Blockburger test in Arizona

2024Under the “Blockburger test,” we inquire “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment.” United States v. Dixon, 509 U.S. 688, 696 (1993). ¶17 To commit sexual conduct with a minor (count 3), one must “intentionally or knowingly engage in sexual intercourse” with any person 5 STATE v. QUIJADA Decision of the Court “who is under fifteen years of age.” A.R.S. § 13-1405(A)–(B).

2016State v. Eagle, 196 Ariz. 188, 190, ¶ 5 (2000). ¶8 The double jeopardy bar applies when “the two offenses for which the defendant is punished or tried cannot survive the ‘same- elements’ test . . . sometimes referred to as the ‘Blockburger’ test.” United States v. Dixon, 509 U.S. 688, 696 (1993).

2018For example, "a defendant may not be convicted for both an offense and its lesser included offense, because they are considered the 'same offense' for double jeopardy purposes." State v. Ortega , 220 Ariz. 320 , ¶ 9, 206 P.3d 769 , 772-73 (App. 2008) (quoting Lemke , 213 Ariz. 232 , ¶¶ 16-18, 141 P.3d at 413-14 ). 4 ¶13 But, in the context of multiple punishments imposed after a single trial, the Supreme Court has cautioned, "The Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where,

2018For example, "a defendant may not be convicted for both an offense and its lesser included offense, because they are considered the 'same offense' for double jeopardy purposes." State v. Ortega , 220 Ariz. 320 , ¶ 9, 206 P.3d 769 , 772-73 (App. 2008) (quoting Lemke , 213 Ariz. 232 , ¶¶ 16-18, 141 P.3d at 413-14 ). 4 ¶13 But, in the context of multiple punishments imposed after a single trial, the Supreme Court has cautioned, "The Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where,

2008See United States v. Dixon, 509 U.S. 688 , 708 n. 12, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993) (rejecting view that, after finding no double jeopardy violation under Blockburger test, court should nevertheless analyze “whether the nature of the acts as alleged supported such a claim”); see also Lemke, 213 Ariz. 232, n. 2 , 141 P.3d at 412 n. 2 (Arizona and federal double jeopardy protections "coextensive”); State v. Sanders, 205 Ariz. 208 , V 65, 68 P.3d 434, 448 (App.2003) (stating Supreme Court in Dixon held Blockburger test "is the only permissible interpretation of the double jeopardy claus

2008See United States v. Dixon, 509 U.S. 688 , 708 n. 12, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993) (rejecting view that, after finding no double jeopardy violation under Blockburger test, court should nevertheless analyze “whether the nature of the acts as alleged supported such a claim”); see also Lemke, 213 Ariz. 232, n. 2 , 141 P.3d at 412 n. 2 (Arizona and federal double jeopardy protections "coextensive”); State v. Sanders, 205 Ariz. 208 , V 65, 68 P.3d 434, 448 (App.2003) (stating Supreme Court in Dixon held Blockburger test "is the only permissible interpretation of the double jeopardy claus

2008Lemke, 213 Ariz. 232, ¶¶ 16-18 , 141 P.3d at 413 ; see also Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (concluding conviction for both greater and lesser included offense violates double jeopardy under Blockburger test).

2008Lemke, 213 Ariz. 232, ¶¶ 16-18 , 141 P.3d at 413 ; see also Brown v. Ohio, 432 U.S. 161, 168 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977) (concluding conviction for both greater and lesser included offense violates double jeopardy under Blockburger test).

2018Hunter , 459 U.S. at 368 -69 , 103 S.Ct. 673 . ¶14 Similarly, where the Blockburger test suggests cumulative punishment is permissible, because each statutory provision at issue "requires proof of a fact which the other does not," 284 U.S. at 304 , 52 S.Ct. 180 , that presumption should not control where, for example, "the legislative history ... discloses an intent contrary to the presumption," Albernaz , 450 U.S. at 340 -42 , 101 S.Ct. 1137 (silent legislative history insufficient to override Blockburger presumption).

2018Hunter , 459 U.S. at 368 -69 , 103 S.Ct. 673 . ¶14 Similarly, where the Blockburger test suggests cumulative punishment is permissible, because each statutory provision at issue "requires proof of a fact which the other does not," 284 U.S. at 304 , 52 S.Ct. 180 , that presumption should not control where, for example, "the legislative history ... discloses an intent contrary to the presumption," Albernaz , 450 U.S. at 340 -42 , 101 S.Ct. 1137 (silent legislative history insufficient to override Blockburger presumption).

