People v. Carter

• Decision Date: 18 February 1983
• Docket Number: M,Docket No. 64583,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin D. CARTER, Defendant-Appellant. arch Term 1981. Calendar
• Court: Michigan Supreme Court

Page 314

330 N.W.2d 314

415 Mich. 558

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

Docket No. 64583, March Term 1981.

Calendar No. 2.

Supreme Court of Michigan.

Argued March 3, 1981.

Decided Dec. 23, 1982.

Rehearing Denied Feb. 18, 1983.

Bruce A. Barton, Jackson, for plaintiff-appellee.

Norris J. Thomas, Jr., Detroit, for defendant-appellant.

FITZGERALD, Chief Justice, and WILLIAMS, COLEMAN and RYAN, Justices.

This opinion was written by Justice BLAIR MOODY, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.

The principal issue presented by this case is whether a defendant may be convicted both of aiding and abetting the commission of extortion, M.C.L. Sec. 767.39; M.S.A. Sec. 28.979 and M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, and conspiracy to commit that same crime, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). We hold that, under the facts of this case, the defendant was properly convicted under both the aiding and abetting and conspiracy statutes.

In addition to challenging his dual convictions, defendant raises a number of other issues involving alleged errors that occurred before and during his trial. He challenges as impermissibly suggestive the photographic identification which led to his arrest. Defendant further alleges that the prosecution's failure to indorse and produce a res gestae witness deprived him of a fair trial. Finally, he claims that the trial court erred in allowing the jury to hear testimony that defendant had been fired from his job for assaulting his supervisor.

We find these issues to be without merit. Accordingly, we affirm defendant's convictions of extortion under an aiding and abetting theory and conspiracy to commit extortion.

I

Alvin D. Carter was charged with aiding and abetting another to commit both unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, and extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, and with conspiracy to commit both offenses, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1).

The charges against the defendant arose out of the taking of $1,365.00 from an employee of the Consumers Power Company customer service office in Jackson around noon on December 19, 1975. The employee, Mrs. Peggie Johnson, was approached by a man, subsequently identified as Edward Kimble, who handed her a note threatening her three sons unless she gave him money. According to her testimony at defendant's trial, she complied with the demand because she feared for her own safety and that of her children.

Mrs. Johnson also testified that she had never seen Edward Kimble before the robbery, but that she knew Alvin Carter well and regarded him as a family friend. Further, she indicated that approximately one or two months before the robbery, the defendant stopped in at the Consumers Power Company office and "question[ed] us about the lunch hours".

Kimble and his girlfriend, Diane Potter, were arrested the day after the robbery while shopping at a J.C. Penney store located across the street from the Consumers Power Company office. Potter's identification of the defendant at a photographic showup approximately three weeks later led to Alvin Carter's arrest.

Edward Kimble pled guilty to unarmed robbery and received a 5 1/2- to 15-year sentence. Testifying for the prosecution at defendant's trial, he indicated that he first met Carter, who he knew only as "Hank", at Jackson Prison, where he was serving a sentence for armed robbery and Carter was employed as a prison guard. According to Kimble, he again came into contact with the defendant in November of 1975 at Leake's Lounge, a Jackson bar they both frequented. Kimble testified further that he and Carter discussed the "Consumers Power job" on the afternoon of December 18, the day before the robbery; that on that same evening Carter came to see him at the Sewell Hotel, where he lived with Diane Potter; that during that visit Carter wrote the threatening note that was to be presented to Peggie Johnson; and that Potter copied the note because Carter was afraid the victim would recognize his handwriting.

Kimble admitted taking the note to the Consumers Power office around noon on December 19, presenting it to Peggie Johnson, and receiving the money in a paper bag. He testified that he then met Carter and gave the money to him at a place called "the roller room", where Carter had been waiting. Both men returned to Kimble's room at the Sewell Hotel, Kimble arriving about five minutes after Carter, and Carter divided the money.

