People v. Ford

• Decision Date: 01 September 2004
• Docket Number: Docket No. 246136.
• Citation: 262 Mich. App. 443,687 N.W.2d 119
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elijah Monroe FORD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

687 N.W.2d 119

262 Mich. App. 443

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elijah Monroe FORD, Defendant-Appellant.

Docket No. 246136.

Court of Appeals of Michigan.

Submitted April 16, 2004, at Grand Rapids.

Decided June 15, 2004, at 9:20 a.m.

Released for Publication September 1, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, James A. Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by James R. Newmann and Gail Rodwan), for the defendant on appeal.

Before: WHITE, P.J., and MARKEY and OWENS, JJ.

MARKEY, J.

A jury convicted defendant, as charged, of armed robbery, MCL 750.529; bank, safe, or vault robbery, MCL 750.531; first-degree home invasion, MCL 750.110a(2); and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to 15 to 40 years' imprisonment for armed robbery, 7-1/4 to 40 years' imprisonment for bank, safe or vault robbery, 12-1/2 to 20 years' imprisonment for first-degree home invasion, all to run consecutively to 2 years' imprisonment for felony-firearm. This Court granted defendant's delayed application for leave to appeal limited to whether his convictions and sentences for both armed robbery and safe robbery violate federal or Michigan constitutional double jeopardy prohibitions against multiple punishment for the "same offense," and whether the trial court abused its discretion in admitting into evidence letters purportedly written by defendant. We affirm.

The victim's testimony supplies the pertinent facts. Defendant invaded the victim's home, repeatedly threatened to shoot or kill the victim, forced the victim to his basement to open a safe from which defendant removed and escaped with a shotgun, a loaded .38 caliber pistol, and $2,980 in cash. Before leaving with the stolen property, defendant forced the victim to lie facedown, put his foot on the victim's back, and with gun pressed to the victim's back, again threatened to kill the victim should he get up.

We review defendant's double jeopardy claim de novo because it presents a question of law and it requires this Court to construe the criminal statutes at issue to determine if the Legislature intended multiple punishments. People v. Calloway, 469 Mich. 448, 450-451, 671 N.W.2d 733 (2003); People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003).

Both the United States and Michigan constitutions prohibit a person from twice being placed in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15; People v. Nutt, 469 Mich. 565, 677 N.W.2d 1 (2004). The Double Jeopardy Clause of the United States Constitution, Am. V, provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." The Clause applies to the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Michigan Constitution provides: "No person shall be subject for the same offense to be twice put in jeopardy." Const. 1963, art. 1, § 15. This provision is "essentially identical" to its federal counterpart, Nutt, supra at 575, 677 N.W.2d 1, and was intended to be "construed consistently with the corresponding federal provision." Id. at 594, 677 N.W.2d 1.

Both federal and Michigan double jeopardy provisions afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. Id. at 574, 677 N.W.2d 1; Pearce, supra. The first two protections against successive prosecutions "involve the core values of the Double Jeopardy Clause, the common-law concepts of autrefois acquit and convict." People v. Robideau, 419 Mich. 458, 484, 355 N.W.2d 592 (1984). The purposes of double jeopardy protections against successive prosecutions for the same offense are to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986). But the purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended. Id. at 399, 397 N.W.2d 783; Calloway, supra at 451, 671 N.W.2d 733. "[T]he Double Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the Legislature." Robideau, supra at 469, 355 N.W.2d 592, citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Accordingly, the Double Jeopardy Clause does not limit the Legislature's ability to define criminal offenses and establish punishments, Sturgis, supra at 400, 397 N.W.2d 783, and the "only interest of the defendant is in not having more punishment imposed than that intended by the Legislature." Robideau, supra at 485, 355 N.W.2d 592.

Under the federal Double Jeopardy Clause, whether the Legislature intended to impose multiple punishments for violations of more than one statute during the same transaction or incident is generally determined by the application of the so-called Blockburger¹ or "same-elements" test. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); People v. Denio, 454 Mich. 691, 707, 564 N.W.2d 13 (1997). In general, the Blockburger test "inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution." Dixon, supra at 696, 113 S.Ct. 2849.

But the Blockburger same elements test is merely a rule of statutory construction, which creates a presumption that is subject to clearly expressed legislative intent to the contrary. Whalen v. United States, 445 U.S. 684, 691-692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); People v. Wakeford, 418 Mich. 95, 107, 341 N.W.2d 68 (1983). A presumption arises under Blockburger that a legislature intends multiple punishments where two distinct statutes cover the same conduct but each requires proof of an element the other does not; the contrary presumption arises when the elements of one offense are encompassed in the elements of the other. Id. at 110 n. 14, 341 N.W.2d 68. But this presumption is overcome when a legislature clearly expresses a contrary intent. Whalen, supra. Thus, even where the crimes are the same, "`if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end [.]'" Sturgis, supra at 400, 397 N.W.2d 783, quoting Ohio v. Johnson, 467 U.S. 493, 499, n. 8, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

Whether multiple punishments may be imposed under Michigan's Double Jeopardy Clause when different criminal statutes cover the same conduct is also determined by whether the Legislature intended to impose multiple punishments. Denio, supra at 707, 564 N.W.2d 13; People v. Dillard, 246 Mich.App. 163, 166, 631 N.W.2d 755 (2001). In Robideau, our Supreme Court found "the Blockburger test to have questionable status in the Supreme Court of the United States" and to be of questionable value in ascertaining legislative intent in multiple punishment cases. Robideau, supra at 485-486, 355 N.W.2d 592.² The Robideau Court therefore eschewed the Blockburger test, "preferring instead to use traditional means to determine the intent of the Legislature: the subject, language, and history of the statutes." Robideau, supra at 486, 355 N.W.2d 592. As our Supreme Court later explained, the Robideau Court's rejection of the "wooden application" of the Blockburger test acknowledges the rule as one of statutory construction rather than a conclusive constitutional presumption. Sturgis, supra at 405 n. 5, 397 N.W.2d 783. In sum, under both the federal and Michigan double jeopardy clauses the test is the same: "in the context of multiple punishment at a single trial, the issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is solely one of legislative intent." Id. at 400, 397 N.W.2d 783.

The Robideau Court suggested the following general principles as aids in ascertaining legislative intent:

Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments.

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A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature.

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We do not intend these principles to be an exclusive list. Whatever sources of legislative intent exist should be considered. If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended. [Robideau, supra at 487-488, 355 N.W.2d 592.]

In applying the Robideau principles to the question whether the Legislature intended to permit punishment for both armed robbery and safe robbery where the same conduct establishes both in a single trial, different panels of this Court have reached different results. See People v. Campbell, 165 Mich.App. 1, 418 N.W.2d 404 (1987), and People v. Witt, 140 Mich.App. 365, 364 N.W.2d 692 (1985). The Witt panel upheld the defendant's guilty plea to bank, safe, or vault robbery, MCL 750.531, and armed robbery, MCL 750.529, because it concluded that the Legislature intended to permit punishment of the defendant under both statutes. Witt, supra at 370, 364 N.W.2d 692. The Witt panel reasoned that the Legislature intended multiple punishments...