People v. Feazel

• Decision Date: 01 November 1996
• Docket Number: Docket No. 181072
• Citation: 219 Mich.App. 618,558 N.W.2d 219
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Allen FEAZEL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 219

558 N.W.2d 219

219 Mich.App. 618

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Allen FEAZEL, Defendant-Appellant.

Docket No. 181072.

Court of Appeals of Michigan.

Submitted Sept. 5, 1996, at Lansing.

Decided Nov. 1, 1996, at 9:10 a.m.

Released for Publication Jan. 24, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Sr. Assistant Prosecuting Attorney, for people.

H. Eugene Bennett, Lansing, for defendant-appellant.

Before MARKMAN, P.J., and McDONALD and M.J. MATUZAK, ^* JJ.

PER CURIAM.

Defendant pleaded guilty of conspiracy to deliver less than fifty grams of cocaine, M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), and aiding and abetting the delivery of less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv). He was sentenced to the respective terms of two to twenty years' and three to twenty years' imprisonment. Defendant's second sentence was ordered to run consecutively to the first sentence, and the first sentence was ordered to run consecutively to sentences that defendant was already serving for convictions in Isabella County. Defendant appeals as of right. We vacate defendant's sentence in part and remand this matter to the trial court for further proceedings.

The offenses in this case occurred on September 15, 1993, in Delta Township, Eaton County. At the plea hearing, defendant admitted that he had supplied cocaine to a man named Schafer while the two men were at defendant's house in Isabella County. Defendant gave Schafer approximately thirteen grams of cocaine and received $800 in return. Schafer then took the cocaine to a party in Eaton County with the intention of giving it to someone else. At the time defendant sold Schafer the cocaine, he knew that Schafer intended to take the cocaine to share with or deliver to the third person in Eaton County. The court found that defendant's admissions were sufficient to accept defendant's pleas regarding the charges of conspiracy to deliver cocaine and aiding and abetting the delivery of less than fifty grams of cocaine.

Defendant first argues on the basis of principles of double jeopardy that it was error for the trial court to accept his guilty pleas in this case. Defendant argues that he was subjected to successive prosecutions arising out of a single transaction because he had already been convicted in Isabella County as a result of the same incident that supported his convictions in Eaton County in the instant case. Because it is not clear if there were facts sufficient to support separate charges in both Isabella County and Eaton County, we remand this matter to the trial court for further proceedings.

Defendant's guilty pleas did not waive his right to raise this issue on appeal. People v. Spicer, 216 Mich.App. 270, 272, 548 N.W.2d 245 (1996). Although the trial court discussed the double jeopardy issue at sentencing, defendant decided to plead guilty before the court ruled on his motion to dismiss, in which he alleged a double jeopardy violation. In spite of the fact that this issue was not properly argued before the trial court, we will address it for the first time on appeal because a significant constitutional issue is presented. People v. Lugo, 214 Mich.App. 699, 705, 542 N.W.2d 921 (1995).

The double jeopardy provisions of the federal and state constitutions protect a defendant from twice being placed in jeopardy for a single offense. U.S. Const., Am.V; Const.1963, Art. 1, § 15; People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986). In this case, defendant's argument focuses on the protection against successive prosecutions for the "same offense" under Michigan's Constitution. ¹ One of the primary purposes of the protection against successive prosecutions is to protect defendants from overreaching by the prosecution. Id.

Michigan applies the "same transaction" test where there are successive prosecutions. People v. McMiller, 202 Mich.App. 82, 85, 507 N.W.2d 812 (1993). Under the "same transaction" test, the prosecutor is required to join at one trial all charges that grow out of a "continuous time sequence" and that demonstrate "a single intent and goal" when the crimes at issue involve specific criminal intent as an element. Crampton v. 54-A Dist. Judge, 397 Mich. 489, 501-502, 245 N.W.2d 28 (1976); Spicer, supra at 272, 548 N.W.2d 245. Where one or more of the offenses do not involve a specific criminal intent as an element, the test focuses on whether the offenses were part of the same criminal episode and whether the offenses involve laws intended to prevent the same or a similar harm or evil, rather than substantially different harms or evils. Crampton, supra at 502, 245 N.W.2d 28; People v. Ainsworth, 197 Mich.App. 321, 323, 495 N.W.2d 177 (1992).

