Cook v. State , 1992 Wyo. LEXIS 164 ( 1992 )

CARDINE, Justice.

After pleas of guilty to felony murder, aggravated robbery and conspiracy to commit aggravated robbery, appellants each were sentenced to terms of life, 20 to 25 years, and 20 to 25 years, the sentences to run consecutively. They appeal now presenting the central issue of whether the sentencing court could lawfully impose a sentence for felony murder and a separate sentence for the underlying felony, in this case aggravated robbery. Birr v. State, 744 P.2d 1117 (Wyo.1987), cert. denied 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990), answered that separate punishments were authorized; and, therefore, courts imposing such sentences would not violate constitutional double jeopardy provisions. Acknowledging the legal doctrine of stare decisis, appellants, nevertheless, request a reexamination of that decision.

We reverse the multiple punishments imposed and overrule Birr.

Appellants confine their consolidated appeal to a single issue:

I. Did the consecutive sentences imposed for felony murder and the underlying felony violate the double jeopardy clauses of the United States and the Wyoming Constitutions?

I

FACTS

Armed with a twenty-gauge shotgun, Richard A. Dowdell (a/k/a Thomas R. Cook) (hereinafter Cook) and Paul J. Peterson (hereinafter Peterson) planned a robbery and scouted a number of service stations and businesses in Greybull, Wyoming on July 26, 1990. When the pair drove their black van into the Gasamat, they saw Darrel- Hanson (Hanson), the 69-year-old manager, working alone. While Cook pried the cash drawer open, Peterson hit Hanson over the head two times with the barrel of a sawed-off shotgun. After stealing approximately $360.00 in cash and some cigarettes, Cook returned to the van and saw Hanson attempting to get up from the station floor. Cook told Peterson, who was on his way out of the station, to shoot Hanson. Peterson complied, killing Hanson with a shotgun blast to his neck. A local resident driving by the Gasamat the evening of the robbery noticed a black van speeding away from the station. Law enforcement authorities across the State were notified of the van’s description.

The next day, a Wyoming highway patrol officer spotted Cook and Peterson driving their black van across southwestern Wyoming’s Interstate 80. After being spotted, Cook and Peterson led officers on a fifty-two mile high-speed chase. The pair shot at the pursuing law enforcement officers during the chase. Authorities were successful in stopping and arresting Cook and Peterson. They obtained a search warrant and discovered a twenty-gauge single shot sawed-off shotgun and ammunition inside the van. Ballistics tests positively identified a shell casing found at the Gasamat as having been fired from the sawed-off shotgun found in the van.

In return for the State's agreement not to seek the death penalty, Cook and Peterson pled guilty to felony murder, W.S. 6-2-101(a) (Supp.1991); aggravated robbery, W.S. 6-2-401(c)(i) (1988); and conspiracy to commit aggravated robbery, W.S. 6-1-303(a) (1988). The court sentenced each man to life for the felony murder count; 20 to 25 years for aggravated robbery and 20 to 25 years for conspiracy, the sentences to run consecutively. Cook and Peterson, in this consolidated action, appeal only the imposition of multiple punishments for the felony murder and the underlying felony of aggravated robbery.

Before beginning our discussion of the legal issues, it is necessary to sound a note of caution. In their brief, appellants refer to the facts of this case as being “irrelevant.” This characterization reflects a callous view of this incident’s impact which we must forcefully decry. For the victim, his life ended suddenly and violently while innocently engaged in meaningful employment. For the victim’s family, friends and the community, violent death shatters illusions of peaceful lives sheltered from other’s problems. For Cook and Peterson, both 19 at the time of the crime, their lives were obviously changed forever. Far from irrelevant, the facts give reason to the prosecutor’s discretionary use of his charging authority in pursuing multiple charges and pleas. Advocacy on behalf of a client and blind justice demand a more accurate portrayal of such events than “irrelevant.”

