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Duffy v. State3/21/1990
offenses in separate proceedings if one was a lesser included offense of the other. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Brown, 432 U.S. 161 [97 S.Ct. 2221]. The thrust of these later opinions is that a defendant cannot be subjected to multiple trials for those included and greater offenses even though the offenses are supported by different evidence. The rule of these cases is that no different result is obtained by trying a lesser included offense separately from the greater offense than would ensue if they were tried together.
Unfortunately, the majority decision neither establishes what constitutes the lesser included offense nor explains why the burglary in this case fails to fit. The same problem exists where Birr, 744 P.2d 1117 does not fit with Garcia, 774 P.2d 623 and Schultz, 751 P.2d 367. See Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987); Reed v. State, 778 S.W.2d 313 (Mo. App. 1989) and State v. Tesack, 383 S.E.2d 54 (W. Va. 1989). See generally on lesser included offense, State v. Jeffries, 430 N.W.2d 728 (Iowa 1988); Corbin, 74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714; Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am.Crim.L.Rev. 445 (1984); and Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L.Rev. 191 (1984).
What we now do was decried by Justice Jackson in special concurrence in Krulewitch v. United States, 336 U.S. 440, 457, 69 S.Ct. 716, 725, 93 L.Ed. 790 (1949):
There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.
Excluding this case with its particularly egregious penal sentence, the factor most recognized in posturing for position in multiplicity crime charge filings is prosecutorial leverage where an adequately extended sentence is normally not a concern in Wyoming within the broad discretion and indeterminate sentence structure provided by the legislature. By this case, the third trip out into the "Sargasso Sea," Carter, 714 P.2d 1217, Urbigkit, J., dissenting; Birr, 744 P.2d 1117, Urbigkit, J., dissenting, we achieve only a misshapen state constitutional instrument adopted by creating practical problems which are reflected in the thousands of recent criminal cases addressing multiplied criminal responsibility by severable charges.
First, we invoke a legislative intent in each decision without practical factual bases to what was the intent. No coherent framework for analysis is provided as witnessed by Birr as the lesser included offense was added in felony murder compared to Schultz and Garcia where a separately distinguishable offense was adopted for the justified dual sentence, even though in all three cases, it didn't make a particle of difference except for an editorial comment since effective control of the time to be spent for each of the convicted individuals was vested in the governor's office within whose power neither the legislature nor the court can trespass.
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