People v. Jackson

• Decision Date: 16 October 1986
• Docket Number: Docket No. 87659
• Citation: 394 N.W.2d 480,153 Mich.App. 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Anthony Jeffery JACKSON, Defendant-Appellee. 153 Mich.App. 38, 394 N.W.2d 480
• Court: Court of Appeal of Michigan — District of US

Page 480

394 N.W.2d 480

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Anthony Jeffery JACKSON, Defendant-Appellee.

Docket No. 87659.

153 Mich.App. 38, 394 N.W.2d 480

Court of Appeals of Michigan.

Submitted April 16, 1986.

Decided July 7, 1986.

Released for Publication Oct. 16, 1986.

[153 MICHAPP 39] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph S. Filip, Pros. Atty., and Brian E. Thiede, Chief Appellate Atty., for the people.

[153 MICHAPP 40] Before ALLEN, P.J., and MacKENZIE and SWALLOW ^*, JJ.

MacKENZIE, Judge.

Defendant was charged in two separate informations with delivery of marijuana and possession of marijuana with intent to deliver, M.C.L. Sec. 333.7401, subds. (1) and (2) (c); M.S.A. Sec. 14.15(7401), subds. (1) and (2) (c). Following a bench trial, he was convicted and sentenced on the delivery charge. The people appeal as of right from an order of the trial court granting defendant's motion to quash the information charging him with possession with intent to deliver and dismissing that case. The sole issue on appeal is whether prosecution of that charge is barred by the Double Jeopardy Clause of the Michigan Constitution. We conclude that it is not and reverse.

The facts of the case are not in dispute. On February 26, 1985, acting on information provided to them by a confidential informant, the police set up a controlled drug buy. The informant called defendant at his house and asked him to come to 114 Morrell Street, Jackson. Defendant arrived by car at that address approximately 45 minutes later with another man and the informant purchased two "baggies" of marijuana from defendant. Defendant and the other man then left the Morrell Street residence.

The police followed defendant's car to what was later determined to be defendant's home. Upon their exiting from the car, both men were placed under arrest. A search of the men produced additional marijuana.

Defendant and at least two police officers then entered defendant's home. There, the officers arrested defendant's wife after observing several marijuana roaches in a living room ashtray. Four [153 MICHAPP 41] plastic bags of marijuana and one bag containing over 60 marijuana cigarettes and marked "$1.50" were observed in a bedroom. These items were subsequently seized, apparently pursuant to a search warrant. A later inventory search of defendant's car produced 15 additional baggies of marijuana.

Defendant was simultaneously charged in separate informations with delivery of marijuana, predicated on the transaction at 114 Morrell Street, and possession of marijuana with intent to deliver. The delivery case was assigned to Jackson County Circuit Court Judge Charles Falahee; the possession case was assigned to Jackson County Circuit Court Judge James Fleming. Defendant's bench trial on the delivery charge was conducted July 3, 1985, before Judge Falahee. Apparently, the prosecution produced as an exhibit in that case the marijuana seized from defendant's home as well as that delivered by defendant to the informant. On July 11, 1985, defendant was convicted as charged.

Defendant's trial on the possession with intent to deliver charge was scheduled for an August jury trial. On July 15, 1985, however, defendant filed a motion to quash the information as to the possession offense. At a hearing on the motion, defendant argued that under Michigan law double jeopardy barred the subsequent prosecution for possession with intent to deliver, since it arose out of the same transaction as the delivery charge. By written opinion, Judge Fleming granted the motion and ordered the case dismissed.

The Double Jeopardy Clauses of both the United States and Michigan Constitutions protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense. People v. Robideau, 419 Mich. 458, 468, 355 N.W.2d 592 (1984), citing [153 MICHAPP 42] North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In the instant case, we are concerned with the former category of protections under the Michigan Constitution, i.e., the guarantee against multiple or successive prosecutions for the same offense.

