People v. Adams

• Decision Date: 19 October 1983
• Docket Number: Docket No. 56670
• Citation: 128 Mich.App. 25,339 N.W.2d 687
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Gene ADAMS, Defendant-Appellant. 128 Mich.App. 25, 339 N.W.2d 687
• Court: Court of Appeal of Michigan — District of US

Page 687

339 N.W.2d 687

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Gene ADAMS, Defendant-Appellant.

Docket No. 56670.

128 Mich.App. 25, 339 N.W.2d 687

Court of Appeals of Michigan.

Submitted May 11, 1983.

Decided Aug. 16, 1983.

Released for Publication Oct. 19, 1983.

[128 MICHAPP 26] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief [128 MICHAPP 27] Appellate Asst. Pros. Atty., and Margaret G. Horenstein, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Asst. State Appellate Defender, for defendant-appellant.

Before MacKENZIE, P.J., and KELLY and EVERETT ^*, JJ.

MacKENZIE, Presiding Judge.

After a jury trial, defendant was convicted of bank robbery, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799, assault with intent to commit robbery while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, and two counts of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to imprisonment for two concurrent terms of 2 years and two concurrent terms of 18 to 40 years, the former to be served consecutively to the latter. Defendant appeals as of right.

Defendant argues that, under the circumstances presented here, his conviction of both bank robbery and assault with intent to commit robbery while armed violated the constitutional prohibition against double jeopardy. The evidence at the trial showed that defendant forced two bank tellers at gunpoint to turn over to him bank money in their possession. Defendant then confronted a security guard and ordered the guard to surrender his gun. When the guard refused, defendant shot the guard in the leg and took the gun. The taking of the money from the tellers was the basis of the bank robbery conviction, while the shooting of the guard was the basis of the conviction of assault with intent to commit robbery while armed.

Absent a clear legislative intent to permit multiple[128 MICHAPP 28] punishments, a single criminal act will not support conviction of a greater offense and either necessarily or cognate lesser included offenses. People v. Cook, 236 Mich. 333, 210 N.W. 296 (1926); People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing ), 400 Mich. 540, 256 N.W.2d 31 (1977); People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980). However, a different rule controls when the Legislature intended to permit multiple punishment. In Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), the Court found no constitutional obstacle to the conviction of a defendant for both possession of a firearm during the commission of a felony and the underlying felony. The Court found that the Legislature clearly intended to permit multiple punishment. The Court also found that multiple punishment was permitted under the rule stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because proof of the essential elements of each crime required proof of a fact that proof of the essential elements of the other did not. However, the Court expressly refrained from deciding whether the Blockburger rule is a constitutional test. 406 Mich. 395, 280 N.W.2d 793. Recent decisions of the United States Supreme Court have clarified the Blockburger rule. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), and Missouri v. Hunter, --- U.S. ----, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). The Blockburger rule is not a constitutional test but merely one of various means of ascertaining legislative intent. See Missouri v. Hunter, --- U.S. ----, ----, 103 S.Ct. 673, 678, 74 L.Ed.2d 535.

"With respect to cumulative sentences imposed in a [128 MICHAPP 29] single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."

Defendant argues that only a single larceny took place here and that his conviction of both bank robbery and assault with intent to commit robbery while armed was prohibited by the rule stated in the Cook, Martin, Stewart, and Jankowski cases. The rule followed in Michigan and in nearly all other jurisdictions is that the taking of property from different sources at the same time and at the same place can constitute only a single larceny. People v. Johnson, 81 Mich. 573, 45 N.W. 1119 (1890); Anno: Single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407. Note, however, that an assault on several persons at the same time and place can support as many assault convictions as there were victims. People v. Ochotski, 115 Mich. 601, 73 N.W. 889 (1898); People v. Winquest, 115 Mich.App. 215, 320 N.W.2d 346 (1982). In People v. Williams, 98 Mich.App. 510, 296 N.W.2d 293 (1980), the Court relied upon the "single larceny" rule to hold that a defendant who forced four bank tellers at gunpoint to turn over to him bank money in their possession had committed a single armed robbery rather than four.

