State of Iowa v. Travis Raymond Wayne West

IN THE SUPREME COURT OF IOWA
No. 17–0784
Filed March 1, 2019
STATE OF IOWA,
Appellee,
vs.
TRAVIS RAYMOND WAYNE WEST,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Defendant seeks further review of a decision by the court of appeals
affirming his conviction and sentence. DECISION OF COURT OF
APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, John Sarcone, County Attorney, and Andrea Petrovich
and Joseph Danielson, Assistant County Attorneys, for appellee.
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APPEL, Justice.
Travis West was convicted of delivery of a controlled substance, Iowa
Code § 124.401(1)(c)(1) (2015), and involuntary manslaughter by a public
offense other than a forcible felony or escape, id. § 707.5(1)(a). The charges
arose out of the death of Bailey Brady as the result of a heroin and ethanol
overdose. After a jury trial, West was convicted and sentenced for both
offenses. West appealed.
We transferred West’s appeal to the court of appeals. The court of
appeals held that there was sufficient evidence to support the verdict, that
there was no error in the admission of certain challenged evidence, and
that the crimes of involuntary manslaughter by a public offense and
delivery of a controlled substance did not merge.
We granted further review. We consider only the merger question.
We decline to review the rulings of the court of appeals that there was
substantial evidence to support the verdict and that certain evidence was
properly admitted. On these issues, the ruling of the court of appeals
stands. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (recognizing
our discretion to consider all issues raised in initial appeal but considering
on further review only one of those issues and allowing the court of appeals
decision to stand on other issue).
On the question of whether the offenses merge, we conclude, for the
reasons expressed below, that they do not. As a result, the district court
ruling on the merger question is affirmed.
I. Procedural and Factual Background.
A jury could have found the following facts. Bailey Brady died from
a drug overdose on June 5, 2015. On the evening of her death, she visited
several bars and consumed alcoholic beverages but was not intoxicated.
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After returning to her apartment, Brady invited West and his brother at
about 1:00 a.m. to come to her apartment.
West lived about two hours away. West occasionally used heroin,
which he obtained from a man named “Snap” in Des Moines. In the past,
West had obtained heroin from Snap for Bailey’s use. West knew that in
July 2014, Brady had overdosed on heroin. He drove her to the hospital
on that occasion.
Cell phone records reveal that Brady talked to West at 2:49 a.m. on
the morning of June 5, 2015. Eight seconds later, West began a series of
phone calls with Snap, his heroin supplier.
After the West brothers arrived at Brady’s apartment, West and
Brady went to a convenience store to purchase food a few minutes after
4:00 a.m. They returned to the apartment. West’s brother later found
Brady slumped over the bathtub in the apartment and not breathing. West
called 911 a few minutes after 5:00 a.m. Paramedics transported Brady’s
body to the hospital where she was pronounced dead. An autopsy revealed
blood alcohol “below . . . legal limit” as well as a fatal amount of heroin.
Medical testimony at trial indicated that “without the heroin, she would
have been fine.” The heroin that killed her was likely ingested within thirty
minutes of death. After the 911 call, phone records reveal six actual or
attempted calls between West and Snap.
The State charged West with delivery of a controlled substance, Iowa
Code § 124.401(1)(c)(1), and involuntary manslaughter by a public offense
other than a forcible felony or escape, id. § 707.5(1)(a). The involuntary
manslaughter charge is a class “D” felony, while delivery of a controlled
substance is a class “C” felony. A jury found him guilty of both charges,
the district court entered judgment, and West was duly sentenced for each
crime.
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II. Standard of Review.
West’s claim that the district court erred in failing to merge
convictions can be raised at any time because any unlawful failure to
merge results in an illegal sentence. State v. Love, 858 N.W.2d 721, 723
(Iowa 2015). Review of an illegal sentence for lack of merger is for
correction of errors at law. Id.III. Discussion.
A. Introduction. The question of when one offense is a lesser
included offense of another has perplexed courts for centuries. The
question of what constitutes lesser included offenses has been
characterized as a “many-headed hydra,” as an issue that “has challenged
the effective administration of criminal justice for centuries,” and as one
“not without difficulty.” Fuller v. United States, 407 F.2d 1199, 1228 (D.C.
Cir. 1967) (third quotation); Brown v. State, 206 So. 2d 377, 380 (Fla.
