Petition — Whalen v. United States

a rn ae gn TE te nn et een - ae

.

IN THE

SUPREME nS aaa OF THE UNITED STATES

OCTOBER TERM, 1978

~ ¥8-5471

THOMAS W. WHALEN,| RECEIVED

Petitioner SEP 2 51978

ve

OFFICE OF THE CLERK

| .,SUPREME COURT. U.S.

UNITED STATES OF AMER

Respondent

and

JAMES E. PYNES,

Détitionex

v.

UNITED STATES OF AMERICA,

Respondent

\

CONSOLIDATED PETITIONS FOR WRITS OF CERTIORARI TO

THE DISTRICT OF COLUMBIA COURT OF APPEALS

W. Gary Kohlman

Henry W. Asbill

Public Defender Service

for the District of Columbia

451 Indiana Avenue, N.W.

Washington, D.C. 20001

628-1200

Counsel for Petitioners

oes ‘ ~ #™ aa) ae a hei: AE RES Figen at Sa es ie Et aes ii ares i die ae We, La ae rio ng I Atats — ; 7-8

mF ; : §

e | INDEX | Page CITATIONS 4

ee Opinions Rc 5% 6 wo Sale 6 Uk ERE OE woe OREO KORE T A OO Re Oe 2 Cases . Pa e

fe TULISGICCION.«.. eee eseseeesereeeeeresececressesescsee 2 ] Ashe v. Swenson, 397 U.S. 436 (1970).....sccecceccccccceee 10

& Question PRE. bc be 6 6c oS beta eben sbbcec 6cbeb eusete 3 Bell v. United States, 349 U.S. 81 SPOS) vaca’ ca beh owe cues 7

; Constitutional Provision Involved........eceeccescccee 4 Blockburger v. United States, 284 U.S. 299, 304 (1932).... 6,7,8

Statement of The CMR. Si tia 8 Cae 6 baa Oe aos UME SER Ewe OES 4 Brown Vv. Ohio, 432 U.S. 161 aerial «ta 6b a's.6 608 cen eee 8,9

Reasons For Granting The Writs.......cccceesscesssvcees 6 Harris v. Oklahoma, 433 U.S. 682 (1977) ....cececececececes 8,9

de THE DECISIONS BELOW AFFIRMING THE TRIAL : a ‘

‘COURTS’ IMPOSITION ON PETITIONER WHALEN OF © Hilton ‘oop States, No. 78-5350 (filed September -

CONSECUTIVE SENTENCES FOR FELONY-MURDER AND J eeenereeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eee

THE UNDERLYING OFFENSE OF RAPE AND ON ,

PETITIONER PYNES FOR FELONY-MURDER AND THE rngr an ys oats Sragees 122 U.S.App.D.C. 334, ;

UNDERLYING OFFENSE OF ARMED KIDNAPPING . 2d B72 (1 eee oPeoeeeeeeeeeeeeneeeeneeeeeeeeeeee

CONFLICT WITH THE DOUBLE JEOPARDY CLAUSE OF

THE FIFTH AMENDMENT AS APPLIED IN PRIOR a ees Md. 260, 373 A.2d 262 ao

DECISIONS OF THIS COURT AND THE UNITED STATES . — eeeeeeeeeeeeeeeeeeeeeeeeeeeee vn eeeeeee

COURT OF APPEALS FOR ‘THE DISTRICT OF COLUMBIA North Carolina v. Pearce, 395 U.S. 711, 717 (1969).......9 |

SIROCULT «ch 0d cade Gee eRe weak e week eehee 6 » tee eee ee oS Ere: e

II. THE DECISIONS BELOW AFFIRMING THE TRIAL COURTS’ Feopie v: Corin p22 Til .App-34 796,316 N.B. 2d e

IMPOSITION OF CONSECUTIVE SENTENCES ON BRR Cres Et oe” ae erie co ee ee oe ee

PETITIONER WHALEN FOR FELONY-MURDER AND THE

UNDERLYING OFFENSE OF RAPE AND ON PETITIONER Prince v. United States, 352 U.S. 322 (1957)............. 7

oun or coun ateamapeiia Gtairunee alae aie Pynes v. United States, D.C.App., 385 A.2d 772 (1978).... 7

DECISIONS OF THE HIGHEST COURTS OF SEVERAL ;

STATES WHICH HAVE INTERPRETED THE DOUBLE State v. Adams, 335 So.2d 801 (Fla. 1976)........-e-eeeee-- 11,12

JEOPARDY CLAUSE OF THE FIFTH AMENDMENT IN THE .

