EDWARD HAROLD SCHAD, JR., PETITIONER V. STATE OF ARIZONA

   No. 90-5551

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The Supreme Court Of Arizona

   Brief For The United States As Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Petitioner's conviction satisfied due process because
      the jury agreed that all the elements of first
      degree murder were proven beyond a reasonable
      doubt
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the reasonable doubt standard required that the jury agree
on the type of first degree murder that petitioner committed.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether, when a criminal statute
provides alternative means of committing an offense, the jury must
unanimously agree on the means used by the defendant before it can
convict.  A number of federal criminal statutes set forth alternative
ways of committing a particular offense.  In fact, the federal first
degree murder statute, like the Arizona statute at issue in this case,
defines first degree murder to include both premeditated homicide and
homicide committed in the perpetration of certain felonies.  18 U.S.C.
1111.  The Court's disposition of the first question presented will
therefore affect federal cases arising under Section 1111 as well as
other statutes that provide more than one way of committing an
offense.

                               STATEMENT

   1. On August 1, 1978, Lorimer "Leroy" Grove, a 74-year-old man,
left his home in Bisbee, Arizona, to visit his sister in Washington
State.  He was driving his new Cadillac automobile and towing a
camper.  J.A. 30;  State v. Schad, 129 Ariz. 557, 561, 633 P.2d 366,
370 (1981), cert. denied, 455 U.S. 983 (1982).  On August 9, 1978,
Grove's badly decomposed corpse was found in underbrush off U.S.
Highway 89, about nine miles south of Prescott, Arizona.  When his
body was discovered, there was a rope around his neck;  it was
determined that he had died by strangulation.  J.A. 30-31;  State v.
Schad, 129 Ariz. at 561, 633 P.2d at 370.

   Two days after Grove left on his trip, Arizona police discovered,
also off Highway 89, a rental car that petitioner had rented for a
weekend in December 1977 and never returned.  The car contained
several items that were later identified as belonging to Grove,
including one that Grove had probably taken on his trip, a mirror
device that he used for coupling his camper to his car.  J.A. 31;
State v. Schad, 129 Ariz. at 561, 633 P.2d at 370.

   The following month, petitioner was stopped in New York for
speeding.  He was driving Grove's Cadillac when he was stopped.  He
told the New York State police officers that he had no proof of
registration for the car because the car belonged to an elderly friend
named Larry Grove.  J.A. 31;  State v. Schad, 129 Ariz. at 561, 633
P.2d at 370.

   Petitioner was later arrested in Utah for parole violation;  at the
time of his arrest, he was still in possession of Grove's Cadillac.  A
search of the car revealed personal belongings of Grove's, and a
search of petitioner's wallet yielded two credit cards in Grove's
name, which petitioner had begun using on August 2, 1978, the day
after Grove left on his trip, and the day before petitioner's
abandoned rental car was found near the same Arizona highway where
Grove's body was later discovered.  J.A. 31;  State v. Schad, 129
Ariz. at 561, 633 P.2d at 370;  Pet. Br. 4.  While in custody,
petitioner told an associate that he would "deny being in any area of
Arizona, * * * particularly Tempe, Arizona, and Prescott, Arizona."
J.A. 33.

   Petitioner gave several conflicting accounts of how he came into
possession of Grove's car and personal belongings.  In testimony at
his first trial, petitioner admitted that all his prior accounts were
false.  He then testified that he obtained Grove's car at a truck stop
in Phoenix, Arizona, where he got it by trading the rental car that he
had stolen to a couple from France.  Efforts by Arizona officials to
confirm the existence of the French couple proved unsuccessful.  State
v. Schad, 129 Ariz. at 570-571, 633 P.2d at 379-380.

   2. Petitioner was indicted on one count of first degree murder.
The Arizona statute applicable to petitioner's case defined first
degree murder as "murder which is willful, deliberate, or premeditated
killing, or which is committed * * * in the perpetration of, or
attempt to perpetrate, * * * robbery." Ariz. Rev. Stat. Ann. Section
13-452 (1959 & Supp. 1973).  /1/

   3. Petitioner was convicted and sentenced to death.  His conviction
was affirmed on direct review, State v. Schad, 129 Ariz. 557, 633 P.2d
366 (1981), cert. denied, 455 U.S. 983 (1982), but it was set aside on
collateral attack because the trial court failed to instruct the jury
on the elements of the felonies underlying the State's felony-murder
theory (robbery and kidnapping).  Schad v. State, 142 Ariz. 619, 691
P.2d 710 (1984).

