concurring in part and dissenting in part.
I concur with the majority rulings on the denial of the continuance and the admissibility of the taped “confession.” As to the third issue, I respectfully dissent.
While I agree with the analysis in cases which have held that the underlying felony is not a lesser included offense of felony murder, e.g., People v. Berzups, 49 N.Y.2d 417, 402 N.E.2d 1155, 426 N.Y.Supp.2d 253 (1980); Waller v. United States, 389 A.2d 801 (D.C.App.1978), appeal dismissed, 446 U.S. 901, 100 S.Ct. 1824, 64 L.Ed.2d 253 (1980), the United States Supreme Court has settled this issue in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). Since Harris controls, I would reverse the conviction for sexual assault.
In Harris, the defendant was convicted of felony murder and later prosecuted for the robbery which formed the basis for the felony murder. The Supreme Court held that the second prosecution violated the defendant’s constitutional protection against double jeopardy. Although the instant case concerns a single prosecution, the double jeopardy principles protecting against multiple punishments are not sufficiently different from the protection against separate prosecutions to justify distinguishing Harris. State v. Innis, R.I., 391 A.2d 1158 (1978), vacated on other grounds, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Newton v. State, 280 Md. 260, 373 A.2d 262 (1977). There should not be more protection for a defendant who is doubly prosecuted than for one who is doubly punished for the same offense. State v. Morgan, 592 S.W.2d 796 (Mo.1980).
In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court interpreted a District of Columbia statute to bar multiple punishment for felony murder and the underlying felony of robbery. While Whalen concerned consecutive sentences, concurrent sentences for felony murder and the underlying felony also constitute multiple punishment if the underlying felony is considered a lesser included offense. In Colorado, an erroneous conviction for one offense cannot stand merely because the sentence imposed is concurrent with that imposed for another offense arising out of the same transaction. Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978). Thus, Whalen is not distinguishable solely because Callis was sentenced concurrently.
Since the United States Supreme Court has concluded that the underlying felony is a lesser included offense of felony murder, this court may not reach a different result. Thus, I would follow People v. Raymer, 626 P.2d 705 (Colo.App.1981) (cert. granted April 6, 1981) and reverse Callis’ conviction for first degree sexual assault.