People v. Seabrooks

• Decision Date: 19 September 1984
• Docket Number: Docket No. 70210
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Edward SEABROOKS, Defendant-Appellant. 135 Mich.App. 442, 354 N.W.2d 374
• Court: Court of Appeal of Michigan — District of US

Page 374

354 N.W.2d 374

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric Edward SEABROOKS, Defendant-Appellant.

Docket No. 70210.

135 Mich.App. 442, 354 N.W.2d 374

Court of Appeals of Michigan.

Submitted Feb. 7, 1984.

Decided June 18, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 444] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., and Frank J. Bernacki, Asst. Pros. Atty., for the People.

Mark R. Hall, Detroit, for defendant-appellant on appeal.

Before BEASLEY, P.J., and GRIBBS and ERNST, ^* JJ.

[135 MICHAPP 445] GRIBBS, Judge.

Defendant was convicted by a jury of armed robbery, M.C.L. 750.529; M.S.A. 28.797, and of breaking and entering with intent to commit larceny, M.C.L. 750.110; M.S.A. 28.305. He was sentenced to 10 to 20 years imprisonment for the armed robbery, and to 3 to 15 years for the breaking and entering, the sentences to run concurrently. Defendant appeals as of right. We affirm.

In the middle of the night two men awoke the victim in her bedroom, held a knife to her throat, smothered her with a pillow and demanded money. After tying the victim up with a telephone cord, the men took two television sets, a wedding ring, a remote control device, approximately $53, and her car keys. At 2:30 a.m. police officers observed two men, one of them defendant, in the vicinity of the victim's house. The two men were observed carrying a television set in the victim's backyard and garage. Defendant departed in the victim's Mustang. The other man left in an Oldsmobile. Police pursued the cars and apprehended both men. Defendant had a remote control device and approximately $53 on his person. A television set was found in the back seat of the Mustang.

The victim was freed by the police. They searched her house and found the basement windows open, one of them broken, and a tire iron nearby. The victim testified that her windows had been secured and intact prior to her retiring for the night.

On appeal, defendant raises several issues, none of which require reversal.

DOUBLE JEOPARDY

Defendant argues that his convictions of both armed robbery and breaking and entering with intent to commit larceny violate the double jeopardy[135 MICHAPP 446] clauses of the United States and Michigan Constitutions.

Legal Double Jeopardy

The double jeopardy clauses of the Michigan and the United States Constitutions protect against multiple prosecutions and multiple punishments for the Where, as in this case, two separate statutes are violated, legal double jeopardy analysis focuses on whether or not each statute requires proof of a fact which the other does not, notwithstanding substantial overlap of proofs offered to establish the crimes. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Wakeford, supra, 418 Mich., p. 106, fn. 10, 341 N.W.2d 68. ¹ In other words, does each of the offenses require proof [135 MICHAPP 447] of an additional or different element? Blockburger, 284 U.S., p. 304, 52 S.Ct., p. 182.

"same offense". North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); People v. Wakeford, 418 Mich. 95, 103, 341 N.W.2d 68 (1983). The inquiry under multiple punishment "legal" double jeopardy is whether or not two offenses are the same offense. Wakeford, supra, p. 105, fn. 9, 341 N.W.2d 68. Legal double jeopardy claims are resolved by ascertaining the intent of the Legislature. Wakeford, pp. 105-106, 341 N.W.2d 68. Defendant claims that armed robbery and breaking and entering with intent to commit larceny are the same offense because of their overlapping larceny and intent to commit larceny elements.

Under this test, defendant's two convictions do not violate the federal or state double jeopardy clause. Breaking and entering does not require proof that a larceny occurred, only that it was intended, People v. Blankenship, 108 Mich.App. 794, 310 N.W.2d 880 (1981), lv. den. 412 Mich. 857 (1981); People v. Flores, 92 Mich.App. 130, 284 N.W.2d 510 (1979), lv. den. 407 Mich. 932 (1979), whereas armed robbery requires proof that a larceny occurred, but does not require proof of breaking and entering. People v. Karasek, 63 Mich.App. 706, 710-711, 234 N.W.2d 761 (1975), lv. den. 395 Mich. 800 (1975); see People v. West, 122 Mich.App. 517, 332 N.W.2d 517 (1983). Under the legal double jeopardy test, defendant's convictions and punishments are separate and distinct and do not twice place him in jeopardy.