   4. Petitioner was retried and again convicted of first degree
murder and sentenced to death.  The Arizona Supreme Court affirmed his
conviction and sentence.  J.A. 30-55.

   a. At the second trial, the court instructed the jury that "(f)irst
degree murder is murder which is the result of premeditation" and that
"(m)urder which is committed in the attempt to commit robbery is also
first degree murder." J.A. 26.  The court further instructed that the
jury's verdict must be unanimous:  "All 12 of you must agree whether
the verdict is guilty or not guilty." J.A. 27.  Petitioner did not
request, and the judge did not give, an instruction that the jury had
to agree on the type of first degree murder -- premeditated murder or
felony murder -- that petitioner committed.

   b. In affirming petitioner's conviction, the Arizona Supreme Court
rejected petitioner's argument that jury unanimity was required with
respect to the type of first degree murder that petitioner committed.
The court explained:

      In Arizona, first degree murder is only one crime regardless
      whether it occurs as a premeditated murder or a felony murder.
      Although a defendant is entitled to an unanimous verdict on
      whether the criminal act charged has been committed, the
      defendant is not entitled to a unanimous verdict on the precise
      manner in which the act was committed.

J.A. 41 (quoting State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982)
(citations omitted)).

                          SUMMARY OF ARGUMENT

   The Due Process Clauses of the Fifth and Fourteenth Amendments
require proof beyond a reasonable doubt of each fact "necessary to
constitute the crime with which (the defendant) is charged." In re
Winship, 397 U.S. 358, 364 (1970).  The facts necessary to constitute
a crime are those set forth as essential elements of proof in the
statute that defines the crime.  Arizona's first degree murder statute
permits the offense to be established through proof that the defendant
caused death in one of several ways, including either with
premeditation or in the course of a robbery.  Although the jurors were
not told that they had to be unanimous as to the particular way
petitioner committed the offense, petitioner's conviction satisfied
the requirements of due process because each juror found every element
necessary to establish the crime of first degree murder.  That is, all
12 jurors found beyond a reasonable doubt that the victim's death
occurred either as a result of premeditated homicide or in the course
of the commission of a robbery, which is precisely what the Arizona
offense of first degree murder requires.

   Petitioner argues that premeditated murder and felony murder must
be seen as "conceptually distinct" offenses.  Where a statute contains
such distinct offenses, he argues, the jury may not properly convict
unless all 12 jurors agree that the defendant committed premeditated
murder or all 12 agree he committed felony murder.

   That argument is seriously flawed.  Under Arizona law, premeditated
murder and felony murder are considered alternative means of
committing a single offense, and there is no constitutional ground for
challenging that characterization.  While the Due Process Clause
requires that the jurors find all the elements of the offense to be
proved beyond a reasonable doubt, there is no due process principle
that requires the jurors to agree on a single theory of liability.  As
long as the jurors agreed, beyond a reasonable doubt, that petitioner
engaged in conduct that the Arizona legislature characterized as first
degree murder, nothing in the Constitution bars his conviction of that
crime, even though the jurors may have followed different routes to
reach their verdict.

                               ARGUMENT

   PETITIONER'S CONVICTION SATISFIED DUE PROCESS BECAUSE THE JURY
AGREED THAT ALL THE ELEMENTS OF FIRST DEGREE MURDER WERE PROVED BEYOND
A REASONABLE DOUBT

   Petitioner contends (Pet. Br. 14-20) that to convict him of first
degree murder the jurors were required to agree on which type of first
degree murder he committed -- premeditated murder or felony murder.
In our view, the Constitution imposes no such requirement.  /2/

   1. In Arizona, as in every other State and in the federal system,
first degree murder is defined by statute.  Arizona's first degree
murder statute, Ariz. Rev. Stat. Ann. Section 13-452 (1959 & Supp.
1973), defines a single offense that may be committed in a number of
ways.  In that respect, Arizona's statute resembles those of other
States and the federal government.  See Tison v. Arizona, 481 U.S.
137, 151-155 (1987) (surveying state statutes);  18 U.S.C. 1111;  see
also Whalen v. United States, 445 U.S. 684, 711 n.6 (1980) (Rehnquist,
J., dissenting) (statute enacted by Congress for the District of
Columbia "defines only one offense, murder in the first degree, which
can be committed in any number of ways").