1968) (second quotation), abrogated on other grounds by In re Use by Trial
Cts. of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594, 596–
97 (Fla. 1981); Dorean Koenig, The Many-Headed Hydra of Lesser Included
Offenses: A Herculean Task for the Michigan Courts, 1975 Det. C. L. Rev.
41, 63 (first quotation). Sometimes, the doctrine is said to turn on analysis
of legal elements of the crimes, sometimes on the facts and evidence, and
sometimes based on the interrelationship of the crimes involved. See
generally Christen R. Blair, Constitutional Limitations on the Lesser
Included Offense Doctrine, 21 Am. Crim. L. Rev. 445, 447–51 (1984).
Whatever the proper test, the consequence of a finding that a crime
is a lesser included offense of a greater crime is that the lesser crime
merges into the greater crime where a defendant is convicted of both
offenses. The common law doctrine of merger of lesser included offenses
into greater offenses is often expressed in statutory provisions.
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As is apparent, the proposition that a lesser included offense merges
into the greater offense is related to the constitutional concept of double
jeopardy. 1 Although no constitutional issue is raised in this case, the
double jeopardy cases provide a backdrop to analysis of statutory
provisions implementing the merger rule.
B. Relevant Statutory Provision and Rule on Lesser Included
Offenses. In 1976, the Iowa legislature enacted Iowa Code section 701.9.
1976 Iowa Acts ch. 1245, ch.1, § 109. As of 2015, the section provides,
No person shall be convicted of a public offense which
is necessarily included in another public offense of which the
person is convicted. If the jury returns a verdict of guilty of
more than one offense and such verdict conflicts with this
section, the court shall enter judgment of guilty of the greater
of the offenses only.
Iowa Code § 701.9. The key question under the statute is when a public
offense is “necessarily included in another public offense.” Id.Iowa Rule of Criminal Procedure 2.6(2) uses language that is similar
but not identical to Iowa Code section 701.9. See Iowa R. Crim. P. 2.6(2).
This rule provides that “[u]pon prosecution for a public offense, the
defendant may be convicted of either the public offense charged or an
included offense, but not both.” Id.C. Federal Caselaw Related to Double Jeopardy and
“Necessarily Included” Offenses.
1. Double jeopardy caselaw. A brief review of federal cases provides
background for our consideration of the statutory issue in this case. In
Blockburger v. United States, 284 U.S. 299, 301, 52 S. Ct. 180, 181 (1932),
the United States Supreme Court considered whether two crimes—selling
1The Fifth Amendment to the United States Constitution provides that “nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V.
6
forbidden drugs not from an original stamped package and selling such
drugs not pursuant to a written order—were one offense. In answering the
question, the Blockburger Court employed an elements test, declaring that
the test is whether “each provision requires proof of a fact which the other
does not.” Id. at 304, 52 S. Ct. at 182.
While Blockburger involved a question of statutory interpretation,
the linkage between statutory interpretation and the Double Jeopardy
Clause was explicitly made in Whalen v. United States, 445 U.S. 684, 688,
100 S. Ct. 1432, 1435–36 (1980). In Whalen, the question was whether
the Double Jeopardy Clause of the United States Constitution barred
sentences for both the crime of rape and the separate crime of killing in
the course of perpetration of the rape. Id. at 685–87, 100 S. Ct. at 1434–
35.
In Whalen, the Supreme Court emphasized that “the petitioner’s
claim under the Double Jeopardy Clause cannot be separated entirely
from a resolution of the question of statutory construction.” Id. at 688,
100 S. Ct. at 1435–36. According to the Whalen Court, “if Congress has
not authorized cumulative punishments for rape and for an unintentional
killing committed in the course of the rape . . . the petitioner has been
impermissibly sentenced.” Id. at 688–89, 100 S. Ct. at 1436. “If a federal
court exceeds its own authority by imposing multiple punishments not
authorized by Congress, it violates not only the specific guarantee against
double jeopardy, but also the constitutional principle of separation of
powers in a manner that trenches particularly harshly on individual
liberty.” Id. at 689, 100 S. Ct. at 1436.