PELOMY-MURDER CONTENT. << oc coc occu ccceceee ll State v. Carlson, 5 Wisc.2d 595, 93 N.W.2d 354 (1958).... il

: State v. Chambers, 524 S.W.2d 826, 829 (Mo. 1975)........ 12

COMPEVE SOS oe Sec Rk OE Cea we hk 6S SDSL ROE ewe wen 12

: Ss 1. Wik é 292 So.2d 505

Corti Fiante of Gerweotsnds cece sc ccdbereccceuteneeeecendee tate ox. = NOTE oe, 1) Henderson, 292 So.2d 905 ll

Appendix MS 6 e-88S 0&6 oe Roe CK CREM Oe OS 6 64s eee oe la State Vv. Thompson, 280 uC; 202, 185 S.E.2d 666 (1972)... "RD

4

Appendix Biv Seid é 8 CRC: OE SHEE Ch BR be tee a eke 16a State Vv. Woods, 286 N.C. 612, 213 S.E.2da 214 €19 75) .ciavm%< 1l

Appendix Ce cccccccescccsnccesecescesensvcepesessetocss 18a United a ates Vv. Ter 166 U.S.App.D.C. 399, 401 n.6,

Appendix Discocecveceewe comet we BE eee be ees 6s eee ae 23a 779, nee (1975) won eeeeeeereeeeerececces 10 a

e: pest Uni Staies v. 160 U.S.App.D.C. 21, 34, oy

Appendix Bec vce epee es eters an.F bee S Aeon hed Se SCE R ee RS 24a 3 oniteg stains MP es st) (1973), cert. “denied, 3 1

Appendix Bec cock cae wks 6 abend ss Seek eee ea ee 25a : - SS 419 U.S. 977 De SRR DORR oreo a eacoy ge REY Ou é

: . Whalen v. United States, D.C.App., 379 A.2d 1152

5 (1977) ,.xehearing denied, 388 A.2d 894 (1978)........ 6,8

CONSTITUTION

United States Constitution, 5th Amendment..........cee22- 4

MISCELLANEOUS

Supreme Court Rule 23:14) (5) cccccccccscvcccccccccsseseces 1

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United States Code :

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District of Columbia Code

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IN THE

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

OCTOBER TERM, 1978 SUPREME CGURT, U.S,

" 78-5471

THOMAS W. WHALEN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

and

JAMES E. PYNES,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

CONSOLIDATED PETITIONS FOR WRITS OF CERTIORART ,T0

THE DISTRICT OF COLUMBIA COURT OF APPEALS,/

Thomas W. Whalen and James E. Pynes petition for writs of

certiorari to review the judgments of the District of Columbia

Court of Appeals in their respective cases.

1/ Both cases present the same issue and are thus consolidated

pursuant to Supreme Court Rule 23(j0(5).

Counsel also direct the Court's attention to their

Petition For A Writ Of Certiorari in Hilton v. United

States, No. 78- ed Sept r 5, 1978), which pre-

sents a variation of the issue raised in the instant

Consolidated Petition

ne a a lk: pe cu

OE NO EN

> St~ Ens amet:

PAR oS! RE IG Say ar

OPINIONS BELOW

(Whalen)

The opinion of a division of the District of Columbia ©

Court of Appeals affirming petitioner Whalen's conviction is

reported at 379 A.2d 1152 (1977) and is attached hereto as

Appendix A, infra, pp. la-l5a. The separate Order of that

court denying petitioner Whalen's Petition For Rehearing Or In

The Alternative For Rehearing En Banc is reported at 388 A.2d

894 (1978) and is attached hereto as Appendix B, infra, pp.

16a-17a.

(Pynes)

The opinion of a division of the District of Columbia

Court of Appeals affirming petitioner Pynes' conviction is

reported at 385 A.2d 772 (1978) and is attached hereto as

Appendix C, infra, pp. 18a-22a. The separate Order of that

court denying petitioner Pynes' Petition For Rehearing Or In

The Alternative For Rehearing En Banc is unreported and is

attached hereto as Appendix D, infra, p. 23a.

