People v. Walker
| Decision Date | 02 March 1999 |
| Docket Number | Docket No. 203630 |
| Citation | 593 N.W.2d 673,234 Mich.App. 299 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alonzo E. WALKER, Jr. Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Mary Dufour Morrow, Assistant Prosecuting Attorney, for the people.
Law Offices of Deborah A. Choly (by Deborah A. Choly), Detroit, for the defendant on appeal.
Before: WHITBECK, P.J., and MARK J. CAVANAGH and RICHARD ALLEN Griffin, JJ.
A jury found defendant guilty of burning personal property over $50 in value, M.C.L. § 750.74; MSA 28.269, and malicious destruction of personal property over $100 in value, M.C.L. § 750.377a; MSA 28.609(1). The trial court sentenced defendant to thirty-two to forty-eight months in prison for each conviction. Those sentences were then vacated and defendant received an enhanced sentence of five to fifteen years' imprisonment as a forth-offense habitual offender pursuant to M.C.L. § 769.12; MSA 28.1084. Defendant appeals as of right and argues that his convictions of both burning personal property over $50 and malicious destruction of property over $100 violate the constitutional protections against double jeopardy and that his conviction as a fourth-offense habitual offender must be vacated because the prosecutor failed to file a proof of service of the notice of enhancement as required by statute. We reject both these claims and affirm.
Defendant was charged in connection with the destruction in April 1996 of a car owned by the complainant and parked in front of the complainant's residence at 6660 Otis in Detroit. 6660 Otis is across the street from the residence of the complainant's father and next door to the residence of defendant's father and, apparently, there was a longstanding dispute between the complainant's father and defendant's father. The complainant testified at trial that her car was firebombed. According to her testimony, in the evening of the day in question, the complainant looked out the window of her residence and saw defendant next to her car. The complainant testified that she saw defendant's hand make a downward motion, heard a "pop" noise, and then saw that her car was on fire. The complainant's father also testified at trial that he observed defendant make a motion with his hands, following which he heard a "boom" and saw flames. Defendant presented several alibi witnesses whose testimony indicated that defendant was at the home of his brother at the time of the incident. However, the jury convicted defendant of both the charged offenses, and the trial court sentenced him as outlined above.
"A double jeopardy issue constitutes a question of law that is reviewed de novo on appeal." People v. Lugo, 214 Mich.App. 699, 705, 542 N.W.2d 921 (1995). Defendant failed to raise this issue below. However, this Court may still consider the issue because it involves a significant constitutional question, id.
Whether defendant's right to due process was violated is a question of law. This Court reviews questions of law de novo. People v. Connor, 209 Mich.App. 419, 423, 531 N.W.2d 734 (1995). Defendant failed to raise this issue below. Because defendant is claiming that his right to due process was violated, this Court may review the issue to the extent that it involves a significant constitutional question. Lugo, supra at 705, 542 N.W.2d 921.
MCL 750.74; MSA 28.269 () provides:
Any person who wilfully and maliciously burns any personal property, other than that specified in the preceding sections, owned by himself or another shall, if the value of the personal property burned or intended to be so burned be $50.00 or less, be guilty of a misdemeanor. If the value of the personal property burned or intended to be so burned be more than $50.00, such person shall be guilty of a felony. [Emphasis supplied.]
MCL 750.377a; MSA 28.609(1) () provides:
Any person who shall wilfully and maliciously destroy or injure the personal property of another, by any means not particularly mentioned or described in the preceding section, if the damage resulting from such injury shall exceed $100.00, shall be guilty of a felony. If the damage done shall be $100.00 or less, such person shall be guilty of a misdemeanor. [Emphasis supplied.]
US Const, Am V provides:
No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb....
Const 1963, art 1, § 15 provides:
No person shall be subject for the same offense to be twice put in jeopardy....
US Const, Am XIV, § 1, provides:
No State shall ... deprive any person of life, liberty, or property, without due process of law....
Const 1963, art 1, § 17 provides:
No person shall be ... deprived of life, liberty or property, without due process of law....
We hold that defendant's convictions of burning personal property over $50 and malicious destruction of personal property over $100 did not violate the constitutional protections against double jeopardy. By way of introduction, we note that the double jeopardy provisions of the federal and state constitutions, U.S. Const, Am V; Const 1963, art 1, § 15, ensure that a defendant's total punishment does not exceed that authorized by the Legislature. Lugo, supra at 705-706, 542 N.W.2d 921.
This protection is a limitation on the courts and the prosecutors, not on the Legislature's power to define crimes and fix punishments. Thus, this Court's inquiry when determining whether the Legislature intended to authorize cumulative punishment for certain criminal conduct necessarily focuses on the intent of the Legislature.
When ascertaining the intent of the Legislature in enacting criminal statutes, this Court has traditionally considered several factors. We look to whether the respective statutes prohibit conduct violative of distinct social norms, the punishments authorized by the statutes, whether the statutes are hierarchical or cumulative, and any other factors indicative of legislative intent. Comparison of the elements of the offenses is often a useful tool. [People v Griffis, 218 Mich.App. 95, 100-101, 553 N.W.2d 642 (1996) (citations omitted).]
We note in this regard that the Double Jeopardy Clause of the United States Constitution actually protects against two separate transgressions. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The first is a protection against "multiple punishment," i.e., being punished more than once for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The second is a protection against "successive prosecution," i.e., being prosecuted a second time for the same offense after acquittal. Id., citing United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion). The courts in Michigan have observed a similar categorization. See People v. Robideau, 419 Mich. 458, 484, 355 N.W.2d 592 (1984). Here, we are clearly dealing with the first category and we must therefore address the question whether the burning of personal property statute and the malicious destruction of personal property statute provide for multiple punishments for the same offense.
Defendant cites United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), for the proposition that the test for multiple punishment is whether the two charges contain the "same elements." This "same elements" test was most concretely articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and is often, therefore, referred to as the "Blockburger test." See Dixon, supra at 696-697, 113 S.Ct. 2849. In pertinent part, Blockburger involved charges of violations of the Harrison Narcotic Act, 26 USC 696. The third count of the indictment in question charged a sale of eight grains of a drug "not in or from the original stamped package" while the fifth count charged that sale also as having been "made not in pursuance of a written order of the purchaser" as required by the statute. Citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911), the United States Supreme Court articulated the following rule:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. [Blockburger, supra at 304, 52 S.Ct. 180.]
We are puzzled by defendant's reliance on Dixon and, thus implicitly, on Blockburger. First, the Blockburger test does not work to defendant's benefit. The burning of personal property charge in this case required proof of "burning," e.g., the malicious use of fire, that the malicious destruction of personal property charge simply did not. Thus, the two offenses did not share the same elements under Blockburger; the burning of personal property charge required proof of an additional fact--burning--that the malicious destruction of personal property charge did not. Further, the Michigan Supreme Court abandoned the Blockburger test...
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