The Whalen Court concluded that Congress did not intend to impose
consecutive punishments for rape and unintentional killing in the
perpetration of rape. Id. at 690, 100 S. Ct. at 1437. The Whalen Court
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noted that the criminal statutes themselves did not state whether
Congress intended multiple punishments. See id. But the Whalen Court
referred to a general sentencing statute that obliquely seemed to stand for
the proposition that multiple punishments arising out of the same criminal
transaction cannot arise unless each offense “requires proof of a fact which
the other does not.” Id. at 691–92, 100 S. Ct. at 1437–38 (emphasis
omitted) (quoting D.C. Code § 23-112 (1973)). This is, of course, the
Blockburger elements test. See id. The Whalen Court stated that “[t]he
assumption underlying the rule is that Congress ordinarily does not intend
to punish the same offense under two different statutes.” Id. at 691–92,
100 S. Ct. at 1437–38.
The qualifier “ordinarily” is noteworthy. The Whalen Court declared
that if the Blockburger test is met, Congress presumptively did not wish to
impose cumulative punishment “in the absence of a clear indication of
contrary legislative intent.” Id. at 692, 100 S. Ct. at 1438. If the
Blockburger test indicates that the offenses are the same, cumulative
punishments cannot be imposed “unless elsewhere specially authorized
by Congress.” Id. at 693, 100 S. Ct. at 1438. Based on review of the
statutory language of the crimes, the legislative history, and the lack of
other authorization, the Whalen Court concluded that Congress did not
intend for the imposition of multiple punishments for the crimes of rape
and unintentionally killing in the perpetration of rape. Id. at 692–95, 100
S. Ct. at 1438–39.
The primacy of legislative intent was emphasized in Albernaz v.
United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141 (1981). In
Albernaz, the Supreme Court considered whether cumulative
punishments for conspiracy to import marijuana and conspiracy to
distribute marijuana amounted to a violation of double jeopardy. Id. at
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334–35, 101 S. Ct. at 1140. The Albernaz Court employed the Blockburger
elements test and concluded that because each crime had an element
which the other did not, no double jeopardy problem was present. Id. at
339, 101 S. Ct. at 1142.
But the Albernaz Court did not stop with the Blockburger analysis.
The Albernaz Court went on to employ additional reasoning to reject the
notion that Congress intended to prohibit multiple punishments. Id. at
339–44, 101 S. Ct. at 1142–45. Among other things, the Albernaz Court
noted that “the two conspiracy statutes are directed to separate evils
presented by drug trafficking.” Id. at 343, 101 S. Ct. at 1144. The
Albernaz Court closed with the observation that where Congress intended
to impose multiple punishments, such sentences do not violate the Double
Jeopardy Clause. Id. at 344, 101 S. Ct. at 1145.
The bread crumbs in Whalen and Albernaz suggesting that multiple
punishments might be imposed in some circumstances even if the
Blockburger test was met led to the final destination in Missouri v. Hunter,
459 U.S. 359, 368, 103 S. Ct. 673, 679 (1983). In Hunter, the Missouri
Supreme Court had acknowledged that the legislature intended to impose
multiple punishments for the crimes of armed criminal action and first-
degree robbery, yet the court reasoned that under Blockburger the offenses
were the “same offense.” Id. at 363–64, 103 S. Ct. at 677. As a result, the
state supreme court concluded that multiple punishments could not be
imposed under the Double Jeopardy Clause. Id. at 364, 103 S. Ct. at 677.
The Hunter Court emphasized that simply because two statutes may
be construed to proscribe the same conduct under Blockburger, the double
jeopardy analysis is not complete. Id. at 368, 103 S. Ct. at 679. The
Hunter Court held that even when the two offenses amounted to the same
offense under Blockburger, double jeopardy did not prohibit cumulative
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punishments if there was a clear indication of legislative intent to impose
them. Id. at 368–69, 103 S. Ct. at 679.
The trend away from Blockburger as a double jeopardy anchor
continued in Garrett v. United States, 471 U.S. 773, 778–79, 105 S. Ct.
2407, 2411–12 (1985). In Garrett, the Supreme Court considered whether
a defendant could be convicted of a “continuing criminal enterprise” based
in part upon a prior criminal conviction. Id. at 775, 105 S. Ct. at 2409.
