) for the felony when tried for felony murder. Two additional factors also render Calvo inapplicable to the case at bar.
First, if Calvo were tried today, the opposite result would have to be reached due
Furthermore, the rationale of the Calvo case, i. e., that the defendants were not in jeopardy for robbery in their felony-murder prosecution because robbery was not a responsive verdict to the crime of murder, has been rejected by our legislature.
Calvo was decided prior to the adoption of the new Code of Criminal Procedure in 1966. The comparable statutory provision to the present Article 596 of the Code of Criminal Procedure was contained in La. R.S. 15:279, which provided:
Interpreting this statutory language, the Court concluded:
The Court then concluded that since responsive verdicts of guilty of simple robbery and guilty of conspiracy to commit simple robbery were not available in the defendant's trial for murder, the defendants had never been in jeopardy on these charges.
Perhaps in response to this Court's opinion in Calvo, the Legislature specifically rejected the responsive verdict requirement in adopting the new Code of Criminal Procedure. Art. 596 of our present Code provides:
The Official Revision Comment to that article makes it clear that the language emphasized was designed to broaden the protections afforded by our statutory double jeopardy prohibition by eliminating the responsive verdict requirement.
For the reasons assigned, the writs of habeas corpus issued herein are made absolute, and the convictions and sentences of Ronald G. Wikberg and Jackie F. Craven for the crime of attempted armed robbery are reversed and vacated. The relators are remanded to the custody of the Louisiana Department of Corrections to serve their sentences for murder.
SANDERS, C. J., dissents and assigns written reasons.
SUMMERS, J., dissents and assigns reasons.
MARCUS, J., dissents and assigns reasons.
SANDERS, Chief Justice (dissenting).
On September 17, 1969, Ronald Gene Wikberg and Jackie F. Craven, the relators, armed with pistols, entered the Melancon Grocery in Lafayette, Louisiana. Craven pointed his pistol at Stanley Melancon and demanded his money. A gun battle ensued in which Melancon was killed. Wikberg was arrested a few minutes later. Craven was arrested the next day.
After trial, Craven was convicted of murder. Wikberg entered a plea of guilty without capital punishment.
Later, both defendants pleaded guilty to attempted armed robbery.
Today, the majority sets aside the conviction of attempted armed robbery, on the ground that the relators were in jeopardy for attempted armed robbery in the murder prosecution. Hence, the separate prosecution for armed robbery was double jeopardy, requiring the attempted armed robbery convictions be set aside. I disagree.
Both the United States Constitution and the Louisiana Constitution provide that no person shall be put in jeopardy twice "for the same offense." Fifth Amendment of the United States Constitution; Article I, Section 9 of the Louisiana Constitution of 1921. Thus, the guarantee protects a person, who has been convicted, from a second prosecution for the same offense.
The majority assumes that the initial prosecution and conviction here were based solely on the felony-murder doctrine, that is, a homicide committed while the defendant was engaged in the perpetration of an armed robbery. This assumption is apparently based upon the State's answer to a motion for a bill of particulars by Ronald G. Wikberg, in which the State responded as follows:
I find nothing in this answer restricting the prosecution to the murder-felony doctrine. See R.S. 14:30(2). On the contrary, the answer indicates that the prosecution was under both sections of the murder article. See State v. Rowan, 233 La. 284, 96 So.2d 569 (1957). We, of course, do not know on what basis the jury convicted the defendants.
Assuming, however, that the murder-felony doctrine was one of State's theories in the prosecution, it does not follow that the attempted armed robbery and the murder were the same offense.
In State v. Calvo, 240 La. 75, 121 So.2d 244, cert. den., 364 U.S. 882, 81 S.Ct. 170, 5 L.Ed.2d 103 (1960), this Court held that a prior prosecution for felony-murder did not bar a subsequent trial for simple robbery.
The Court reasoned:
More recently, in State v. Didier, 262 La. 364, 263 So.2d 322 (1972), we approved the basic holding of State v. Calvo in the following language:
"In State v. Calvo we also noted that, `To justify a plea of [double] jeopardy the two offenses must be the same in both law and fact.' 121 So.2d 250. A similar test is set forth by us in State v. Comeaux, 249 La. 914, 192 So.2d 122, wherein we likewise rejected a plea of double jeopardy as to a subsequent prosecution arising out of the same factual incident."
It is true that The United States Supreme Court has adopted the doctrine of collateral estoppel since the Calvo decision. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The present case, however, does not involve collateral estoppel.
It is also true that Article 596 of the Louisiana Code of Criminal Procedure has eliminated the responsive verdict requirement for double jeopardy. The basic holding of State v. Calvo, however, that robbery and felony-murder are not the same offense for purposes of double jeopardy is unaffected.
