concluding that counsel’s performance was deficient where counsel did not argue same criminal conduct as to rape and kidnapping charges
How later courts described this case
- concluding that counsel’s performance was deficient where counsel did not argue same criminal conduct as to rape and kidnapping charges
- concluding that “the kidnapping was committed in furtherance of the rape and, thus, the kidnapping and rape were the same criminal conduct”
- concluding that counsel's performance was deficient where counsel did not argue same criminal conduct and it was arguable that all elements of same criminal conduct were met
- holding convictions for felony murder and first degree rape did not merge when murder was distinct from and not incidental to the rape
Written by the judges who cited it.
The opinion
Morgan, J.
(dissenting in part) — Despite the majority’s attempt to parse a single incident into multiple ones, the record shows a single incident involving a single victim. Being bound by State v. Johnson, 5 which is directly on point, I would hold that one or more of the robbery, rape, and kidnap convictions merge with the felony murder conviction. 6 Being bound by the federal double jeopardy clause, which forbids convicting a defendant for two crimes involving the same facts and same victim if all the elements of one crime are included within the other, Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932) (“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”); United States v. Dixon, 509 U.S. 688, 696 , 113 S. Ct. 2849 , 125 L. Ed. 2d 556 (1993) (“whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution”); State v. Adel, 136 Wn.2d 629, 632 , 965 P.2d 1072 (1998); State v. Read, 100 Wn. App. 776, 790-92 , 998 P.2d 897 (2000), aff’d, 147 Wn.2d 238 , 53 P.3d 26 (2002), I would hold that one or more of the robbery, rape, and kidnap convictions are constitutionally impermissible. Thus, I agree with the majority’s affirmance of Saunders’ *828 murder conviction; I disagree with the majority’s affirmance of one or more of the other convictions; and I respectfully dissent in part.
92 Wn.2d 671 , 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948 (1980). The present case does not involve the kind of antimerger statute that controlled State v. Sweet, 138 Wn.2d 466, 476-78 , 980 P.2d 1223 (1999).
Cf. State v. Korum, 120 Wn. App. 686, 705 , 86 P.3d 166 (2004) (kidnapping and robbery merge where kidnapping is merely “incidental”).