People v. Randolph

• Decision Date: 11 July 2002
• Docket Number: Docket No. 118078,Docket No. Calendar No. 5.,Docket No. 117750
• Citation: 648 N.W.2d 164,466 Mich. 532
• Parties: PEOPLE of the State of Michigan, Plaintiff, v. Kalvin RANDOLPH, Defendant.
• Court: Michigan Supreme Court

648 N.W.2d 164

466 Mich. 532

PEOPLE of the State of Michigan, Plaintiff, v. Kalvin RANDOLPH, Defendant.

Docket Nos. 117750, 118078, Calendar No. 5.

Supreme Court of Michigan.

Argued January 24, 2002.

Decided July 11, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, Detroit, MI, for the people.

State Appellate Defender (by Gary L. Rogers), Detroit, MI, for the defendant.

Opinion

MARILYN J. KELLY, J.

On appeal from defendant's conviction for unarmed robbery, the Court of Appeals reversed the judgment for insufficient evidence and remanded for entry of a conviction of larceny in a building. 242 Mich. App. 417, 619 N.W.2d 168 (2000). It provided that the prosecutor could retry defendant on the original unarmed robbery charge if it had additional evidence. Both the prosecution and defendant appeal from that decision.

We conclude that defendant could not be convicted of unarmed robbery under the facts of this case. We also reassert that a defendant cannot be retried on a charge not previously supported by sufficient evidence where additional evidence is discovered to support it. Therefore, we affirm the Court of Appeals decision in part, reverse it in part, and remand for entry of a judgment of conviction of larceny in a building and for resentencing.

I. Factual and Procedural History

Defendant took merchandise valued at approximately $120 from a Meijer store. After purchasing other items, he left the store with a rotary tool, a battery, a battery charger, and a thermostat without paying for them. The store's loss-prevention staff observed the theft and acted to apprehend defendant when he emerged from the store.

There are several versions of what happened next. Taking the evidence in the light most favorable to the prosecution, when the plain-clothed security guards identified themselves, defendant lunged forward to run. At least one guard seized him, putting him in an "escort hold." Defendant broke free and swung his arm at the guards, physically assaulting at least one of them.¹ In his efforts to escape, defendant lost possession of the merchandise. The prosecutor charged him with unarmed robbery, and a jury convicted him as charged. MCL 750.530.

When it reviewed defendant's unarmed robbery conviction, the Court of Appeals applied the "transactional approach," which it adopted explicitly in People v. LeFlore, 96 Mich.App. 557, 561-562, 293 N.W.2d 628 (1980).² Under this approach, a defendant has not completed a robbery until he has escaped with stolen merchandise. Thus, a completed larceny may be elevated to a robbery if the defendant uses force after the taking and before reaching temporary safety. See People v. Newcomb, 190 Mich.App. 424, 430-431, 476 N.W.2d 749 (1991); People v. Turner, 120 Mich.App. 23, 28, 328 N.W.2d 5 (1982); People v. Tinsley, 176 Mich.App. 119, 120, 439 N.W.2d 313 (1989).

Applying that test, the Court of Appeals reasoned "there was insufficient evidence to support defendant's conviction of unarmed robbery because defendant was unsuccessful in escaping and thus he never completed the larcenous transaction." 242 Mich.App at 421, 619 N.W.2d 168. Therefore, it reversed the unarmed robbery conviction and remanded for entry of a conviction of larceny in a building, "unless the prosecutor opts to retry defendant on the original charge based on additional evidence." Id. at 423, 619 N.W.2d 168. We granted both parties' applications for leave to appeal. 465 Mich. 885, 636 N.W.2d 139 (2001).

II. Unarmed Robbery

Michigan's unarmed robbery statute, M.C.L. § 750.530, provides:

Any person who shall, by force or violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years. [Emphasis added.]

Robbery is a crime against a person. People v. Hendricks, 446 Mich. 435, 451, 521 N.W.2d 546 (1994). As the Court of Appeals acknowledged in LeFlore,³ "Both the armed and unarmed robbery statutes are clear that the forceful act must be used to accomplish the taking."

We base our holding on the language of the unarmed robbery statute and the common-law history of unarmed robbery. From that we conclude that the force used to accomplish the taking underlying a charge of unarmed robbery must be contemporaneous with the taking. The force used later to retain stolen property is not included. Those Court of Appeals cases that have held otherwise, applying a "transactional approach" to unarmed robbery, are herein overruled.

