People v. White

• Decision Date: 26 June 1972
• Docket Number: Docket No. 10125,No. 1,1
• Citation: 41 Mich.App. 370,200 N.W.2d 326
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George WHITE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 326

200 N.W.2d 326

41 Mich.App. 370

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George WHITE, Defendant-Appellant.

Docket No. 10125.

Court of Appeals of Michigan, Division No. 1.

June 26, 1972.

Released for Publication Sept. 15, 1972.

Leave to Appeal Granted Sept. 19, 1972.

Robert E. McCall, McCall & Matish, 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., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

BRONSON, Judge.

Defendant was convicted by a jury in the Detroit Recorder's Court of rape, M.C.L.A. § 750.520; M.S.A. § 28.788 and felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277. These convictions were based on an information filed on April 15, 1968. Defendant was sentenced to prison terms of 8 to 30 years on the rape conviction and 3 years and 9 months to 4 years on the felonious assault conviction. Defendant appeals of right.

Prior to this trial, defendant was convicted of kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, by a jury in the Wayne County Circuit Court. The kidnapping trial was based on the same facts which led to defendant's later trial and convictions for rape and felonious assault. He received a sentence of 5 to 15 years for his kidnapping conviction. Defendant did not appeal that conviction and its validity is not before this Court. ¹

The record reveals that defendant met the victim and two of her girlfriends at the Windsor Racetrack on the evening of February 15, 1968. After leaving the track, defendant accompanied the victim and her companions to a local nightclub and then to a party. Upon leaving this party, the victim and her friends drove home to Inkster, Michigan. Defendant followed them to one of the friend's homes. When the complaining witness exited her vehicle, defendant apprehended her and asked her to return to downtown Detroit with him. When she refused, defendant struck her with the butt of a gun and forced her into his car, which was occupied by two other males. During the return ride to Detroit, the victim was forced to engage in sexual intercourse with the defendant.

Following defendant's conviction for kidnapping on March 21, 1969, a scheduled trial for March 25, 1969, on the rape charge was adjourned to await his sentencing for kidnapping.

Subsequent to his sentencing for kidnapping, the prosecution proceeded to schedule a trial on the rape charge. Defendant's motion to quash the complaint and warrant were denied. This Court granted his motion for immediate consideration for leave to appeal that denial and denied an application for emergency leave to appeal. Following the instant convictions, defendant moved for a new trial. The motion was denied.

The question presented for review is whether multiple prosecutions for several crimes arising out of the same criminal transaction violates defendant's right not to be placed in jeopardy twice for the same offense in contravention of the Fifth Amendment to the United States Constitution.

The generally stated rule is that there is no double jeopardy unless the offenses are the same both in law and in fact. A second prosecution is barred only when the facts necessary to convict in the second prosecution would necessarily have convicted in the first. This is known as the same evidence test. The rule has been criticized generally by commentators as inconsistent with the objectives underlying the double jeopardy prohibition. ²

There are several purposes underlying the double jeopardy prohibition. First, guilt should be established by proving criminal elements to a single jury rather than by allowing a prosecutor to rely on the increased probability of conviction by repeated prosecution. Thus, the rule against reprosecution for the same offense after acquittal. Second, the prosecutor should not be able to go sentence shopping by bringing successive prosecutions for the same offense before different judges. Thus, prosecution after conviction is prohibited. Third, criminal trials should not be instruments of harassment and second trials are forbidden. Finally, a person should not be subject to multiple punishment for a single legislatively defined offense. Judges, therefore, may not impose multiple punishment for the same offense at a single trial. Comment, Twice in Jeopardy, 75 Yale L.J. 262, 266--267.