   The ways that first degree murder can be committed under the
Arizona statute include causing death by premeditated killing and
committing certain felonies that result in death.  As construed by the
Arizona Supreme Court, first degree murder is "only one crime,"
regardless of which of the several means of committing the offense the
defendant has employed in a particular case.  J.A. 41;  State v.
Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982);  State v.
Axley, 132 Ariz. 383, 646 P.2d 268 (1982).

   There is no basis for any constitutional objection to Arizona's
decision to treat premediatated murder and felony murder as different
means of committing the same offense.  Arizona's first degree murder
statute embodies a legislative judgment that a murder committed with
the purpose of causing death and a murder committed while carrying out
the intent to rob are legally and morally equivalent.  /3/ That
judgment has deep roots in legal tradition:

      (S)ome nonintentional murderers may be among the most dangerous
      and inhumane of all -- the person who tortures another not
      caring whether the victim lives or dies, or the robber who
      shoots someone in the course of the robbery, utterly indifferent
      to the fact that the desire to rob may have the unintended
      consequence of killing the victim as well as taking the victim's
      property.  This reckless indifference to the value of human life
      may be every bit as shocking to the moral sense as an "intent to
      kill." Indeed it is for this very reason that the common law and
      modern criminal codes alike have classified (such) behavior * *
      * along with intentional murders.

Tison v. Arizona, 481 U.S. at 157.

   Due process principles require the jury to find all the elements of
a criminal offense beyond a reasonable doubt.  In re Winship, 397 U.S.
358 (1970).  But because there is no constitutional bar to making
premeditated murder and felony murder alternative means of committing
first degree murder, due process did not require the jurors in this
case to agree on whether petitioner committed the crime of first
degree murder by premeditation or by participating in the robbery that
resulted in Grove's death.  It was enough that the jurors agreed that
petitioner committed the crime of first degree murder, as defined in
the statute.  By agreeing on that point, the jurors unanimously found
beyond a reasonable doubt every fact necessary to convict petitioner
of the crime with which he was charged.

   2. The rule against duplicity bars the joining of two or more
separate offenses in a single count of an indictment or information.
See 1 C. Wright, Federal Practice and Procedure Section 142 (2d ed.
1982).  The rule is designed in part to guard against the risk "that a
jury may find the defendant guilty on a count without having reached a
unanimous verdict on the commission of a particular offense." United
States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert.
denied, 430 U.S. 966 (1977);  see also Russell v. United States, 369
U.S. 749 (1962);  United States v. Zeidman, 540 F.2d 314, 317 (7th
Cir. 1976).  The predicate for applying the rule against duplicity --
a finding that the two allegations in a single count constitute
separate offenses -- presents a question of statutory interpretation.
See UCO Oil, 546 F.2d at 836-838;  Zeidman, 540 F.2d at 317.  /4/ As
explained above, the Arizona Supreme Court has decided that question:
petitioner's conviction was based on a count that charged a single
offense.  That determination forecloses petitioner's challenge to the
verdict on the ground that the jury may not have agreed on the
elements of the crime charged:

         Once it is determined that the statute defines but a single
      offense, it becomes proper to charge the different means,
      denounced disjunctively in the statute, conjunctively in each
      count of the indictment.  It is not a valid objection * * * that
      the jury, in arriving at a unanimous verdict, may not agree on
      the means by which the offense was committed.

UCO Oil, 546 F.2d at 838.

   3. Petitioner does not dispute that he was charged with, and
convicted of, a single offense, nor does he dispute that each juror
found beyond a reasonable doubt that he committed that offense.
Instead, he contends (Pet. Br. 17) that, even with respect to a single
offense, the Due Process Clause requires "the unanimous agreement of
the jurors upon some version of the facts which comprises every
element of the * * * offense."

