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Docket Number

Docket No. 30029.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Bruce A. Barton, Special Prosecuting Attorney, for the people. Norris J. Thomas, Jr., Assistant State Appellate Defender, and Nancy Bosh, Research Attorney, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Summary of People v. Carter, Docket No. 30029 (Mich. Ct. App. Dec. 7, 1979)

Factual and Procedural Background

This is an appeal from jury convictions. Defendant was convicted of unarmed robbery (MCL 750.530; MSA 28.798), conspiracy to commit unarmed robbery (MCL 750.157a; MSA 28.354(1)), extortion (MCL 750.213; MSA 28.410), and conspiracy to commit extortion (MCL 750.157a; MSA 28.354(1)). The appeal to the Michigan Court of Appeals was decided December 7, 1979; leave to appeal was applied for.

The underlying factual account presented at trial was that on December 19, 1975, Peggie Johnson, a Consumers Power Company customer service worker in Jackson, Michigan, was handed a note by a man threatening her three sons unless she gave him money. Mrs. Johnson testified that she complied because she feared the man might injure her and her three sons. Edward Kimble, an inmate, testified that he and defendant had planned the robbery the night before and that, together with Diane Potter, they wrote the note used in the robbery. Diane Potter corroborated Kimble by testifying that defendant helped prepare the note.

On appeal defendant raised multiple issues; the court found only one of them meritorious.

Legal Issues Presented

Whether defendant's convictions for extortion and unarmed robbery based on the same occurrence violated the Double Jeopardy Clause (i.e., being placed in jeopardy twice for the same conduct).
Whether a conviction of a substantive crime (including conviction under an aiding and abetting theory) together with a conviction for conspiracy to commit that crime violates the Double Jeopardy Clause.

Arguments of the Parties

Defendant's Arguments

That his right not to be placed in jeopardy twice was violated by his convictions for extortion and unarmed robbery, which arose from the same act (the threatening note and extraction of money).
That conviction for a substantive crime together with conviction for conspiracy to commit that crime (including where aiding and abetting was an asserted theory) likewise violates the Double Jeopardy Clause.

The opinion does not contain a detailed account of the people's (prosecution's) separate legal arguments beyond the court's characterization of the issues and reliance on precedent in its analysis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976)	The State cannot convict for two offenses that are merely divisions of a single criminal occurrence (example: delivery and possession of the same heroin in a single transaction); double jeopardy prohibits such duplicative convictions.	Used as a primary authority to support the proposition that convictions arising from the same single occurrence may violate double jeopardy; the court applied Martin's reasoning to conclude that certain convictions in this case should be reversed.
People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977)	Affirmed and clarified Martin: where the same heroin was possessed and sold in a single continuous transaction with no separate possession evidence, separate convictions violate double jeopardy.	Followed alongside Martin as directly applicable authority; the court relied on Stewart in concluding that convictions based on the same occurrence should not stand.
State v Allen, 292 A.2d 167 (Me. 1972)	"The State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime."	Quoted as the rationale directly on point; used to support the view that one occurrence cannot yield multiple separate punishments absent legislative intent.
Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979)	Double jeopardy prevents multiple punishments for a single occurrence unless the Legislature clearly intended separate violations for that occurrence.	Applied to examine legislative intent; the court determined the Legislature did not clearly intend to punish twice for this type of single occurrence, supporting reversal of duplicative convictions.
People v Anderson, 83 Mich. App. 744; 269 N.W.2d 288 (1978)	Used as an example/authority consistent with the Martin/Stewart line on duplicative convictions.	Cited as an illustrative authority ("e.g.") in connection with reversing duplicative convictions; relied on insofar as it aligns with the court's conclusion.
People v Tinskey, 394 Mich. 108; 228 N.W.2d 782 (1975)	Holds that the crime of conspiracy is distinct from the substantive offense.	Applied to support the conclusion that conspiracy to commit a crime is a distinct offense from the substantive crime and may be punished separately.
People v Berry, 84 Mich. App. 604; 269 N.W.2d 694 (1978)	Explains the factual distinction: conspiracy punishes planning by two or more persons, whereas the substantive offense punishes the actual commission of the crime.	Used to emphasize the factual and legal distinction between conspiracy and the substantive offense, supporting affirmation of extortion and conspiracy to commit extortion convictions.
People v Gonzales, 86 Mich. App. 166; 272 N.W.2d 227 (1978)	States that "the double jeopardy clause does not forbid two inferences from the same evidence."	Applied to reject the claim that use of the same evidence to prove both extortion and conspiracy to commit extortion necessarily violates double jeopardy; supported affirmance of those convictions.

Court's Reasoning and Analysis

The court framed the analysis around double jeopardy principles as articulated in Martin and Stewart, and the Maine authority State v Allen: the State may not divide a single criminal occurrence into multiple punishable offenses unless the Legislature intended separate punishments.

Applying those principles to the facts, the court observed that the convictions for unarmed robbery and extortion both derived from the same set of facts: defendant extracted money from the complainant by means of a single threatening note. The planning of that single criminal act likewise gave rise to the conspiracy counts relating to the unarmed robbery. Because these convictions stemmed from the same occurrence and because it did not appear that the Legislature clearly intended to allow double punishment for that single occurrence, the court concluded that the convictions for unarmed robbery and conspiracy to commit unarmed robbery violated double jeopardy and therefore should be reversed.