Whereas the single prosecution--multiple punishment form of double jeopardy concerns the defendant's interest in not having more punishment imposed than intended by the Legislature, and thus involves questions of legislative intent, Robideau, supra, 419 Mich. p. 485, 355 N.W.2d 592, the defendant's interest in cases involving multiple or successive prosecutions is wholly different. The successive prosecution form of double jeopardy protections addresses the "right to be free from vexatious proceedings", Robideau, supra, p. 485, 355 N.W.2d 592.

"Successive-prosecution cases involve the core values of the Double Jeopardy Clause, the common-law concepts of autrefois acquit and convict. See Bartkus v Illinois (On Rehearing), 359 U S 121, 151, 79 S Ct 676 ; 3 L Ed 2d 684 (1959) (Black, J., dissenting ). Where successive prosecutions are involved, the Double Jeopardy Clause protects the individual's interest in not having to twice 'run the gauntlet', in not being subjected to 'embarrassment, expense and ordeal', and in not being compelled 'to live in a continuing state of anxiety and insecurity', with enhancement of the 'possibility that even though innocent he may be found guilty'. Green v United States, 355 U S 184, 187, 190; 78 S Ct 221 [223, 225]: 2 L Ed 2d 199 (1957)." Robideau, supra, p. 484, 355 N.W.2d 592.

In People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), our Supreme Court adopted a factual "same transaction" test as the proper standard to be applied in examining a multiple prosecution claim of double jeopardy. The test is based on Justice [153 MICHAPP 43] Brennan's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The following passage from Justice Brennan's opinion was quoted in White, supra, and sets forth the relevant considerations:

" * * * [The Double Jeopardy Clause] guarantee is expressed as a prohibition against multiple prosecutions for the 'same offence.' Although the phrase 'same offence' appeared in most of the early common-law articulations of the double-jeopardy principle, questions of its precise meaning rarely arose prior to the 18th century, and by the time the Bill of Rights was adopted it had not been authoritatively defined.

"When the common law did finally attempt a definition, in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng. Rep. 455, 461 (Crown 1796), it adopted the "same evidence" test, which provided little protection from multiple prosecution:

" '[U]nless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.' The 'same evidence' test of 'same offence' was soon followed by a majority of American jurisdictions, but its deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims, under the 'same evidence' test a separate prosecution may be brought as to each. E.g. State v Hoag, 21 N.J. 496, 122 A.2d 628 (1956), aff'd, 356 U.S. 464 [78 S Ct 829; 2 L Ed 2d 913] (1958). The 'same evidence' test permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. E.g. Johnson v Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense'). Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. E.g., [153 MICHAPP 44] State v Elder, 65 Ind. 282 (1879). Given the tendency of modern criminal legislation to divide the phases of a criminal transction into numerous separate crimes, the opportunities for multiple prosecutions for an essentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, the potentialities for abuse inherent in the 'same evidence' test are simply intolerable.

* * *

" 'In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This "same transaction" test of "same offence" not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.' 397 US 436, 450-454; 90 S Ct 1189, 1197-1199; 25 L Ed 2d 469, 479-481. (Footnotes omitted.)" 390 Mich. 253-254, 212 N.W.2d 592 (Emphasis added.)

In White, the defendant met the complainant at a "party", followed her automobile when she left, stopped her when she exited from her car, struck her on the head, forced her into the car and drove off, and eventually forced her to engage in sexual intercourse. As in the instant case, the defendant in White was simultaneously charged in two informations and scheduled to defend in two separate trials. Following his conviction on charges of kidnapping, a jury convicted him of felonious assault and rape. In adopting the "same transaction" test, the Supreme Court in White stated:

"Under the facts of the present case, the same transaction test provides the only meaningful approach[153 MICHAPP 45] to the constitutional protection against being placed twice in jeopardy.

* * *

"The use of the same transaction test in Michigan will promote the best interests of justice and sound judicial administration. In a time of...