Opinion
Docket No. 56670.
Decided August 16, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by P.E. Bennett), for defendant.
After a jury trial, defendant was convicted of bank robbery, MCL 750.531; MSA 28.799, assault with intent to commit robbery while armed, MCL 750.89; MSA 28.284, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to imprisonment for two concurrent terms of 2 years and two concurrent terms of 18 to 40 years, the former to be served consecutively to the latter. Defendant appeals as of right.
Defendant argues that, under the circumstances presented here, his conviction of both bank robbery and assault with intent to commit robbery while armed violated the constitutional prohibition against double jeopardy. The evidence at the trial showed that defendant forced two bank tellers at gunpoint to turn over to him bank money in their possession. Defendant then confronted a security guard and ordered the guard to surrender his gun. When the guard refused, defendant shot the guard in the leg and took the gun. The taking of the money from the tellers was the basis of the bank robbery conviction, while the shooting of the guard was the basis of the conviction of assault with intent to commit robbery while armed.
Absent a clear legislative intent to permit multiple punishments, a single criminal act will not support conviction of a greater offense and either necessarily or cognate lesser included offenses. People v Cook, 236 Mich. 333; 210 N.W. 296 (1926); People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976); People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977); People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980). However, a different rule controls when the Legislature intended to permit multiple punishment. In Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), the Court found no constitutional obstacle to the conviction of a defendant for both possession of a firearm during the commission of a felony and the underlying felony. The Court found that the Legislature clearly intended to permit multiple punishment. The Court also found that multiple punishment was permitted under the rule stated in Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932), because proof of the essential elements of each crime required proof of a fact that proof of the essential elements of the other did not. However, the Court expressly refrained from deciding whether the Blockburger rule is a constitutional test. 406 Mich. 395. Recent decisions of the United States Supreme Court have clarified the Blockburger rule. See Whalen v United States, 445 U.S. 684; 100 S Ct 1432; 63 L Ed 2d 715 (1980), Albernaz v United States, 450 U.S. 333; 101 S Ct 1137; 67 L Ed 2d 275 (1981), and Missouri v Hunter, ___ US ___; 103 S Ct 673; 74 L Ed 2d 535 (1983). The Blockburger rule is not a constitutional test but merely one of various means of ascertaining legislative intent. See Missouri v Hunter, 74 L Ed 2d 535, 542:
"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."
Defendant argues that only a single larceny took place here and that his conviction of both bank robbery and assault with intent to commit robbery while armed was prohibited by the rule stated in the Cook, Martin, Stewart, and Jankowski cases. The rule followed in Michigan and in nearly all other jurisdictions is that the taking of property from different sources at the same time and at the same place can constitute only a single larceny. People v Johnson, 81 Mich. 573; 45 N.W. 1119 (1890); Anno: Single or separate larceny predicated upon stealing property from different owners at the same time, 37 ALR3d 1407. Note, however, that an assault on several persons at the same time and place can support as many assault convictions as there were victims. People v Ochotski, 115 Mich. 601; 73 N.W. 889 (1898); People v Winquest, 115 Mich. App. 215; 320 N.W.2d 346 (1982). In People v Williams, 98 Mich. App. 510; 296 N.W.2d 293 (1980), the Court relied upon the "single larceny" rule to hold that a defendant who forced four bank tellers at gunpoint to turn over to him bank money in their possession had committed a single armed robbery rather than four.
In People v Patskan, 387 Mich. 701, 714; 199 N.W.2d 458 (1972), the Court held that an attempted robbery is an essential element of an assault with intent to rob while armed. Proof of a completed armed robbery will establish an assault with intent to rob while armed. People v Henderson, 22 Mich. App. 128, 131; 177 N.W.2d 254 (1970). In People v Chamblis, 395 Mich. 408, 425; 236 N.W.2d 473 (1975), the Court explained the elements of robbery as follows:
"Robbery is committed only when there is larceny from the person, with the additional element of violence or intimidation. Perkins, Criminal Law (2d ed), pp 279, 281. We are committed to the view that the crime of larceny from the person embraces the taking of property in the possession and immediate presence of the victim. People v Gould, 384 Mich. 71; 179 N.W.2d 617 (1970). If such taking be by force and threat of violence, it is robbery."
Examination of MCL 750.531; MSA 28.799 shows that the crime to which we have referred as "bank robbery" need not involve a robbery within the foregoing definition. However, while the statute specifies several alternate ways to commit bank robbery, under the circumstances presented here a larceny or attempted larceny was an essential element of the crime. If but a single larceny occurred here, assault with intent to commit robbery while armed would be a cognate offense of bank robbery, because the two offenses are of the same class or category and share the element of a larceny or attempted larceny. See People v Ora Jones, 395 Mich. 379; 236 N.W.2d 461 (1975). Therefore, if but a single larceny occurred here, the rule stated in the Cook, Martin, Stewart, and Jankowski cases would prevent defendant's conviction of both crimes absent a clear legislative intent to permit multiple punishment.
