Brookins v. State

600 P.2d 12, 1979 Alas. LEXIS 674
CourtAlaska Supreme Court
DecidedSeptember 21, 1979
Docket3972
StatusPublished
Cited by26 cases

This text of 600 P.2d 12 (Brookins v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brookins v. State, 600 P.2d 12, 1979 Alas. LEXIS 674 (Ala. 1979).

Opinions

OPINION

Before BOOCHEVER, C. J., and RABI-NO WITZ, CONNOR, BURKE and MATTHEWS, JJ.

BOOCHEVER, Chief Justice.

Tommy L. Brookins appeals from the sentencing upon his pleas of guilty to two of four counts brought against him; Count I being “attempted armed robbery,”1 and Count III being assault with intent to commit robbery.2 Brookins was sentenced to seven years on Count I and ten years on Count III with sentences to run concurrently and with no part suspended.

[14]*14This appeal raises questions concerning double jeopardy; interpretation and application of AS 11.05.020, prescribing punishment for an attempt to commit a crime, in conjunction with AS 11.15.295, providing for minimum sentences for use of a firearm during the commission of certain crimes, and AS 11.15.240 proscribing the offense of robbery; and the appropriateness of the length of sentence imposed under the circumstances of this case.

The events of the evening of December 29, 1977, may be reconstructed from the testimony of the various witnesses at the sentencing hearing and from the presen-tence report. It is undisputed that at about 10:00 p. m. that evening, Brookins and two others, Denson Heard and Steven Wilson, entered a restaurant known as Sweets’ BarB-Q, intending to rob it. All three wore stocking masks. Brookins carried the only weapon, a rifle. There were no customers at the time; however, two employees and the proprietor were still on duty.

Brookins entered the kitchen and approached Patrice Campbell Fassone, who was washing dishes. She testified that he asked her where Sweets was and she responded that she did not know. According to her testimony, Brookins then momentarily stepped backward and away from her so that he could reach and open the cash register. Inside the cash register were three one-dollar bills. Ms. Fassone testified that Brookins then moved close to her and inquired once more as to the whereabouts of Sweets. After taking a second look into the cash register, Brookins nudged Fassone with the rifle and ordered her to precede him out of the kitchen.

One of the accomplices had been holding the other employee, Terry Holloway, in the dining room when Brookins and Fassone entered. That accomplice had been asking Holloway where Sweets was; she testified she told him that she did not know.

Sweets, whose real name is George Byrd-song, had been in the men’s room where he was able to hear what he considered unusual movements and hostile voices. He suddenly charged out from the men’s room toward the kitchen, where his .38 revolver was located. According to Byrdsong, Broo-kins then yelled, “Hold it, don’t move.” Byrdsong continued, however, and reached his gun, which accidentally fired when he tried to cock the hammer back. The shot sent everyone else scurrying, and the employees ran outside. Byrdsong took a position behind the barbeque pit located in the center of the kitchen.

According to Byrdsong’s testimony, he fired from behind his barbeque pit at the man with the rifle, who crouched, turned, and fired back in the direction of Byrdsong.

Byrdsong was able to make a quick and quiet exit out a back door and telephoned the police. He headed back toward his restaurant and noticed Brookins trying to sneak away. Byrdsong took cover behind a van and yelled for Brookins to stop. Broo-kins raised his rifle, and Byrdsong fired at him. Shots were exchanged as Brookins continued to flee and Byrdsong pursued. Byrdsong finally shot Brookins in the shoulder.

Brookins’ recollection of the events of that evening differed substantially from that of the other persons present. According to his testimony at the sentence hearing, he did not fire the rifle inside the restaurant. His testimony was that he had a change of heart about his plans for a robbery after entering the restaurant, that he announced his change in plans in a loud voice and that he regretted his actions. Brookins did admit firing the rifle twice outside the restaurant but asserted that the weapon was not pointed at anyone at the time. The court in imposing the sentence indicated its disbelief of Brookins’ recollection of the events of that evening.

Two issues were addressed in supplemental briefs filed by both parties at the request of this court. The first issue involves a question of double jeopardy.

Brookins pleaded guilty to two of four counts brought against him. Count I, titled in the indictment as “attempted armed robbery,” reads as follows:

[15]*15That on or about the 29th day of December, 1977, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, Tommy Lee Brookins, Denson Heard, Deidre Taylor and Steven A. Wilson, did wilfully, unlawfully and feloniously, by putting Terry Holloway, Patrice Fassone (Campbell) and George Byrdsong in fear with a rifle, attempt to take property of value from the person or presence of Terry Holloway, Patrice Fassone (Campbell) and George Byrdsong.
All of which is contrary to and in violation of A.S. 11.05.020, A.S. 11.15.240 and A.S. 11.15.295 and against the peace and dignity of the State of Alaska.3

The other count to which Brookins pleaded guilty was Count III, assault with intent to commit robbery,4 which reads as follows:

That on or about the 29th day of December, 1977, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, Tommy Lee Brookins did unlawfully and feloniously assault George Byrdsong with the intent to rob him.

The crime of assault with intent to rob (AS 11.15.160) requires two elements: first, a specific intent to deprive the person assaulted of the property permanently; and second, an assault. The crime of robbery is composed of three elements: first, a specific intent to deprive an owner of property permanently; second, the use of force, violence or fear; and third, the taking of anything of value from the person against whom the force, violence or fear is used (AS 11.15.240).

Appellant contends that the elements of criminal attempt to rob and criminal assault with intent to rob found in the separate counts to which Brookins has pleaded guilty and has been sentenced are identical under the facts of this case, giving rise to a violation of the constitutional prohibition against double jeopardy.5

In Whitton v. State, 479 P.2d 302 (Alaska 1970), we held that “Alaska’s constitutional prohibition against double jeopardy prevents one from receiving multiple prison sentences for the same offense.” Id. at 310.6 Whitton established basic guidelines upon which the circumstances of a particular case are viewed in order to determine if there is double jeopardy.

The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to deter[16]*16mine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments.

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Bluebook (online)
600 P.2d 12, 1979 Alas. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brookins-v-state-alaska-1979.