As can be seen, the various policies lead to different rules which cover different situations. The courts have applied the same evidence test to both retrial and multiple punishment situations without considering the evil each situation presents. Applying the test in this way ignores the growing sophistication of legislatures in defining criminal activity. The test emphasizes a prosecutor's skill in framing an information rather than the state's interest in vindicating itself against defendant for his antisocial conduct. By applying the limiting definition of same offense inherent in the same evidence test, courts have permitted prosecutors, who have almost unlimited discretion in initiating a prosecution, to circumvent the protection which the double jeopardy clause affords and make the criminal trial an instrument capable of harassment. An examination of defendant's behavior in the instant case is indicative of the problem. It takes little imagination to think of a number of legislatively-defined crimes which a prosecutor could have charged defendant with. As Mr. Justice Brennan has noted, in such situations the possibilities for abuse are frightening. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (concurring opinion).

The United States Supreme Court has given some credence to the same evidence test by applying it in other situations. ³ Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court has never used the test in a case involving successive prosecutions following an initial conviction. ⁴ The cases in which the test has been used all involved multiple count convictions at a single trial. ⁵ In the only cited case dealing with the problem presented by the instant case, the Court applied a transactional test. ⁶ In In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Court held that an initial conviction precluded prosecution for a second crime which required proof of different elements than were required in the first trial. The basis of the Court's opinion was that the government was attempting to punish the defendant twice for essentially the same illegal conduct.

The same transaction test has been used in several jurisdictions. ⁷ One form of the test has recently been adopted in Alaska. Whitton v. State, 479 P.2d 302 (Alaska, 1970). ⁸ In a lengthy discussion of the problem, the Alaska Supreme Court recognized that the problem cannot be solved by easy application of a rigid mechanical formula.

Michigan has implicitly recognized the test in People v. Miccichi, 264 Mich. 581, 583--584, 250 N.W. 316 (1933). The Court there held that a prosecution for murder which results in acquittal does not bar subsequent prosecution for the robbery in which the murder occurred where the two are not shown to be connected. The clear implication of the opinion is that where two statutorily-defined crimes are committed during the commission of a single criminal transaction and are inextricably intertwined, prosecution for one crime bars a subsequent prosecution for the other. Judge Levin has urged full recognition of this test by this Court. People v. Noth, 33 Mich.App. 18, 189 N.W.2d 779 (1971) (dissent). The thrust of this formulation is the defendant's purpose in undertaking the criminal activity involved. Where a defendant has one objective and commits several crimes in preparing for and in attaining that objective, the prosecution may initiate only one prosecution. ⁹

One advantage of this test is that it is consistent with double jeopardy's purpose of bringing finality to criminal proceedings. When double jeopardy operates it enables a defendant to consider the matter closed and saves the cost of redundant litigation. It also helps, to some extent, to equalize the adversary capabilities of grossly unequal litigants.

The same transaction test also goes a long way towards preventing harassment and sentence shopping. In doing so, it recognizes that the prohibition of double jeopardy is for the defendant's protection. It is not a device which allows the state, by using legal technicalities, to determine when it has received fair treatment at a trial or when the defendant has received a satisfactory sentence.

We believe harassment occurs whenever a prosecutor acts without legitimate justification. Sentence shopping is not a legitimate justification for reprosecution. In seeking to prohibit these practices, the double jeopardy clause puts an outside limit on a prosecutor's discretion.

In Michigan, the Legislature defines what conduct is considered criminal and the length of prison confinement which may be imposed for such conduct. The judiciary determines the proper sentence, within the legislatively-defined limits, for a convicted defendant based on all relevant considerations before it. M.C.L.A. § 769.1; M.S.A. § 28.1072. In imposing sentence, the judge normally has before him not only the evidence presented at trial but also the circumstances surrounding the crime in a presentence report. Miller, Prosecution: The Decision to Charge a Suspect With a Crime (Little, Brown & Co., 1969), pp. 199--200 and fn. 21. It is not the prosecutor's function to become involved in the sentencing procedures. To the extent that he does become involved he should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities. ABA Standards, The Prosecution Function and the Defense Function § 6.1 (Approved...