In this case, the Supreme Court declared “the first step in the double
jeopardy analysis is to determine whether the legislature . . . intended that
each violation be a separate offense.” Id. at 778, 105 S. Ct. at 2411. The
Garrett Court emphasized that in Hunter the Court indicated that the
Blockburger test “is not controlling when the legislative intent is clear from
the face of the statute or the legislative history.” Id. at 779, 105 S. Ct. at
2411. Based on its review of the language, structure, and legislative
history of the relevant statutes, the Garrett Court concluded that Congress
plainly intended the criminal provisions in question to be separate
violations. Id. at 779, 105 S. Ct. at 2412. Under the circumstances, the
Garrett Court noted that “the Blockburger presumption must . . . yield to a
plainly expressed contrary view on the part of Congress.” Id.The bottom line is that the double jeopardy cases of the United
States Supreme Court have moved away from heavy reliance on the
Blockburger elements test and now give greater emphasis to legislative
intent in determining whether the state may impose multiple punishments
on a defendant for crimes arising out of the same transaction. Although
the Blockburger test has been characterized as giving rise to a presumption
of sorts, that presumption may be overcome by a clear expression of
legislative intent to impose multiple punishments.
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2. Necessarily included offenses under Federal Rule of Criminal
Procedure 31(c)(1). Federal Rule of Criminal Procedure 31(c)(1) provides
that “[a] defendant may be found guilty of . . . an offense necessarily
included in the offense charged.” Fed. R. Crim. P. 31(c)(1). Not
surprisingly, the federal courts divided on the question of what offense is
necessarily included in the offense charged. Compare United States v.
Whitaker, 447 F.2d 314, 319 (D.C. Cir. 1971) (applying “inherent
relationship” test), with United States v. Schmuck, 840 F.2d 384, 387–88
(7th Cir. 1988) (en banc) (applying elements test), aff’d, 489 U.S. 705, 109
S. Ct. 1443 (1989).
In Schmuck v. United States, 489 U.S. at 715, 109 S. Ct. at 1450,
the Supreme Court examined the divergent interpretations of the rule. The
Schmuck Court considered whether, under the rule, the offense of
odometer tampering was a lesser included offense of mail fraud. Id. at
721–22, 109 S. Ct. at 1453. In answering the question in the negative, the
Schmuck Court embraced the elements test. Id. The Schmuck Court
emphasized that the elements test was more consistent with the “offenses”
and “inclusion” language of the rule, that it provides notice of potential
charges, and that the test is more certain and predictable. Id. at 716–21,
109 S. Ct. at 1450–53. The Schmuck Court did not further consider
legislative history of the underlying criminal statutes.
D. Iowa Caselaw.
1. Lesser included offenses. Our Iowa cases dealing with the
problems of lesser included offenses have not been linear. Our older cases
relied on an elements test similar to that enunciated in Blockburger, 284
U.S. at 304, 52 S. Ct. at 182. See State v. Marshall, 206 Iowa 373, 375,
220 N.W. 106, 106 (1928). In State v. Everett, 157 N.W.2d 144, 148–49
(Iowa 1968), we cited Marshall as authority in applying an elements test in
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determining that operation of a motor vehicle without the owner’s consent
was not a lesser included offense of larceny of a motor vehicle. Four
members of the Everett court, however, dissented. Id. at 149 (LeGrand, J.,
dissenting). According to the dissent, whether offenses are included
should not be determined by the elements of the crimes, but on the facts
of the particular case. Id. at 149–50.
The Everett dissent demonstrated that the test for determining what
offenses are “included” in the greater offense was contested terrain.
Indeed, five years later, in State v. Hawkins, 203 N.W.2d 555, 557 (Iowa
1973) (en banc), Everett was overruled. A majority of the court now held
that the manner of determining whether an offense was included in a
greater offense must be determined not by the elements of the offenses but
by the evidence in each case. Id. at 557–58.
The evolution of our caselaw regarding what crimes are included in
greater crimes was hardly finished. In State v. Smith, 223 N.W.2d 223,
225 (Iowa 1974), we held that there are two steps in determining whether
one offense is necessarily included within another. According to Smith,
the first step was the legal elements test, and the second step was “an
ad hoc factual determination.” Id. In Smith, we held the elements test was
not met and, therefore, there was no need to make any factual
determinations. Id. at 226.