JURISDICTION

(Whalen)

On January 8-16, 1974, petitioner Whalen was tried by a

jury in the District of Columbia Superior Court on a seven

count indictment for the felony-murder of one Rebecca Reiser

during the course of a rape, robbery and burglary. He was

convicted on five counts and was subsequently sentenced on

March 4, 1974 to concurrent terms of twenty years to life

imprisonment for the felony-murder (rape) and felony-murder

(first degree burglary) convictions and fifteen years to life

imprisonment for the second degree murder conviction. He was

also sentenced to consecutive terms of fifteen years to life

imprisonment for the rape conviction and ten to thirty years

for the first degree burglary conviction.

\ os

On June 18, 1974, Mr. Whalen filed a timely notice of

appeal in the Superior Court (copy attached as Appendix E,

infra, p. 24a), and in his briefs and oral argument before

the District of Columbia Court of Appeals, he challenged, inter

alia, the constitutionality of the trial court's sentence. The

Court of Appeals, however, affirmed his convictions for felony-

murder (rape) and rape on November 10, 1977 and subsequently

denied his application for rehearing and/or rehearing en banc

on July 14, 1978.

(Pynes)

On November 23-29, 1978, petitioner Pynes was tried by a

jury in the District of Columbia Superior Court on a three-

count indictment for the felony-murder of one Overton Bonner

during an armed kidnapping. He was convicted on all counts

and was subsequently sentenced on January 21, 1974 to con-

current terms of twenty years to life imprisonment on each of

the murder convictions and to a consecutive term of fifteen

years to life imprisonment on the kidnapping conviction.

On January 23, 1974, Mr. Pynes filed a timely

notice of appeal in the Superior Court (copy attached as

Appendix F, infra, p. 25a), and in his briefs and oral argu-

ment before the District of Columbia Court of Appeals, he

challenged, inter:‘alia, the constitutionality of the trial

court's sentence. The Court of Appeals, however, affirmed

his convictions on April 26, 1978 and subsequently denied his

application for rehearing and/or rehearing en banc on June 27,

1978.

The jurisdiction of this Court over both cases is

invoked under 28 U.S.C. §1257(3).

QUESTION PRESENTED

Whether the doctrine of merger of offenses, an integral

: oe Remmi Sa 8S, .

part of the Double Jeopardy Clause of the Fifth Amendment to

the Federal Constitution, precludes the respective trial

courts from imposing consecutive sentences on (1) petitioner

Whalen for Jokomsouiedee Ane the underlying offense of rape and

(2) petitioner Pynes for felony-murder and the underlying

offense of armed kidnapping?

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision involved in both cases is

the Double Jeopardy Clause of the Fifth Amendment to the

wéaeral Constitution which provides that no person shall “be

subject for the same offense to be twice put in jeopardy of

life or limb."

STATEMENT OF THE CASES

(Whalen)

Petitioner Whalen was charged in a fifteen count indict-

ment for, inter alia, the offenses of: (1) felony-murder (rape)

(22 D.C. Code §§2401, 2404); (2) felony-murder (robbery) (22

D.C. Code §§2401, 2404); (3) felony-murder (first degree bur-

(4) second degree murder

(6) rob-

glary) (22 D.C. Code §§2401, 2404);

(22 D.C. Code §2403); (5) rape (22 D.C. Code §2801);

bery (22 D.C. Code §2901); and (7) first degree burglary (22

D.C. Code §1801(a)).

At trial, the prosecution's theory was that Mr. Whalen,

a maintenance worker at the apartment complex where the victim

resided, killed her during the course of a burglary, robbery,

and rape. The Government's case was based primarily on the

petitioner's fingerprint and thumbprint found in the deceased's

apartment and witnesses who placed him at the apartment complex

on the morning of the incident.

At the conclusion of the Government's case, the court

granted the petitioner's motions for judgment of acquittal as to

the felony-murder (robbery) and robbery counts. The jury sub-

sequently returned verdicts of guilty on the remaining five

-4-

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counts of the indictmagt. THe trial court eventually sen- :

tenced the petitioner to concurrent terms of twenty years to

life on each of the felony-murder (rape) and felony~murder

(first degree burglary) convictions and fifteen years to life

on the second degree murder offense. The court also imposed

sentences of fifteen years to life for rape, to run con-

secutively with the murder sentences, and ten to thirty years

for first-degree burglary, to run consecutively with both the

murder and rape sentences.