II

DISCUSSION

The law of double jeopardy is “confused, inconsistent, and less than a model of clarity. Howard v. State, 762 P.2d 28, 40 (Wyo.1988) (Thomas, J., dissenting) (citing Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting)). Such an appraisal is easily documented. What emerges from a survey of federal and state precedent is a potholed path to a mirage. In this instance, the mirage is that icon of “settled law.” The travail comes not from the protection accorded by double jeopardy but from the analysis required to determine its applicability. Recent decisions of the United States Supreme Court have clarified the required analysis compelling a reexamination of our decision in Birr.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides three separate constitutional protections. “It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311 (1984), citing Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); accord, Tuggle v. State, 733 P.2d 610, 611 (Wyo.1987). As used in the Double Jeopardy Clause, “same offense” means “the same crime, not the same transaction, acts, circumstances, or situation.” Black’s Law Dictionary 1081 (6th ed. 1990).

The Fifth Amendment is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The Wyoming Constitution assures the same three protections in stating: “nor shall any person be twice put in jeopardy for the same offense.” Wyo. Const. Art. 1, § 11; Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977); Hopkinson v. State, 664 P.2d 43, 68 (Wyo.), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Only the protection against multiple punishments is at issue in the present case.

In Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1873), the United States Supreme Court first enforced the protection against multiple punishments. Edward Lange received both a fine and a one year prison sentence for stealing post office mail-bags. After paying the fine and beginning his jail sentence, Lange filed for writs of habeas corpus and certiorari. The Supreme Court held the lower court acted without authority in imposing multiple sentences because the permitted statutory punishment was a fine or imprisonment. Lange, 18 Wall. at 178.

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

Id. at 168. The Court directed that the Constitution’s “spirit” is “to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.” Id. at 170.

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), announced a rule of statutory construction to be used in determining legislative intent to authorize multiple punishments. Blockbur-ger was convicted of selling morphine hydrochloride not “in or from the original stamped package” and of selling such a drug without a “written order.” Id., 284 U.S. at 303-04, 52 S.Ct. at 182. Both crimes violated individual sections of federal stamp tax legislation. Blockburger challenged his consecutive sentences as being multiple punishments for the same offense since only a single transaction was involved. The Court stated, “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 an additional fact which the other does not.” Id., 284 U.S. at 304, 52 S.Ct. at 182. Applying this standard, the Court held the statute created “two distinct offenses” which were violated during the course of a single sale by Block-burger. Id.

A three-part analysis framework emerged from subsequent United States Supreme Court decisions refining and explaining the multiple punishment protection. The initial step requires a determination of legislative intent to authorize separate punishment. Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). The language of the statutes provides the “starting point” to apply established rules of statutory construction. Id. A specific legislative authorization for cumulative punishment is dispositive:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether •those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983).

In the absence of a “clear indication” of legislative intent to authorize multiple punishments, the Blockburger test is applied as the second part of the analysis. Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38. The assumption underlying the application of the test is that the legislative branch “ordinarily does not intend to punish the same offense under two different statutes.” Id. The Blockburger test is a “rule of statutory construction.” Albernaz, 450 U.S. at 337, 101 S.Ct. at 1141; Whalen, 445 U.S. at 691, 100 S.Ct. at 1437. In Hunter, the Court explained that, as a rule of statutory construction, Blockburger “is not a constitutional rule requiring courts to negate clearly expressed legislative intent” authorizing cumulative punishment. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

A formerly confusing aspect of the Blockburger test has recently been clarified. See, Lauthern v. State, 769 P.2d 350, 352-53 (Wyo.1989). The test refers to “whether each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (emphasis added). For some commentators and judges, this terminology created a belief that Blockburger was a “same evidence” test. We need only look to Wyoming’s adoption of the Blockburger test as an example of the misunderstanding. In State v. Carter, 714 P.2d 1217, 1220 (Wyo.1986), this court held charges of delivery of a controlled substance and possession of a controlled substance with intent to deliver did not merge for double jeopardy purposes. The analysis for this holding, which we do not challenge, was derived primarily from two federal cases. Both United States v. Orzechowski, 547 F.2d 978, 986 (7th Cir.1976), cert. denied 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977), and United States v. Carcaise, 763 F.2d 1328, 1333 (11th Cir.1985), applied what was termed the “different evidence” test. Carcaise explained that the “ ‘different evidence’ test takes its lead from the Supreme Court’s decision in Blockburger.” Carcaise, 763 F.2d at 1333 n. 18. The “different evidence” test is also known as the “same evidence” test. Lauthern, 769 P.2d at 356.

Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), specifically refuted the characterization of Blockbur-ger as a ‘.‘same evidence” test. The Court declared: “The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged.” Corbin, 495 U.S. at 521 n. 12, 110 S.Ct. at 2093 n. 12 (emphasis in original); accord, United States v. Felix, _ U.S. _, _,112 S.Ct. 1377, 1382, 118 L.Ed.2d 25 (1992).

The statutory elements focus is consistent with Blockburger’s language and other Supreme Court precedent. The Block-burger Court precisely noted, in applying the test to the two offenses at issue: “Each of the offenses created requires proof of a different element.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (emphasis added). Reviewing Blockburger and subsequent decisions, the majority in Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293-94, n. 17, 43 L.Ed.2d 616 (1975) explained “the Court’s application of the test focuses on the statutory elements of the offense.” The emphasis on the “elements of the two crimes” was restated in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977).

The Corbin Court also reaffirmed its rejection of a “same transaction” test for double jeopardy protection which some have believed to be part of the Blockburger language. Corbin, 495 U.S. at 5 n. 15, 110 S.Ct. at 2094 n. 15. In Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985), the Court noted it has “steadfastly refused to adopt the ‘single transaction’ view of the Double Jeopardy Clause.” Wyoming formerly followed this rule. State v. Tobin, 31 Wyo. 355, 367-68, 226 P. 681 (1924).

The third part of the analysis concentrates on double jeopardy protections. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Hunter, 459 U.S. at 366, 103 S.Ct. at 678; accord Brown, 432 U.S. at 165, 97 S.Ct. at 2225. In this portion of the analysis, however, precedent suggests the Blockburger test has been applied in an inconsistent manner.

The confusion regarding the proper application of the Blockburger test comes from its use both as a device for determining legislative intent, Whalen, 445 U.S. at 693-94, 100 S.Ct. at 1439, and as a test of double jeopardy protections, Brown, 432 U.S. at 166, 97 S.Ct. at 2225. The jurisdictional limits of the United States Supreme Court distinguish the Court’s use of the test. When the Court is reviewing a federal law, the Blockburger test is used to determine Congressional intent to authorize multiple punishment. Albernaz, 450 U.S. at 340-42, 101 S.Ct. at 1143-44; Gore v. United States, 357 U.S. 386, 390-92, 78 S.Ct. 1280, 1283-84, 2 L.Ed.2d 1405, reh’g denied 358 U.S. 858, 79 S.Ct. 13, 3 L.Ed.2d 92 (1958). However, when the Court is reviewing state statutes, the state's highest court interprets the legislative intent. Hunter, 459 U.S. at 368, 103 S.Ct. at 679; Brown, 432 U.S. at 167, 97 S.Ct. at 2226. In such cases, the United States Supreme Court analysis, and that of other federal courts, is restricted to whether a double jeopardy protection has been violated. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Birr v. Shillinger, 894 F.2d 1160, 1162 (10th Cir.), cert. denied 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990), illustrates the rule’s preclusive effect when federal courts are asked to review the Wyoming legislature’s intent to authorize multiple punishment. Therefore, the jurisdictional limitation of the United States Supreme Court requires a careful evaluation and application of its precedent to double jeopardy cases.

In Birr, this court addressed whether cumulative punishments for being an accessory to felony murder and accessary to aggravated robbery resulted in a double jeopardy violation. Using the Blockburger test, the majority agreed with the trial court’s evaluation of the “particular facts” as applied to the statute.

The trial court determined that, in order to prove felony murder, it must be shown that a human being was killed. No killing is necessary to prove aggravated robbery. To prove aggravated robbery, it must be shown either that the defendant intentionally inflicted or attempted to inflict serious bodily injury or that the defendant used or exhibited a deadly weapon. Proof of these facts is not necessary to prove felony murder. As to the particular facts of this case, the trial court found that the [victims] were killed and that appellant supplied deadly weapons in the form of .357 magnum pistols. That the [victims] were killed was unnecessary to prove aggravated robbery but was necessary to prove felony murder. The pistols were unnecessary to prove felony murder but were necessary to prove aggravated robbery. Each fact is necessary to prove one of the offenses but is not necessary for proof of the other. Applying this reasoning, the trial court correctly determined that the offenses were not the same under Block-burger v. United States and that separate punishments were intended.