We again revisited the question of what constitutes a necessarily
included offense in State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988). In
Jeffries, we canvassed the various differing approaches to determining
when an offense is a lesser included offense of a larger crime. Id. at 730–
35. At the time of Jeffries, the court had the benefit of Iowa Code section
701.9. See id. at 736. After reviewing the various approaches, the Jeffries
court determined that “the strict statutory-elements approach” is the best
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approach. Id. The Jeffries court noted that the strict elements approach
is embodied in Iowa Code section 701.9 and in Iowa Rule of Criminal
Procedure 21(3), the latter of which provided that a defendant may be
convicted at trial “of any offense the commission of which is necessarily
included in that with which the defendant is charged.” Id. (emphasis
omitted) (quoting Iowa R. Crim. P. 21(3) (1985)). We also stressed that the
strict elements approach provides “the most clarity to . . . practitioners
and judges.” Id. at 737 (quoting Janis L. Ettinger, In Search of a Reasoned
Approach to the Lesser Included Offense, 50 Brook. L. Rev. 191, 201
(1984)). The Jeffries court further argued that the strict elements
approach is more logical, better comports with the constitutional
requirement of adequate notice of charges than other tests, passes muster
in a double jeopardy context, and lessens potential due process concerns.
Id. at 737–39.
2. Double jeopardy cases. In several cases after Jeffries, however,
we considered the question of what crimes were necessarily included in
larger offenses for purposes of double jeopardy. In State v. McKettrick, 480
N.W.2d 52, 57–58 (Iowa 1992), we noted that because the elements of the
crimes involved in the case were not the “same,” a presumption arose
under the Blockburger approach that McKettrick could be subject to
multiple punishment for the crimes. The McKettrick court, however,
emphasized that the application of the Blockburger test was not the end of
the matter under United States Supreme Court precedent and that the
court was required to examine whether there is a clear indication of
contrary legislative intent. Id. at 58. In McKettrick, the defendant argued
that it was simply impossible for him to be guilty of both assault with
intent to inflict serious injury and assault without the intent to inflict
serious injury. Id. We found the logic persuasive and held that
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prosecution for both offenses would violate double jeopardy
notwithstanding the fact that the offenses did not involve the same
elements under Blockburger. Id.We again confronted a double jeopardy challenge in State v. Gallup,
500 N.W.2d 437, 441 (Iowa 1993). In Gallup, the defendant was found
guilty of delivery of a controlled substance and distribution of a taxable
substance without a drug tax stamp. Id. In considering the double
jeopardy issue, we noted that “the Blockburger legal elements test is
determinative of double jeopardy only when legislative intent is not clearly
expressed by statute.” Id. at 443. Based on a statutory provision stating
that the chapter was not “a defense or affirmative defense to or immunity
for a dealer from criminal prosecution pursuant to Iowa law,” we
concluded that the legislature clearly authorized multiple punishments.
Id. (emphasis omitted) (quoting Iowa Code § 421A.5 (1991), currently
§ 435B.5).
Notably, the defendant in Gallup also brought a challenge under
Iowa Code section 701.9. See id. at 445. In Gallup, we declared that
“[s]ection 701.9 codifies the double jeopardy protection against cumulative
punishment.” Id. Because we had already found that double jeopardy
would not be violated by cumulative punishments in the case, the
statutory claim under Iowa Code section 701.9 was without merit. Id.
Finally, we considered a double jeopardy challenge in State v. Lewis,
514 N.W.2d 63, 64 (Iowa 1994). In Lewis, the crimes involved were
criminal gang participation and terrorism. Id. We concluded that
terrorism was a lesser included offense of criminal gang participation as
terrorism was the underlying offense for criminal gang participation. Id.
at 69. Yet, we concluded that the legislature intended to authorize
multiple punishments. Id. We came to this conclusion because under the
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statutory scheme a prosecutor would never charge gang participation
using various predicate offenses. This is because the sentence for gang
participation is either the same or less than the penalty for the underlying
crime. Id. The effect of merger would be to effectively nullify or make
useless the charge of gang participation. Id.
3. Post-Gallup cases involving Iowa Code section 701.9. After
Gallup, our interpretation of Iowa Code section 701.9 used the same
approach as utilized by the United States Supreme Court in analyzing
double jeopardy cases. For instance, in State v. Halliburton, 539 N.W.2d
339, 340 (Iowa 1995), we considered whether multiple punishment for two
crimes—possession of an offensive weapon and possession of an offensive
weapon by a felon—violated double jeopardy or Iowa Code section 701.9.