The writer of this opinion was a member of the majority in Williams but is no longer convinced that the Williams decision was correct in extending the "single larceny" rule into a "single robbery" rule. The single larceny rule is followed in the overwhelming majority of jurisdictions, but the Williams "single robbery" rule is the minority view. In Hoag v New Jersey, 356 U.S. 464, 467; 78 S Ct 829; 2 L Ed 2d 913 (1958), the Court held that it was constitutionally permissible for a state to punish a defendant for four separate robberies where defendant robbed four persons at the same time and place. For cases holding that multiple robbery convictions were permissible on facts analogous to those presented here, see People v Guerin, 22 Cal.App.3d 775; 99 Cal.Rptr. 573 (1972), In re Allison, 13 Colo. 525; 22 P. 820 (1889), Ferguson v State, 405 N.E.2d 902 (Ind, 1980), Richardson v State, 429 N.E.2d 229 (Ind, 1981), State v Branch, 223 Kan. 381; 573 P.2d 1041 (1978), State v Hutchinson, 228 Kan. 279; 615 P.2d 138 (1980), State v Shoemake, 228 Kan. 572; 618 P.2d 1201 (1980), Johns v State, 130 Miss. 803; 95 So. 84 (1923), State v Cabell, 539 S.W.2d 584 (Mo App, 1976), Commonwealth v Lockhart, 223 Pa. Super. 60; 296 A.2d 883 (1972), Wilkerson v State, 211 Tenn. 32; 362 S.W.2d 253 (1962), Morgan v State, 220 Tenn. 247; 415 S.W.2d 879 (1967), and Wiley v State, 552 S.W.2d 410 (Tenn Crim App, 1977). Several of the cases in which multiple convictions were found to be improper involved only one victim and property belonging to several owners but in the one victim's possession. See Creecy v State, 235 Ga. 542; 221 S.E.2d 17 (1975), State v McQueen, 24 Kan. 420; 582 P.2d 251 (1978), and State v Sellars, 52 N.C. App. 380; 278 S.E.2d 907 (1981). Only Florida follows a rule similar to that stated in Williams. Castleberry v State, 402 So.2d 1231 (Fla App, 1981).
A rule permitting conviction of more than one robbery, or, as here, robbery-related offense, can be reconciled with the "single larceny" rule and with the case law dealing with double jeopardy. As Chamblis shows, the larceny which is an element of robbery is a larceny from a person. The separate statutes defining simple larceny, MCL 750.356; MSA 28.588, and larceny from a person, MCL 750.357; MSA 28.589, show that the Legislature decided that larceny from a person presents a social problem separate and apart from simple larceny. Compare People v Ford, 417 Mich. 66, 95-96; 331 N.W.2d 878 (1982) (larceny in a building). This separate social problem must be the invasion of the person or immediate presence of the victim, because that is what distinguishes larceny from a person and simple larceny. Because the Legislature clearly intended the statute defining the crime of larceny from a person to protect the person or immediate presence of the victim from invasion, the Legislature clearly intended to permit a separate conviction for each victim whose person or immediate presence is invaded. Because the larceny involved in robbery and robbery-related crimes is a larceny from a person, the Legislature clearly intended to permit a separate conviction for each victim of those crimes as well. Because here defendant's conviction of assault with intent to commit robbery while armed was based on a separate victim and a separate taking from defendant's conviction of bank robbery, defendant's conviction of both crimes was constitutionally permissible.
Defendant also argues that his conviction of two counts of possession of a firearm during the commission of a felony violated the constitutional prohibition against double jeopardy. MCL 750.227b(1); MSA 28.424(2)(1) provides in part:
"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years."
The prosecution relies on the Blockburger rule and argues that the Legislature intended to authorize multiple punishment because each conviction requires proof of a fact that the other does not; that is, each conviction requires proof of the commission of a separate felony. While this may be true if one views defendant's two felony-firearm convictions separately, it must be borne in mind that each of those felony-firearm convictions is not violative of double jeopardy only because the felony-firearm statute reflects a clear legislative intent to impose multiple punishment. Wayne County Prosecutor, supra. However, we do not believe that the Legislature in authorizing such multiple punishment intended to authorize more than one felony-firearm conviction where there is but a single continuous criminal transaction involving possession of only a single firearm, notwithstanding that more than one felony may be committed during the course of that transaction. We note that defendant acquired a second firearm here, but only after both felonies were complete. Compare People v Mahone, 97 Mich. App. 192, 194; 293 N.W.2d 618 (1980).
We so hold in view of the Legislature's use of the phrase "the time he commits or attempts to commit a felony" in the felony-firearm statute and the rule of lenity in construing criminal statutes discussed in People v Bergevin, 406 Mich. 307; 279 N.W.2d 528 (1979), and People v Johnson, 406 Mich. 320; 279 N.W.2d 534 (1979). In Bergevin the Court held that, despite the alternative definitions of the crime in MCL 750.349; MSA 28.581, the Legislature did not intend to authorize multiple convictions for kidnapping where only one person was abducted. Similarly, in Johnson the Court held that, despite the alternative definitions of the crime in MCL 750.520b; MSA 28.788(2), the Legislature did not intend to authorize multiple convictions for first-degree criminal sexual conduct where only one sexual penetration took place. Based on the foregoing, we vacate one of defendant's convictions for possession of a firearm during the commission of a felony.
Affirmed in part and reversed in part.