As to extortion and conspiracy to commit extortion, the court distinguished those convictions on the basis that conspiracy is a distinct crime from the substantive offense. Citing Tinskey and Berry, the court noted the factual and legal distinction: conspiracy punishes the planning of an unlawful event by two or more persons, while the substantive offense punishes the actual commission. The court additionally relied on Gonzales for the principle that the double jeopardy clause does not forbid drawing two inferences from the same evidence. On that basis, the court concluded that convictions for extortion and conspiracy to commit extortion did not violate double jeopardy and should be affirmed.

Holding and Implications

Holding: The court reversed in part and affirmed in part. Specifically, the court reversed defendant's convictions of unarmed robbery and conspiracy to commit unarmed robbery, and affirmed defendant's convictions for extortion and conspiracy to commit extortion.

Implications: The direct effect is that the unarmed robbery conviction and the conspiracy conviction related to that substantive offense were vacated on double jeopardy grounds, while the extortion and its related conspiracy conviction remain intact. The court applied existing precedents (Martin, Stewart, Allen, and related cases) to reach this disposition; the opinion does not purport to establish a new rule of law beyond those authorities.

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PEOPLE v CARTER

PER CURIAM.

In this case defendant appeals from his jury convictions of unarmed robbery, MCL 750.530; MSA 28.798, conspiracy to commit unarmed robbery, MCL 750.157a; MSA 28.354(1), extortion, MCL 750.213; MSA 28.410, and conspiracy to commit extortion, MCL 750.157a; MSA 28.354(1). The defendant raises numerous issues for our review, only one of which we find meritorious.

On December 19, 1975, Peggie Johnson, a worker in the customer service office of the Consumers Power Company in Jackson, Michigan, was robbed by a man who handed her a note threatening her three sons unless she gave him money. Mrs. Johnson testified that she complied with the request because she feared that the man might injure her and her three sons if she did not. Edward Kimble, an inmate at the state prison, testified that he and defendant had planned the robbery the night before. At that time, they and a third person, Diane Potter, wrote the note which was used in the robbery. Kimble's testimony was corroborated by Diane Potter who identified defendant as helping prepare the note which was used subsequently.

On appeal, defendant argues that his right not to be placed in jeopardy twice was violated by his convictions of extortion and unarmed robbery. He further argues that conviction of a substantive crime under the aiding and abetting statute and conviction for conspiracy to commit that crime is likewise a violation of the double jeopardy clause.

In People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976), Martin was charged and convicted of both delivery and possession of heroin. There was no dispute that each count covered the same heroin. The only possession shown by the evidence was that incident to its delivery. As a result, the Supreme Court reversed the conviction for delivery on double jeopardy grounds.

Martin was followed by People v Stewart, (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), where the Court described the facts of the case as follows:

"There is no dispute in the instant case that the same heroin was allegedly possessed and sold by the defendant in a single continuous transaction. There was no evidence of possession distinct and apart from the overall sale sequence." Id. at 547.

Both cases relied on State v Allen, 292 A.2d 167 (Me, 1972). As in Martin and Stewart, the rationale of Allen is directly on point with the instant case:

"It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime." State v Allen, supra, at 172.

Double jeopardy applies in such situations unless the Legislature intended that one occurrence give rise to two separate violations. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).

Looking to the facts of this case, it is obvious that both of defendant's convictions of the substantive offenses stem from the same set of facts. Defendant extracted money from the complainant by means of a threatening note. This one occurrence was used to convict him of both unarmed robbery and extortion. In addition, the planning of this one criminal act gave rise to defendant's conviction on the two counts of conspiracy. Moreover, it does not appear that the Legislature clearly intended to punish twice one instance of this type of criminal conduct. Hence, defendant's convictions for unarmed robbery and extortion and conspiracy to commit both would appear to fall within the proscription of Martin/Stewart. See e.g. People v Anderson, 83 Mich. App. 744; 269 N.W.2d 288 (1978). Accordingly, we reverse defendant's convictions of unarmed robbery and conspiracy to commit unarmed robbery. See People v Stewart, supra, 550.

Defendant also argues that his conviction for the substantive crime of extortion and conspiracy to commit extortion also constitute double jeopardy. We disagree.

The crime of conspiracy has been found to be distinct from the substantive offense. People v Tinskey, 394 Mich. 108; 228 N.W.2d 782 (1975). This is true in a factual sense as well. The crime of conspiracy punishes the planning of an unlawful event by two or more people. People v Berry, 84 Mich. App. 604; 269 N.W.2d 694 (1978). The substantive offense punishes the actual commission of the crime. Hence, we have two distinct factual occurrences. Although defendant alleges that the same evidence at trial was used to establish two separate acts punishable under different statutes, "the double jeopardy clause does not forbid two inferences from the same evidence". People v Gonzales, 86 Mich. App. 166, 170; 272 N.W.2d 227 (1978). Accordingly, defendant's convictions for extortion and conspiracy to commit extortion are affirmed.

Reversed in part and affirmed in part.

PEOPLE v. CARTER