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Duffy v. State3/21/1990
The second problem defined in the Survey of Developments in North Carolina Law, 1986, 65 N.C.L.Rev. 1121, 1286-87 (1987) (footnotes omitted) is that in entangling courts
"in this Sargasso Sea," the Hunter rule effectively gives them a great deal more discretion by allowing the courts to derive the formulas for themselves. A court can, for example, stress a particular factor or look closely at one aspect of the legislative history to reach and buttress its conclusion. There is also much more room for speculation regarding the intent of the legislature now that the courts have no mechanical test to apply. Most significant of all, the decision of a state supreme court on this topic is virtually unreviewable. * * *
A third practical problem is that the rule increases prosecutorial discretion. When the legislature proscribes a certain act in several statutes and permits multiple punishment, the prosecutor gains a great deal of leverage in the plea bargaining process. If five convictions are possible instead of one, it is much easier for a prosecutor to bargain with a defendant by agreeing to drop one or more of the counts brought against the defendant. Because plea bargaining plays such an important role in criminal law, it is possible that prosecutors will want to use this leverage to help secure deals more advantageous to the State. Thus, the Hunter rule encourages prosecutors to bring more charges than they intend to prosecute in order to gain a better bargaining position.
In the context of the proper responsibility of the United States Supreme Court to develop the law for future heritage, we fall error to the admonition of Justice Jackson in Krulewitch, 336 U.S. 440, 69 S.Ct. 716, of the temptation to sustain conviction as a goal in itself and to forego protecting constitutional rights.
Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), even in United States constitutional terms, may weave a wavy bright line for its purposes, but I also consider the heritage of the justice delivery system in Wyoming not circumscribed by the United States Supreme Court in voicing its perspective of the United States Constitution. First, it should be noted that Hunter is different. There, the state court found a legislative intent for cumulative punishment which is totally absent here. Otherwise, we reach that supposition by top dressing an uncluttered fact with a presumed intent by Blockburger presumption or otherwise.
F. In addressing the constitutional protection against double jeopardy, we need to recognize that two constitutions are involved. The federal double jeopardy clause need not be interpreted identically with our state double jeopardy clause since the state clause was adopted nearly a century later than the United States Constitution.
I find meaning in Professor Keiter's observation that " uring the Wyoming Constitutional Convention debates there were only two references to United States Supreme Court decisions." Keiter, An Essay on Wyoming Constitutional Interpretation, XXI Land & Water L.Rev. 527, 543 n. 88 (1986).
Professor Keiter also recognizes:
For several reasons, however, the state courts have wisely begun to re-examine their practice of incorporating federal constitutional doctrine into their own jurisprudence. * * *
The historical circumstances surrounding adoption of the United States Constitution are not remotely similar to the historical circumstances surrounding adoption of many states' constitutions, particularly those like Wyoming that were adopted long after the colonial era had ended. It therefore makes no sense to incorporate an int
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