People v. Bolton

• Decision Date: 31 March 1982
• Docket Number: Docket No. 49150
• Citation: 317 N.W.2d 199,112 Mich.App. 626
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patricia BOLTON, Defendant-Appellant. 112 Mich.App. 626, 317 N.W.2d 199
• Court: Court of Appeal of Michigan — District of US

Page 199

317 N.W.2d 199

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patricia BOLTON, Defendant-Appellant.

Docket No. 49150.

112 Mich.App. 626, 317 N.W.2d 199

Court of Appeals of Michigan.

Submitted May 6, 1981.

Decided Dec. 2, 1981.

Released for Publication March 31, 1982.

[112 MICHAPP 627] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., and Angela Baryames, Asst. Pros. Atty., for the People.

Mardi Crawford, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before MacKENZIE, P. J., and R. B. BURNS and J. N. O'BRIEN, ^* JJ.

PER CURIAM.

Defendant pled guilty to larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. Defendant's plea was induced by the prosecutor's agreement to withdraw a supplemental information charging her as an habitual offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant was sentenced to serve two to four years in prison and now appeals by right.

Defendant's statements at the plea-taking colloquy indicate that she committed the crime of larceny in a building by shoplifting some clothing from a store. Defendant concealed the clothing in her purse, paid for other items, and attempted to leave the store. Defendant was apprehended by a store security guard as she attempted to leave. The parties agree that, before defendant pled guilty in [112 MICHAPP 628] the instant case, she was convicted of assault and battery, M.C.L. Sec. 750.81; M.S.A. Sec. 28.276, in a separate proceeding in district court. The assault and battery charge arose out of defendant's attempt to escape from the security guard and other store employees.

Defendant first argues that the constitutional prohibition of double jeopardy was violated here because she was not afforded the opportunity of a single trial on all charges arising out of the same transaction. See People v. White, 390 Mich. 245, 259, 212 N.W.2d 222 (1973). However, crimes arise out of the same transaction under the White rule when they are committed in a continuous time sequence and display a single intent and goal. Crampton v. 54-A District Judge, 397 Mich. 489, 245 N.W.2d 28 (1976). The two crimes at issue here did not display a single intent and goal. Defendant committed larceny in a building to acquire the clothing for her own use; she committed assault and battery in an effort to escape from her captors. See People v. Johnson, 62 Mich.App. 240, 233 N.W.2d 246 (1975), and People v. Grant, 102 Mich.App. 368, 301 N.W.2d 536 (1980).

Defendant argues that the Legislature did not intend the larceny in a building statute to apply in shoplifting cases. Instead, defendant argues that she should have been charged with the misdemeanor of larceny of property of a value less than $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Dicta supporting defendant's position appear in People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d 667 (1978). However, it is well-settled that the prosecutor has broad discretion to determine under which of two applicable statutes a prosecution will be instituted. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 673, 683, 194 N.W.2d 693 (1972). The overwhelming[112 MICHAPP 629] weight of authority in this Court indicates that a prosecutor has discretion to charge a defendant with either of the two overlapping offenses of simple larceny and larceny in a building. See People v. Jackson, 29 Mich.App. 654, 185 N.W.2d 608 (1971); People v. Graves, 31 Mich.App. 635, 188 N.W.2d 87 (1971); People v. Bohm, 49 Mich.App. 244, 212 N.W.2d 61 (1973); People v. Shepherd, 63 Mich.App. 316, 234 N.W.2d 502 (1975); People v. Evans, 94 Mich.App. 4, 287 N.W.2d 608 (1979); People v. Hart, 98 Mich.App. 273, 296 N.W.2d 235 (1980); People v. Holmes, 98 Mich.App. 369, 295 N.W.2d 887 (1980); and People v. Freeland, 101 Mich.App. 501, 300 N.W.2d 616 (1980).

Defendant argues that this grant of discretion to the prosecutor to charge under either of two applicable statutes violates due process, citing Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). The statutes at issue in those cases were held void for vagueness because they provided no standards for determining whether particular conduct was criminal. In contrast, here it was clear that at least two statutes prohibited defendant's conduct. The prosecutor was not given discretion to decide whether defendant's conduct was criminal; his discretion extended merely to determining under which statute, if any, to charge defendant. Such discretion has long been a fundamental attribute of our criminal justice system. Defendant has not cited, and we cannot find, any authority...