Allied offenses and "societal" interests
There's not too much question that Fred Johnson is a bad guy: when giving a reading lesson to his girlfriend's seven-year-old son, he took umbrage that the boy couldn't pronounce "family," and beat him to death. He was acquitted of the aggravated murder charge, but was convicted of felonious assault, two counts of felony murder, and three counts of child endangering.
And that's where the fun started. One count of felony murder was based on the felonious assault, the other on one of the child endangering counts. The trial judge merged the felonious assault and the one murder count, but sentenced him on each of the felony murder counts, albeit concurrently. But he didn't merge the felony murder and the underlying child endangering count, and ordered all three of the latter counts to be served consecutively. The 1st District concluded correctly that the two felony murders should have merged, and that the two child endangering counts which didn't underly the felony murder count didn't. But it also held that the felony murder based on child endangering didn't merge with the underlying count of child endangering, and that's why everybody got together before the Supreme Court a couple of weeks ago to argue it out.
As the argument unfolded, the problem seemed to be the court's language in State v. Brown. In Brown (discussed here), the court reviewed an 8th District decision upholding separate convictions for aggravated assault, one under the "causing serious physical harm" subsection and the other under the "deadly weapon" subsection. The court reversed, holding that resort to the two-tiered test for allied offenses espoused in State v. Rance and its prodigy is unnecessary "when the legislature's intent is clear from the language of the statute," and here it was: while the statute defined two different forms of the offense, as the 1st District put it in Johnson, quoting Brown, "in each. . . the legislature manifested its intent to serve the same [societal] interest--preventing physical harm to persons.'" The 1st then concluded that the felony murder and child endangering statutes each "protect different societal interests," and decided they didn't merge. And, as both lawyers pointed out last week, this isn't an anomaly: a number of other appellate courts have used the "societal interest" test in refusing to merge offenses.
But there's some sleight of hand at play here. Notice that the "societal" part of the Brown test is the appellate courts' creation; Brown doesn't use that term. It's one thing to say that a particular statute -- aggravated assault, in Brown's instance -- evinces a legislative intent to address a singular interest: crimes which involve the actuality or threat of physical harm more serious than that occasioned by simple assault, when the actor is provoked. It's another thing to conjure up a whole scheme of "societal" interests supposedly protected by the entire swath of criminal statutes.
The prosecutor began his presentation by suggesting that the debate centered over competing interests: on the one hand holding the defendant accountable for the crimes he had committed, and on the other developing a "bright line" test to make the allied offense analysis more manageable. The theory might be correct, but in this case it's really a Hobson's choice, because Rance is anything but a bright line; as the court admitted in State v. Cabrales, Rance has led to "inconsistent, unreasonable, and, at times, absurd results." The court still clings to the belief that Cabrales' "clarification" of Rance staunched the bleeding, but it doesn't: replacing a "compare the elements in the abstract and see if they match" with "compare the elements in the abstract and see if they match, but they don't have to match exactly" isn't terribly instructive.
The prosecutor was on more solid ground when he noted that the allied offense statute itself begins with the phrase, "when the defendant's conduct," thus evincing the intent that conduct be the touchstone of the analysis. As did his colleague a year ago in the oral argument in State v. Harris (discussed here), he urged the court to abandon Rance and go back to the test laid out in Newark v. Vazirani, in which a judge would compare the offenses to see if one necessarily resulted in the commission of the other under the facts of the case.
Whether four votes can be cobbled together to overrule Rance is another matter. Don't misunderstand, I don't think there's any likelihood of Johnson being affirmed; not even the prosecutor mounted much defense of the decision. But there are a number of ways to reverse Johnson without overruling Rance, the most likely of which is some clarification of Brown, probably in holding that whatever "interest" test it articulated, societal or otherwise, that's only addressed when you're dealing with different subsections of the same offense.
And so the impending decision in Johnson will produce a clarification of Brown, which clarified Cabrales, which clarified Rance. And in a year or two we'll have a clarification of Johnson. Johnson's lawyer, who was apparently making her first argument before the Supreme Court, and did a fine job of it, told the court that in preparation she'd watched a number of other arguments and that "it seems like you have a number of these [allied offense] cases." Yes, and it must have seemed to Custer at the Little Bighorn that there were a helluva lot of Indians, too.