A. Robbery at Common Law

Michigan's unarmed robbery statute is derived from the common law. The first robbery statutes, enacted in 1838, adopted the common-law definition of robbery, but divided the offense by levels of severity, depending on whether a perpetrator was armed. People v. Calvin, 60 Mich. 113, 120, 26 N.W. 851 (1886).⁴ The 1838 codification of unarmed robbery is nearly identical to our current statute.⁵

At common law the elements of the offense of robbery were "the felonious and forcible taking, from the person of another, of goods or money to any value by violence or putting him in fear." 4 Blackstone, Commentaries, p. 241; see also, People v. Covelesky, 217 Mich. 90, 96, 185 N.W. 770 (1921). The force or violence had to be applied before or during the taking. See id. at 242. ("[T]he taking must be by force, or a previous putting in fear....")⁶ (Emphasis added.) Accordingly, the common law concerning robbery that was received by the drafters and ratifiers of our constitution required (1) a taking from the person, (2) accomplished by an earlier or contemporaneous application of force or violence, or the threat of it. If force was used later to retain the property, the crime committed did not constitute robbery.

Thus, consistently with the rule under common law, M.C.L. § 750.530 must be read to require a taking accomplished by "force or violence, or by assault or putting in fear." The statute excludes a nonforceful taking, even if force were later used to retain the stolen property. By the same reasoning, force used to escape with stolen property is insufficient to sustain a robbery charge under our statute. Nonetheless, over the past thirty years, the Court of Appeals has created a doctrine that strayed from the language of M.C.L. § 750.530 and its historical common-law context.

B. The Court of Appeals and the "Transactional Approach"

This Court has never recognized the "transactional approach." In 1971, the Court of Appeals began to expand the codified common-law requirements of robbery. In People v. Sanders,⁷ it concluded that the defendant, having completed his theft "by stealth," was guilty of armed robbery because he fired a gunshot into the air to frighten off pursuers. Although it recognized the general rule that "an assault must be concomitant with the taking in order to support a charge of armed robbery," the panel relied on the law of other jurisdictions. Id. at 276, 184 N.W.2d 269. It held that there was "no valid basis for isolating the incidents of the entire event when the taking is not effectively completed until after the assault.... [A]nd the incident of the taking must be viewed in its totality in order to ascertain the intent of the defendant when the assault occurs." Id. at 277, 184 N.W.2d 269. Thus, with the decision in Sanders, the Court of Appeals began its shift toward the "transactional approach."

In LeFlore, the concept was identified by name and applied in the context of unarmed robbery. Supra at 561-563, 293 N.W.2d 628. In that case, the defendant took money from the victim after physically assaulting her. On appeal, he claimed that there was insufficient evidence to support the unarmed robbery conviction because the taking had been a mere afterthought. He claimed to have had no larcenous intent at the time of the assault. The LeFlore panel held that the "larceny transaction should be viewed as a whole to determine the defendant's intent." Le-Flore, supra at 562, 293 N.W.2d 628.

In Turner, the "transactional approach" was extended further to express that a robbery is incomplete until the defendant escapes with the stolen property:

We agree that a completed escape is unnecessary to constitute asportation. "Any movement of goods, even if by the victim under the direction of defendant... constitutes asportation...." However, robbery is also a continuous offense: it is not complete until the perpetrators reach temporary safety. As such, while the essential elements were completed, the offense continued during the escape. [120 Mich.App. at 28, 328 N.W.2d 5 (citations omitted; emphasis added).]

The Turner holding was repeated in Tinsley. The fiction found there, that a robbery is not complete until a defendant reaches temporary safety, gave rise to the Court of Appeals holding in the instant case: that the defendant must complete his escape with the stolen merchandise or he cannot be convicted of unarmed robbery.

This "transactional approach" can not be harmonized either with the language of M.C.L. § 750.530 or with the common-law history of our unarmed robbery statute.⁸ As Judge William Blackstone stated:

This previous violence or putting in fear is the criterion that distinguishes robberies from other larcinies. For, if one privately steals sixpence from the person of another, and afterwards keeps it by putting in fear, this is no robbery, for the fear is subsequent.... [Blackstone, supra at 242.]⁹ Thus did Blackstone identify the real difficulty with the "transactional approach": it inappropriately characterizes a completed larceny as a robbery.

It is useful to recall...