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Duffy v. State3/21/1990
ds for his use to escape in Colorado. It is out of that transaction that potential separate trial charges raise the following double jeopardy questions:
1. Conspiracy to commit and aiding and abetting in the commission;
2. Conspiracy to commit and commission of the principal offense;
3. Aiding and abetting one and conspiracy to commit the other (the charge actually made);
4. Aiding and abetting both; and
5. Conspiracy to commit both.
Without including the actual commission of the offense in the computation, an interesting number of combinations as chargeable offenses can be extrapolated as well as the contention that at least four separate sentence-prone offenses could be charged for the one activity, e.g., aiding and abetting and conspiracy to commit burglary and aiding and abetting and conspiracy to commit armed robbery. Since the occurrence was further complicated by the principal perpetrator's plea of guilty to kidnapping, a further aiding and abetting charge to that sequential occurrence could also be piled on.
B. My principal objection to the majority decision is in its inattention to the substantive characteristics of duplicity, double jeopardy and merger. I do not agree with this court's present decision and continue to find improvident the direction previously initiated by State v. Carter, 714 P.2d 1217 (Wyo. 1986) and continued by the lesser included offense division of Birr v. State, 744 P.2d 1117 (Wyo. 1987). My concern comes from present discussion of this majority in attempting to reconcile the transactional test brought to bear by Justice Blume in State v. Tobin, 31 Wyo. 355, 226 P. 681 (1924), which continued until abruptly terminated by decision of this court in Carter, 714 P.2d 1217 to change to the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) presumed legislative intent test of separate evidence for each incident. Since Carter, 714 P.2d 1217, we have had a parade of complications in multiplied penalties for a single transaction. I have come to accept the fact that Wyoming, like most but surely not all states, has adopted this improvident pathway, see Schultz v. State, 751 P.2d 367 (Wyo. 1988), but still reject the character of conduct to which dual criminal assessments are only wordsmanship to escape the limitations provided by both the Wyoming and United States Constitutions. People v. White, 41 Mich. App. 370, 200 N.W.2d 326 (1972), aff'd, 390 Mich. 245, 212 N.W.2d 222 (1973); Ashinsky v. State, 780 P.2d 201 (Okla. Cr. 1989).
In considering the morass of cases involving merger, multiplicity and double jeopardy infected by multiplied criminal statutes and nurtured by an accelerating habit of multiple charges, first reference should be made to the fundamental American case of Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 171, 21 L.Ed. 872 (1873) (quoting The Commonwealth v. Olds, 5 Littell 137), where that court, after a comprehensive review of the history and essence of the constitutional protection against double jeopardy, repeated:
" hat every person acquainted with the history of governments must know that state trials have been employed as a formidable engine in the hands of a dominant administration. . . . To prevent this mischief the ancient common law, and well as Magna Charta itself, provided that one acquittal or conviction should satisfy the law; or, in other words, that the accused should always have the right secured to him of availing himself of the pleas of autrefois acquit and autrefois convict. To perpetuate this wise rule, so favorable and necessary to the liberty of the citizen in a government l
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