People v. Rodriguez

• Decision Date: 08 August 2002
• Docket Number: Docket No. 208845,Docket No. 210561.
• Citation: 251 Mich. App. 10,650 N.W.2d 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank C. RODRIGUEZ, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Tico Carl Porter, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

650 N.W.2d 96

251 Mich. App. 10

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank C. RODRIGUEZ, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Tico Carl Porter, Defendant-Appellant.

Docket Nos. 208845, 210561.

Court of Appeals of Michigan.

Submitted February 5, 2002, at Detroit.

Decided April 26, 2002, at 9:05 a.m.

Released for Publication August 8, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Douglas W. Baker), Detroit, and Frank C. Rodriguez, in propria persona, Adrian, for Frank C. Rodriguez.

Robin M. Lerg and Tico C. Porter, in propria persona, Troy, for Tico C. Porter.

Before: NEFF, P.J., and MARK J. CAVANAGH and SAAD, JJ.

NEFF, P.J.

In these consolidated cases, defendants appeal as of right their convictions of various drug offenses following a joint trial. Defendant Rodriguez was convicted of conspiracy to possess with intent to deliver and to deliver more than 650 grams of a mixture containing cocaine, M.C.L. § 750.157a, 333.7401(2)(a)(i), possession with intent to deliver 50 or more but less than 225 grams of a mixture containing cocaine, M.C.L. § 333.7401(2)(a)(iii), and two counts of delivery of less than fifty grams of a mixture containing cocaine, M.C.L. § 333.7401(2)(a)(iv). He was sentenced to consecutive prison terms of life imprisonment without parole for the conspiracy conviction, ten to thirty years for the conviction of possession with intent to deliver 50 or more but less than 225 grams of a mixture containing cocaine, and two to thirty years each for the convictions of delivery of less than fifty grams of a mixture containing cocaine. Defendant Porter was convicted of conspiracy to possess with intent to deliver 225 or more but less than 650 grams of a mixture containing cocaine, M.C.L. § 750.157a, 333.7401(2)(a)(ii) and sentenced to twenty to thirty years' imprisonment. We affirm.

I

Defendants' convictions arise from their alleged involvement in sales of cocaine in Waterford Township and Pontiac from approximately September 1990 to March 1994. In 1988, the Waterford Police Department received information that Rodriguez was selling cocaine in area bars. In 1989 and 1990, the police conducted surveillance of Rodriguez' activities. On September 28, 1990, the police arrested Rodriguez for driving while his operator's license was suspended and, in a search incident to the arrest, found cocaine; Rodriguez was charged with possession with intent to deliver less than fifty grams of cocaine. In December 1992, Rodriguez pleaded guilty to that charge and was sentenced to lifetime probation.

In the interim, in April 1992, the Waterford Police, in conjunction with the Oakland County Sheriff's Department and the Narcotics Enforcement Team, began a larger investigation into defendants' drug dealing on the basis of information that the size and scope of their organization had grown. The police resumed surveillance, during which they observed Porter present with Rodriguez while Rodriguez was dealing cocaine. In July 1993, a grand jury convened and, in March 1994, returned an indictment charging defendants. Also named in the indictment was a coconspirator, Paul Potter, who pleaded guilty to a lesser charge in exchange for his testimony against defendants.

The indictment alleged that both defendants, Potter, "and others both known and unknown to the Grand Jury" participated in a conspiracy beginning about September 1990 and continuing until March 1994, in which Rodriguez purchased cocaine in quantities ranging from one ounce to one kilogram and that Porter and Potter aided Rodriguez in the transporting, storing, weighing, and packaging of the cocaine that was sold in smaller amounts in Oakland County during this period. The indictment also charged defendants and Potter each with possession with intent to deliver more than 650 grams of a mixture containing cocaine in November 1991 and charged Rodriguez with two counts of delivering less than fifty grams of a mixture containing cocaine that involved transactions on August 13, 1991, and September 10, 1991, and one count of possession with intent to deliver less than fifty grams of a mixture containing cocaine that involved a transaction on December 17, 1991. Following a preliminary examination, defendants were bound over on all charges.

After defendants were bound over for trial, the second count charging Porter with possession with intent to deliver more than 650 grams of a mixture containing cocaine was amended to possession with intent to deliver 50 or more but less than 225 grams of a mixture containing cocaine. The second count of the indictment charging Rodriguez with possession with intent to deliver more than 650 grams of a mixture containing cocaine was amended to possession with intent to deliver 50 or more but less than 225 grams of a mixture containing cocaine. Following a jury trial, defendants were convicted as set forth above.

