Pursuant to these principles, our courts have recognized that once a defendant is convicted of attempted felony murder, he is punished for the felony which he was perpetrating at the time of the attempted murder, and he cannot be punished a second time for the same offense. See State v. Stewart, 400 So.2d 633, 635 n. 4 (La.1981); State v. Cotten, 438 So.2d 1156, 1160 (La.App. 1 Cir.1983), writ denied, 444 So.2d 606 (La.1984), Consequently, convictions for both attempted felony murder and the underlying felony violate the Double Jeopardy Clause of the federal and state constitutions because the multiple convictions subject the defendant to double punishment for the same offense.
Thus, conviction of second degree murder precludes further prosecution and conviction for attempted armed robbery, the enumerated felony. State v. Stewart, 400 So.2d 633 (La. 1981); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La. 1974). The reasoning of State v. Stewart, supra, is dispositive:
v. Usry, 205 Conn. 298, 533 A.2d 212 (1987); Harling v. United States, 460 A.2d 571 (D.C.App. 1983); Rainwater v. State, 260 Ga. 807, 400 S.E.2d 623 (1991); Thomas v. State, 256 Ga. 176, 345 S.E.2d 350 (1986); Gore v. State, 246 Ga. 575, 272 S.E.2d 306 (1980); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989); Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986). Additional cases which follow the double jeopardy majority rule regarding dual sentencing for felony murder include: People v. Trimble, 220 Ill. App.3d 338, 162 Ill.Dec. 790, 580 N.E.2d 1209 (1991); People v. Cook, 129 Ill. App.3d 531, 84 Ill.Dec. 719, 472 N.E.2d 856 (1984); People v. Holman, 103 Ill.2d 133, 82 Ill.Dec. 585, 469 N.E.2d 119 (1984), cert. denied 469 U.S. 1220, 105 S.Ct. 1204, 84 L.Ed.2d 347 (1985); Huffman v. State, 543 N.E.2d 360 (Ind. 1989), cert. denied 497 U.S. 1011, 110 S.Ct. 3257, 111 L.Ed.2d 767 (1990); State v. Jones, 525 So.2d 1149 (La.App. 1988); State v. Stewart, 400 So.2d 633 (La. 1981); Shabazz v. Com., 387 Mass. 291, 439 N.E.2d 760 (1982); People v. Zeitler, 183 Mich. App. 68, 454 N.W.2d 192 (1990); People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981); People v. Anderson, 62 Mich. App. 475, 233 N.W.2d 620 (1975); State v. Fratzke, 354 N.W.2d 402 (Minn. 1984); State v. Lane, 629 S.W.2d 343 (Mo. 1982); State v. Connell, 208 N.J. Super. 688, 506 A.2d 829 (1986).
" 445 U.S. at 693-694, 100 S.Ct. at 1438-1439. Not exhaustive in even reasonably current decision, cases which reject consecutive sentences for the underlying felony in felony-murder or double-jeopardy prescription include: United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987); Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984); Colle v. Henderson, 350 F. Supp. 1010 (W.D.La. 1972); McCracken v. State, Alaska, 521 P.2d 499 (1974); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Callis v. People, Colo., 692 P.2d 1045 (1984); Hunter v. State, 249 Ga. 114, 288 S.E.2d 214 (1982); Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986); Mitchell v. State, 270 Ind. 4, 382 N.E.2d 932 (1978); State v. Stewart, La., 400 So.2d 633 (1981); Shabazz v. Commonwealth, 387 Mass. 291, 439 N.E.2d 760 (1982); People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981); State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); State v. Villani, R.I., 491 A.2d 976 (1985); State v. Strouth, Tenn., 620 S.W.2d 467 (1981), cert. denied 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982); State v. Vandiver, Mo., 613 S.W.2d 637 (1981); State v. Morgan, Mo., 612 S.W.2d 1 (1981); Ex Parte Drewery, Tex. App., 710 S.W.2d 148 (1986); State v. Shaffer, Utah, 725 P.2d 1301 (1986). On the associated subject of double jeopardy in dual conviction as including the lesser-included offense, see Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); United States v. Gibson, 820 F.2d 692 (5th Cir. 1987); Hamilton v. Commonwealth, Ky., 659 S.W.2d 201 (1983), cert. denied 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984); Heald v. Perrin, 123 N.H. 468, 464 A.2d 275 (1983);
This court has consistently applied this standard of review when considering sufficiency of the evidence. State v. Ennis, 414 So.2d 661 (La. 1982); State v. Stewart, 400 So.2d 633 (1981); State v. Guillot, 389 So.2d 68 (La. 1980); State v. Landry, 381 So.2d 462 (La. 1980); State v. Mathews, 375 So.2d 1165 (La. 1979); State v. Abercrombie, 375 So.2d 1170 (La. 1979), cert. denied, Abercrombie v. Louisiana, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). The state's witness, Andy Pantalion, testified that he heard a shot which drew his attention, and that he then witnessed defendant's pursuit of Davis, Davis' subsequent fall, and defendant's firing of four shots with a .357 magnum revolver as the victim lay defenseless on the ground.
Under these circumstances, we will not speculate about the jury's verdict. Cf. State v. Stewart, 400 So.2d 633 (La. 1981). Assignment of Error Number Two
This standard of review has been applied consistently by this court to consider the sufficiency of the evidence. State v. Ennis, 414 So.2d 661 (La. 1982); State v. Stewart, 400 So.2d 633 (La. 1981); State v. Guillot, 389 So.2d 68 (La. 1980); State v. Landry, 381 So.2d 462 (La. 1980); State v. Mathews, 375 So.2d 1165 (La. 1979); State v. Abercrombie, 375 So.2d 1170 (La. 1979), cert. denied, Abercrombie v. Louisiana, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). Defendant was charged under R.S. 14:42.1 with the crime of forcible rape.
See State v. Dauzat, above. Subsequently, in State v. Stewart, 400 So.2d 633 (La. 1981), this court (with three justices pro tempore participating) upheld a verdict of attempted second degree murder under circumstances in which the evidence was sufficient to establish the attempted commission of one of the enumerated felonies. The author of the present opinion concurred in Stewart, despite his view expressed in Booker.
In reviewing the denial of a new trial based upon insufficiency of the evidence, the Supreme Court must determine whether, after reviewing the evidence in a light which is most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Stewart, 400 So.2d 633 (La. 1981). Under this rationale, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Long, 408 So.2d 1221 (La. 1982).
CALOGERO, Justice.[fn*] [fn*] Judges William v. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit, and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon. [EDITORS' NOTE: MAJORITY OPINION TEXT CAN ALSO BE FOUND AT 400 So.2d 633.] [32] KLIEBERT, Justice ad hoc, concurring.