People v. Carter

• Decision Date: 07 December 1979
• Docket Number: Docket No. 30029
• Citation: 94 Mich.App. 501,290 N.W.2d 46
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin D. CARTER, Defendant-Appellant. 94 Mich.App. 501, 290 N.W.2d 46
• Court: Court of Appeal of Michigan — District of US

Page 46

290 N.W.2d 46

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin D. CARTER, Defendant-Appellant.

Docket No. 30029.

94 Mich.App. 501, 290 N.W.2d 46

Court of Appeals of Michigan.

Dec. 7, 1979.

Released for Publication April 4, 1980.

[94 MICHAPP 502] James R. Neuhard, State App. Defender by Lynn P. Chard, Asst. State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty. (no longer prosecutor), for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CARROLL, ^* JJ.

PER CURIAM.

In this case defendant appeals from his jury convictions of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, conspiracy to commit unarmed robbery, M.C.L. § 750.157a; M.S.A. § 28.354(1), extortion, M.C.L. § 750.213; M.S.A. § 28.410, and conspiracy to commit extortion, M.C.L. § 750.157a; M.S.A. § 28.354(1). The defendant raises numerous issues for our review, only one of which we find meritorious.

On December 19, 1975, Peggie Johnson, a worker in the customer service office of the Consumers Power Company in Jackson, Michigan, was robbed by a man who handed her a note threatening her three sons unless she gave him money. Mrs. Johnson testified that she complied with the request because she feared that the man might injure her and her three sons if she did not. Edward Kimble, an inmate at the state prison, [94 MICHAPP 503] testified that he and defendant had planned the robbery the night before. At that time, they and a third person, Diane Potter, wrote the note which was used in the robbery. Kimble's testimony was corroborated by Diane Potter who identified defendant as helping prepare the note which was used subsequently.

On appeal, defendant argues that his right not to be placed in jeopardy twice was violated by his convictions of extortion and unarmed robbery. He further argues that conviction of a substantive crime under the aiding and abetting statute and conviction for conspiracy to commit that crime is likewise a violation of the double jeopardy clause.

In People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976), Martin was charged and convicted of both delivery and possession of heroin. There was no dispute that each count covered the same heroin. The only possession shown by the evidence was that incident to its delivery. As a result, the Supreme Court reversed the conviction for delivery on double jeopardy grounds.

Martin was followed by People v. Stewart, (On Rehearing ), 400 Mich. 540, 256 N.W.2d 31 (1977), where the Court described the facts of the case as follows:

"There is no dispute in the instant case that the same heroin was allegedly possessed and sold by the defendant in a single continuous transaction. There was no evidence of possession distinct and apart from the overall sale sequence." Id. at 547, 256 N.W.2d at 33.

Both cases relied on State v. Allen, 292 A.2d 167 (Me., 1972). As in Martin and Stewart, the rationale of Allen is directly on point with the instant case:

[94 MICHAPP 504] "It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime." State v. Allen, supra, at 172.

Double jeopardy applies in such situations unless the Legislature intended that one occurrence give rise to two separate violations. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979).

Looking to the facts of this case, it is obvious that both of defendant's convictions of the substantive offenses stem from the same set of facts. Defendant extracted money from the complainant by means of a threatening note. This one occurrence was used to convict him of both unarmed robbery and extortion. In addition, the planning of this one criminal act gave rise to defendant's conviction on the two counts of conspiracy. Moreover, it does not appear that the Legislature clearly intended to punish twice one instance of this type of criminal conduct. Hence, defendant's convictions for unarmed robbery and extortion and conspiracy to commit both would appear to fall within the proscription of Martin/Stewart. See e. g. People v. Anderson, 83 Mich.App. 744, 269 N.W.2d 288 (1978). Accordingly, we reverse defe...