Birr, 744 P.2d at 1120-21. Only after applying the Blockburger test did the court reach the question of legislative intent. The analysis determined: “The felony murder statute is intended to provide punishment for murder; the underlying felony statute is intended to provide punishment for a variety of other evils such as sexual assault, arson, robbery, burglary, escape, resisting arrest, and kidnapping.” Id. at 1121. Specifically, the court found that the felony murder statute was to protect an “interest in life” and the aggravated robbery statute was to protect an “interest in property.” Id.

The analysis of Birr is incorrect. First, the finding of a legislative intent to authorize separate punishment for felony murder and aggravated robbery was inadequately evaluated. The specific language of the statutes was never discussed, and the conclusion that the aggravated robbery statute was intended to protect property was unsupported. Second, the Birr court’s initial use of the Blockburger test, prior to a determination of legislative intent, discloses both a misunderstanding of relevant precedent and the absence of a requisite “clear indication” of legislative intent authorizing multiple punishments. Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38. Third, the Birr court incorrectly used the Blockburger test as an “evidence test.” The test was never applied to the statutory elements of aggravated robbery and felony murder. Therefore, we believe it is necessary to re-address the question of whether the Wyoming legislature intended to authorize separate sentences for felony murder and the underlying felony.

Using the three-part analysis discussed earlier, we begin with the application of our established rules of statutory interpretation. Using the plain language of the statutes, we give the words their plain and ordinary meaning. Schultz v. State, 751 P.2d 367, 370 (Wyo.1988). The examination should reveal the object and purpose of the statutes. Id.

The felony murder provisions are incorporated within Wyoming’s first degree murder statute. “Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping, kills any human being is guilty of murder in the first degree.” W.S. 6-2-101(a) (Supp.1991). The applicable statutory authority for this case would read: “Whoever ... in the perpetration of ... robbery ... kills any human being is guilty of murder in the first degree.”

The definitive interpretation of the felony murder rule was announced by this court in Richmond v. State, 554 P.2d 1217 (1976), reh’g denied 558 P.2d 509 (1977). Although based upon an earlier version, W.S. 6-54 (1957), the operative language of the present statute is the same as that interpreted in Richmond. The Richmond court determined the required elements of first degree murder, premeditation, deliberation and malice aforethought, are imputed by a conclusive statutory presumption when one commits felony murder in the course of a robbery. Richmond, 554 P.2d at 1232; Osborn v. State, 672 P.2d 777, 793 (1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984). “The homicide cannot be disassociated from the attempted robbery.” Richmond, 554 P.2d at 1233.

The felony murder rule’s purpose is to discourage negligent or accidental killings by individuals committing one of the underlying felonies. Richmond, 554 P.2d at 1232; 2 Wayne R. LaFave & Austin W. Scott Jr., Substantive Criminal Law, § 7.7(b) (1986). The felony murder statute imposes a form of strict responsibility on those perpetrating the underlying felonies for killings they commit. Richmond, 554 P.2d at 1232. The fact that the prosecutor chose to charge felony murder for an intentional killing committed during the commission of one of the enumerated felonies does not alter the purpose of the statute. Given the facts of this case, the prosecutor could have charged Cook and Peterson with first degree murder for purposely and with premeditated malice killing Hanson. The prosecutor’s decision may reflect a view that it was easier to obtain a felony murder conviction. LaFave & Scott, supra, § 7.7(b).

A hypothetical example of the felony murder rule’s operation is useful. Postulate that during the course of a robbery, the perpetrator’s gun accidently discharges killing a store clerk. Without a felony murder statute, the perpetrator is charged with involuntary manslaughter and aggravated robbery. If found guilty, manslaughter is punishable by a term of not more than twenty years. W.S. 6 — 2—105(b) (1988). The aggravated robbery count would be punishable by a term of not more than twenty-five years. W.S. 6-2-401(c) (1988). Assuming no multiple punishment violation, the maximum possible sentence becomes forty-five years. However, the presence of a felony murder rule punishes the same conduct by death or life imprisonment. W.S. 6-2-101(b) (Supp.1991).

