People v. Wakeford

• Decision Date: 01 March 1983
• Docket Number: Docket No. 64385
• Citation: 418 Mich. 95,341 N.W.2d 68
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick WAKEFORD, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 68

341 N.W.2d 68

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick WAKEFORD, Defendant-Appellant.

Docket No. 64385, March Term, 1983.

Calendar No. 8.

418 Mich. 95, 341 N.W.2d 68

Supreme Court of Michigan.

Argued March 9, 1983.

Decided Nov. 23, 1983.

Released for Publication Nov. 23, 1983.

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Frank J. Bernacki, Asst. Pros. Atty., Detroit, for the People.

State Appellate Defender Office by Mardi Crawford, Asst. State Appellate Defender, Detroit, for defendant-appellant.

RYAN, Justice.

There are three issues presented on this appeal:

Whether the defendant's conviction on two counts of armed robbery for a holdup in a grocery store violates the double jeopardy provisions of the United States and Michigan Constitutions Whether the trial court erred in ruling that evidence of the defendant's prior convictions was admissible for purposes of impeachment and as substantive similar-acts evidence; and

Whether the defendant was denied the right to counsel during the trial or at sentencing.

Specifically, we hold that:

The defendant was not unconstitutionally multiply punished for the same offense, but was convicted of two separate and distinct offenses;

The trial judge did not abuse his discretion in ruling that evidence of the defendant's prior convictions was admissible; and

The defendant was not denied his constitutional right to counsel during trial; however, the trial court's failure to obtain a knowing and intelligent waiver of the right to counsel at the time of sentencing requires resentencing.

The defendant, Patrick Wakeford, was convicted by a jury of two counts of armed robbery ¹ and one count of possession of a firearm during the commission of a felony ² for his participation in a holdup of a Dearborn Heights market on September 28, 1977. The trial testimony indicated that on the evening in question a young white male, wearing a green jump suit, sunglasses, a blond wig, and a camouflage hat, entered the market. Carrying a sawed-off shotgun wrapped in a green garbage bag, he went to a cash register, pushed the cashier aside, and removed money and checks from the register. He proceeded to the manager's office about 20 feet away, where he demanded and received money from a second cashier who was in the process of balancing her cash receipts. The robber then ran from the store and jumped into the back seat of a white four-door automobile, which was driven away at a high speed.

A short time later in a nearby residential area, a witness observed two persons get out of a white four-door automobile. One appeared to throw something into some bushes. Both men then returned to the car and drove away. When the witness went to investigate, he found something in the bushes that looked to him like a rifle. The police were summoned and discovered a shotgun wrapped in a green garbage bag, a green jump suit, sunglasses, a blond wig, a camouflage hat, and the cash and checks taken in the robbery. The police took possession of the items.

The police immediately "staked out" the area around the bushes. A few hours later, two people drove up in a white car, got out of the vehicle, and proceeded to the hedge where the confiscated items had been found. Finding nothing there, the two individuals ran from the scene through nearby yards, leaving their car parked on the street. The police gave chase and arrested the defendant when they found him hiding in some bushes. A second man was arrested half a block away, about an hour later. Latent fingerprints on the garbage bag were found to belong to both defendants. Two witnesses from the store positively identified the defendant as the robber. One of them, the assistant night manager, had known the defendant six or seven years earlier, having been a former classmate.

The defendant was jointly tried with his codefendant, the alleged driver of the getaway car.

On the morning of the first day of the trial, both the defendant and his codefendant requested new counsel, but not separate counsel, on the grounds that they lacked faith in their assigned counsel and believed that he was unprepared to represent them. After hearing from each of the defendants as to the reason for their request, and appointed counsel's response, the trial court denied the motion.

Defense counsel then presented two motions on behalf of both defendants. The first requested exclusion from evidence of the defendants' prior convictions for impeachment purposes in the event the defendants chose to testify, and, in any case, as substantive similar-acts evidence. The second motion requested separate trials. Both motions were denied.

As the trial progressed, additional disputes arose between the defendant Wakeford and assigned counsel as to the proper cross-examination of the prosecution witnesses. On the fourth day of trial, after at least two more requests by Wakeford for a different attorney were made and denied, the defendant decided that if he could not have a different attorney he would represent himself. Thereafter, Wakeford called his own witnesses, conducted his own cross-examinations, and gave his own closing argument. Codefendant Ammons continued to be represented by assigned counsel. Neither of the defendants testified, although witnesses for the defense were called by assigned counsel on behalf of the codefendant and by Wakeford for himself.