In People v. Patskan, 387 Mich. 701, 714, 199 N.W.2d 458 (1972), the Court held that an attempted robbery is an essential element of an assault with intent to rob while armed. Proof of a completed armed robbery will establish an assault with intent to rob while armed. People v. Henderson, 22 Mich.App. 128, 131, 177 N.W.2d 254 (1970). In People v. Chamblis, 395 Mich. 408, 425, 236 N.W.2d 473 (1975), the Court explained the elements of robbery as follows:

[128 MICHAPP 30] "Robbery is committed only when there is larceny from the person, with the additional element of violence or intimidation. Perkins on Criminal Law (2d ed), pp 279, 281. We are committed to the view that the crime of larceny from the person embraces the taking of property in the possession and immediate presence of the victim. People v. Gould, 384 Mich 71, 179 NW2d 617 (1970). If such taking be by force and threat of violence, it is robbery."

Examination of M.C.L. Sec. 750.531; M.S.A. Sec. 28.799 shows that the crime to which we have referred as "bank robbery" need not involve a robbery within the foregoing definition. However, while the statute specifies several alternate ways to commit bank robbery, under the circumstances presented here a larceny or attempted larceny was an essential element of the crime. If but a single larceny occurred here, assault with intent to commit robbery while armed would be a cognate offense of bank robbery, because the two offenses are of the same class or category and share the element of a larceny or attempted larceny. See People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). Therefore, if but a single larceny occurred here, the rule stated in the Cook, Martin, Stewart, and Jankowski cases would prevent defendant's conviction of both crimes absent a clear legislative intent to permit multiple punishment.

The writer of this opinion was a member of the majority in Williams but is no longer convinced that the Williams decision was correct in extending the "single larceny" rule into a "single robbery" rule. The single larceny rule is followed in the overwhelming majority of jurisdictions, but the Williams "single robbery" rule is the minority view. In Hoag v. New Jersey, 356 U.S. 464, 467, 78 S.Ct. 829, 832, 2 L.Ed.2d 913 (1958), the Court held that it [128 MICHAPP 31] was constitutionally permissible for a state to punish a defendant for four separate robberies where defendant robbed four persons at the same time and place. For cases holding that multiple robbery convictions were permissible on facts analogous to those presented here, see People v. Guerin, 22 Cal.App.3d 775, 99 Cal.Rptr. 573 (1972); In re Allison, 13 Colo. 525, 22 P. 820 (1889); Ferguson v. State, 405 N.E.2d 902 (Ind.1980); Richardson v. State, 429 N.E.2d 229 (Ind.1981); State v. Branch, 223 Kan. 381, 573 P.2d 1041 (1978); State v. Shoemake, 228 Kan. 572, 618 P.2d 1201 (1980); Johns v. State, 130 Miss. 803, 95 So. 84 (1923); State v. Cabell, 539 S.W.2d 584 (Mo.App.1976); Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972); Wilkerson v. State, 211 Tenn. 32, 362 S.W.2d 253 (1962); Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967); and Wiley v. State, 552 S.W.2d 410 (Tenn.Cr.App.1977). Several of the cases in which multiple convictions were found to be improper involved only one victim and property belonging to several owners but in the one victim's possession. See Creecy v. State, 235 Ga. 542, 221 S.E.2d 17 (1975); State v. McQueen, 224 Kan. 420, 582 P.2d 251 (1978); and State v. Sellars, 52 N.C.App. 380, 278 S.E.2d 907 (1981). Only Florida follows a rule similar to that stated in Williams. Castleberry v. State, 402 So.2d 1231 (Fla.App.1981).

A rule permitting conviction of more than one robbery, or, as here, robbery-related offense, can be reconciled with the "single larceny" rule and with the case law dealing with double jeopardy. As Chamblis shows, the larceny which is an element of robbery is a larceny from a person. The separate statutes defining simple larceny, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588, and larceny from a person, [128 MICHAPP 32] M.C.L. Sec. 750.357; M.S.A. Sec. 28.589, show that the Legislature decided that larceny from a person presents a social problem separate and apart from simple larceny. Compare People v. Ford, 417 Mich. 66, 95-96, 331 N.W.2d 878 (1982) (larceny in a building). This separate social problem must be the invasion of the person or immediate presence of the victim, because that is what distinguishes...