Wyoming is among those states which limit the imposition of the felony murder rule by listing specific underlying felonies. The list includes those offenses traditionally regarded as “crimes of violence.” Black’s Law Dictionary 371 (6th ed. 1990). The legislature’s selection of sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping discloses a purpose of providing a more significant punishment for the negligent or accidental killing which may occur during the commission of one of these crimes. The enumerated felonies are those which the legislature found to involve “a significant prospect of violence.” LaFave & Scott, supra, § 7.5(b) (citing W.S. 6-2-101 (1977)).

Robbery, by definition, is a felony which involves a “significant prospect of violence.” In Wyoming, robbery may be summarized as a larceny aggravated by force or fear. Cloman v. State, 574 P.2d 410, 419 (Wyo.1978). Larceny is defined by W.S. 6-3-402(a) (1988) which provides: “A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.” The robbery statute incorporates the larceny definition stating: “A person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 he: (i) Inflicts bodily injury upon another; or (ii) Threatens another with or intentionally puts him in fear of immediate bodily injury.” W.S. 6-2-401(a) (1988). Robbery, the enumerated felony in the felony murder statute, is a lesser included offense of the crime of aggravated robbery. “Aggravated robbery is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of robbery the person: (i) Intentionally inflicts or attempts to inflict serious bodily injury; or (ii) Uses or exhibits a deadly weapon or a simulated deadly weapon.” W.S. 6-2-401(c) (1988).

The purpose of the robbery statute is evident by the form of the cascade in which it exists. As the threat of or use of violence against the person increases, the severity of legislatively authorized punishment increases. Robbery, which is punishable by imprisonment for not more than ten years, becomes the crime of aggravated robbery by the nature of the injury inflicted or the type of weapon. The culmination of this protection is the first degree murder conviction of a perpetrator for a felony murder committed during a robbery. We hold, therefore, the purpose of the robbery statute is to protect lives and punish a crime of violence. The codification of robbery as an offense against the person supports this position. The Birr court erroneously determined that the robbery statute was intended to protect an interest in property, Birr, 744 P.2d at 1121.

The Wyoming legislature has not disclosed, in the language of the felony murder or aggravated robbery statutes, an express authorization for cumulative punishments when both statutes have been violated. Instead, the legislature has chosen to punish a crime of violence, robbery, with successively greater sentences as the violence against the person increases. Cumulative punishment is not authorized without a “clear indication” of legislative intent. Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38.. Therefore, it is necessary to move to the second part of the required analysis and apply the Blockburger test as a rule of statutory construction.

Directing our attention to the statutory elements, Blockburger asks “whether each provision requires proof of an additional fact which the other does not.” In the context of this case, the felony murder provision required proof of these facts or elements:

(1) Killing a human being;

(2) while stealing, taking and carrying, leading or driving away another’s property;

(3) with intent to deprive the owner;

(4) while intentionally inflicting serious bodily injury; or

(5) using or exhibiting a deadly weapon. The aggravated robbery provision required proof of these facts or elements:

(1) Stealing, taking and carrying, leading or driving away another’s property;

(2) with intent to deprive the owner;

(3) while intentionally inflicting serious bodily injury; or

(4) using or exhibiting a deadly weapon.

The additional fact or element required for a felony murder conviction is the killing of a human being. However, the aggravated robbery provision does not require proof of any additional facts from those proven for felony murder. Under Blockburger, legislative intent to authorize cumulative punishment is found only when each statute requires proof of an additional fact.

We hold the Wyoming legislature authorized punishment for the offense of felony murder; but multiple punishment for the underlying felony which supplies the premeditation, deliberation and malice presumption was not authorized by the legislature. Turning then to the third part of the analysis framework, we hold the imposition of multiple punishments for felony murder and the underlying felony violates the Double Jeopardy Clauses of the United States and Wyoming constitutions. U.S. Const., Amend. V; Wyo. Const., Art. 1 § 11; Hunter, 459 U.S. at 366, 103 S.Ct. at 678; Brown, 432 U.S. at 165, 97 S.Ct. at 2225; Duffy v. State, 789 P.2d 821, 830 (Wyo.1990).

