People v. McKinley

• Decision Date: 07 July 1988
• Docket Number: Docket No. 85598
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Frederick McKINLEY, Defendant-Appellant. 168 Mich.App. 496, 425 N.W.2d 460
• Court: Court of Appeal of Michigan — District of US

Page 460

425 N.W.2d 460

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Frederick McKINLEY, Defendant-Appellant.

Docket No. 85598.

168 Mich.App. 496, 425 N.W.2d 460

Court of Appeals of Michigan.

Submitted Oct. 22, 1986.

Decided Jan. 14, 1988.

Released for Publication July 7, 1988.

[168 MICHAPP 498] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

State Appellate Defender by Susan Meinberg Thomas, Detroit, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and SHEPHERD and SHUSTER, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession of a firearm with intent to unlawfully use it against another person, M.C.L. Sec. 750.226; M.S.A. Sec. 28.423, a felony, and possession of a firearm while intoxicated, M.C.L. Sec. 750.237; M.S.A. Sec. 28.434, a misdemeanor. He was also convicted of being a fifth-felony offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Defendant received a ten-to-twenty-year sentence, consecutive with a five-to-fifteen-year sentence on another offense in which defendant was charged with larceny of a $1.95 bottle of wine from a store building. The events of the instant case occurred when defendant came to court on the larceny charge.

We affirm the convictions but remand for resentencing.

I

[168 MICHAPP 499] On October 3, 1984, defendant was scheduled to start trial in Bay Circuit Court before Judge John X. Theiler on a charge of larceny in a building. Defendant arrived at the Bay County Public Defender's Office about 8 a.m., carrying a large styrofoam cup. A secretary advised defendant that his trial might be delayed, since another trial was still in progress before Judge Theiler. Defendant had difficulty understanding and insisted that he had to be in court that morning. When Steven Jacobs, defendant's trial attorney, arrived, they entered Jacobs' office where defendant asked for whiskey when Jacobs offered him coffee.

Defendant and Jacobs went to Judge Theiler's courtroom about 8:30 a.m. and Jacobs informed the judge that defendant had been drinking. At the judge's suggestion, Jacobs started giving defendant coffee and, at 9:30 a.m., they left the courtroom to return to Jacobs' office. Out in the parking lot, defendant and Jacobs had a confrontation. Defendant became angry, saying that he was not happy with Jacobs and that he was going to "blow away the judge and the bitch [the complaining witness]." Defendant displayed a number of $20 bills and said he was going to the Mill End Store to buy a shotgun to blow them away. Jacobs informed the members of his office and Judge Theiler concerning defendant's threats.

Defendant arrived at the Mill End Store at about 9:45 a.m., filled out the necessary forms, and purchased an over-and-under shotgun/rifle with two boxes of shells. He returned to the public defender's office during the afternoon with a long box and a small bag. Defendant sat down with the box across his lap. When Eric Proschek, the director, asked defendant what was in the box, defendant[168 MICHAPP 500] pulled out the gun, which had the hammer cocked back. Proschek held the barrel and pointed the gun toward the ceiling. When Proschek asked defendant if he was going squirrel hunting, defendant said he was going to hunt people. Defendant became very agitated and insisted that Proschek release the gun, so Proschek let it go.

Jacobs called the office and told the secretaries to leave as if they were going on their coffee break. While they were leaving, defendant reached for the bag of shells and said that "they weren't going to take him back to prison and he would take somebody with him if they came to get him." He pulled the trigger as the gun was pointed upright and it clicked. Defendant then opened the gun and started fumbling for shells. Proschek jerked the gun away from defendant and handed it to someone in the hallway, who took it downstairs to the probation department. Robert Ropp of the District Court Probation Department arrived. When he entered the office, Proschek was attempting to get some shells away from defendant. Ropp assisted Proschek in retrieving the shells and in getting defendant to sit down. Defendant was belligerent and was arguing about leaving.