Diane Potter, who was not charged with participation in the crime, ¹ corroborated Kimble's testimony about the events at the Sewell Hotel on the evening of December 18 and after the robbery on December 19. She added that while Carter was drafting the note he and Kimble were "whispering a conversation back and forth", and that she heard Carter ask Kimble if the content looked all right to him. After she rewrote the note, she tore up Carter's copy and flushed it down the toilet. Finally, Potter indicated that she had seen Carter approximately six to twelve times before the night of December 18, both at the apartment and at Leake's Lounge.

The defendant denied any involvement in the crime and presented an alibi defense. He denied having ever been in Kimble's room at the Sewell Hotel or having met Kimble while employed as a prison guard. He further denied even knowing Kimble or Potter, other than casually from seeing them at Leake's Lounge.

The jury, after deliberating for seven and one-half hours, returned a verdict of guilty on all four counts. On July 14, 1976, defendant was sentenced to 7 1/2 to 15 years with credit for 189 days on the unarmed robbery and conspiracy to commit unarmed robbery convictions and to 7 1/2 to 20 years with credit for 189 days on the extortion and conspiracy to commit extortion convictions, with all 4 sentences to be served concurrently.

In a published per curiam opinion, the Court of Appeals affirmed defendant's convictions of extortion and conspiracy to commit extortion, but reversed, as violative of the proscription against double jeopardy, U.S. Const., Am.V.; Const.1963, art. 1, Sec. 15, the convictions of unarmed robbery and conspiracy to commit unarmed robbery. People v. Carter, 94 Mich.App. 501, 290 N.W.2d 46 (1979). This Court granted defendant's application for leave to appeal his remaining convictions. 409 Mich. 867 (1980). The people do not contest the reversal by the Court of Appeals of defendant's robbery-related convictions.

II

Defendant attacks his joint convictions of aiding and abetting the commission of extortion and conspiracy to perpetrate extortion on three grounds, all of which relate to principles of double jeopardy. He argues, in the alternative, that the charge of conspiracy should merge with, or be absorbed into, the charge of the completed crime, and that his conviction of both crimes is in essence unconstitutional multiple punishment for the same offense under federal and state double jeopardy interpretations.

A

Criminal conspiracy occupies a unique place in our criminal justice system. It is defined as "a partnership in criminal purposes", United States v. Kissel, 218 U.S. 601, 608, 31 S.Ct. 124, 126, 54 L.Ed. 1168 (1910), a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. While the offense has its origins in the common law, it is now specifically proscribed by statute, which sets forth the penalties for its commission. M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). ²

"The gist of the offense of conspiracy lies in the unlawful agreement". People v. Atley, 392 Mich. 298, 311, 220 N.W.2d 465 (1974). The crime is complete upon formation of the agreement; in Michigan, it is not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime. ³ However, a twofold specific intent is required for conviction: intent to combine with others, and intent to accomplish the illegal objective. Perkins, Criminal Law (2d ed), ch. 6, Sec. 5, p. 629.

In spite of the importance of the element of agreement in conspiracy liability,

"[d]irect proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact. * * *.

"Furthermore, conspiracy may be established, and frequently is established by circumstantial evidence". (Citations omitted.) People v. Atley, p. 311, 220 N.W.2d 465. ⁴

It is a settled principle of black-letter law that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. LaFave & Scott Criminal Law, Sec. 62, p. 494; People v. Tinskey, 394 Mich. 108, 228 N.W.2d 782 (1975); People v. Chambers, 279 Mich. 73, 271 N.W. 556 (1937). The guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy. More importantly in the context of the instant case, a conviction of conspiracy does not merge with a conviction of the completed offense. ⁵ Thus, a defendant may be convicted and punished for both the conspiracy and the substantive crime. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

The cited justification for the prosecution of conspiracy as a crime independent of, and often in addition to, the prosecution of the object offense is the alleged increased and special danger to society presented by group as opposed to individual activity. ⁶ The "greater threat" rationale was detailed in Callanan v. United States, 364 U.S. 587, 593-594, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961):

"[C]ollective criminal agreement--partnership in crime--presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object...