People v. Williams

• Decision Date: 02 July 1980
• Docket Number: Docket No. 45602
• Citation: 98 Mich.App. 510,296 N.W.2d 293
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph Edward WILLIAMS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 293

296 N.W.2d 293

98 Mich.App. 510

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ralph Edward WILLIAMS, Defendant-Appellant.

Docket No. 45602.

Court of Appeals of Michigan.

July 2, 1980.

Released for Publication Sept. 24, 1980.

George B. Stone, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Paul G. Bruno, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and CYNAR and MacKENZIE, JJ.

CYNAR, Judge.

Defendant was convicted by a jury of four counts of armed robbery, M.C.L. § 50.529; M.S.A. § 28.797, and one count of felony-firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to four concurrent terms of from 23 to 50 years imprisonment on the armed robbery conviction, with the mandatory two year consecutive sentence imposed on the felony-firearm count. Defendant appeals as of right.

Defendant first contends that his conviction for felony-firearm is violative of double jeopardy protections. This issue has been resolved against defendant's position in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979), app. dis. sub nom., Brintley v. Michigan, 444 U.S. 948, 100 S.Ct. 418, 62 L.Ed.2d 317 (1979).

Next, defendant argues that he was improperly charged with four counts of armed robbery instead of one count, where each count arose out of a single transaction, i. e., the robbing of a single bank. Defendant also contends that his convictions and sentences on the above charges violate double jeopardy protections.

In relation to his former contention defendant additionally argues that he should have been charged under M.C.L. § 750.531; M.S.A. § 28.799 with one count of bank robbery, as opposed to any charge of armed robbery. We find no abuse of prosecutorial discretion or error of law in charging defendant with armed robbery, as opposed to bank robbery, as it is clear that defendant could have been charged under either statute on the facts here. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683, 194 N.W.2d 693 (1972).

As to the multiple charge question, it is not so readily dismissed. The majority rule is that the taking of property from different sources at the same time and at the same place constitutes but one offense. Anno: Single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407, 1410. Michigan apparently follows this rule, as shown by the language used by the Court in People v. Johnson, 81 Mich. 573, 576, 45 N.W. 1119 (1890). As we see it, the episode in question here constituted but one transaction, a single occurrence or offense, from which but a single charge of armed robbery could arise. Had bank robbery been charged, it is patently obvious that only one count thereof could have been charged. Granting the prosecutor discretion to charge armed robbery in lieu of bank robbery, it does not follow that the prosecutor may abuse that discretion by resort to the artifice of charging multiple counts of armed robbery from a unitary episode such as occurred in the case at bar.

Accordingly, we affirm defendant's felony-firearm conviction, as well as one count of armed robbery, and the sentences imposed thereupon. We reverse defendant's convictions for three counts of armed robbery and vacate the sentences given pursuant thereto.

Affirmed in part; reversed in part.

DANHOF, Chief Judge (dissenting).

While I agree with the majority that defendant's felony-firearm conviction does not constitute double jeopardy and that there was no abuse of prosecutorial discretion or error of law in charging defendant with armed robbery, as opposed to bank robbery, I must respectfully dissent from the majority's conclusion that defendant could not be convicted of four counts of armed robbery on these facts.

The incident occurred on March 20, 1979, at a Detroit branch of the Detroit Bank & Trust Co. Two men wearing ski masks entered the bank in the morning, firing a shot. One, armed with a shotgun, stopped by the door. The other (later identified as defendant) jumped over the counter and, at gun point, entered the cage of teller number 3 and took money from her drawer. He then entered the cage of teller number 4 and took money and bus tickets from her drawer. Finally, he entered the cage of teller number 5 and took money from that teller and the teller trainee. The men then left the bank in a green Pinto and were soon apprehended by the police.

In resolving defendant's claim, we should look to the traditional application of double jeopardy protection as a restraint on courts and prosecutors imposing double punishment for a single criminal act.

It is settled that a prosecutor may charge a defendant with multiple offenses arising from the same transaction. See People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977). The Michigan Supreme Court has held that all offenses arising out of the same transaction must be tried in a single...