We repeated the observation in Gallup that Iowa Code section 701.9
codified double jeopardy protection, and we did not provide an
independent statutory analysis. Id. at 344. Instead, we utilized the
method applied by the United States Supreme Court in double jeopardy
cases. See id.We first recognized in Halliburton that, under the elements test, “the
possession of an offensive weapon is a lesser included offense of
possession of an offensive weapon by a felon.” Id. But that was not the
end of the analysis. We then proceeded to consider whether the legislature
had intended cumulative punishments. Id. We concluded that it did. Id.We observed that both crimes were class “D” felonies. Id. If multiple
penalties were prohibited, there would never be a reason to bring a charge
of possession of an offensive weapon by a felon as it would always merge
with the lesser offense. Id. We further noted that the legislative intent to
impose cumulative punishments was reflected in the different purposes of
the statutes. Id. at 344–45. One statute focuses on “particularly harmful
15
weapons” while the other focuses on “potentially harmful persons.” Id. at
345.
We continued this approach to Iowa Code section 701.9 in two
cases. In State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997), and State
v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), we recognized that double
jeopardy principles apply under Iowa Code section 701.9.
A contrary view soon emerged to interpreting Iowa Code section
701.9. In State v. Daniels, 588 N.W.2d 682, 683 (Iowa 1998), we
considered whether double jeopardy prohibited multiple punishments for
the crimes of first-degree burglary and assault while participating in a
felony. We concluded that the crimes had different elements and, for that
reason, concluded that multiple punishments did not give rise to a double
jeopardy claim. Id. at 684–85.
Justice Carter concurred specially. Id. at 685 (Carter, J., concurring
specially). Justice Carter asserted that Iowa Code section 701.9 merely
enacted the legal elements test of Blockburger. Id. Under Justice Carter’s
theory, in all cases where the elements of the lesser included offense are
the same as those in the greater offense, merger occurs under the statutory
provision. Id. He rejected the second step beyond Blockburger, namely,
inquiry into legislative intent. Id. at 685–86. According to Justice Carter,
the second step improperly allows included offenses to be separately
punished based upon the court’s “intuitive conclusions concerning a
presumed legislative intent.” Id. Justice Carter regarded the exploration
of legislative intent in Halliburton as “an unwarranted judicial abrogation
of the clear directive contained in section 701.9.” Id. at 686. Justice
Carter reprised his Daniels concurrence in State v. Lambert, 612 N.W.2d
810, 816–17 (Iowa 2000) (Carter, J., concurring specially), and in State v.
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Reed, 618 N.W.2d 327, 337 (Iowa 2000) (Carter, J., concurring in part and
dissenting in part).
Since Daniels, Lambert, and Reed, we have decided a number of
cases under Iowa Code section 701.9. See, e.g., State v. Ceretti, 871
N.W.2d 88, 92 (Iowa 2015). On two occasions, we recognized the position
of Justice Carter on the merger question but found it unnecessary to
address the issue. See State v. Stewart, 858 N.W.2d 17, 23 (Iowa 2015);
State v. Bullock, 638 N.W.2d 728, 732 (Iowa 2002).
E. Analysis. West asserts that the offenses of involuntary
manslaughter by commission of a public offense under Iowa Code section
707.5(1)(a) and delivery of a controlled substance under Iowa Code section
124.401(1)(c)(1) should have merged. He cites Iowa Code section 701.9
and Iowa Rule of Criminal Procedure 2.6(2). West claims that under the
legal elements test, the crime of delivery of a controlled substance merges
with the involuntary manslaughter offense. He claims that Iowa courts
“apply a strict statutory approach when considering merger issues.”
Although West implies that the strict statutory approach is determinative,
he does not explicitly ask us in his main brief to overrule the two-step
approach of Halliburton, 539 N.W.2d at 344–45, and Lewis, 514 N.W.2d at
69.
In addition, West acknowledges that the involuntary manslaughter
offense is a class “D” felony while the offense he claims is merged into
involuntary manslaughter, delivery of a controlled substance, is a class
“C” felony. West argues, however, that under our decision in Gallup, 500
N.W.2d at 442, it makes no difference that the greater offense is subject to
a lesser penalty than the included offense.
