People v. Leverette

• Decision Date: 22 February 1982
• Docket Number: Docket No. 50523
• Citation: 112 Mich.App. 142,315 N.W.2d 876
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky LEVERETTE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 876

315 N.W.2d 876

112 Mich.App. 142

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricky LEVERETTE, Defendant-Appellant.

Docket No. 50523.

Court of Appeals of Michigan.

Submitted June 4, 1981.

Decided Jan. 5, 1982.

Released for Publication Feb. 22, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Chief Appellate Asst. Pros. Atty., and Janice M. Joyce, Asst. Pros. Atty., for the People.

Ronald A. Molter, Detroit, for defendant-appellant.

Before BRONSON, P. J., and MAHER and O'BRIEN, ^* JJ.

BRONSON, Presiding Judge.

Defendant was convicted of unarmed robbery contrary to M.C.L. § 750.530; M.S.A. § 28.798, and unlawfully driving away an automobile (UDAA), in violation of M.C.L. § 750.413; M.S.A. § 28.645, ¹ following a jury trial in the Detroit Recorder's Court. Defendant was sentenced to concurrent terms of from 3 to 5 years for UDAA and from 3 to 15 years for the robbery. He now appeals as of right.

The complaining witness, Linda Bridges, testified that on September 20, 1979, she was driving her 1977 Thunderbird when she pulled into a parking lot at Six Mile and Meyers in Detroit. She stated that she locked her car, which contained a purse, a diamond ring, a checkbook, credit cards, and approximately $25, and went to mail a letter. Upon her return, however, the vehicle was unlocked. Before she could close the door, defendant approached her with a gun. He told Ms. Bridges to exit from the vehicle. She tried to close the door but failed. After a brief struggle, defendant was able to pull her out of the car, get into the vehicle himself, and drive away.

Defendant's testimony was somewhat different than complainant's and substantially consistent with previous statements he had given to the police. Defendant indicated that he had been in a record store in the Six Mile-Meyers area when he observed an unoccupied 1977 Thunderbird with its motor running. Thereafter, he jumped into the car, heard a woman scream, and took off. Defendant specifically denied threatening anybody with a gun or struggling with anyone.

Defendant was arrested about one hour after the incident. The police obtained a description of the stolen vehicle and followed defendant to his house. He generally matched the description of the thief given by Ms. Bridges and was arrested.

Among his several claims, defendant contends that on the facts of this case convictions for both UDAA and robbery violates his constitutional right to be free from double jeopardy. We agree.

Where, on the facts of a particular case, the jury must necessarily find a defendant guilty of the lesser offense in order to convict him of the greater, it is not consonant with the prohibition against double jeopardy to permit convictions for both the greater and the lesser offense. People v. Cook, 236 Mich. 333, 210 N.W. 296 (1926); People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977); People v. Jankowski, 408 Mich. 79, 289 N.W.2d 674 (1980). Where the object of the taking is an automobile and robbery is the charged offense, UDAA is a lesser cognate offense which the trial court must instruct upon if it is requested by the defense. People v. Harris, 82 Mich.App. 135, 266 N.W.2d 477 (1978). Jankowski clearly establishes that a defendant may not be convicted of the most serious crime and also lesser cognate offenses based upon one illegal taking.

The prosecution on appeal argues, however, that this case involves two distinct crimes and thus is not controlled by Jankowski and its predecessors. The prosecution notes that the information filed in this matter alleged that items other than the automobile were taken from the victim. The prosecution contends that these other items constitute the basis of the robbery charge, while the automobile is the basis for the UDAA conviction. We disagree that two distinct crimes were proven on the facts of this case.

The prosecutor's argument focuses solely on the separate items of property taken and not defendant's criminal behavior or his intent. We believe that the references in Jankowski to a "single act" and a "single taking" allude to a single criminal transaction in which defendant's act manifests a single criminal intent. Acceptance of the prosecution's argument would lead to absurd results. For instance, one taking in which a watch with a value of $250 and a $10 bill were stolen could result in convictions of larceny over $100 and larceny under $100 by making the watch and the federal reserve note the basis of two separate counts in the information. Similarly, if a defendant robbed his victim of a wallet containing 50 credit cards, under the prosecution's argument 50 counts of armed robbery could be properly charged. ²

In the instant case, there was no break in time or any significant intervening circumstances between the taking of the car and the purse. Indeed, it was a mere fortuity that the purse, containing the other items, happened to be in the vehicle at the time of the taking. Defendant committed one criminal act manifesting one criminal intention. Under Jankowski separate convictions and punishments would violate the prohibition against double jeopardy.