   Under petitioner's theory, there is no logical stopping point to
the insistence on jury agreement.  That is clear from petitioner's
assertion (Pet. Br. 18) that the jury must unanimously reject every
"possible factual scenario" suggested by the evidence in a particular
case.  Thus, under petitioner's theory, the jury apparently must be
unanimous not only as to the means by which the statutory offense was
committed, but even as to the details of the crime.  Such a
requirement, however, would not promote the interests served by the
reasonable-doubt standard.  Focusing as it does on the means of
committing the crime rather than on whether the crime was committed,
petitioner's approach would not reduce the risk of an erroneous
conviction.  See In re Winship, 397 U.S. at 363.  Nor is petitioner's
approach necessary to assure the community that innocent persons are
not being condemned.  Id. at 364.  As long as the jury is required to
find, beyond a reasonable doubt, that the defendant committed the
crime charged, there can be no legitimate complaint that public
confidence in the verdict is eroded by the jury's possible lack of
agreement on the theory of liability or certain details of the crime.
Rather, the effect of adopting petitioner's requirement of unanimity
on legal theory and "factual scenario" would be to risk the
unwarranted discharge of a defendant where the jury was confident and
unanimous that he had committed the crime, but divided or uncertain as
to exactly how he did it.

   This point can be illustrated by the following hypothetical case.
Suppose a state statute makes it unlawful to commit murder by
drowning, strangulation, or poisoning, and the defendant seeks to kill
his victim by all three methods.  Suppose further that the evidence is
clear that the defendant committed the murder, but unclear as to which
of the defendant's efforts actually caused the victim's death.  In
that setting, it would be senseless to insist that the jury be
unanimous as to whether the victim died of drowning, strangulation, or
poisoning before the jury could convict the defendant of a crime that
all 12 jurors were firmly convinced he committed.

   The same analysis applies here.  The policies of the Due Process
Clause, as embodied in the reasonable-doubt standard, are fully served
as long as the jurors agree that the evidence has established the
defendant's guilt of the offense defined by the legislature;  it is
immaterial that the jurors may follow different routes to reach that
conclusion, as long as they all reach the same end.

   Whatever appeal there may be to petitioner's proposed rule may stem
from a sense of concern about a verdict that is based on differing
views by the jurors of different features of the case;  the notion may
be that if the jurors cannot reach consensus as to the theory of
liability or the details of the case, perhaps there is something
doubtful about their announced consensus as to the result.  /5/ As the
example above shows, however, there are many instances in which jurors
may take different views of the evidence, or even adopt different
permissible theories of liability, without having any lack of
confidence on the ultimate question of guilt.  Indeed, petitioner's
prosecution is a good case in point.  The circumstantial evidence at
trial left it unclear exactly what happened when petitioner
encountered Grove on or about August 1, 1978, near Prescott, Arizona,
but the evidence left little room for doubt that petitioner either
strangled Grove himself or participated in the robbery of Grove, in
the course of which Grove was killed.  Thus, whatever doubts
particular jurors may have had about the correct theory of liabiliity
or the details of how the killing occurred, the evidence that
petitioner committed the crime of first degree murder was compelling.
In such a setting, a requirement of jury agreement on matters other
than the ultimate question of the commission of the offense would only
have the effect of decreasing the likelihood of the jury's reaching a
verdict despite its agreement that the defendant was guilty of the
crime charged.

   4. The issue presented in this case has been the subject of a
number of state court decisions, most of which have held that the
jurors need not be instructed that they must agree on whether a
defendant committed premeditated or felony murder.  /6/ Although to
our knowledge the precise issue presented here has not been the
subject of any published federal court decision, several decisions of
this Court in analogous settings suggest that the rule petitioner
proposes is not required either by the Constitution or (in federal
cases) by principles of federal criminal procedure.

   In Andersen v. United States, 170 U.S. 481 (1898), this Court
sustained a capital conviction of murder against challenges based on
uncertainty concerning the cause of death.  The Court rejected the
argument that the count in the indictment on which the verdict was
based was duplicitous because it charged that death occurred through
both shooting and drowning.  It was immaterial to the validity of the
conviction, the Court held, whether death was caused by one means or
the other.  Id. at 500.  The Court likewise considered it immaterial
that the cause of death was not established at trial.  "(T)he
Government was not required to make the charge in the alternative and
elect to proceed in respect of one means of death rather than the
other where the murderous action was continuous." Id. at 504.  See
also St. Clair v. United States, 154 U.S. 134, 145-146 (1894).  By
rejecting any requirement that the government satisfy the jury as to
means by which the defendant committed the murder, Anderson undermines
petitioner's claim that the jury must be unanimous as to the means by
which petitioner committed the offense of first degree murder.

