Mulliran v. Commonwealth

SCOTT, J.,

concurring in part and dissenting in part:

While I concur with the majority on the other issues, I must dissent as to the majority’s conclusion that there was no double jeopardy violation with respect to Mullikan’s convictions for first-degree wanton endangerment and third-degree terroristic threatening. Here, the defendant was convicted of both offenses for chasing Fry-man with a sword. I dissent because the majority presumes no double jeopardy violation in this case without thoroughly applying this Court’s decision in Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996). As a result, it is inconsistent with our precedent holding that convictions for both first-degree wanton endangerment and third-degree terroristic threatening of the same victim are barred under the double jeopardy clause.

I agree that Burge abandoned the “single impulse” or “same conduct”1 test in *111 favor of deciding double jeopardy claims based upon the Blockburger test. However, the majority glosses over the clear directive of Burge “to determine whether the act or transaction complained of constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of a fact the other does not.” Id. at 811 (emphasis added). This directive stems from the Supreme Court’s holding in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “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.” (Emphasis added). And we unanimously2 recognized in Clark v. Commonwealth, 267 S.W.3d 668, 675 (Ky.2008), that such an evaluation determines whether a double jeopardy violation occurred:

If each statute requires proof of an additional fact which the other does not, then conviction under the two statutes in question does not violate double jeopardy. If, however, the exact same facts could prove the commission of two separate offenses, then the double jeopardy clause mandates that while a defendant may be prosecuted under both offenses, he may be convicted under only one of the statutes.3

(Citation omitted) (emphasis added). Moreover, we recognized that, even though an overlap of proof does not establish a double jeopardy violation of its own accord, “an inability to point to the requirement of at least one mutually exclusive fact in existence does.” Id. at 677.

Here, although the elements of first-degree wanton endangerment and third-degree terroristic threatening are different,4 the exact same evidence had to be used to satisfy the differing elements of the separate crimes. Specifically, without any reference to the record before us, the Majority assumes that Mullikan was convicted of first-degree wanton endangerment for chasing Fryman with a sword and third-degree terroristic threatening for allegedly threatening to kill him. However, such an assumption belies its own factual recitation, as Mullikan only verbally addressed Fields during this incident.5 The only basis, then, for finding that Mullikan threatened to commit a crime upon Fryman would be via nonverbal communication, i.e. chasing him with a sword.6 As a result, there is “no *112 viable distinction between” Mullikan’s convictions of first-degree wanton endangerment and third-degree terroristic threatening with respect to Fryman, thereby yielding a double jeopardy violation. Id. at 678.

In summation, even though there are different elements of separate offenses, if the same evidence is used to satisfy the differing elements of the separate crimes, a double jeopardy violations results — even under Burge. Because the exact same evidence had to be used to satisfy the differing elements of first-degree wanton endangerment and third-degree terroristic threatening with respect to Fryman, I dissent.

. My double jeopardy analysis does not reinst-itute the "same conduct" test, which "pro *111 vides that, ‘if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,’ a second prosecution may not be had.” U.S. v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)). Rather, it recognizes that a thorough application of the Blockburger test requires something more than sterile examination of statutory language.

. Justice Venters was not sitting.

. KRS 505.020 represents the codification of this analysis.

. The Majority notes that terroristic threatening requires a threat to commit a crime while wanton endangerment does not. Conversely, wanton endangerment requires actual conduct placing others at serious risk while ter-roristic threatening requires neither actual conduct nor actual serious risk.

. The Commonwealth implicitly concedes this point, as it points out that there were "separate acts regarding Kent Fields.” Interestingly, the Commonwealth ignores this issue with respect to Fryman.

. While not raised by Mullikan, I question the sufficiency of the evidence to convict him for committing a terroristic threat upon Fryman, as I can find no case affirming such a convic *112 tion based on non-verbal communication. In fact, in Commonwealth v. Black, 907 S.W.2d 762, 763 (Ky.1995), this Court deemed the appellant entitled to a lesser included offense instruction because "it would be reasonable for a juror to believe that appellant verbally, but not physically, threatened the detective.” (Emphasis added); But see Commonwealth v. Clemons, 734 S.W.2d 459, 462 (Ky.1987) (Vance, J., dissenting) (stating that "[t]he pointing of a firearm at another person, if it constitutes a threat, appropriately falls within the provision of K.R.S. 508.080 dealing with terroristic threatening”). I also note that the terroristic threatening charge was the subject of two questions from jury deliberations. Specifically, the jury inquired if terroristic threatening only applied to verbal threats and asked for a definition of "terroristic threatening.”