Generally, where a defendant is convicted of both a greater and a lesser offense, the remedy is to vacate the conviction on the lesser offense and affirm the conviction on the greater offense. See, People v. Grable, 95 Mich.App. 20, 289 N.W.2d 871 (1980); People v. Hale (On Remand), 103 Mich.App. 273, 303 N.W.2d 17 (1981). In this case, however, another error precludes utilizing the usual remedy.

We agree with defendant's contention that the prosecutor's rebuttal argument constituted an improper appeal to the jurors' civic duty and fears. A civic duty argument is impermissible because it injects into the trial issues beyond the guilt or innocence of the defendant and encourages the jurors to convict based on some societal obligation apart from the evidence adduced. See, for instance, People v. Wright (On Remand), 99 Mich.App. 801, 809, 298 N.W.2d 857 (1980), lv. den. 410 Mich. 854 (1980).

In this case the prosecutor stated:

"Ordinarily in presenting the facts of the case which is my job as the prosecutor to do, I can't just sit back and listen to the proofs and comment on the evidence as it comes out. But every now and then you get a little upset because here we've got a situation where you've got Mrs. Bridges, who's being attacked, her credibility, her story, the manner in which she's describing the act. She didn't ask to have her car stolen that day.

"On the other hand, you have a person who's charged with a crime who admits to taking the car and then the argument that he's a person who is not used to being questioned by police officers. So when he admits to something in the police station, let's give him a break, okay? After a while you hear this for a little while and it gets you a little upset because who's supposed to get a break; the criminal or the victim in our society? This isn't a game where you're weighing things on scales. If you listen to defense counsel's version, if you ever had a crime where there were no people as witnesses around, the Defendant should automatically go free, because it's a one-on-one situation, and that's not the law ladies and gentlemen. That can't possibly be the law. Does she mean to say that if you're out in the street and there's no witnesses-"

At this point an objection was interposed but was overruled by the trial court. Thereafter, the prosecutor continued:

"If you were out on the street and there's no witnesses around and someone comes up and commits a crime against you, are we to say then that we cannot bring prosecution against that person that committed the crime when that person gets on the stand and admits, 'yes, I was there, but you've only got one witness, the victim, so you can't convict me because there's only one witness.' Block the scales. That is not the law ladies and gentlemen; that is nonsense."

The prosecutor did not emphasize in his argument how defendant's testimony was unbelievable. Instead, the argument injected into the case the broader issue of the problem of crime. The prosecutor's argument also implied that the jury should convict out of sympathy to the victim. Furthermore, the prosecutor in part argued from a hypothetical case putting the jurors in the position of the victim. ³ Compare, People v. Edward Villarreal, 100 Mich.App. 379, 392-393, 298 N.W.2d 738 (1980).

The harmless error standard applicable to this type of problem requires us to reverse if the error was so offensive to the maintenance of the judicial system that it can never be deemed harmless or if, in a trial free of the error, one juror might have voted to acquit. People v. Swan, 56 Mich.App. 22, 31-33, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975).

We are not convinced that the prosecutor deliberately injected error into the proceedings. While arguments appealing to a jury's fears or indicating that a duty to convict exists have been condemned, ⁴ the impermissible portion of the prosecutor's argument here was not so blatantly improper that we believe he intentionally injected error into the trial. Instead, it appears that he was merely caught up in the heat of battle. Thus, this case is distinguishable from Wright, supra, in which the prosecutor's argument concerning the effects of drug trafficking on the community had been squarely condemned in People v. Williams, 65 Mich.App. 753, 238 N.W.2d 186 (1975).

In considering the likely effect of a prosecutor's argument on the verdict, the improper statements must be evaluated in light of their relationship to the evidence adduced at trial. Each case must be considered on its own facts. An improper argument harmless in one case may be reversible in another. See, People v. Cowell, 44 Mich.App....