1998In applying the Blockburger test, “we need only look to the statutory elements of the offenses to see if each statute contains an element not contained in the other; we may not consider the particular facts of the ease in making that determination.” Cook, 185 Ariz. at 361 , 916 P.2d at 1077 (citing Illinois v. Vitale, 447 U.S. 410, 416-19 , 100 S.Ct. 2260, 2265-67 , 65 L.Ed.2d 228 (1980)). ¶ 22 Under Blockburger , kidnapping is not the “same offense” as sexual assault or sexual abuse.

1998In applying the Blockburger test, “we need only look to the statutory elements of the offenses to see if each statute contains an element not contained in the other; we may not consider the particular facts of the ease in making that determination.” Cook, 185 Ariz. at 361 , 916 P.2d at 1077 (citing Illinois v. Vitale, 447 U.S. 410, 416-19 , 100 S.Ct. 2260, 2265-67 , 65 L.Ed.2d 228 (1980)). ¶ 22 Under Blockburger , kidnapping is not the “same offense” as sexual assault or sexual abuse.

2024When one act violates two statutes, the Blockburger test is “the only permissible interpretation of the double jeopardy clause.” State v. Carter, 249 Ariz. 312 , 316 ¶ 9 (2020) (citation and quotation marks omitted).

2024When one act violates two statutes, the Blockburger test is “the only permissible interpretation of the double jeopardy clause.” State v. Carter, 249 Ariz. 312 , 316 ¶ 9 (2020) (citation and quotation marks omitted).

2006“If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Ian-nelli v. United States, 420 U.S. 770 , 786 n. 17, 95 S.Ct. 1284 , 43 L.Ed.2d 616 (1975). ¶ 17 The superior court ruled that a second trial was not barred, reasoning that “[o]nly lesser-included offenses of felony murder would be deemed the ‘same offense’ for purposes of the Double Jeopardy Clause,” and there are no lesser-included offenses to felony murder.

2006“If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Ian-nelli v. United States, 420 U.S. 770 , 786 n. 17, 95 S.Ct. 1284 , 43 L.Ed.2d 616 (1975). ¶ 17 The superior court ruled that a second trial was not barred, reasoning that “[o]nly lesser-included offenses of felony murder would be deemed the ‘same offense’ for purposes of the Double Jeopardy Clause,” and there are no lesser-included offenses to felony murder.

1994Grady, 495 U.S. at 528 , 110 S.Ct. at 2097 (Scalia, J., dissenting).

1994Grady, 495 U.S. at 528 , 110 S.Ct. at 2097 (Scalia, J., dissenting).

2018Thus, "lesser in the sense of having fewer elements ... is the only sense of 'lesser' that matters under the Blockburger test." United States v. Peel , 595 F.3d 763 , 767-68 (7th Cir. 2010) (Posner, J.) (even though obstruction of justice carried higher penalty, it was lesser-included offense of bankruptcy fraud); see also Lee v. United States , 668 A.2d 822 , 826-28 (D.C. 1995) (citing Caudillo ; noting lesser-included offense carried more severe penalty than greater offense); cf. *1184 United States v. Harley , 990 F.2d 1340 , 1343-44 (D.C.

2018Thus, "lesser in the sense of having fewer elements ... is the only sense of 'lesser' that matters under the Blockburger test." United States v. Peel , 595 F.3d 763 , 767-68 (7th Cir. 2010) (Posner, J.) (even though obstruction of justice carried higher penalty, it was lesser-included offense of bankruptcy fraud); see also Lee v. United States , 668 A.2d 822 , 826-28 (D.C. 1995) (citing Caudillo ; noting lesser-included offense carried more severe penalty than greater offense); cf. *1184 United States v. Harley , 990 F.2d 1340 , 1343-44 (D.C.

2018Garcia , 235 Ariz. 627 , ¶ 8, 334 P.3d at 1289 ; see also State v. Gamez , 227 Ariz. 445 , ¶ 27, 258 P.3d 263 , 267 (App. 2011) ("Statutes that are in pari materia -those that relate to the same subject matter or have the same general purpose as one another-should be construed together as though they constitute one law.").

2018Garcia , 235 Ariz. 627 , ¶ 8, 334 P.3d at 1289 ; see also State v. Gamez , 227 Ariz. 445 , ¶ 27, 258 P.3d 263 , 267 (App. 2011) ("Statutes that are in pari materia -those that relate to the same subject matter or have the same general purpose as one another-should be construed together as though they constitute one law.").

