People v. Fick

• Decision Date: 26 March 1973
• Docket Number: 11880,No. 3,Docket Nos. 11786--90,3
• Citation: People v. Fick, 206 N.W.2d 739, 45 Mich.App. 435 (Mich. App. 1973)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Roy FICK et al., Defendants-Appellants
• Court: Court of Appeal of Michigan

Page 739

206 N.W.2d 739

45 Mich.App. 435

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Roy FICK et al., Defendants-Appellants.

Docket Nos. 11786--90, 11880.

Court of Appeals of Michigan, Division No. 3.

March 26, 1973.

Released for Publication May 11, 1973.

Kenneth A. Skronek, and Martin B. Legatz, Bay City, for Potter and fick.

Scott J. Newcombe, Bay City, for Umphrey.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and R. B. BURNS and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

Defendants were convicted by a judge sitting without a jury of illegal sale of marijuana, M.C.L.A. § 335.152; M.S.A. § 18.1122. They appeal as of right.

The bulk of evidence against all three defendants came from an undercover police officer who had infiltrated a group of people trafficking in drugs in Bay City. The defendants were part of the group but others were involved as well. The infiltration took place over a period of several days in September 1970. As a result of the police officer's observation and involvement with defendants during that period, separate warrants were obtained charging defendants, and others, with conspiracy to sell amphetamines, sale of marijuana, and conspiracy to sell marijuana.

All charges were set for preliminary examination in district court. At that time counel for another defendant noted that conspiracy to sell amphetamines was a misdemeanor triable in district court. The district judge and the prosecutor agreed ¹ and suggested a trial date be set for All defendants charged with that crime, rather than holding a preliminary examination. Defense counsel for defendants Umphrey, Potter, and Fick agreed.

Defendants were bound over for trial in circuit court on the remaining charges. They stood trial in district court for conspiracy to sell amphetamines and were convicted. They now contend the subsequent trial in circuit court for sale of marijuana ² subjected them to double jeopardy.

The basis of defendants' contention is that the district judge presiding at the trial of the conspiracy to sell amphetamines charge allowed in evidence testimony tending to show defendants guilty of sale of marijuana as part of the res gestae and thereafter found, as a matter of fact, that the evidence of sale of marijuana was an integral part of the conspiracy to sell amphetamines.

We agree that the evidence adduced at the preliminary examination as well as the trials in both circuit and district courts showed defendants, during a time span of several days, sold and conspired to sell amphetamines, marijuana, and other prohibited substances. Sales were made from a paper shopping bag which contained a variety of drugs and was carried and passed about with astonishing casualness in a park in Bay City. Clearly, the incidents surrounding the commission of both crimes (as well as others we can glean from the several transcripts) were so intermixed as to be related to one criminal endeavor. However, no compelling logic requires the result for which defendants contend.

The double jeopardy clauses of our Constitutions ³ as employed in both Federal and state courts, consist of two basic rules: first, once a man is convicted, he may not be reprosecuted in order to impose upon him another sentence for the same offense; and second, once a man is acquitted, he may not be reprosecuted for the same offense in order to give the state another chance to convict him. See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); see also Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965).

The latter rule, barring reprosecution after acquittal, has been conceptually allied with the doctrine of collateral estoppel. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Recently, a panel of this Court applied a variation of collateral estoppel by attempting to fashion a 'same transaction' test that would bar reprosecution after conviction of an offense committed during a single criminal transaction. People v. White, 41 Mich.App. 370, 200 N.W.2d 326 (1972).

More recently, in response to a similar contention to that raised in White, supra, our Supreme Court stated:

'Defendant further contends that we should prohibit multiple prosecutions arising out of the same factual situation. Defendant properly points out that in some cases multiple prosecutions are prejudicial to a defendant. In some cases multiple prosecutions may aid a defendant. Therefore, we believe a mandatory rule would be an unwise solution to this problem' People v. Grimmett, 388 Mich. 590, 607, 202 N.W.2d 278, 286 (1972). (Emphasis supplied.)

It is clear in this case that the convictions entered against defendants were for separate crimes requiring different evidence but arising out of a time sequence that bespeaks a single criminal episode. However, the prosecution originally...