Lavon v. State , 1979 Tenn. LEXIS 493 ( 1979 )

OPINION

COOPER, Justice.

We granted certiorari in this case to consider the defendant’s claim that successive prosecutions in state and federal court, predicated on the same act, violated constitutional guarantees against double jeopardy. We hold that they do not.

In December, 1976, the defendant robbed a bank in Hardeman County, Tennessee, at gunpoint. As a result, he was indicted by a federal grand jury for the robbery of a federally insured bank, as proscribed by 18 U.S.C. § 2113(a). He was also indicted by the Hardeman County grand jury for bank robbery with the use of a firearm, T.C.A. §§ 39-3902 & 39 — 4914. Subsequently, he pled guilty to the federal indictment. The defendant then sought to have the state indictments dismissed. The trial judge granted the motion, holding, with respect to the charge of bank robbery, that this second prosecution for the same act would subject the defendant to double jeopardy. The trial judge also dismissed the indictment for the use of a firearm in the commission of a felony, T.C.A. § 39-3414, on the grounds, first, that it too subjected the defendant to double jeopardy, secondly, that it was a lesser offense that merged in the greater offense of bank robbery, and thirdly, that the statute was an unconstitutional encroachment on the authority of the courts to administer justice. On appeal, the Court of Criminal Appeals reversed, and reinstated both indictments.

The defendant has made no specific assignments of error before this court, instead merely asserting, in general terms, that the Court of Criminal Appeals was incorrect. This is insufficient to comply with the rules of this court. Supreme Court Rule 14. Nevertheless, we have considered the petition, and attempted to glean from defendant’s argument the substance of his claim. See Renner v. State, 187 Tenn. 647, 216 S.W.2d 345 (1948).

As we noted before, the primary issue raised by the defendant, and the one that prompted our grant of certiorari, is whether the defendant’s trial in state court on a charge of bank robbery, after his previous conviction in federal court for the same offense on the basis of the same act, either would constitute double jeopardy so as to be forbidden by the federal or Tennessee constitutions, or would so offend against the fairness that underlies our system of justice as to be otherwise unacceptable.

There is no question but that such a procedure does not subject the defendant to double jeopardy insofar as the guaranty of due process in the 14th amendment of the federal constitution is concerned. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). While the rationale of this case — that the state and federal governments are distinct sovereignties, and .thus the punishment of a single act by each is not double jeopardy — has been criticized, a similar approach has provided the basis for a more recent case, which would imply that Bartkus’ analysis of the issue is still valid. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). This court is bound by the decisions of the United States Supreme Court concerning the proper interpretation of the federal constitution. Townsend v. Clover Bottom Hospital and School, 560 S.W.2d 623 (Tenn.1978).

The double jeopardy provision of the Tennessee constitution, Article I, § 10, affords the defendant no greater protection. In the past, this provision has been interpreted to permit successive state and federal prosecutions on the basis of the same “dual sov-ereignties” analysis employed in Bartkus, supra, and, given the need for stability in constitutional interpretation, we see insufficient cause to depart from that precedent now. See, e. g., State v. Rhodes, 146 Tenn. 398, 242 S.W. 642 (1922); Beard v. State, 485 S.W.2d 882 (Tenn.Cr.App.1972). A similar approach has been adopted by the vast majority of other jurisdictions in which the question has not been settled by statute. See, e. g., State v. Castonguay, 240 A.2d 747 (Me.1968); State v. Cooper, 54 N.J. 330, 255 A.2d 232 (1969); State v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977); State v. West, 260 N.W.2d 215 (S.D.1977).

A more difficult question is whether this court should nevertheless place some restrictions on this practice of successive prosecutions, even in the absence of a constitutional basis for such a holding. We have concluded that we should not. We have grave doubts as to the inherent fairness of any procedure that forces an individual to defend himself against multiple prosecutions for the same crime. The burden placed on a defendant in such a case is no less if the prosecutions are carried out by two sovereigns rather than one. See Bartkus v. Illinois, 359 U.S. at 150-164, 79 S.Ct. 676, Justice Black dissenting. However, we have even graver doubts as to the propriety of this court abandoning such a firmly established rule of law, absent compelling circumstances. Established precedent, frequently reaffirmed by this court, and long accepted by the legislature, should not be departed from lightly. Hall v. Skidmore, 180 Tenn. 23, 171 S.W.2d 274 (1943). See also Edingbourgh v. Sears, Roebuck & Co., 206 Tenn. 660, 337 S.W.2d 13 (1960); Monday v. Millsaps, 197 Tenn. 295, 271 S.W.2d 857 (1954). As was said in a similar context:

We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to [adopt such a rule]. We do not forget the continuous process of developing the law that goes on through the courts, in the form of deduction, or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based on a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain. Stack v. New York, N. H. & H. R. Co., 177 Mass. 155, 58 N.E. 686, 687 (1900) (Holmes, C. J.).

At present, “we perceive no such pressing need of our anticipating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law.” Idem, at 58 N.E. 687. Certainly, the equities of this case do not demand it: The defendant pled guilty in federal court, and received a sentence of twelve years for a crime that the legislature of this state has deemed so serious as to require a minimum punishment of twenty years. T.C.A. § 39-3902. Furthermore, should the defendant be convicted of the state charges, the trial judge at that time may mitigate any oppressive effects that the dual convictions might have, such as by ordering the state sentence run concurrently with that imposed in federal court, as the record before him may demand. See Rule 32(b), Tennessee Rules of Criminal Procedure; State v. Graham, 544 S.W.2d 921 (Tenn.Cr.App.1976). Thus, we hold that the question of the propriety of successive state and federal prosecutions for the same act, being essentially one of policy, is best “committed to the intelligence and discretion” of the legislature, and we leave it to their considered judgment. Rush v. Great American Insurance Co., 213 Tenn. 506, 376 S.W.2d 454, 459 (1964). See State v. Rogers, 90 N.M. 604, 566 P.2d 1142 (1977).¹

The other issues alluded to by the defendant are worthy of only brief consideration, as he himself tacitly admits. As it has been construed by this court, T.C.A. § 39-4914 provides for enhanced punishment for those who commit certain crimes with the use of a firearm, and thus is not merged into the offense of bank robbery, nor does the prosecution of the defendant under that statute as well as under the statute proscribing bank robbery subject him to double jeopardy. See State v. Hudson, 562 S.W.2d 416 (Tenn.1978). As the setting of punishment is a legislative function, the mandatory aspects of the sentence imposed by T.C.A. § 39—4914 do not constitute an unconstitutional encroachment on the power of the judiciary. Cf. Sandford v. Pearson, 190 Tenn. 652, 231 S.W.2d 336 (1950).

The judgment of the Court of Criminal Appeals is affirmed, and the case remanded to the trial court for further proceedings.

FONES and HARBISON, JJ., concur. HENRY, C. J., and BROCK, J., dissent.

1 . It is noteworthy that, of the more than twenty jurisdictions that have either abandoned or modified the “dual sovereignty” doctrine, we have found only four that have done so by judicial decision, rather than by statute. See Commonwealth v. Cepulonis, 373 N.E.2d 1136 (Mass.1978); People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); State v. Hogg, 385 A.2d 844 (N.H.1978); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).