3 (Pynes)

Petitioner Pynes was charged by indictment with counts of:

(1) first degree premeditated murder (22 D.C. Code §2401);

(2) felony-murder (22 D.C. Code §$2401, 2404); (3) kidnapping

while armed (22 D.C. Code §§2101, 3202); and (4) unarmed kid-

napping (22 D.C. Code §2101). |

At trial, the Government's theory of the case was that

Mr. Pynes had killed decedent Bonner in November of 1972

because Bonner was a potential witness against him in an armed

robbery that had occurred the previous July. Accordingly,

the prosecution introduced evidence concerning both the

robbery and the subsequent killing. But for an alleged

admission by Pynes to a fellow inmate, Raymond Monroe, the

evidence that Pynes killed the deceased was weak and entirely

circumstantial: “and, Monroe admitted that his main reason for

testifying apalnad Mr. Pynes was that the Government authorities

had offered to help him with his own pending cases.

After the jury returned verdicts of guilty of all counts,

the trial court thén sentenced the petitioner to con-

current terms of twenty years to life on each of the murder

convictions and imposed a sentence of fifteen years to life

on the kidnapping count, to be served consecutively to the

sentences imposed for the murder convictions.

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REASONS FOR GRANTING THE WRITS

I. THE DECISIONS BELOW AFFIRMING THE TRIAL COURTS'

IMPOSITION OF CONSECUTIVE SENTENCES ON PETITIONER

WHALEN FOR FELONY-MURDER AND THE UNDERLYING OFFENSE

OF RAPE AND ON PETITIONER PYNES FOR FELONY-MURDER

AND THE UNDERLYING OFFENSE OF ARMED KIDNAPPING

CONFLICT WITH THE DOUBLE JEOPARDY CLAUSE OF THE

FIFTH AMENDMENT AS INTERPRETED IN PRIOR DECISIONS

OF THIS COURT AND THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT.

In their briefs and oral arguments below, both petitioners

contended that the Double Jeopardy Clause precluded any sen-

tence in excess of the mandatory sentence of twenty years to

life on the felony-murder charges because the underlying

felonies merged into the greater charge. As will be shown

below, the lower courts' analyses in rejecting that argument

arein conflict with the holdings of this Court and the United

States Court of Appeals for the District of Columbia Circuit.

In Whalen v. United States, D.C.App., 379 A.2d 1152

(1977), the petitioner contended that his rape conviction

merged into his felony-murder conviction based on the rape

charge. The District of Columbia Court of Appeals acknowledged

Whalen's argument that the underlying felony (rape) was an

"element" of felony-murder and thus that the aan offenses

would ordinarily merge under the teachings of Blockburger v.

United States, 284 U.S. 299 (1932). But, the court mis-

takenly, however, went on to examine the societal interests

protected by the two statutes involved and concluded that

because different interests were protected by the rape and

felony-murder statutes, no merger occurred. The court further

noted that even absent a societal interest analysisjeipe was -

not a lesser included offense of felony (rape) murder because

"while the underlying felony is an element of felony-murder it

serves a more important function as an intent-divining mechanisp."

379 A.2d at 1160.

In Pynes v. United States, D.C.App., 385 A.2d 772 (1978),

the petitioner contended that his armed kidnapping conviction

merged into his felony-murder conviction based on the kid-

napping dhiaroé: The Court of Appeals, however, determined

that the case did "not involve a single transaction resulting

in two crimes, but a series of interrelated acts resulting in

two crimes which are defined by separate statutes that are not

385 A.2d at 773.

in pari materia." The court further noted

that even if the transaction were continuous, the doctrine

of merger would be inapplicable "because the transaction

offended multiple societal interests and constituted separate

offenses." Id. (citations omitted).

The Whalen and Pynes courts’ “societal interest analyses"

2/

were misguided and led them to incorrect conclusions. For,

if one statutory violation is an "element" of another

statutory violation, then for Double Jeopardy purposes, they

constitute the “same offense" and thus merge. So much was made

2/ ‘The Whalen court's “societal interest analysis” was

also unwarranted because once it had determined that the

convictions merged under Blockberger, its inquiry should

have ended, and the rape conviction should have been

vacated. For, it is only where no merger occurs that

courts examine the interests involved to determine whether

consecutive sentences should nonetheless be barred. See

Prince v. United States, 352 U.S. 322 (1957); Bell v.

United States, 349 U.S. 81 (1955); Ingram v. United States,

122 U.S.App.D.C. 334, 353 F.2d 872 (1865).

The Pynes court's "societal interest analysis" was un-

necessary to its disposition of the case because the court

there found that the felony-murder and kidnapping were

separate "transactions". But that distinction is without

substance, for even as the panel recognized, ". . « 3

of the felony substitutes for [proof of] premeditati 5 hs

and deliberation by legislative fiat." 385 A.2d at 773.