   The result in Borum v. United States, 284 U.S. 596 (1932), is also
contrary to petitioner's position.  In Borum, the Court sustained the
capital conviction of three co-defendants for first degree murder
under a count in an indictment that "alleged that the weapon was held
by one of the defendants but his name was to the grand jurors
unknown." Ibid.  Each of the defendants was acquitted of the charges
in three other counts of the indictment, which were identical except
that they named each of the defendants in turn as the one who held the
murder weapon.  Ibid.  It was therefore clear, as the government
argued, that

      (t)he jury's verdict on this indictment (was) to be interpreted
      as their statement that they were not convinced beyond a
      reasonable doubt that any particular defendant held the gun, but
      that they were convinced beyond a reasonable doubt that some one
      of the three defendants did hold the gun.

Id. at 597.  By sustaining the convictions, the Court in Borum made
clear that it was unnecessary for the jury to agree on the means by
which the offense was committed, i.e., which defendant held the gun.
/7/ See also United States v. McGuire, 744 F.2d 1197 (6th Cir. 1984),
cert. denied, 471 U.S. 1004 (1985);  United States v. Zeidman, 540
F.2d at 317 ("Nor can the defendants claim prejudice because they are
uncertain whether the jury convicted them of defrauding the creditor
or the debtor.  As in the case of a statute which can be violated in
different ways, it is sufficient to convict if the jury believes that
at least one of the acts of fraud was committed.").

   5. Relying on United States v. Gipson, 553 F.2d 453 (5th Cir.
1977), petitioner contends (Pet. Br. 8) that felony murder and
premeditated murder must be considered "conceptually * * * different
offenses" even though they are not so defined in the statute under
which he was convicted.  In Gipson, the Fifth Circuit reversed a
conviction under 18 U.S.C. 2313, (1982), which provides:

      Whoever receives, conceals, stores, barters, sells or disposes
      of any motor vehicle or aircraft moving as, or which is a part
      of, or which constitutes interstate or foreign commerce, knowing
      the same to have been stolen, shall be fined not more than
      $5,000 or imprisoned not more than five years or both.

   The court held that the jury instructions were improper because
they permitted the jury to convict the defendant "if each individual
juror found that the defendant performed one of the six prohibited
acts -- receiving, concealing, storing, bartering, selling, or
disposing." 553 F.2d at 458.  The court believed that such a
conviction would violate both the reasonable-doubt standard and the
unanimity requirement embodied in Fed. R. Crim. P. 31(a).  553 F.2d at
456-458.  In the court's view, the acts prohibited under the statute
fell into "two distinct conceptual groupings;  the first consisting of
receiving, concealing and storing, and the second comprised of
bartering, selling, and disposing." Id. at 458.  Because there was
evidence at trial suggesting that the defendant committed acts in each
"conceptual grouping," id. at 459, the court concluded that the jury
may not have agreed "as to just what (the) defendant did," id. at 457.

   Petitioner's reliance on Gipson is misplaced for three reasons.
First, the Gipson court's conclusion that Section 2313 contains, in
effect, two distinct crimes, was a matter of statutory construction,
not constitutional compulsion.  Therefore, the same kind of analysis
would not be applicable to a state statute that the state courts have
held to constitute only a single offense.

   Second, the analysis in Gipson would not necessarily produce the
same result here, even if the analysis could be applied equally to a
state statute.  The court in Gipson made clear that it was addressing
the situation in which "a criminal statute provides a number of ways
of satisfying the actus reus element of an offense." 553 F.2d at 457.
/8/ That is not the situation here.  Arizona's first degree murder
provisions define a single actus reus:  "the unlawful killing of a
human being." Ariz. Rev. Stat. Ann. Section 13-451 (1959 & Supp.
1973).  See also Ariz. Rev. Stat. Ann. Section 13-1105 (1989).
Petitioner was charged with a single prohibited act, the murder of
Lorimer Grove.  Evidence at the trial concerned only a single set of
events, those relating to petitioner's encounter with Grove on or
about August 1, 1978.  Whatever the precise outlines of a "distinct
conceptual grouping" of acts as envisaged by the Gipson court, this
case clearly involved no more than one such "grouping.  The verdict
therefore was not reversible under the reasoning of Gipson, even
assuming that Gipson was correctly decided.