The jury found the codefendant not guilty, but convicted Wakeford of both armed robbery charges and the felony-firearm charge. He was subsequently sentenced to a prison term of 40 to 60 years for the two armed robbery convictions and an additional 2 years for the felony-firearm conviction.

Wakeford's convictions were affirmed by the Court of Appeals. 94 Mich.App. 249, 288 N.W.2d 381 (1979).

Pursuant to defendant's letter request under Administrative Order 1977-4, 400 Mich. lxvii, this Court ordered the appointment of counsel to prepare an application for leave to appeal. Upon consideration of the delayed application, we granted leave to appeal. 412 Mich. 870 (1981).

We take up the defendant's assignments of error, seriatim.

I

The Double Jeopardy Clauses of the Michigan ³ and United States ⁴ Constitutions protect against both multiple prosecutions and multiple punishments for the "same offense". ⁵ Under Michigan law, the defendant's two sentences for his armed robbery convictions constitute separate punishments even though the sentences are to be served concurrently. ⁶ Therefore, the critical inquiry is whether the punishments were imposed for the "same offense", a phrase "deceptively simple in appearance but virtually kaleidoscopic in application". Whalen v. United States, 445 U.S. 684, 700, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting ).

It is important to recognize at the outset that the term "same offense" has a different and broader meaning in a case involving a subsequent prosecution than it does here, where multiple punishments were imposed during a single trial. Compare People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), adopting the "same transaction" test for subsequent prosecutions, with People v. Carter, 415 Mich. 558, 330 N.W.2d 314 (1982), and Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), in which multiple punishments imposed at a single trial were upheld. See also Whalen, supra, 445 U.S. p. 700, 100 S.Ct. p. 1442, (Rehnquist, J dissenting ); Brown v. Ohio, 432 U.S. 161, 166-167, fn. 6, 97 S.Ct. 2221, 2225-26, fn. 6, 53 L.Ed.2d 187 (1977) (dictum). ⁷ Because this is not a "subsequent prosecution" case, the factually analogous case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), is not dispositive. In Ashe, the defendant was charged with the armed robbery of one of six participants in a poker game. The sole issue at the first trial, which ended in acquittal, was identity. A subsequent prosecution for the armed robbery of a second poker player was held to be barred by the Double Jeopardy Clause on the theory of collateral estoppel. Since the first jury refused to find beyond a reasonable doubt that the defendant was one of the robbers, the state was barred from relitigating that same issue before a second jury. Here, we must look to cases construing the "multiple punishment" branch of the Double Jeopardy Clause in answering the question unanswered by the United States Supreme Court in Ashe. ⁸

A

The defendant's claim that multiple punishment in this case constitutes "legal" double jeopardy ⁹ is appropriately resolved by ascertaining and enforcing the intent of the Legislature. Missouri v. Hunter, --- U.S. ----, ---- - ----, 103 S.Ct. 673, 677-79, 74 L.Ed.2d 535, 542-543 (1983); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Whalen v. United States, supra, 445 U.S. pp. 688-689, 100 S.Ct. pp. 1435-36; Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981); Wayne County Prosecutor, supra, 406 Mich. pp. 392, 402, 280 N.W.2d 793; People v. Carter, supra, 415 Mich. p. 577, fn. 17, 330 N.W.2d 314; see also People v. Jankowski, 408 Mich. 79, 85, 289 N.W.2d 674 (1980); People v. Wilder, 411 Mich. 328, 356-358, 308 N.W.2d 112 (1981) (Ryan, J., concurring).

One often-utilized method of determining the intent of the Legislature is to apply the so-called Blockburger test. ¹⁰ Wilder, supra, 411 Mich. pp. 342-343, 308 N.W.2d 112, and fn. 6. In Gore, supra, the Court applied Blockburger and held that three convictions could result from a single sale of narcotics, because three separate statutes proscribing essentially the same offense evinced a legislative intent to multiply punish a single illegal sale of narcotics. However, that test is helpful only in determining legislative intent to multiply punish when the defendant's conduct violates two different statutes. ...