Moreover, were the murder and the kidnapping not part and

parcel of a single transaction, there could have been no

conviction for felony-murder since the code requires that

the killing occur “in prepetrating or attempting to

rpetrate. . . the underlying felony." 22 D.C. Code

§2401 (1973).

‘Se 4 _ . Ld ” “on

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PMA ap Coe EW gs ea tye ae

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} Clear in Blockburger v. United States, supra. The issue there

| was whether the defendant could be punished twice for violations

| of two distinct narcotics statutes. This Court responded:

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.

284 U.S. at 304. :

Blockburger, in other words, permits consecutive sentences only

where neither of the two statutory violations in question is a

lesser included offense of the other. Blockburger makes

equally clear that if the same act or transaction results in two

statutory violations and one of them has all the elements of the

other, then they are considered "the same offense" because one

"merges" into the other.

This Court has recently applied those concepts to factual

settings analytically indistinguishable from the cases at bar.

In Harris v. Oklahoma, 433 U.S. 682 (1977; , the defendant was

convicted of felony-murder and, in a separate prosecution, was

also convicted of robbery with firearms which was the same

felony underlying the felony-murder conviction. This Court,

in reversing the second conviction, held that:

When, as here, conviction for a greater

crime, murder, cannot be had without a

conviction for the lesser crime, robbery

with firearms, the Double Jeopardy Clause

bars prosecution for the lesser crime

after conviction for the greater one.

433 U.S. at 684.

And, in Brown v. Ohio, 432 U.S. 161 (1977), the defendant was

| prosecuted and punished for the crime of stealing an automobile

after he had already been prosecuted and punished for the lesser

included offense of operating the same vehicle without the oat d

consent. ‘This Court again reversed, holding that the Double Jeopardy Clause:

“protects against a second prosecution for the same offense after

\

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acquittal. It protects against a second

prosecution for the same offense after

conviction. And it protects against

multiple punishments for the same offense."

rth Carolina v. Pearce, 395 U.S. 711,

69). Where consecutive sentences

are imposed at a single criminal trial, the

role of the constitutional guarantee is

limited to assuring that the court does not

exceed its legislative authorization by.

imposing multiple punishments for the same

offense. 432 U.S. at 165.

Accordingly, Harris and Brown, when read together, unden-

iably support the petitioners’ claims that their consecutive

sentences for the underlying felonies were improper. Por, if

two offenses are the same for purposes of barring successive

prosecutions, as in Harris v. Oklahoma, supra, and if two

offenses are the same for purposes of barring. multiple punish-

ments as in Brown v. Ohio, supra, the felony-murder and under-

lying felonies in the instant cases necessarily are the same

for the purposes of barring dual convictions and consecutive

3

sentences in a single prosecution. Brown v. Ohio, supra, in

particular, would seem to control the petitioners' claims. It

involves the precise issue presented here - punishment for

both a greater offense and a lesser included charge. The fact

that Brown v. Ohio, supra, presents the issue after two trials

is beside the point. What offended the Double Jeopardy Clause

in Brown was not the successive prosecutions, which in many

3/ The petitioners direct this Court's attention to the fact

that although both Harris v. Oklahoma and B Vv.

decided more than five months prior to the District of

Columbia Court of Appeals' decision in Whalen, and more

than ten months prior to the same court's decision in Pynes,

there is no mention of those cases in either opinion be e

sig: OE ieee. oe: Se ae ee ee oo teint a gO scorsineianen ©

wee eT ese i hes * ae tt ee Re eee RL,

| instances are not constitutionally prohibited, see Ashe v.

| defendant was twice convicted of the same offense.

bat; ss ; % = “a

Swenson, 397 U.S. 436 (1970), but rather the net result that the

The courts' opinions below are also in conflict with two

decisions by the United States Court of Appeals for the

District of Columbia Circuit, United States v. Greene, 160 U.S.

App.D.C. 21, 34, 489 F.2d 1145, 1158 (1973), cert. denied, 419

U.S. 977 (1974), and United States v. Dancy, 156 U.S.App.D.C.