   Finally, we believe that the court's analysis in Gipson was
incorrect.  As explained above, the reasonable-doubt standard requires
only that the jury agree on the elements of the crime that the
legislature has created.  The Gipson court therefore should have
decided, as a matter of statutory interpretation, whether 18 U.S.C.
2313 (1982) constitutes a single offense that can be committed through
any of the prohibited acts (in which case jury agreement on which of
the acts Gipson committed was unnecessary) or instead creates more
than one offense (in which case the indictment charging more than one
act in a single count would be subject to challenge as duplicitous).

   Rather than taking this approach, the court in Gipson improperly
relied on its own sense of "distinct conceptual groupings" to decide
which factual elements were "necessary to constitute the crime with
which (the defendant) (wa)s charged." In re Winship, 397 U.S. at 364.
The court justified that approach by reference to a hypothetical
"traffic control statute" prohibiting "(a) speeding, (b) driving
without lights at night, (c) making a turn from the wrong lane, and
(d) failing to use turn signals." Gipson, 553 F.2d at 458 n.8.  The
court believed that a defendant could not be convicted under such a
statute if, on the twelve-person jury, each of four sets of three
jurors concluded that the defendant committed a different one of the
four prohibited acts.  Ibid.

   The court's analysis of the hypothetical traffic statute would be
correct if, as the distinctive nature of the four unlawful acts
suggests, the statute was intended to create four separate offenses
that could be separately charged and punished.  In that circumstance,
a count charging all four offenses would be duplicitous, and before
convicting on any one of the four offenses, a jury would have to agree
that the defendant had committed that particular offense.  On the
other hand, the Gipson court's analysis would break down if the
hypothetical traffic statute were intended to define a single crime,
such as reckless driving, which could be proved by one or more of the
four component types of driving infractions.  In that setting, the
jury would be required to agree only as to whether the defendant was
guilty of reckless driving, and it would not matter at all that
different jurors reached that verdict based on their consideration of
different infractions among those listed in the statute.  /9/

   The Arizona first degree murder statute is like the hypothetical
reckless driving statute discussed above.  It defines a single crime
that can be committed in several different ways.  For that reason, the
requirements of jury unanimity and the reasonable-doubt standard were
satisfied when the jury was instructed that it must agree, beyond a
reasonable doubt, that petitioner committed the crime with which he
was charged -- first degree murder.  The Constitution does not require
that the jury also agree on the means by which petitioner committed
that offense, whether through premeditated killing or felony murder.

                              CONCLUSION

   The judgment of the Arizona Supreme Court should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   RICHARD H. SEAMON

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   DECEMBER 1990

   /1/ The Arizona statutes defining and punishing murder were revised
in 1978, but the first degree murder statute still reaches both
premeditated murder and felony murder.  See Ariz. Rev. Stat. Ann.
Section 13-1105.A (1989).

   /2/ We will not address petitioner's contention (Pet. Br. 10-14)
that under the Sixth Amendment, as that provision applies to the
States through the Fourteenth Amendment, jury unanimity is required in
state criminal trials for capital offenses.  For the sake of
simplicity, references to jury agreement or unanimity hereafter will
refer to agreement or unanimity by the requisite proportion of the
jury.

   /3/ See State v. Serna, 69 Ariz. 181, 188, 211 P.2d 455, 459
   (1949):

      The attempt to perpetrate the crime of robbery * * * during
      which a homicide is committed, takes the place of and amounts to
      the legal equivalent of such deliberation, premeditation, and
      design, which were otherwise necessary attributes of murder in
      the first degree.

   /4/ The same is true of the analogous question whether a defendant
has improperly suffered multiple punishments under a multiplicitous
indictment.  Bell v. United States, 349 U.S. 81 (1955);  see also
Sanabria v. United States, 437 U.S. 54, 69-70 (1978) ("allowable unit
of prosecution" for purposes of determining "scope of protection
afforded by a prior conviction or acquittal" under Double Jeopardy
Clause "depends on * * * congressional choice");  Whalen v. United
States, 445 U.S. 684, 688-690 (1980) (in rejecting Double Jeopardy
Clause challenge to consecutive sentences for rape and rape-felony
murder in single proceeding under D.C. statute, congressional intent
was "dispositive").