The crimes charged in both counties all involved specific intent requirements. People v. Jackson, 153 Mich.App. 38, 46, 394 N.W.2d 480 (1986). Therefore, defendant was required to show that the crimes in Isabella and Eaton Counties grew out of a continuous time sequence and demonstrated a single intent and goal. People v. Hunt (After Remand), 214 Mich.App. 313, 542 N.W.2d 609 (1995). There must be a direct, factual connection between the crimes, not merely temporal happenstance. Jackson, supra at 46, 394 N.W.2d 480.

In the area of controlled substance offenses, there have been several opinions of this Court that have addressed whether multiple drug transactions supported separate charges against a defendant in successive prosecutions. In People v. Martinez, 58 Mich.App. 693, 694-695, 228 N.W.2d 523 (1975), this Court held that two deliveries of heroin to the same undercover police officer during the same investigation were not part of a single transaction when the deliveries occurred nine days apart and the amounts of drugs involved were substantially different. There also was no evidence that the deliveries were otherwise related.

In People v. Cuellar, 76 Mich.App. 20, 21-23, 255 N.W.2d 755 (1977), this Court again found that the evidence supported finding that there were separate drug transactions. The evidence showed that the defendant intended to make several small sales of heroin, not one large sale. Further, the defendant intended to deliver different quantities of heroin in each transaction. Because the two deliveries were independent transactions and complete in themselves, the double jeopardy prohibition did not bar the subsequent prosecution in that case. Id. at 23, 255 N.W.2d 755.

In People v. Edmonds, 93 Mich.App. 129, 133, 285 N.W.2d 802 (1979), the defendant was involved in two sales of heroin to the same informant on the same day. One sale occurred in the morning and the other occurred in the afternoon. This Court found that there was no double jeopardy violation when the record did not show any connection between the sales, such as an agreement after the first sale to return for another sale. Id. at 134, 285 N.W.2d 802.

This Court's analysis of the double jeopardy issue in Jackson, supra at 49-51, 394 N.W.2d 480, is especially instructive. The defendant was charged with both delivery of marijuana and possession of marijuana with intent to deliver. Id. at 46, 394 N.W.2d 480. This Court rejected the defendant's argument that the two charged offenses were actually only one single transaction, although the offenses occurred on the same day. The defendant delivered one quantity of marijuana to an informant while the defendant kept an additional quantity for himself to distribute to other customers. There was no evidence linking the marijuana found in the defendant's home with the drugs he had provided to the informant. The Court believed that, while the transactions were committed concurrently, the facts did not involve a continuous time sequence of criminal activity. Even if the delivery of marijuana to the informant may have flowed from the defendant's possession of marijuana with the intent to deliver, the charged offenses were not so intertwined as to amount to a single criminal episode requiring that the charges be joined at one trial. Id.

In the instant matter, the record in support of each of the cases against defendant is unclear. In the case in Eaton County, defendant was charged with supplying drugs to Schafer to deliver to someone else. Defendant aided and abetted the delivery of the drugs to that third person through Schafer. However, in Isabella County, defendant apparently was also charged with delivering cocaine to Schafer directly. It is unclear whether defendant may have been charged twice in these two counties with delivering the same quantity of cocaine to Schafer or whether there were multiple transactions between Schafer and defendant. Nor is it clear how much cocaine defendant actually delivered to Schafer in each case and whether separate transactions and separate quantities of drugs were involved. Further, it is unclear if defendant was charged in Isabella County with possession with intent to deliver cocaine for a quantity of drugs defendant kept for his own customers rather than for delivery to Schafer. See Jackson, supra at 49-51, 394 N.W.2d 480.

Because the facts supporting the charges in both counties are unclear, we are remanding this matter to the trial court for a hearing regarding whether there were separate transactions to support the charges brought against defendant in both counties. The court should clarify what facts supported the charges in each county and revisit the issue whether these transactions violate the "same transaction" test after both parties have had the opportunity to develop a record regarding this issue. See People v. Mezy, 453 Mich. 269, 277, 288, 551 N.W.2d 389 (1996) (opinions of Weaver, J., and Brickley, C.J.) (after a defendant meets his initial burden in establishing a prima...