399, 401, n.6 510 F.2d 779, 781 n.6. (1975). In Greene, the

appellant was sentenced consecutively for the offenses of

rescue of a federal prisoner and a felony-murder which occurred

during that rescue. The Circuit Court, in vacating his con-

viction for the rescue offense, applied the Blockburger test

and held that since the charge of felony-murder included every

essential element of the rescue charge, there was a merger of

offenses, and thus a consecutive sentence for the felony of

rescue was improper. And, in Dancy, the Circuit Court relied

on its previous decision in Greene and vacated the appellant's

conviction for attempted robbery while armed since it was the

underlying felony of his felony-murder conviction.

These cases all make it plain what the lower courts here

failed to recognize: in every felony-murder prosecution, the

underlying felony "merges" into the felony-murder conviction.

Those two statutory violations are, for Double Jeopardy pur-

poses, “the same offense", because one (felony-murder) has all

the elements of the other (the underlying felony). By proving

the underlying felony, the Government proves an element of

first-degree murder (with its mandatory 20 years to life imprisonment

that obviate its necessity to establish premeditation and

deliberation, the traditional elements of first-degree murder.

It is precisely because proof of the felony supplies vital

elements of the first degree murder charge that cumulative

punishment for both felony-murder and the underlying felony

ae tp - — —

violates the Double Jeopardy Clause.

The conflicts detailed above justify the grant of

certiorari to review the District of Columbia Court of Appeals'

judgments in the cases at bar.

II. THE DECISIONS BELOW AFFIRMING THE TRIAL COURTS'

IMPOSITION OF CONSECUTIVE SENTENCES ON PETITIONER

WHALEN FOR FELONY-MURDER AND THE UNDERLYING

OFFENSE OF RAPE AND ON PETITIONER PYNES FOR FELONY-

MURDER AND THE UNDERLYING FELONY OF ARMED KID-

NAPPING CONFLICT WITH THE DECISIONS OF THE HIGHEST

COURTS OF SEVERAL STATES WHICH HAVE INTERPPETED THE

DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT IN

THE FELONY-MURDER CONTEXT.

The District of Columbia Court of Appeals decisions

below rejecting the merger doctrine in the felony-murder con-

text are at odds with the decisions of the highest courts of

several states. For example, in People v. Holiday, 21 I11.App.

3d 796, 316 N.E.2d 236 (1974), a case in which the _

defendant was charged with three counts of murder (first

degree, second degree and felony-murder), all arising out of

one killing which occurred during the course of an attempted

armed robbery, the court held that:

where the defendant is charged with an attempt

to rob that results in a felony murder, sen-’

tences cannot be imposed for Loth offenses. ...

The only permissible sentence is for the more

serious offense. . . . 316 N.E.2d at 239.

(footnote and citations omitted).

Other instances in which state appellate courts have

applied the merger doctrine in the felony-murder context,

vacating the conviction for the underlying offense on Double

Jeopardy grounds, are: Newton v. State, 280 Md. 260, 373 A.2da

262 (Md. App. 1977) (conviction for attempted robbery vacated); |

‘State v. Woods, 286 N.C. 612, 218 S.£.24 214 (1975) ‘convictions. .

for kidnapping and rape vacated); State ex rel. Wikberg v. t

Henderson, 292 So.2d 505 (La.App. 1974) (conviction for

attempted armed robbery vacated); State v. Thompson, 280 N.C.

202, 185 S.E.2a 666 (1972) (conviction for breaking and entering

vacated); State v. Carlson, 5 Wisc.2d 595, 93 N.W.2d 354 (1958)

(conviction for arson vacated). Contra, State v. Adams, 335

=e

So.2d 801 (Pla. 1976) (robbery conviction reinstated =- no

merger); State v. Chambers, 524 S.E.2d 826, 829 (Mo. 1975)

(en banc) (felony murder, stealing -- no merger).

The above-cited state court cases Support the petitioners'

contentions below and also warrant the grant of certiorari in

the instant cases.

CONCLUSION

For the foregoing reasons, writs of certiorari should

issue to review the judgments and opinions of the District of

Columbia Court of Appeals in both of the cases at bar.

Respectfully submitted,

[, Maus kp Passi

W. Gary ss 9 wea

Public Defender Service

for the District of Columbia f

451 Indiana Avenue, N.W.

Washington, D.C. 20001

628-1200

| CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Consolidated

PetitionsFor Writs Of Certiorari has been served by first

class mail, postage prepaid, on the Office of the Solicitor

General, Department of Justice, Washington, D.C. 20530, this

25th day of September 1978.

| | Hera W Gosilh

The opinions attached as appendices to this petition can be

found at 379 A2d 1152, 388 A2d 894, 385 A2d 772, and 385 A2d 776.

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