   /5/ We take this to be the point of petitioner's argument (Pet. Br.
19) that if six jurors accepted the premeditation theory and six
accepted the felony-murder theory, "the cumulation of two less than
majority votes by the jury would require a conviction despite the lack
of any basis for confidence that even one more juror believed than
disbelieved a set of facts necessary to establish petitioner's guilt
of first degree murder." This argument, however, is beside the point.
It does not matter that half the jurors may have endorsed one theory
of liability while the other half endorsed another, any more than it
would matter that half the jurors in a bank robbery case believed that
the defendant was the lookout and the other half believed he was the
person who entered the bank.  The defendant is equally guilty of bank
robbery regardless of which role he played, just as petitioner is
equally guilty of first degree murder regardless of how he committed
that crime.

   /6/ Gray v. State, 463 P.2d 897, 910-911 (Alaska 1970);  People v.
Chavez, 37 Cal. 2d 656, 234 P.2d 632 (1951);  People v. Travis, 170
Ill. App. 3d 873, 525 N.E.2d 1137 (1988), cert. denied, 489 U.S. 1024
(1989);  State v. Fuhrmann, 257 N.W.2d 619 (Iowa 1977);  State v.
Wilson, 220 Kan. 341, 552 P.2d 931 (1976);  Commonwealth v. Devlin,
335 Mass. 555, 141 N.E.2d 269 (1957);  People v. Embree, 70 Mich. App.
382, 246 N.W.2d 6 (1976);  People v. Sullivan, 173 N.Y. 122, 65 N.E.
989 (1903);  Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902);  State v.
Osborne, 49 Ohio. St. 2d 135, 359 N.E.2d 78, 85 (1976);  James v.
State, 637 P.2d 862 (Okla. 1981);  Newsted v. State, 720 P.2d 734
(Okla.), cert. denied, 479 U.S. 995 (1986);  State v. Hazlett, 8 Or.
App. 44, 492 P.2d 501 (1972);  State v. Tillman, 750 P.2d 546 (Utah
1987);  State v. Ellison, 36 Wash. App. 564, 676 P.2d 531 (1984).
Contra State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984);  People v.
Olsson, 56 Mich. App. 500, 224 N.W.2d 691 (1974).

   /7/ The Court in Borum did not articulate the basis for its
decision, probably because the case was before the Court on a
certificate from the Court of Appeals of the District of Columbia.
284 U.S. at 596.  The question certified was whether the judgment
entered upon the verdict on the fourth count could be sustained "in
view of the acquittal of each and all of the defendants of the charge
of murder in the first degree as contained in the first three counts
of the indictment." Ibid.  The Court answered this question "'Yes.'
Dunn v. United States, (284 U.S. 390 (1932))." That the Court
considered the question to involve only arguably inconsistent
verdicts, see Dunn, 284 U.S. at 394, strongly suggests that the Court
considered the detail of which defendant held the murder weapon to be
irrelevant.

   /8/ See also 553 F.2d at 456-457 (posing as question before the
court:  "Where a single criminal statute prohibits a number of acts,
and a finding by the jury that the defendant did any one of the
prohibited acts is sufficient to convict him * * *, is the defendant's
right to a unanimous verdict infringed if a guilty verdict is returned
when all members of the jury agree that the defendant performed one of
the prohibited acts, but disagree as to which of the acts he
performed?") (footnote omitted).

   /9/ As the example of the "reckless driving" statute demonstrates,
the analysis in Gipson seems driven by a largely irrelevant matter of
nomenclature -- the reference in Section 2313 to a series of specific
acts.  As one commentator remarked, "If the statute had simply
prohibited 'trafficking' in stolen vehicles, the court of appeals
would probably not have found that a subdivision of the statute into
two 'conceptual groupings' was necessary to assure that the jury
determined just what the defendant did." Truitt, Patchwork Verdicts,
Different-Juror Verdicts, and American Jury Theory:  Whether Verdicts
Are Invalidated by Juror Disagreement on Issues, 36 Okla. L. Rev. 473,
548-549 (1983).