Deja vu all over again
That was reputedly Yogi Berra's comment on seeing Roger Maris and Mickey Mantle hit back-to-back homers, and it fits the Ohio Supreme Court's latest foray into allied offenses. The court took another shot at it again last week, and there's serious concern we could be deja vu-ing our way all the way back to State v. Rance.
The case was State v. Williams, and it presented a simple factual situation and legal question. Williams had gotten into an argument in a dice game, pulled a gun, and shot the victim twice, paralyzing him. The question raised was the correctness of the 8th District's holding that the conviction for felonious assault merged with the conviction for attempted murder.
The argument last week played out against the background of the 1999 decision in State v. Rance, in which the court held that allied offense analysis requires a two-step process, the first of which is that the elements of the two crimes have to be examined in the abstract. Nine years later, in State v. Cabrales, the court acknowledged that Rance had led to "unreasonable and absurd" results. That, at least as the court saw it, was the fault not of the decision but of the appellate courts which were called upon to interpret it. Ever helpful, the court in Cabrales clarified Rance by explaining that it didn't call for an exact comparison of the elements.
But while "not exactly" may be a good advertising slogan for a car rental company, it doesn't serve very well as a beacon for judicial interpretation. The court's devoted three more major decisions to clarifying Cabrales' clarification of Rance, including State v. Winn, a 4-3 decision holding that kidnapping and robbery were allied offenses, over the agonized protests of the dissenters that the majority had rewritten Cabrales so that, instead of requiring that a comparison of the elements show that one crime necessarily resulted in the commission of another, now all that was required was that one crime probably results in the commission of the other.
So what happened in Williams' argument? The prosecutor, of course, argued that one could commit felonious assault without committing attempted murder, and vice versa, which is as true as it is irrelevant.
Here's the problem: the closest the court ever came to offering a logical basis for the "abstract element comparison" was this line from Rance: "we believe that comparison of the statutory elements in the abstract is the more functional test, producing clear legal lines capable of application in particular cases." What has followed is what is known in scientific circles as "falsification by data": if you make a holding on the sole basis that it will lead to clarity of application, and nine years later you're writing an opinion about how the holding has led to "inconsistent, unreasonable, and, at times, absurd results," maybe it's time to conclude that the sole basis for the holding doesn't stand up.
So what to do? One suggestion offered by Justice Pfeifer was the same I made in my preview of the oral argument in Williams a month ago: simply have the Supreme Court rule on every possible combination of offenses, so that courts have unquestioned guidance on which offenses are allied and which are not. (Presumably, his tongue was placed as firmly in cheek as mine was.) A much better one was presented in oral argument by Williams' attorney, John Martin of the Cuyahoga County PD's office, who argued that the focus should be on the conduct: if the harm flows from a single act, then any offenses which might be charged for that conduct are allied.
In fact, this argument gets us very close to where we want to be: the logical underpinning for the entire allied offense analysis. That underpinning is legislative intent. As virtually every decision on allied offenses recognizes, the concept is compelled by the Double Jeopardy Clause's prohibition of multiple punishments for the same offense. The courts have also consistently held that the Clause isn't violated if the legislature intended to impose multiple punishments.
Well, what does a legislature intend when it writes a criminal code? Obviously, it intends to criminalize certain conduct, and the penalties for that conduct should logically increase in proportion to the harm inflicted on society. Taking something from someone is wrong, but the actual or potential harm is greater if you beat the person or threaten him with a gun in order to take it. That fits in with Martin's argument, but also with the court's treatment of allied offenses in State v. Brown. Brown had stabbed a person, and was convicted of two counts of aggravated assault, one for serious physical harm and one for deadly weapon. The court (case discussed here) decided that the legislature intended to penalize only a single act, despite defining different ways in which that act could be committed.
The same analysis, on a larger scale, applies here. Chapter 2903 defines a host of crimes against the person, running from simple assault to aggravated murder. The legislative purpose is easily determined: as the harm increases in severity, so does the offense and its penalty. We punish people more severely for attempted murder than for felonious assault because the former causes greater harm, real or potential, than the latter. We don't punish for both, because that would result in the "shotgun conviction" approach that all the allied offenses cases reject.
Whether a new and better approach will emerge is open to question. The argument veered into a debate over the prosecutor's contention that two counts of attempted murder (or felonious assault) could be supported by the fact that the defendant fired two shots. Martin effectively countered that by noting its acceptance would support a count of felonious assault for each punch thrown in a bar fight.
It's clear that a number of members of the court are dissatisfied with the Rance test and with Cabrales' futile effort to clarify it. What we'll find out is whether that number equals four.
Comments