People v. Shipe

• Decision Date: 19 August 1991
• Docket Number: Docket No. 122568
• Citation: 190 Mich.App. 629,476 N.W.2d 490
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Landis SHIPE, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 490

476 N.W.2d 490

190 Mich.App. 629

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Landis SHIPE, Jr., Defendant-Appellant.

Docket No. 122568.

Court of Appeals of Michigan.

Submitted May 14, 1991, at Detroit.

Decided Aug. 19, 1991, at 9:00 a.m.

Released for Publication Nov. 18, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., James J. Gregart, Pros. Atty., and Anne M. McCarthy, Asst. Pros. Atty., for the People.

State Appellate Defender's Office, by Ronald E. Steinberg, for defendant-appellant on appeal.

Before MARK J. CAVANAGH, P.J., and NEFF and BEASLEY, ^* JJ.

BEASLEY, Judge.

Defendant appeals as of right his convictions of two counts of bank robbery ¹ on the ground that his constitutional protection against double jeopardy precludes convictions for two offenses where, although there were two tellers involved, the incident involved only one banking institution. We agree and vacate one of defendant's bank robbery convictions.

Defendant's convictions arise from his robbery of a First of America Bank in Kalamazoo, Michigan, on May 10, 1989. Defendant entered the bank, brandished a BB handgun, and ordered two tellers to give him the bank's money. Upon receiving over $2,000, defendant fled.

Defendant was originally charged with two counts of bank robbery and two counts of possession of a firearm during the commission of a felony. ² At the conclusion of the preliminary examination, defense counsel argued that only one bank robbery could be charged because, unlike the offense of armed robbery, the crime is against the institution and not the individuals inside. The district court disagreed and bound defendant over on two counts of bank robbery. Defendant subsequently pleaded guilty to the two counts, ³ and was later sentenced to two concurrent terms of eight to thirty years' imprisonment.

The issue whether the double jeopardy clauses of the state and federal constitutions prohibit multiple convictions of bank robbery where the defendant committed a single robbery against a single bank, but where the robbery involved the taking of money from multiple bank tellers, appears to be one of first impression in this state. Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. ⁴ Both double jeopardy clauses incorporate three distinct protections. First, they prohibit a second prosecution of a defendant for the same offense after acquittal. Second, they prohibit a second prosecution of a defendant for the same offense after conviction. Third, they prohibit the imposition of multiple punishments on a defendant for the same offense. ⁵ The case at bar calls into question the third type of protection.

Where, as here, the double jeopardy issue requires a determination of what constitutes a single crime or offense under a particular statute, "legislative intent is the beginning and end of the inquiry." ⁶ The Legislature's authority to define a single criminal act or offense is not diminished by the Double Jeopardy Clause because the clause places limitations on prosecutors and courts only, not the Legislature. ⁷ Hence, the dispositive question is whether the Legislature intended that two convictions for bank robbery might result under the circumstances presented in this case. ⁸

The bank robbery statute ⁹ provides, in pertinent part:

Any person who, with intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or attempt, or threaten to confine, kill, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any building, bank, safe or other depository of money, bond or other valuables ... shall, whether he succeeds or fails in the perpetration of such larceny or felony, be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years.

In ascertaining the legislative intent behind that statute, it is helpful to compare it with the armed robbery statute. ¹⁰ This Court has held that the bank robbery statute and the armed robbery statute, though involving comparable subject matter, were promulgated to protect different interests. The former statute is intended to protect those structures intentionally constructed to protect valuables, while the latter is intended to protect persons from assaultive takings by means of a dangerous weapon. ¹¹

Turning to federal authority for guidance in interpreting this statute, ¹² we find that several federal cases have addressed the double jeopardy issue in the context of the federal bank robbery statute. ¹³ The federal statute, like its Michigan counterpart, punishes a variety of different theft offenses from banks, including the taking from a person or in the presence of another any property, money, or thing of value belonging to, or in the care or custody of, the bank. ¹⁴ On the issue whether multiple convictions could arise from the robbery of a single bank under the federal statute, the Court of Appeals for the District of Columbia in United States v. Canty ¹⁵ held:

Although there seem to be no cases precisely on point, we cannot agree with the Government's position that the robbery of each teller constitutes a separate "taking" within the meaning of the statute. While it may be true that under general theft and robbery statutes, a defendant may be punished under separate counts for taking money from different people in the same transaction, the statute here is not for theft or robbery against the person generally. The crime is bank robbery, and the statute is entitled "Bank Robbery and Incidental Crimes." There is no doubt here that only one transaction took place and that only one bank was robbed. Compare United States v. Hopkins, [150 U.S.App.D.C. 307, 314, 464 F.2d 816 (1972) ]. Even assuming that the intent of the statute in this regard is not perfectly clear, the Supreme Court has held that, unless a statutory intent to permit multiple punishments is stated "clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." [Emphasis in original; citations omitted.]

Consistent with this Court's prior determination in Witt ¹⁶ and Thomas ¹⁷ of the interests the bank robbery statute is intended to protect, we adopt the reasoning in Canty of the federal Court of Appeals for the District of Columbia. We believe that the legislative intent of the bank robbery statute is that a defendant cannot be convicted of two bank robbery offenses under the circumstances of this case. As in Canty, the crime involved here is bank robbery, and it is clear that there was only one transaction and only one bank robbed.

We conclude that a defendant cannot be convicted of more than one bank robbery offense for taking money from multiple tellers during one robbery of a single bank. Consequently, one of defendant's bank robbery convictions and the sentence imposed for that conviction are vacated.

Defendant also asks that this matter be remanded for resentencing with respect to the valid bank robbery conviction. However, our review of the record does not reveal that the invalid conviction played any part in the sentence imposed for the valid conviction. ¹⁸ Therefore, we decline to remand for resentencing.

We vacate defendant's conviction and sentence with respect to one bank robbery charge. We affirm defendant's other bank robbery conviction and attendant sentence.

Affirmed as modified.

* WILLIAM R. BEASLEY, former Court of Appeals judge, sitting on the Court of Appeals by assignment.

1 M.C.L. Sec. 750.531; M.S.A. Sec. 28.799.

2 The felony-firearm counts were dismissed after the preliminary examination on the ground that there was insufficient evidence that the BB gun used by defendant fit the description of a firearm. See M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

3 Defendant never sought review of the district court's decision, and his guilty pleas were not tendered conditionally. However, an unconditional guilty plea does not waive a defendant's right to appeal an adverse decision on a double jeopardy claim because such a claim implicates the very authority of the state to bring the defendant to trial. People v. New, 427 Mich. 482, 488-489, 398 N.W.2d 358 (1986), citing People v. Alvin Johnson, 396 Mich. 424, 440, 240 N.W.2d 729 (1976), cert. den. 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).

4 U.S. Const., Am. V; Const.1963, art. 1, Sec. 15; People v. Wilcox, 183 Mich.App. 616, 620, 456 N.W.2d 421 (1990).

5 North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Sturgis, 427 Mich. 392, 398-399, 397...