II

Docket No. 208845

A

Rodriguez first argues that his conspiracy conviction violates the protection against double jeopardy under the Michigan Constitution, Const 1963, art 1, § 15, because the conspiracy charge stems from the same criminal transaction as the prior drug conviction of possession with intent to deliver. We disagree that Rodriguez' conspiracy conviction violates the double jeopardy protection against successive prosecutions for the same offense.

Under the Michigan Constitution, "[n]o person shall be subject for the same offense to be twice put in jeopardy." Const 1963, art 1, § 15; People v. Wilson, 454 Mich. 421, 427, 563 N.W.2d 44 (1997). The double jeopardy guarantee protects against multiple punishments, or successive prosecutions, for the same offense. Id. The issue of double jeopardy is generally a question of law, which this Court reviews de novo. People v. Carl White, 212 Mich.App. 298, 304-305, 536 N.W.2d 876 (1995).

Michigan adheres to the "same transaction" test, adopted in People v. George White, 390 Mich. 245, 258, 212 N.W.2d 222 (1973), in determining whether two offenses are the "same offense" for purposes of the double jeopardy protection against successive prosecutions. People v. Sturgis, 427 Mich. 392, 401, 397 N.W.2d 783 (1986); Carl White, supra at 305-306, 536 N.W.2d 876. Under the test, when the offenses at issue are all specific intent crimes, the prosecution is generally required to join at trial all the charges against a defendant that grew out of a continuous time sequence and display a single intent and goal. Sturgis, supra; Crampton v. 54-A Dist. Judge, 397 Mich. 489, 501-502, 245 N.W.2d 28 (1976).¹

The crimes at issue all involve specific criminal intent. People v. Justice (After Remand), 454 Mich. 334, 345-346, 562 N.W.2d 652 (1997); People v. Jackson, 153 Mich.App. 38, 46, 394 N.W.2d 480 (1986). Therefore, this Court must decide if the crimes were committed in a continuous time sequence and displayed a single intent and goal. We find that neither requirement is met on the facts of this case. People v. Spicer, 216 Mich.App. 270, 272, 548 N.W.2d 245 (1996); Carl White, supra at 306, 536 N.W.2d 876.

Michigan's adoption of the same transaction test evolved from circumstances in which a defendant abducted a female acquaintance in the city of Inkster; the defendant struck her with the butt of a gun, forced her into a car, drove to Detroit, and sexually assaulted her. George White, supra at 250-251, 212 N.W.2d 222. The defendant was convicted in the Wayne Circuit Court of kidnapping and, in a separate proceeding in the Detroit Recorder's Court, was subsequently convicted of rape and felonious assault. Id. at 251, 212 N.W.2d 222. Adopting the same transaction theory for analyzing a double jeopardy claim, the George White Court held that because the three offenses were part of one criminal transaction, the second prosecution was a violation of double jeopardy. Id. at 259, 212 N.W.2d 222. The Court observed that under the facts of the case, the same transaction test provided the only meaningful approach to the protection against double jeopardy, id. at 257-258, 212 N.W.2d 222, but also noted that its holding was limited to the facts of the case and similar factual situations. Id. at 258, n. 6, 212 N.W.2d 222.

In applying the same transaction test, subsequent appellate decisions have required a close, unified purpose relationship between the crimes. Jackson, supra at 46, 394 N.W.2d 480. The defendant must demonstrate that there was a direct, factual connection between the crimes, not merely temporal happenstance. Id. It is black-letter law that conspiracy and the underlying substantive offense are separate and distinct crimes. People v. Hermiz, 462 Mich. 71, 81, n. 14, 611 N.W.2d 783 (Taylor, J.); 462 Mich. 71, 611 N.W.2d 783 (2000); People v. Denio, 454 Mich. 691, 712, 564 N.W.2d 13 (1997). "[T]he crime of conspiracy does not merge into the offense committed in furtherance of the conspiracy." Id. Rodriguez' conspiracy conviction and the earlier drug conviction did not arise from the same transaction. The mere fact that the conspiracy charge against Rodriguez covered a four-year period from 1990 though 1994, during which Rodriguez pleaded guilty of a separate drug offense involving a single transaction, does not amount to being tried twice for the same offense.

This Court has previously found no double jeopardy violation in successive prosecutions for drug offenses where the charges stemmed from multiple drug transactions. People v. Edmonds, 93 Mich.App. 129, 133-134, 285 N.W.2d 802 (1979) (two sales of heroin to the same informant on the same day, one in the morning and one in the afternoon, indicated no connection that would render them part of a single transaction under George White, supra;

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