People v. Johnson, Docket No. 19594

• Decision Date: 23 June 1975
• Docket Number: Docket No. 19594,No. 2,2
• Citation: 233 N.W.2d 246,62 Mich.App. 240
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Erwin JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 246

233 N.W.2d 246

62 Mich.App. 240

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Erwin JOHNSON, Defendant-Appellant.

Docket No. 19594.

Court of Appeals of Michigan, Division No. 2.

June 23, 1975.

Released for Publication Oct. 6, 1975.

Muller, Holmes, Muller & Smith, by Martin J. Smith, Brighton, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas Kizer, Jr., Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and GILLIS and MAHER, JJ.

DANHOF, Presiding Judge.

Defendant pled guilty to a charge of assault with intent to commit a felony, M.C.L.A. § 750.87; M.S.A. § 28.282. He was sentenced to five to ten years in prison, and he appeals raising one issue. We affirm.

On September 11, 1971, the defendant escaped from the Southern Michigan State Prison at Jackson where he was serving a sentence for a previous felony conviction. He proceeded to Livingston County in the company of a fellow escapee where they encountered a woman in a service station. They forced her at knife point to accompany them while they drove to Detroit in her car. During the ride, the young woman was able to drop a note from the car; the state police were alerted and the defendant and his associate were arrested.

On January 27, 1972, the defendant pled guilty to a charge of prison escape, M.C.L.A. § 750.193; M.S.A. § 28.390, in Jackson County Circuit Court. He was sentenced to a term of from one to five years in prison. He was also charged with kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, in Livingston County. Some uncertainty concerning the proper forum in which to bring these charges was resolved by this Court in People v. Riley, 45 Mich.App. 338, 206 N.W.2d 458 (1973).

Thereafter, on June 19, 1973, defendant was allowed to plead guilty in Livingston County Circuit Court to an added count of assault with intent to commit a felony. The kidnapping and armed robbery charges were dismissed. Defendant filed a motion to set aside the plea arguing for the first time that further prosecution following his prison escape conviction was barred by the double jeopardy provisions of the Federal and Michigan Constitutions, U.S.Const., Am. V; Const.1963, art. 1, § 15.

The double jeopardy assertion was not made before or at the plea-taking proceeding. The Michigan Supreme Court has held that a claim of double jeopardy is waived if not raised before or during trial. People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935), People v. McDonald, 306 Mich. 65, 10 N.W.2d 309 (1943), cited in People v. Cooper, 58 Mich.App. 284, 290, 227 N.W.2d 319 (1975). Additionally, it appears that the defendant offered to plead guilty at a time when all charges were pending, and that he therefore waived his right to a single trial. See People v. Goans, 59 Mich.App. 294, 229 N.W.2d 422 (1975). Nevertheless, to avoid further uncertainty in the present case, we will evaluate the defendant's double jeopardy claim in light of the same transaction test.

The Michigan Supreme Court in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), adopted the same transaction test as the required standard to be applied when examining a claim of double jeopardy. As seen by our Supreme Court, the same transactions test consists of two elements; it must appear that 'the crimes were committed in a continuous time sequence', and they must 'display a single intent and goal'. People v. White, supra, 390 Mich. at 259, 212 N.W.2d at 228.

In White, the defendant was convicted of kidnapping following a jury trial in Wayne County Circuit Court, and subsequently was convicted of rape and felonious assault in Detroit Recorder's Court. The Supreme Court held that the second trial was improper and reversed the rape and felonious assault convictions because the crimes 'were all part of a single criminal transaction' and that they shared a common objective, 'sexual intercourse with the complainant'.

Decisions of this Court applying the White same transaction test have also required the close, unified purpose relationship between the crimes, and have demanded that the defendant support his double jeopardy claim by demonstrating a direct factual connection, not mere temporal happenstance. For example, in People v. Rolston, 51 Mich.App. 146, 214 N.W.2d 894 p(1974), Lv. den., 392 Mich. 762 (1974), a barmaid was kidnapped and robbed in Wayne County and taken to Washtenaw County where she was raped and murdered. Defendant was convicted of murder in Washtenaw County and later tried and convicted of kidnapping in Wayne County. On appeal, the kidnapping conviction was reversed in an opinion which acknowledged the then very recent Supreme Court decision in White, and which restated the standard as found in the opinion of this Court in People v. White, 41 Mich.App. 370, 200 N.W.2d 326 (1972). 'It was held in White that where a defendant has one objective and commits several crimes in preparing for and attaining that objective, only one prosecution may be brought.'

Again, the closely related crimes of kidnapping and rape were considered in conjunction with the double jeopardy test in People v. Joines, 55 Mich.App. 334, 222 N.W.2d 230 (1974). The defendant there had been acquitted on a charge of kidnapping in Genesee County. He was thereafter convicted of assault with intent to rape in Livingston County. The later conviction was reversed by this Court which concluded that as in White, both crimes were part of one criminal transaction, committed in a continuous time sequence and with the single intent and goal of sexual intercourse with the complainant.

Another group of cases in which application of the same transaction test required reversal of subsequent convictions involved less serious offenses. The defendant in People v. Davenport, 51 Mich.App. 484, 215 N.W.2d 702 (1974), Lv. den., 392 Mich. 761 (1974), offered resistance when an officer attempted to arrest him for being a disorderly person. He was acquitted on a disorderly person charge, but later he was tried and convicted of resisting arrest. This conviction was reversed upon application of the White rule:

'As in People v. White, supra, the two crimes with which defendant was charged were committed, if committed at all, in a continuous time sequence and in pursuit of a single intent or goal. When a police officer stopped defendant for a traffic infraction, defendant allegedly refused to cooperate with him and directed obscene epithets at him, and then, when the officer attempted to arrest defendant because of those epithets, defendant refused to submit peacefully. The continuousness of the time sequence is obvious. The unity of intent is also readily apparent--a refusal to submit to a police officer's authority.' 51 Mich.App. at 486, 215 N.W.2d at 703.

Quoting the statement of the standard from Davenport, this Court in People v West, 54 Mich.App. 527, 221 N.W.2d 179 (1974), ruled that a motion to quash a resisting arrest charge should have been granted where the defendant had entered a plea of nolo contendere to a charge of being a disorderly person. Even though this case involved a plea, the Court found that the presence of the dual elements of a continuous time sequence and the unity of intent brought the case within the White rule as applied in Davenport.

In contrast to the result reached in these decisions, the White double jeopardy test has been discussed in numerous other cases wherein the test was not satisfied. Following an acquittal on a charge of possession of heroin in Federal court, the defendant in People v. Martin, 53 Mich.App. 321, 220 N.W.2d 186 (1974), was tried and convicted on a similar charge in Detroit Recorder's Court. He appealed arguing that the second trial constituted a double jeopardy violation. This argument was rejected, and the conviction was affirmed. The Court stated:

'While this case is one requiring application of the same-transaction test, it is clear, nonetheless, that defendant could be tried and convicted in Detroit Recorder's Court. His trial in that court was predicated upon evidence and testimony obtained prior to his arrest, and subsequent acquittal, on Federal charges. The fact that both acts occurred the same day does not make the defendant's possession one long continuous transaction.' 53 Mich.App. at 322, 323, 220 N.W.2d at 187.

A sale of heroin was made...