Multiple Counts, Lesser-Included Offenses and Double Jeopardy
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
One of the quiet abuses in the nation’s criminal justice system is prosecutors overcharging criminal defendants. In their zeal to prosecute and convict, prosecutors file multiple counts against a defendant in a single indictment involving the same criminal conduct knowing – or least possessing the duty to know – that two convictions based on the same conduct will almost always be reversed on appeal. Criminal defense lawyers argue that many prosecutors charge multiple counts against a defendant in an attempt to prejudice a defendant, insinuating that the defendant must have done something to justify the multiple counts. There were two recent examples of this prosecutorial abuse – one involving a Texas case and the other involving a federal case in California.
Jared Daniel Littrell was charged in a multi-count indictment in Potter County, Texas, with felony murder and aggravated robbery. The charges stemmed from a criminal scheme by Littrell and a prostitute to rob a former client of the prostitute. Littrell and the prostitute entered the client’s hotel room where a struggle ensued during which the client was shot and killed. See: Littrell v. State, 2008 Tex. Crim. App. LEXIS 1306 (Tex. Crim. App. Oct. 15, 2008).
The trial judge charged the jury with an instruction that it could convict the Littrell on both counts. The jury did just that, and assessed Littrell’s punishment at 30 years on the felony murder and 25 years on the aggravated robbery conviction. Littrell appealed his convictions contending that the Fifth Amendment’s prohibition against double jeopardy had been violated by his punishment for offenses based on the same conduct. The Amarillo Court of Appeals disagreed, holding that because the murder and aggravated robbery each contained an element the other does not, double jeopardy did not attach. See: Littrell v. State, 2007 Tex.App. 5988 (Tex.App.-Amarillo July 25, 2007). The Court said:
”To prove aggravated robbery as alleged in the indictment, the State had to prove, among other things, the commission of theft coupled with aggravating circumstances; such was not required to prove . . . murder . . . . To prove murder, the State had to establish that an act of appellant caused [the complainant]’s death; that element is missing in . . . aggravated assault [sic] . . . . So, the test espoused in Cervantes [v. State, 815 S.W.2d 569, 571-75 (Tex.Crim.App. 1991)] was met and no problems with double jeopardy arose.” Id. LEXIS at 6. (more…)
