review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Robert J.
seeks further review of a decision by the court of appeals
affirming his conviction and sentence.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, John Sarcone, County Attorney, and Andrea
Petrovich and Joseph Danielson, Assistant County Attorneys,
West was convicted of delivery of a controlled substance,
Iowa Code § 124.401(1)(c)(1) (2015), and
involuntary manslaughter by a public offense other than a
forcible felony or escape, id. §
707.5(1)(a). The charges arose out of the death of
Bailey Brady as the result of a heroin and ethanol overdose.
After a jury trial, West was convicted and sentenced for both
offenses. West appealed.
transferred West's appeal to the court of appeals. The
court of appeals held that there was sufficient evidence to
support the verdict, that there was no error in the admission
of certain challenged evidence, and that the crimes of
involuntary manslaughter by a public offense and delivery of
a controlled substance did not merge.
granted further review. We consider only the merger question.
We decline to review the rulings of the court of appeals that
there was substantial evidence to support the verdict and
that certain evidence was properly admitted. On these issues,
the ruling of the court of appeals stands. See State v.
Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (recognizing our
discretion to consider all issues raised in initial appeal
but considering on further review only one of those issues
and allowing the court of appeals decision to stand on other
question of whether the offenses merge, we conclude, for the
reasons expressed below, that they do not. As a result, the
district court ruling on the merger question is affirmed.
Procedural and Factual Background.
could have found the following facts. Bailey Brady died from
a drug overdose on June 5, 2015. On the evening of her death,
she visited several bars and consumed alcoholic beverages but
was not intoxicated. After returning to her apartment, Brady
invited West and his brother at about 1:00 a.m. to come to
lived about two hours away. West occasionally used heroin,
which he obtained from a man named "Snap" in Des
Moines. In the past, West had obtained heroin from Snap for
Bailey's use. West knew that in July 2014, Brady had
overdosed on heroin. He drove her to the hospital on that
phone records reveal that Brady talked to West at 2:49 a.m.
on the morning of June 5, 2015. Eight seconds later, West
began a series of phone calls with Snap, his heroin supplier.
the West brothers arrived at Brady's apartment, West and
Brady went to a convenience store to purchase food a few
minutes after 4:00 a.m. They returned to the apartment.
West's brother later found Brady slumped over the bathtub
in the apartment and not breathing. West called 911 a few
minutes after 5:00 a.m. Paramedics transported Brady's
body to the hospital where she was pronounced dead. An
autopsy revealed blood alcohol "below . . . legal
limit" as well as a fatal amount of heroin. Medical
testimony at trial indicated that "without the heroin,
she would have been fine." The heroin that killed her
was likely ingested within thirty minutes of death. After the
911 call, phone records reveal six actual or attempted calls
between West and Snap.
State charged West with delivery of a controlled substance,
Iowa Code § 124.401(1)(c)(1), and involuntary
manslaughter by a public offense other than a forcible felony
or escape, id. § 707.5(1)(a). The
involuntary manslaughter charge is a class "D"
felony, while delivery of a controlled substance is a class
"C" felony. A jury found him guilty of both
charges, the district court entered judgment, and West was
duly sentenced for each crime.
II. Standard of Review.
claim that the district court erred in failing to merge
convictions can be raised at any time because any unlawful
failure to merge results in an illegal sentence. State v.
Love, 858 N.W.2d 721, 723 (Iowa 2015). Review of an
illegal sentence for lack of merger is for correction of
errors at law. Id.
Introduction. The question of when one offense is a
lesser included offense of another has perplexed courts for
centuries. The question of what constitutes lesser included
offenses has been characterized as a "many-headed
hydra," as an issue that "has challenged the
effective administration of criminal justice for
centuries," and as one "not without
difficulty." Fuller v. United States, 407 F.2d
1199, 1228 (D.C. Cir. 1967) (third quotation); Brown v.
State, 206 So.2d 377, 380 (Fla. 1968) (second
quotation), abrogated on other grounds by In re Use by
Trial Cts. of Standard Jury Instructions in Criminal
Cases, 431 So.2d 594, 596- 97 (Fla. 1981); Dorean
Koenig, The Many-Headed Hydra of Lesser Included
Offenses: A Herculean Task for the Michigan Courts, 1975
Det. C. L. Rev. 41, 63 (first quotation). Sometimes, the
doctrine is said to turn on analysis of legal elements of the
crimes, sometimes on the facts and evidence, and sometimes
based on the interrelationship of the crimes involved.
See generally Christen R. Blair, Constitutional
Limitations on the Lesser Included Offense Doctrine, 21
Am. Crim. L. Rev. 445, 447-51 (1984).
the proper test, the consequence of a finding that a crime is
a lesser included offense of a greater crime is that the
lesser crime merges into the greater crime where a defendant
is convicted of both offenses. The common law doctrine of
merger of lesser included offenses into greater offenses is
often expressed in statutory provisions.
apparent, the proposition that a lesser included offense
merges into the greater offense is related to the
constitutional concept of double jeopardy. Although no
constitutional issue is raised in this case, the double
jeopardy cases provide a ...