People v. White

• Citation: 390 Mich. 245,212 N.W.2d 222
• Decision Date: 20 November 1973
• Docket Number: No. 13,13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George WHITE, Defendant-Appellee. 390 Mich. 245, 212 N.W.2d 222
• Court: Michigan Supreme Court

Page 222

212 N.W.2d 222

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

No. 13.

390 Mich. 245, 212 N.W.2d 222

Supreme Court of Michigan.

Nov. 20, 1973.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Gerald M. Lorence, Detroit, for defendant-appellee.

Before the Entire Bench.

SWAINSON, Justice.

Complainant and defendant first met at the Windsor Race Track in Ontario, Canada. The defendant asked where complainant was going after the races and she stated that she and her two girl friends were planning on going to the Twenty Grand Club in Detroit, Michigan. Fifteen minutes after the complainant arrived in the club, defendant came over to the table where she and her two friends were seated. He spent the rest of the evening with them and at the conclusion of the show at about 2:30 a.m., the women agreed to accompany the defendant to a party. The 'party' was at an after-hours drinking establishment. The women left between 3:30 and 4:00 a.m. and drove to the City of Inkster where complainant lived. The defendant followed them. The complainant decided to drive to her girl friend's house. The defendant continued to follow her automobile and parked his vehicle in back of that of the complainant. The complainant got out of the vehicle, and after walking halfway across the street, she was stopped by the defendant. He told her that he wanted her to go with him to Detroit and when she refused, they began to wrestle. The defendant struck her with the butt of a gun and injured her ear. He forced complainant into the back seat of the car and the car was driven away. Two other men were in the automobile besides the defendant. During the return ride, and while within the City of Detroit, the complainant was forced to engage in sexual intercourse with the defendant.

Defendant was arraigned in Recorder's Court for the City of Detroit on February 21, 1968 for the offenses of rape and felonious assault. On February 28, 1968, he was arraigned in Inkster, Michigan, on the charge of kidnapping. On March 4, 1968, the preliminary examination was held in Detroit Recorder's Court. The preliminary examination on the charge of kidnapping was held on March 6, 1968. Defendant was bound over to the Recorder's Court on the charges of rape ¹ and felonious assault. ² He was bound over to the Wayne County Circuit Court on the charge of kidnapping. ³

On March 21, 1969, the defendant was convicted by a jury in Wayne County Circuit Court of kidnapping. A scheduled trial on March 25, 1969 in Recorder's Court was adjourned. Thereafter, defendant was sentenced on the kidnapping charge to five to fifteen years. No appeal was taken from this conviction.

On October 7, 1969, trial was commenced in Detroit Recorder's Court on the charges of rape and felonious assault. He was found guilty by a jury on both charges on October 9, 1969. He was sentenced on October 21, 1969 to eight to thirty years for rape and three years, nine months to four years for felonious assault.

The defendant appealed on the rape and felonious assault charges. The Court of Appeals, 41 Mich.App. 370, 200 N.W.2d 326, reversed. The majority of the Court held that we should follow the same transaction test in determining double jeopardy and that since the crimes of rape, felonious assault and kidnapping were all part of the same transaction, the defendant should only have been tried once and thus, that his conviction should be reversed. 41 Mich.App. 370, 200 N.W.2d 326 (1972). We granted leave to appeal. 388 Mich. 780. The prosecutor raises two issues on appeal.

(1) Whether the Court of Appeals erred in reversing defendant's conviction based on the use of the same transaction test?

(2) Whether the Court of Appeals erred in holding that statutes creating and defining the State judicial jurisdictions over criminal matters are procedural rules to be subordinated to the same transaction doctrine?

I.

The Court of Appeals found that appellant's second trial violated the constitutional protection against double jeopardy under what is known as the same transaction test. The leading authority for such an interpretation of double jeopardy is the concurring opinion of Justice Brennan in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 1197, 25 L.Ed.2d 469, 478 (1970). Therein Mr. Justice Brennan persuasively argues that the same transaction test best fulfills the Fifth Amendment guarantee that no person shall 'be subject for the same offense to be twice put in jeopardy (of life or limb),' ⁴ which is now enforceable against the states under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

'The Double Jeopardy Clause is a guarantee 'that the State with all its resources and power (shall) not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . .' Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This guarantee is expressed as a prohibition against multiple prosecutions for the 'same offence.' Although the phrase 'same offence' appeared in most of the early common-law articulations of the double-jeopardy principle, questions of its precise meaning rarely arose prior to the 18th century, and by the time the Bill of Rights was adopted it had not been authoritatively defined.

'When the common law did finally attempt a definition, in The King v. Vandercomb, 2 Leach 708, 720, 168 Eng.Rep. 455, 461 (Crown 1796), it adopted the 'same evidence' test, which provided little protection from multiple prosecution:

'(U)nless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.'

The 'same evidence' test of 'same offence' was soon followed by a majority of American jurisdictions, but its deficiencies are obvious. It does not enforce but virtually annuls the constitutional guarantee. For example, where a single criminal episode involves several victims, under the 'same evidence' test a separate prosecution may be brought as to each. E.g., State v. Hoag, 21 N.J. 496, 122 A.2d 628 (1956), aff'd, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958). The 'same evidence' test permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense'). Even a single criminal act may lead to multiple prosecutions if it is viewed from the perspectives of different statutes. E.g., State v. Elder, 65 Ind. 282 (1879). Given the tendency of modern criminal legislation to divide the phases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an essentially unitary criminal episode are frightening. And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, the potentialities for abuse inherent in the 'same evidence' test are simply intolerable.

'The 'same evidence' test is not constitutionally required. It was first expounded After the adoption of the Fifth Amendment, and, as shown in Abbate v. United States, Supra, 359 U.S. at 197--198 and n. 2, 79 S.Ct. 666, 671--673, 3 L.Ed.2d 729, has never been squarely held by this Court to be the required construction of the constitutional phrase 'same offence' in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), discussed in Abbate v. United States, Supra, 359 U.S. at 201, 79 S.Ct. 674. The 'same evidence' test may once have been defensible at English common law, which, for reasons peculiar to English criminal procedure, severely restricted the power of prosecutors to combine several charges in a single trial. In vivid contrast, American criminal procedure generally allows a prosecutor freedom, subject to judicial control, to prosecute a person at one trial for all the crimes arising out of a single criminal transaction.

'In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction' test of 'same offence' not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.' 397 U.S. 436, 450--454, 90 S.Ct. 1189, 1197--1199, 25 L.Ed.2d 469, 479--481. (Footnotes omitted).

The United States Supreme Court has not passed upon the constitutional necessity of the same transaction test. In Ashe v. Swenson, Supra, it was not imperative under the facts of that case for the majority of the Court to reach the issue. Ashe appealed his conviction of armed robbery of one member of a poker game after he had been previously acquitted of the armed robbery of another participant in the same poker game. The nature of the evidence presented made it clear that Ashe's acquittal in the first trial resulted from the failure of the prosecution to identify Ashe as having been present at the robbery. Since the verdict of guilty at the second trial also required a finding that Ashe had been present at the robbery scene, the Court reversed the conviction under the more limited doctrine of collateral estoppel. It held that the prosecution was barred from...