Factual Double Jeopardy

"Factual" double jeopardy is an interpretive gloss placed on the Michigan Constitution's double jeopardy clause. Factual double jeopardy exists if, despite the violation of two separate and distinct statutes, the Legislature nevertheless intended that only a single conviction result. Wakeford, 418 Mich., pp. 105-109, and fn 9, 341 N.W.2d 68. Factual double jeopardy does not depend on whether or not most or all of the same evidence is utilized to convict, but looks to the legislative intent and statutory purpose. The "one single wrongful act" test suggested by previous Michigan case law has been disavowed. Wakeford, pp. 110-111, 341 N.W.2d 68. The factual double jeopardy doctrine simply asks whether the Legislature authorized multiple punishments under the circumstances. Wakeford, p. 111, 341 N.W.2d 68. This Court has recently [135 MICHAPP 448] found such authorization for multiple punishments for breaking and entering with intent to commit larceny and armed robbery. People v. Wise, 134 Mich.App. 82, 351 N.W.2d 255 (1984).

A claim of factual double jeopardy is difficult to sustain when two offenses are separate and distinct under the legal double jeopardy analysis. Wakeford, 418 Mich., p. 110, fn. 14, 341 N.W.2d 68. When the offenses are separate under legal double jeopardy, a presumption in favor of multiple punishment arises. It can only be rebutted by the clearly expressed legislative Our conclusion that defendant's convictions are for two separate and distinct offenses under the legal double jeopardy analysis creates the presumption that the Legislature intended two convictions and punishments. Wakeford, p. 110, fn. 14, 341 N.W.2d 68. This presumption is not rebutted by a clearly expressed legislative intent authorizing only a single conviction and punishment. ² See People v. Wise, supra. Defendant's claim of factual double jeopardy is not sustained.

intent that only a single conviction and punishment is authorized. Wakeford, p. 110, fn. 14, 341 N.W.2d 68. Conversely, when two offenses are the same under the legal double jeopardy test, a presumption against multiple convictions and punishments arises, which can be rebutted only by a clearly expressed legislative intent indicating otherwise. Wakeford, p. 110, fn. 14, 341 N.W.2d 68. Thus, claims of factual double jeopardy, like those of legal double jeopardy, are to be resolved by ascertaining the intent of the Legislature.

[135 MICHAPP 449]

DEFENDANT'S THEORY OF THE CASE

Defendant contends that the trial court's failure to instruct sua sponte on defendant's theory of the case constituted reversible error.

GCR 1963, 516.7(a), as amended in 1980, provides that "[t]he court shall present to the jury the issues in the case and, if a party requests after the close of the evidence, that party's theory of the case" (emphasis added).

This Court has held that, under GCR 1963, 516.7, failure of the trial court to instruct sua sponte on defendant's theory of the case is not reversible error. People v. Wilson, 122 Mich.App. 1, 329 N.W.2d 513 (1982), lv. den. 417 Mich. 1085 (1983); People v. Peery, 119 Mich.App. 207, 326 N.W.2d 451 (1982); People v. Smith, 85 Mich.App. 404, 271 N.W.2d 252 (1978), rev'd on other grounds 406 Mich. 945, 277 N.W.2d 642 (1979); People v. Trammell, 70 Mich.App. 351, 247 N.W.2d 311 (1976).

Other panels have found reversible error for failure to instruct sua sponte on defendant's theory, but under circumstances distinguishable from this case. In those cases, defendant's theory mitigated, justified or negated an element of the charged offense. E.g. People v. Hearn, 100 Mich.App. 749, 300 N.W.2d 396 (1980) (consent; CSC I); People v. Jones, 69 Mich.App. 459, 245 N.W.2d 91 (1976), lv. den. 401 Mich. 831 (1977) (accident; first degree murder); see also People v. Gayton, 81 Mich.App. 390, 265 N.W.2d 344 (1978) (self defense; homicide). We interpret those cases as requiring a sua sponte instruction on defendant's theory only if he presents a legally-recognized defense. People v. Wilson, supra. Such is not the case here.

In this case, defendant's testimony and "theory" was that he was not one of the men involved in [135 MICHAPP 450] the breaking and entering and robbery, that he was at the scene for other reasons, and that his incriminating statements to the police were involuntarily made. His theory did not encompass a legally-recognized defense reducing or negating his culpability. Defendant claimed he did not commit the offense. The trial was a credibility contest between defendant and the police who identified him as one of the perpetrators.

The trial court's failure to instruct sua sponte on defendant's theory of the case under the circumstances of this case was not error.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that he was denied effective assistance of counsel by defense In Michigan a two-prong analysis is applied to determine the merits of a claim of ineffective assistance of counsel: (1) constitutional 6th Amendment (did defense counsel perform at least as well as a lawyer with ordinary training and skill in criminal law and conscientiously protect his client's interest?); and (2) nonconstitutional "serious mistake" (did defense counsel make a mistake so serious that, but for the mistake, defendant would have had a reasonably...