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Duffy v. State3/21/1990
ced the court that the elements of the charged offenses were different and that each statute was intended to address a separate evil. In that case, we reversed a conviction for first degree murder, but affirmed a conviction for killing an unborn child by assault and battery on a pregnant woman. The evidence showed that both of the convictions were premised upon the same conduct, a single gunshot wound to the mother. The case then was retried, and Goodman was found guilty of manslaughter of the mother. Upon appeal, we concluded that the legislature intended to impose separate punishments for each offense, and Goodman's argument that he had been twice placed in jeopardy for the same offense was not acceptable. Goodman, 601 P.2d 178.
In Birr, the court dealt with the question of whether a conviction of felony murder and the underlying felony, aggravated robbery, could be punished separately. To determine the question of legislative intent, the court looked to the language of each statute and applied the Blockburger test. The court then considered the purpose of each statute, identifying the gravamen of the offense and the evil intended to be addressed, and it also looked at the placement of the two statutes and the penalty provided to determine if both offenses contained separate penalty provisions. See also Lauthern; Schultz. This inquiry is no different from that in any other instance in which the court is involved in statutory construction, see Schultz, except that the rule of lenity does require the resolution of any ambiguity in favor of the defendant. Ladner. Our approach is like that used in the federal system to discern congressional intent, although the relevant legislative history is more available in the federal context. In Wyoming, we have little legislative history to be of assistance. Nowack; Lauthern. See Garrett; Ball; Hunter.
Properly applied, the test of Blockburger examines the legislative definition without considering the facts. Garrett; Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975).
"* * * The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
This rule is simply a rule of statutory construction and should not be afforded preeminence over other rules. Furthermore, it should not be invoked when it leads to a conclusion that is inconsistent with legislative intent. Schultz; Garrett.
Legislative intent first is expressed in the language of the statute, and it can be presumed that, when two statutes contain different elements, they were intended to address different offenses. Ball; United States v. Stafford, 831 F.2d 1479 (9th Cir. 1987). The statutory language also will indicate if different evils were intended to be addressed. Garrett. Defining the offenses in different statutes with separate penalties structures a presumption that the legislature intended separate punishments under each statute. Birr; United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985).
When these principles are applied to this case, the conclusion must be that Duffy was not placed in double jeopardy by the two convictions. Any overt act by one of the other conspirators was sufficient to complete the crime of conspiracy to commit the bu
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