2018Thus, "lesser in the sense of having fewer elements ... is the only sense of 'lesser' that matters under the Blockburger test." United States v. Peel , 595 F.3d 763 , 767-68 (7th Cir. 2010) (Posner, J.) (even though obstruction of justice carried higher penalty, it was lesser-included offense of bankruptcy fraud); see also Lee v. United States , 668 A.2d 822 , 826-28 (D.C. 1995) (citing Caudillo ; noting lesser-included offense carried more severe penalty than greater offense); cf. *1184 United States v. Harley , 990 F.2d 1340 , 1343-44 (D.C.

2018Thus, "lesser in the sense of having fewer elements ... is the only sense of 'lesser' that matters under the Blockburger test." United States v. Peel , 595 F.3d 763 , 767-68 (7th Cir. 2010) (Posner, J.) (even though obstruction of justice carried higher penalty, it was lesser-included offense of bankruptcy fraud); see also Lee v. United States , 668 A.2d 822 , 826-28 (D.C. 1995) (citing Caudillo ; noting lesser-included offense carried more severe penalty than greater offense); cf. *1184 United States v. Harley , 990 F.2d 1340 , 1343-44 (D.C.

2016Lewis v. Warner, 166 Ariz. 354, 356-57 (App. 1990). 3 STATE v. LANGSTON Decision of the Court person . . . or . . . [k]nowing that [his] conduct will cause death or serious physical injury, [he] causes the death of another person . . . or . . . [u]nder circumstances manifesting extreme indifference to human life, [he] recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person.” These statutes do not describe the same offense under the Blockburger test.

2016Lewis v. Warner, 166 Ariz. 354, 356-57 (App. 1990). 3 STATE v. LANGSTON Decision of the Court person . . . or . . . [k]nowing that [his] conduct will cause death or serious physical injury, [he] causes the death of another person . . . or . . . [u]nder circumstances manifesting extreme indifference to human life, [he] recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person.” These statutes do not describe the same offense under the Blockburger test.

2016State v. Eagle, 196 Ariz. 188, 190, ¶ 5 (2000). ¶8 The double jeopardy bar applies when “the two offenses for which the defendant is punished or tried cannot survive the ‘same- elements’ test . . . sometimes referred to as the ‘Blockburger’ test.” United States v. Dixon, 509 U.S. 688, 696 (1993).

2013Lemke v. Rayes, 213 Ariz. 232 , 239 n. 3, ¶ 18, 141 P.3d 407 , 414 n. 3 (App. 2006); Siddle, 202 Ariz. at 516, ¶ 9 , 47 P.3d at 1154 .

2013Lemke v. Rayes, 213 Ariz. 232 , 239 n. 3, ¶ 18, 141 P.3d 407 , 414 n. 3 (App. 2006); Siddle, 202 Ariz. at 516, ¶ 9 , 47 P.3d at 1154 .

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2013Those courts hold, under a variety of theories, that even when there are different elements to the two charges, “a trial court cannot impose multiple convictions and sentences for variations of murder where only one person was killed.” Ervin, 991 S.W.2d at 807; see, e.g., United States v. James, 556 F.3d 1062, 1067-68 (9th Cir.2009) (remanding a second-degree murder conviction for vacation in light of a concurrent felony murder conviction when there was only one victim); Gray, 463 P.2d at 911 (“We believe that only one conviction of murder should be allowed for the killing of one man.”); Peopl

2006Thus, even assuming that the superior court and the State are correct that a defendant would never be entitled to have a jury instructed on armed robbery as a lesser-included offense of felony murder, but see State v. West, 176 Ariz. 432, 443 , 862 P.2d 192, 203 (1993) (observing that “this court has consistently held that felony murder contains no lesser included homicide offenses”) (emphasis added), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58 , 961 P.2d 1006 (1998), this does not mean that the two offenses are not the “same” for purposes of double jeopardy analysis. *239 ¶

2006Thus, even assuming that the superior court and the State are correct that a defendant would never be entitled to have a jury instructed on armed robbery as a lesser-included offense of felony murder, but see State v. West, 176 Ariz. 432, 443 , 862 P.2d 192, 203 (1993) (observing that “this court has consistently held that felony murder contains no lesser included homicide offenses”) (emphasis added), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58 , 961 P.2d 1006 (1998), this does not mean that the two offenses are not the “same” for purposes of double jeopardy analysis. *239 ¶

1995He then cites State v. Nunez, 167 Ariz. 272, 275-76 , 806 P.2d 861, 864-65 (1991), for the proposition that, even before Dixon, Grady only applied to cases involving successive prosecutions and that only the Blockburger test applied to cases involving multiple punishments.

1995He then cites State v. Nunez, 167 Ariz. 272, 275-76 , 806 P.2d 861, 864-65 (1991), for the proposition that, even before Dixon, Grady only applied to cases involving successive prosecutions and that only the Blockburger test applied to cases involving multiple punishments.