People v. Rolston
| Decision Date | 15 January 1974 |
| Docket Number | Docket No. 14259,No. 1,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ROLSTON, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.
Before BRONSON, P.J., and V. J. BRENNAN and WALSH,* JJ.
Defendant, Robert Rolston, was convicted by a Wayne County jury of kidnapping. M.C.L.A. § 750.349; M.S.A. § 28.581. He appeals as of right.
On January 23, 1967, defendant and Larry Markham entered a bar in River Rouge, Michigan, engaged the barmaid in conversation, and then left the premises. Shortly thereafter, patrons in the bar found the barmaid missing and the owner found a shortage in the cash register.
The barmaid was found shot to death in a wooded area in Washtenaw County. It was shown by defendant's statement to police that he and Markham had taken the barmaid from the bar at gunpoint, driven to Markham's cottage in Chelsea, Michigan, raped her, shot her, and buried the body in a swamp. Defendant's statement indicated, and he subsequently testified, that his involvement was the product of Markham's threats against him and established the defense of duress.
Both Markham and this defendant had been convicted of this kidnapping in Wayne County Circuit Court. Markham's conviction was affirmed by this Court, People v. Markham, 19 Mich.App. 616; 173 N.W.2d 307 (1969); however, defendant's conviction was reversed. People v. Rolston, 31 Mich.App. 200; 187 N.W.2d 454 (1971). After that reversal, defendant and Markham separately stood trial for murder of the barmaid in Washtenaw County.
At defendant's trial in Washtenaw County, evidence of the entire criminal episode was shown to the jury. The jury was then instructed to find defendant guilty of first-degree murder if it was shown he either aided in felony-murder, or committed or aided in the commission of deliberate premeditated murder. The jury was further instructed on the elements of second-degree murder. See People v. Carter, 387 Mich. 397, 197 N.W.2d 57 (1972). 1 The jury in Washtenaw County acquitted defendant.
Thereafter, this case was brought to trial in Wayne County. Defendant's motions to dismiss on grounds of double jeopardy and collateral estoppel were denied. Again the entire transaction was shown. Defendant contends on appeal that his acquittal of murder for the events arising out of this single criminal episode of robbery, kidnapping, rape, and murder bars further prosecution by the State. We agree.
Evidence at trial established Markham wished to flee the country because of pending criminal charges against him. He sought out defendant for assistance. The robbery was committed in furtherance of that objective. The barmaid knew Markham; her kidnapping was designed to prevent successful police investigation of the robbery. It can readily be deduced from the record that her murder was similarly motivated. The prosecution, on appeal, does not contest that these tragic events were part of one criminal transaction. The theory of the prosecution in Washtenaw County was grounded on the fact that this was but one criminal transaction.
In People v. White, 41 Mich.App. 370, 200 N.W.2d 326 (1972), it was noted that liberal joinder rules more than adequately allow the state to vindicate its interest in the prosecution of several crimes that arise out of the same transaction. 2 It was held in White that where a defendant has one objective and commits several crimes in preparing for and attaining that objective, only one prosecution may be brought. Accord, State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973). See, also, Model Penal Code (Proposed Official Draft, 1962, § 1.07, p. 12).
The prosecution was allowed, in this trial, to show the elements of the robbery, rape, and murder of the victim, ostensibly for the purpose of showing the victim was placed in a hostile environment consistent with kidnapping. Yet, the defense was not allowed to directly show defendant had been acquitted of the murder, ostensibly because this jury might have been swayed by another jury's finding. Defendant's theory of buress, apparently accepted by the jury in Washtenaw County, was fragmented by the artificial isolation of the kidnapping charge, only part of which occurred within the boundaries of Wayne County. References in the transcript, notwithstanding the exemplary caution on the part of the trial judge, clearly indicated that the witnesses in this retrial had testified against this defendant on these same facts before, which, by itself was not prejudicial, but left the result of the previous murder trial for speculation by the jury. We have no reluctance in finding the mandatory rule announced in People v. White, Supra, now followed in Oregon and Pennsylvania, of constitutional importance designed to protect defendants from being twice placed in jeopardy while promoting efficient and effective prosecution by the State. 3
The by-product of the violation of the 'same transaction' test for double jeopardy as announced in People v. White, Supra, allows us to transcend mere application of that holding to this case, since here further analysis in terms of collaterial estoppel shows why multiple prosecution is irrefragably problematical.
As indicated, the Washtenaw County jury, called upon to determine defendant's culpability for murder, heard evidence of the robbery, kidnapping, and rape and was instructed accordingly on the elements of first- and second-degree murder. The jury also heard defendant's theory of duress as it related to all those incidents. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), directs an examination of that prior trial to determine whether a rational jury could have grounded its verdict of acquittal on an issue other than that which the defendant seeks to foreclose from further litigation. In the instant case, the issue sought to be foreclosed concerns the merits of defendant's theory of duress. We are of the opinion that the Washtenaw County jury conclusively and rationally determined that defense was valid as it related to the charge of murder.
By his own admission, defendant drove the trio to the cottage, was present at all events, and assisted in covering the body. He explained he was forced to be present and...
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