People v. Brintley, Docket Nos. 77-2756

• Decision Date: 20 September 1978
• Docket Number: Docket Nos. 77-2756,77-3404
• Citation: 272 N.W.2d 582,85 Mich.App. 714
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis BRINTLEY, Carlos Robinson, Defendants-Appellants. 85 Mich.App. 714, 272 N.W.2d 582
• Court: Court of Appeal of Michigan — District of US

Page 582

272 N.W.2d 582

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis BRINTLEY, Carlos Robinson, Defendants-Appellants.

Docket Nos. 77-2756, 77-3404.

85 Mich.App. 714, 272 N.W.2d 582

Court of Appeals of Michigan.

Sept. 20, 1978.

Released for Publication Dec. 18, 1978.

[85 MICHAPP 716] Arthur H. Landau, Detroit, for Brintley.

Seymour Weberman, Southfield, for Robinson.

[85 MICHAPP 715] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Robert Reuther, Asst. Pros. Atty., for plaintiff-appellee.

[85 MICHAPP 716] Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

Defendants were charged in a complaint and warrant with two counts: armed robbery contrary to M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Following a trial by the court, without a jury, the trial judge made findings of fact and conclusions of law among which is the following:

"I find, as a fact, beyond a reasonable doubt, that both defendants are guilty of Count I, robbery armed. I find, as a fact, that the instrumentality used in the robbery armed was a gun and that the defendant, Curtis Brintley, possessed the gun doing the commission of a felony which is in violation of Statute 750.227b.

"I'm of the opinion that that felony cannot be committed vicariously. Therefore I find the defendant, Carlos Robinson, not guilty of that. That is say, it can't be committed constructively. I therefore find the defendant, Curtis Brintley, guilty of Counts I and II. I find the defendant, Carlos Robinson, guilty of Count I, only."

Thereafter the trial court sentenced defendant Brintley to a prison term of 5 to 10 years on the armed robbery charge and to a prison term of 2 to 10 years on the felony-firearm charge. Defendant Robinson was sentenced to a prison term of from 1 1/2 to 5 years on the armed robbery charge. Both defendants appeal as of right.

While numerous issues are raised on appeal all [85 MICHAPP 717] but one are lacking in merit. Since the single meritorious issue applies only to defendant Brintley we affirm defendant Robinson's conviction without further discussion.

With respect to defendant Brintley he claims on appeal that the trial court reversibly erred in finding him guilty of both armed robbery and felony-firearm in that such a finding represents an unconstitutional duplication of punishment. We agree.

Among the guarantees encompassed by the double jeopardy clause is protection against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is beyond dispute that a single act may violate more than one criminal statute where this is the clear legislative intent. Blockburger v. United States,284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States,357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); People v. Bennett, 71 Mich.App. 246, 248, 247 N.W.2d 368 (1976). But where one of two offenses charged is necessarily a lesser included offense of the other, convictions for both based on the same act amount to unconstitutional double punishment. 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).

Based on the trial court's findings it is apparent that defendant Brintley's act of armed robbery was necessarily a lesser included offense of felony-firearm. A necessarily lesser included offense is an offense such that it is impossible to commit the greater without first having committed the lesser. People v. Patskan, 387 Mich. 701, 713, 199 N.W.2d 458 (1972); People v. Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975). Some offenses are never [85 MICHAPP 718] necessarily included in others on any set of facts because they share no elements. E. g., People v. Jones, 75 Mich.App. 261, 272, 254 N.W.2d 863 (1977) (gross indecency and assault with intent to commit gross indecency). Other offenses are always necessarily included in others because the latter consist of all the elements of the former plus more. E. g., People v. Hoffmeister, 394 Mich. 155, 157, n. 1, 229 N.W.2d 305 (1975); People v. Carter, 395 Mich. 434, 437-438, 236 N.W.2d 500 (1975) (second-degree murder always included in first-degree murder). In these polar cases of mutual exclusivity, the question of lesser included offenses is answerable by reference to the elements of the offense without an analysis of the facts of the particular case. But this is not always true. There are offenses which are necessarily lesser included offenses of others As a matter of fact but not as a matter of legal or logical necessity. In such situations, it becomes necessary to elect between a purely legal and factual analysis of necessarily lesser included offenses:

"A necessarily included offense can reasonably mean a lesser offense which would always be committed when the main offense was committed. It can be decided in the abstract without any reference to an individual case; for example, assault is always found in assault with intent to kill. Conversely, it could also be one which, as a factual matter, was shown at trial to have been a method not identical to, but included within, the major crime. Thus felonious assault would be a lesser included offense of assault with intent to kill if the method of assault was use of a gun." Koenig, The Many-Headed Hydra of Lesser Included Offenses: A Herculean Task for the Michigan Courts, 1 D.C.L.Rev. 41, 44 (1975).

In the Martin and Stewart cases, Supra, the [85 MICHAPP 719] Michigan Supreme Court adopted the factual analysis of lesser included offenses. In both cases the Court held that convictions for possession and delivery of heroin could not both be sustained where there was no evidence of possession apart from the sale. On the facts of those cases, though not in all cases, possession was incident to sale.

The felony of "felony-firearm"...