In State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963), the Supreme Court of Idaho, exhaustively reviewing the jurisprudence throughout the country, held that a conviction
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As a basis for setting aside the convictions, the majority has adopted the "same transaction" test. This test has been widely criticized, because any sequence of conduct can be characterized as one transaction. Transaction is an amorphous concept. See Comment, 75 Yale L.J. 262, 276 (1965); Comment, 32 La.L.Rev. 87, 92 (1971). This Court has expressly rejected the test. See State v. Calvo, supra; State v. Roberts, 170 La. 727, 129 So. 144 (1930); State v. Montcrieffe, 165 La. 296, 115 So. 493 (1928); State v. Hill, 122 La. 711, 48 So. 160 (1909); State v. Barrett, 121 La. 1058, 46 So. 1016 (1908). Minnesota, on the other hand, adopted the test but later abandoned it as unworkable. See State v. Fredlund, 200 Minn. 44, 273 N.W. 353 (1937).
In the present case, no better test can be found than that set forth in the federal and state constitutions: Are the criminal offenses the same? Are they identical? See LSA-C.Cr.P. Art. 596; State v. Roberts, supra; State v. Foster, 156 La. 891, 101 So. 255 (1924). When this test is realistically applied, the answer must be in the negative.
I would uphold the convictions.
For the reasons assigned, I respectfully dissent.
SUMMERS, Justice (dissenting).
Apparently applying the "same evidence" test traditionally applied in Louisiana, the majority sets aside these pleas of guilty of attempted armed robbery. In its conclusion the majority announces that to convict the defendants for attempted armed robbery following their conviction for felony-murder arising out of the "same incident" violates the prohibition against double jeopardy.
There is no substantial identity between these two charges. The evidence necessary to support the charge of attempted armed robbery would not be sufficient to support the charge of murder—murder requires a killing, attempted armed robbery does not. State v. Roberts, 152 La. 283, 93 So. 95 (1922). The two offenses are not the same in fact; nor are they the same in law. U.S.Const. 5th Amend.; La.Const. Art. I, § 9; La.Code Crim.Proc. art. 814-815; La.R.S. 14:27, 14:30, 14:64.
The "same evidence" test requires that the evidence necessary to support the second indictment would have been sufficient for the first. State v. Roberts, supra. In the instant case this test is not met. For the foregoing reasons and for the reasons assigned by the Chief Justice in his dissent, double jeopardy is not satisfied here.
However, even if the test for double jeopardy were satisfied, in my opinion it may not be urged after a plea of guilty.
It is now well settled by all authority that when a person knowingly and voluntarily pleads guilty, the plea is a waiver of all defenses except jurisdictional defects patent on the face of the record. Brady v. United States, supra; State v. Valentine, 259 La. 1019, 254 So.2d 450 (1971) and the many cases cited there, together with the many cases decided by the federal courts and this Court cited in West's La.Digest.
So an accused waives his right to claim double jeopardy by pleading guilty. United States v. Hoyland, 264 F.2d 346 (7th Cir. 1959), cert. denied, 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83 rehearing denied, 361 U.S. 904, 80 S.Ct. 212, 4 L.Ed.2d 159; People v. Lynch, 40 A.D.2d 856, 337 N.Y.S.2d 763 (1972); Hightower v. Hand, 186 Kan. 377, 350 P.2d 31 (1960); Norwood v. State, 3 Ga.App. 325, 59 S.E. 828 (1907); Barnett v. Gladden, supra. This result is based upon the rationale that where the defendant in a criminal action pleads double jeopardy an issue of fact arises. But where the defendant enters a plea of guilty, no issue of fact can arise, since by pleading that he is guilty of the crime charged defendant admits every fact in the indictment.
Thus, ". . . by a plea of guilty, all averments of fact are admitted, all defects not jurisdictional are cured, all defenses are waived and the prosecution is relieved from the duty of proving any facts." Berg v. United States, supra; 22 C.J.S. Criminal Law § 277. In Smith v. Cox, 435 F.2d 453 (4th Cir. 1970) the proposition was stated as follows:
For these reasons the defense of double jeopardy is not jurisdictional. People v. Barry, 153 Cal.App.2d 193, 314 P.2d 531 (1957), cert. denied, 355 U.S. 956, 78 S.Ct. 542, 2 L.Ed.2d 532.
While Article 362(6) of the Code of Criminal Procedure prescribes that if a person in custody is being held by virtue of a court order, he shall be discharged if "He is in custody by virtue of a sentence for an offense for which he could have successfully pleaded double jeopardy and failed to do so;" it is not the intention of this article to do more than approve habeas corpus as a vehicle for asserting the right to double jeopardy. The right to raise that defense by habeas corpus was not established prior to the enactment of Article 362(6). State v. Klock, 45 La.Ann. 316, 12 So. 307 (1893); 3 Wharton, Criminal Procedure ¶ 2235 (1957). The article does not purport to say that once the right to double jeopardy has been waived by a guilty plea or otherwise, it may be again asserted by habeas corpus in a post conviction remedy. To the contrary, as the Comment to the article makes clear:
Thus, because the authorities hold that a plea of res judicata is waived by a plea of guilty, it cannot be asserted at this time.
I respectfully dissent.
MARCUS, Justice (dissenting).
I do not consider that defendants were in jeopardy for attempted armed robbery in the prosecution for murder under R.S. 14:30. Accordingly, I respectfully dissent.