People v. White

• Decision Date: 07 July 1988
• Docket Number: Docket No. 94372
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Lee WHITE, Defendant-Appellant. 168 Mich.App. 596, 425 N.W.2d 193
• Court: Court of Appeal of Michigan — District of US

Page 193

425 N.W.2d 193

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

Docket No. 94372.

168 Mich.App. 596, 425 N.W.2d 193

Court of Appeals of Michigan.

Submitted Jan. 20, 1988.

Decided May 17, 1988.

Released for Publication July 7, 1988.

[168 MICHAPP 598] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief Asst. Pros. Atty., and Rosemary A. Gordon, Asst. Pros. Atty., for the people.

State Appellate Defender, by Herb Jordan, Detroit, for defendant-appellant.

Before HOLBROOK, P.J., and HOOD and KAUFMAN, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of five counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1), and one count of breaking and entering with the intent to commit a felony, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. On May 21, 1986, defendant was sentenced to two terms of 50 to 100 years imprisonment, two terms of 60 to 120 years imprisonment and one term of life imprisonment for the criminal sexual conduct convictions and a term of 10 to 15 years imprisonment for the breaking and entering conviction. Defendant appeals as of right.

Defendant's convictions arose out of the sexual assaults on two women, Lula and Gabrielle, on [168 MICHAPP 599] October 6, 1985, at Lula's home in Detroit. In the early morning hours of October 6, 1985, Lula awoke to the sound of breaking glass. She sat up and saw a tall, dark man standing at the foot of her bed. The man held nunchaku (karate sticks) in his hand. The man directed the women to perform sexual acts upon each other. In addition, defendant had oral and genital sex with both women.

Defendant was convicted of three counts of first-degree criminal sexual conduct based on the sexual penetration of Lula under circumstances involving the commission of any other felony, M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c). The court instructed the jury that the "other felony" could be either the breaking and entering with intent to commit criminal sexual conduct or the criminal sexual conduct committed upon Gabrielle. The convictions of two counts of criminal sexual conduct involving Gabrielle were obtained under M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e), which proscribes penetration while the actor is armed with a weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon.

Defendant raises six issues on appeal. We will discuss them in the order in which defendant presents them.

I

(A)

Did defendant's conviction of the compound crime of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c), and the predicate crime of breaking and entering, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, violate the constitutional prohibition against double jeopardy?

[168 MICHAPP 600] M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c) states:

"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

* * *

"(c) Sexual penetration occurs under circumstances involving the commission of any other felony."

Defendant claims that the protection against double jeopardy under the United States and Michigan Constitutions ¹ was violated when he was convicted of both the compound crime of first-degree criminal sexual conduct and the predicate crime of breaking and entering with intent to commit criminal sexual conduct. We disagree.

This issue was addressed in People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). In Robideau, the Court analyzed whether the prohibition against double jeopardy was violated where the defendants were convicted of both first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c), and the predicate crimes of armed robbery and kidnapping. The Court rejected the Blockburger ² test of double jeopardy and held that the determination whether the defendants could be convicted of both the compound and predicate crimes depends on whether the Legislature intended multiple punishments. Robideau, supra, at p. 486, 355 N.W.2d 592. In determining legislative intent, the Court specified two factors. The first factor is whether the two statutes prohibit conduct which is violative of distinct social norms. If so, the statutes can [168 MICHAPP 601] generally be viewed as separate and amenable to permitting multiple punishments. Id., at p. 487, 355 N.W.2d 592. Regarding this factor in the instant case, we feel that the statutes pertaining to criminal sexual conduct and breaking and entering with intent to commit a felony prohibit conduct that is violative of distinct social norms. The focus of first-degree criminal sexual conduct is on penetration. Id., at p. 488, 355 N.W.2d 592. The focus of breaking and entering is clearly on forced entry into a dwelling or building.

The second factor the Robideau Court used in determining legislative intent was the amount of punishment expressly authorized by the Legislature. Regarding this factor, the Court stated:

"Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions." Robideau, supra, at pp. 487-488, 355 N.W.2d 592.

Such is not the case with breaking and entering and criminal sexual conduct. The first-degree criminal sexual conduct statute is not a statute which incorporates most of the elements of the breaking and entering statute and increases the penalty as compared to the breaking and entering statute. While this aspect of the double jeopardy clause is violated by prosecutions for both larceny over $100 and larceny in a building, for example, we do not believe it applies to the two crimes in the instant case.

After determining the Legislature's intent [168 MICHAPP 602] through the use of the two factors, the Robideau Court determined that the double jeopardy clause did not prohibit convictions for both first-degree criminal sexual conduct and armed robbery or kidnapping. Robideau, supra, at p. 490, 355 N.W.2d 592.

Defendant claims that the analysis of Robideau calls for a different result when the predicate crime is not a coequal felony, i.e., a felony with the same punishment. Defendant points to the language in footnote 8 of the Robideau opinion, which states:

"This analysis is consistent with the result reached in People v. Wilder [411 Mich. 328, 308 N.W.2d 112 (1981) ] prohibiting dual convictions of first-degree felony murder and the predicate felony. Since felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes. While someone in the process of committing a predicate felony has a real disincentive to commit murder (mandatory life) even absent the threat of dual convictions, the same person, assuming the predicate felony carries an up-to-life maximum penalty, would have no such disincentive to commit criminal sexual conduct unless dual convictions are imposed." Robideau, supra, at p. 489, n. 8, 355 N.W.2d 592 (emphasis in original).

We note that such language is dicta. We do not feel that the length of imprisonment is determinative and we do not read this language as holding that, whenever a predicate crime has punishment less than the compound crime, the defendant may not be convicted of both the predicate and compound crimes. Rather, according to Robideau, all factors must be considered in determining legislative intent.

[168 MICHAPP 603] Thus, we conclude that the prohibition against double jeopardy is not violated by convictions of both first-degree criminal sexual conduct under M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c) and the predicate crime of breaking and entering with intent to commit criminal sexual conduct.

I

(B)

Can the "other felony" be the criminal sexual conduct upon Gabrielle?

In this subissue, defendant claims that the "other felony" used to support a conviction for criminal sexual conduct upon Lula under M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c) cannot be the criminal sexual conduct upon Gabrielle. Defendant points to the language of People v. Pettway, 94 Mich.App. 812, 817, 290 N.W.2d 77 (1980), lv. den. 411 Mich. 1083 (1981), in which this Court stated:

"As the prosecution correctly argues, felony, as construed in the phrase 'any other felony,' refers to any felony other than criminal sexual conduct." (Emphasis in original.)

In Pettway, this Court held that breaking and entering with intent to commit criminal sexual conduct falls within the "any other felony" portion of the statute. ³ Pettway, supra, at p. 818, 290 N.W.2d 77. Whether criminal sexual conduct upon a second person can be the "other felony" supporting first-degree criminal sexual conduct under M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c) was not at issue in Pettway. There is nothing in the statute which precludes the use of [168 MICHAPP 604] evidence of criminal sexual conduct upon another person for such purpose. We read "any other felony" as meaning a felony other than the one committed. Thus, the prohibition against double jeopardy does not bar the use of evidence of criminal sexual conduct upon another victim as the "other felony" which elevates the criminal sexual conduct committed upon the first person to first degree.

II

Did the trial judge's voir dire of the...