After the court of appeals affirmed his conviction, West sought
further review. In his application for further review, West reprises his prior
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arguments but also explicitly asks us to revisit our approach to lesser
included offenses and follow the approach of Justice Carter in Lambert,
612 N.W.2d at 816–17, and Daniels, 588 N.W.2d at 685–86. West thus
argues that because the elements of delivery are necessarily included in
the greater offense of involuntary manslaughter by public offense, the
judgment and sentence for the conviction that merges should be vacated.
The State counters with a two-pronged argument. With respect to
the Blockburger elements test, the State notes that the jury instruction
regarding the delivery charge specifically stated that in order to find the
defendant guilty the jury was required to find that the defendant “knew
that the substance delivered was heroin.” The State suggests that because
it is possible to commit the crime of involuntary manslaughter by public
offense through delivery of a drug other than heroin, the offenses do not
merge.
In the alternative, the State relies on the second step of Halliburton,
namely, legislative intent. The State notes that, in Halliburton, the court
emphasized that the crimes of possession of an offensive weapon and
possession of an offensive weapon by a felon were both class “D” felonies.
539 N.W.2d at 344. The Halliburton court reasoned that if merger occurred
for crimes with identical punishment, there would never be a reason to
charge a defendant with the greater offense. Id.The State points out that reasoning similar to Halliburton was
employed in Lewis, 514 N.W.2d at 69. In Lewis, the State asserts, we
concluded that the “greater” crime of criminal gang participation did not
merge with the “lesser” crime of terrorism because the penalty of the
greater offense was less than the included offense. Id. The State argues
that Lewis stands for the proposition that a penalty scheme providing that
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the greater offense has a lesser punishment than the included offense
indicates a legislative intent that multiple punishments be permitted.
We agree with the State’s latter argument. In Halliburton and Lewis,
we determined that while the legal elements test is a useful tool, it is not
determinative. 539 N.W.2d at 344; 514 N.W.2d at 69. Halliburton and
Lewis both stand for the proposition that where the greater offense has a
penalty that is not in excess of the lesser included offense, a legislative
intent to permit multiple punishments arises. 539 N.W.2d at 344–45; 514
N.W.2d at 69. Otherwise, there would be little point to the greater offense.
In this case, if the offenses merged, a person convicted of both
involuntary manslaughter by public offense and delivery of a controlled
substance would receive a lesser sentence than a defendant convicted
solely of delivery of a controlled substance. It is hard to imagine that the
legislature intended this result. While it is true that we made the
observation in Gallup that it made no difference that the lesser included
offense had a greater penalty, 500 N.W.2d at 442, this observation was
made solely in the context of the legal elements test.
That leaves the question of whether we should abandon our two-
step approach to Iowa Code section 701.9 as suggested by Justice Carter
in his opinions in Reed, 618 N.W.2d at 337, Lambert, 612 N.W.2d at 816–
17, and Daniels, 588 N.W.2d at 685–86.
As demonstrated above, however, the question of what constitutes a
necessarily included offense is a difficult issue. What constitutes a
necessarily included offense has given rise to multiple tests and varied
analysis, both in Iowa and elsewhere. In the context of merger of offenses,
the term “necessarily included” contains a heavy dose of ambiguity. See
Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa
1995) (discussing the court’s approach to resolving statutory ambiguity).
19
In Halliburton and Gallup, we decided to approach the statutory
question under Iowa Code section 701.9 in a fashion similar to the federal
double jeopardy cases. 539 N.W.2d at 344; 500 N.W.2d at 445. The basic
approach taken in these cases can be easily stated: the question of
whether an offense is necessarily included in a greater offense is a question
of legislative intent. See Halliburton, 539 N.W.2d at 344. The Blockburger
strict legal elements test is thus a tool in the analysis but is not solely
determinative. Id.The Gallup and Halliburton approach is reasonable. Relying on
federal double jeopardy caselaw to suggest an interpretive approach to a
state statute to address the merger of crimes is neither required nor
prohibited. The question is not whether we would have decided the
question differently if this were a question of first impression but whether
our intervention twenty years later is required to correct an error.
Because our approach in Gallup and Halliburton coherently
addresses a statutory ambiguity, is not unworkable, and amounts to a
highly visible approach to statutory interpretation of the relationship
between criminal offenses that the legislature has chosen not to revise over
a twenty-year period, we decline to disturb this line of cases.
IV. Conclusion.
For the above reasons, the decision of the court of appeals and the
judgment of the district court are affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Wiggins, J., who takes no part.