Defendant testified that he recalled very little regarding the events of October 3, 1984. He denied removing the shells from the box, attempting to load the gun, or threatening anyone. According to defendant, he had been drinking for two weeks prior to that date and all night on October 2 because he knew he was scheduled to go to trial. He testified that he had been admitted to the Veteran's Hospital on ten to twelve occasions and to the Battle Creek Adult Mental Health Center for treatment of alcoholism and that he had experienced several blackouts. He claimed his only [168 MICHAPP 501] memory of October 3, 1984, was waking up in the drunk tank of the county jail at about 8 p.m.

Defendant was charged with possession of a firearm with intent to use it unlawfully against another. His jury trial began on February 26, 1985, Bay Circuit Judge William J. Caprathe presiding. At the instructions conference, defense counsel requested an instruction on the lesser included offense of possessing a firearm while under the influence of alcohol. The prosecutor argued that such an instruction should be given, but as a separate offense, not as a lesser-included offense. Defense counsel objected, arguing that a guilty verdict on both counts would be inconsistent. The trial court gave the instruction as a separate rather than lesser-included offense. The trial court informed the jury they could return a verdict of guilty of both offenses or of either of the offenses or a verdict of not guilty of both of the offenses. The jury found defendant guilty of both offenses.

II

Defendant first argues that his two convictions violated both federal and state double jeopardy standards. We, however, disagree with defendant's premise that these two offenses should be regarded as one offense.

Under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), two separate offenses exist where each offense requires proof of at least one fact which the other does not. Application of this standard to the statutes before us indicates that double jeopardy was not violated. Conviction for possession of a firearm while intoxicated requires proof of intoxication. Conviction for possession of a firearm with intent to use it unlawfully against another requires[168 MICHAPP 502] proof of that specific intent. As such, the two offenses are not a single offense, and double jeopardy is not violated if defendant is convicted of both.

Defendant, however, argues that under Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the two offenses of which he was convicted actually constitute only one offense. In Harris, the defendant was convicted of felony murder. The Supreme Court held that a subsequent prosecution for the underlying felony, armed robbery, was barred by double jeopardy. Conviction of the greater felony could not be had without conviction of the lesser crime. In Vitale, the defendant was convicted of failing to reduce speed to avoid an accident and was subsequently charged with involuntary manslaughter. The Supreme Court remanded the case to the Illinois court. It held that if, as a matter of state law, failure to reduce speed to avoid an accident is always a necessary element of manslaughter, then the manslaughter prosecution would be barred by double jeopardy. Also, the Court was unsure what reckless act or acts the state would rely on to prove manslaughter, noting that the defendant would have a substantial double jeopardy claim if the prosecutor used the failure to reduce speed as the necessary reckless act.

We are not persuaded that these cases have changed the essential nature of the Blockburger inquiry. Defendant could have been convicted of either one of the two charges alone and, unlike Harris and Vitale, the conviction would not have necessarily included the other offense. This is so because one charge requires proof that defendant possessed a firearm with a specific intent to use it against another person, while the second charge [168 MICHAPP 503] has no intent requirement but includes the additional element of intoxication. The only common element of the two offenses is possession of a firearm, but that element alone proves neither offense. The crucial elements and the proofs of defendant's two offenses are sufficiently different so as to constitute two separate offenses under these facts. Compare People v. Dickens, 144 Mich.App. 49, 53-54, 373 N.W.2d 241 (1985), where "DUIL was charged as part of and was essential to proving the negligence element of negligent homicide" and the two offenses were not "sufficiently distinct as charged and proven to prevent double jeopardy from attaching."

Under federal law, including the Blockburger test, the question of whether multiple punishments may be imposed without violating double jeopardy requires a determination of what the Legislature intended. See Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The Supreme Court has indicated that the Blockburger rule is not controlling when the legislative intent that separate offenses be created is clear from the face of the statutes or the legislative history. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). Legislative intent is also the focus under state constitutional law. In People v. Robideau, 419 Mich. 458, 485-486, 355 N.W.2d 592 (1984), however, the Michigan Supreme Court rejected use of the Blockburger test in holding that convictions of both first-degree criminal sexual conduct and the...