The court’s position finds support in the United States Supreme Court’s holding in Whalen. Interpreting a District of Columbia felony murder statute that listed specific underlying felonies, the Court held "Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape....’’ Whalen, 445 U.S. at 693, 100 S.Ct. at 1438. The Court noted that, for purposes of imposing cumulative sentences, Congress had “intended rape to be considered a lesser offense included within the offense of a killing in the course of rape.” Whalen, 445 U.S. at 694 n. 8, 100 S.Ct. at 1439, n. 8. See also Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (holding Double Jeopardy Clause prevents prosecution for underlying felony after conviction of felony murder).

Additional practical support for our decision comes from a recognition of the punishment imposed for a first-degree murder conviction under the felony murder rule. The sentencing alternatives are death or life imprisonment. W.S. 6-2-101(b) (Supp. 1991). The finality of both punishments effectively precludes the need to resort to cumulative punishment. In Wyoming, if the sentence is life imprisonment, there is no parole. Kennedy v. State, 595 P.2d 577, 578 (Wyo.1979). The academic nature of the imposition of cumulative punishment, in this instance, is thus exposed. The possible bearing an additional sentence may have on a gubernatorial decision regarding commutation would be speculative and of no moment to the legislative intent. See Birr, 744 P.2d at 1122 (Urbigkit, J., dissenting).

The State of Wyoming urges that we heed the doctrine of stare decisis and avoid overruling Birr. Stare decisis promotes the “evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, _ U.S. _, _, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, reh’g denied _ U.S. _, 112 S.Ct. 28, 115 L.Ed.2d 1110 (1991). Stare decisis considerations weigh most heavily in cases involving property and contract rights, where reliance interests are created. Id. at _, 111 S.Ct. at 2610. As a principle of policy, not an inexorable command, stare decisis should not create a mechanical formula for adherence to the latest decisions especially in constitutional cases. Id. at _, 111 S.Ct. at 2609-10.

The rule of stare decisis should not be rigid in its application. Burns v. Burns, 67 Wyo. 314, 224 P.2d 178, 183 (1950). The need to clarify an inappropriate application of a traditional rule creates a reason to depart from precedent. Mostert v. CBL & Associates, 741 P.2d 1090, 1094 (Wyo.1987). Stare decisis will not be followed when a required showing is made that a departure from precedent is necessary “to vindicate plain, obvious principles of law and remedy continued injustice.” Gueke v. Bd. of County Comm’rs, 728 P.2d 167, 171 (Wyo.1986); Worthington v. State, 598 P.2d 796, 804 (Wyo.1979). Wisdom does not come to us often. When it does, we should embrace — not slavishly reject it because of a questionable application of legal doctrine.

Applying these principles to our consideration of Birr directs an outcome. Birr was decided on a narrow margin over spirited dissent. Birr, 744 P.2d at 1122 (Urbig-kit J., dissenting, joined by Cardine, J.). The validity of the Birr decision was questioned in the subsequent appeal of Birr’s co-conspirator, Schultz v. State, 751 P.2d 367, 371 (Wyo.1988) (Urbigkit, J., specially concurring, joined by Cardine, J.), and later cases. See Duffy v. State, 789 P.2d 821, 840-41 (Wyo.1990) (Urbigkit, J., dissenting); Lauthern v. State, 769 P.2d 350, 359 (Wyo.1989) (Urbigkit, J., dissenting). Based upon the reconsideration given in this opinion, Birr was wrongly decided. The analytical clarification provided by recent United States Supreme Court precedent provides sufficient basis for this court to overrule our holding in Birr that multiple punishments for the felony murder and the underlying felony were legislatively authorized.

Ill

CONCLUSION

The sentences, of 20 to 25 years, imposed upon Cook and Peterson for the underlying felony of aggravated robbery are vacated. The remaining sentences of life imprisonment for felony murder and 20 to 25 years for conspiracy, to be served consecutively, are undisturbed.

GOLDEN, J., files a concurring opinion.

URBIGKIT, J., files a specially concurring opinion.

MACY, C.J., and THOMAS, J., each file separate dissenting opinions.