People v. Martin

• Decision Date: 07 December 1976
• Docket Number: No. 55936,55936
• Citation: 247 N.W.2d 303,398 Mich. 303
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Conrad MARTIN, Defendant-Appellant. 398 Mich. 303, 247 N.W.2d 303
• Court: Michigan Supreme Court

Page 303

247 N.W.2d 303

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Conrad MARTIN, Defendant-Appellant.

No. 55936.

398 Mich. 303, 247 N.W.2d 303

Supreme Court of Michigan.

Dec. 7, 1976.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Research, Training and Appeals, Larry L. Roberts, Asst. Pros. Atty., Detroit, Mich., for plaintiff-appellee.

State Appellate Defender Office, by Chari K. Grove, Research Atty., Detroit, Mich., for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

Defendant was convicted by a jury of delivery of heroin, M.C.L.A. § 335.341(1) (a); M.S.A. § 18.1070(41)(1)(a), and possession of the same heroin, M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a) and he was sentenced to two concurrent terms of imprisonment. The convictions were affirmed by the Court of Appeals, 53 Mich.App. 321, 220 N.W.2d 186 (1974).

This Court granted leave to consider two issues:

1) Whether conviction for both delivery and possession of the same heroin, upon proof of possession incident to delivery only was constitutionally proscribed double punishment?

2) Whether it was reversible error for the trial court to instruct the jury that it was required to return verdicts of either guilty of both counts or not guilty of both counts?

We hold:

1) The separate convictions and sentences for delivery and possession were for the same offense, and cannot both stand.

2) The jury instructions were erroneous.

We affirm the conviction for possession, vacate the conviction for delivery, and remand to the trial court.

If the prosecuting attorney is persuaded that the ends of justice would be better served by retrial for delivery, he may so advise the trial court and the conviction for possession may also be vacated and the matter tried. People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975).

I

Testimony at trial indicated that a police informant brought 1/2 ounce of heroin directly from defendant. The defendant personally cut the heroin and delivered it to the informant. Defendant was charged in a two-count information with (1) delivery and (2) possession of a certain 15.62 grams of heroin. There is no dispute over the fact that it was the same 15.62 grams of heroin in each count.

Possession of the heroin present in This case was that necessary to its delivery.

On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.

When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.

'It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *

The possession of narcotic drugs is an offense distinct from the sale thereof.

But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused's involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact the trial court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside.' State v. Allen, 292 A.2d 167, 172 (Me.1972).

Other state courts have reached the same result. See, Thompson v. State, 259 Ind. 587, 290 N.E.2d 724 (1972); Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); People v. Roberts, 40 Cal.2d 483, 254 P.2d 501 (1953).

In People v. Cook, 236 Mich. 333, 210 N.W. 296 (1926), defendant was tried and convicted for having illegal liquor in his possession. After his release from prison, he was tried and convicted for unlawfully transporting the same liquor. This Court reversed the transporting conviction:

'(W)e cannot conclude other than that the conviction of defendant for possession, bars his subsequent prosecution for transporting the same liquor.

'While it is possible that one may possess intoxicating liquor without transporting it, it is manifest that it cannot be transported without being possessed. If the respondent had first been charged with transporting and had been convicted, it could not possibly be contended that he could be doubly punished for transporting, by afterwards charging him with possession, which was a necessary incident to transporting.' 236 Mich. 333, 336--337, 210 N.W. 296, 296--297.

The logic of Cook applies here. Defendant may not be 'doubly punished' by convicting him of possession, which in this case was a necessary incident to the very delivery for which he was also convicted.

A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. 'The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and the greater offense.' People v. Greer, 30 Cal.2d 589--599, 184 P.2d 512, 518 (1947). Accord, United States v. Belt, 516 F.2d 873 (C.A 8, 1975), Cert. den. 423 U.S. 1056, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976).

The guarantee against double jeopardy protects against not only a second Prosecution for the same offense, but it also 'protects against multiple punishments for the same offense'. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

'(T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it * * *.' Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874).

Accord, State v. Waldenburg, 9 Wash.App. 529, 513 P.2d 577 (1973); Gallinaro v. Commonwealth, 362 Mass. 728, 291 N.E.2d 420 (1973). See also, People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975).

'It is clear that preventing multiple punishment for the same offense was foremost in the minds of the framers of the double jeopardy clause. * * * Until joinder became permissible and commonplace, however, multiple punishment could result only from multiple trials.' Comment, Twice In Jeopardy, 75 Yale L.J. 262, 266, n. 13 (1965).

In O'Clair v. United States, 470 F.2d 1199, 1203 (CA 1, 1972), Cert. den., 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 148 (1973), defendant was convicted at a single trial of bank robbery and assault while committing the robbery. The Court of Appeals, relying on both statutory interpretation and double jeopardy analysis, held that the statute permitted only one conviction for a single bank robbery. The conviction and sentence for the lesser included offense were vacated. Addressing the double jeopardy argument, the Court stated:

'It would seem apparent that if the state cannot constitutionally obtain two convictions for the same act at two separate trials, it cannot do so at the same trial.'

See also, People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974).

The fact that the two sentences are to run concurrently does not allow a different result. The 'double punishment' proscribed for committing one offense includes the conviction and not merely the sentence. The second conviction punishes appellant in several ways, including parole considerations, impeachment at subsequent trials, habitual offender treatment, etc. 'We recognize that even the entry of judgment and the imposition of a suspended sentence of imprisonment is additional punishment.' Thompson v. State, 259 Ind. 587--592, 290 N.E.2d 724, 727 (1972).

II

Defendant contends that the trial court erred by giving the following instruction to the jury:

'(W)hile you will consider the counts separately, the way the evidence is in this case, if you find the defendant guilty at all, you would have to find him guilty of both count 1 and count 2.

'You will find the defendant either guilty of delivery of heroin in count 1, guilty of possession of heroin in count 2 or you will find him not guilty of delivery of heroin in count 1 and not guilty of possession of heroin in count 2.

'There cannot be, under the evidence as it's been presented to you today, inconsistent verdicts. By that I mean a verdict of guilty of one count and not guilty of another. The verdict must be unanimous as to both counts, either guilty or not guilty.'

This instruction was erroneous. The jury was free to believe the defendant possessed the heroin, but disbelieve the testimony concerning the transfer of possession necessary to convict of delivery.

'A judge may not instruct the jury that if it believes a witness' evidence on one element it must believe that witness' evidence as to another element, even though in the judge's view any other finding would be inconsistent or illogical.' People v. Chamblis, 395 Mich. 408, 420--422, 236 N.W.2d 473, 480 (1975).

The judge, by giving this instruction, invaded the province of the jury to determine whether or not each element of both crimes had been proven. '(T)he right of the jury to determine all elements of an offense is so fundamental a right that the harmless error rule is not appropriate where the judge invades that province. There is a difference between commenting on the evidence and making a finding of fact for the jury.' People v. Reed, 393 Mich. 342, 351, 224 N.W.2d 867, 871 (1975).

Counsel for both the prosecution and defense indicated satisfaction...