Opinion
Docket No. 19594.
Decided June 23, 1975.
Appeal from Livingston, Paul R. Mahinske, J. Submitted Division 2 May 8, 1975, at Lansing. (Docket No. 19594.) Decided June 23, 1975.
Charles E. Johnson was convicted, on his plea of guilty, of assault with intent to commit a felony. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas Kizer, Jr., Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director, by Lee W. Atkinson, Special Assistant Attorney General), for the people.
Muller, Holmes, Muller Smith, for defendant.
Before: DANHOF, P.J., and J.H. GILLIS and R.M. MAHER, JJ.
Defendant pled guilty to a charge of assault with intent to commit a felony, MCLA 750.87; MSA 28.282. He was sentenced to 5 to 10 years in prison, and he appeals raising one issue. We affirm.
On September 11, 1971, the defendant escaped from the Southern Michigan State Prison at Jackson where he was serving a sentence for a previous felony conviction. He proceeded to Livingston County in the company of a fellow escapee where they encountered a woman in a service station. They forced her at knife point to accompany them while they drove to Detroit in her car. During the ride, the young woman was able to drop a note from the car; the state police were alerted and the defendant and his associate were arrested.
On January 27, 1972, the defendant pled guilty to a charge of prison escape, MCLA 750.193; MSA 28.390, in Jackson County Circuit Court. He was sentenced to a term of from 1 to 5 years in prison. He was also charged with kidnapping, MCLA 750.349; MSA 28.581, and armed robbery, MCLA 750.529; MSA 28.797, in Livingston County. Some uncertainty concerning the proper forum in which to bring these charges was resolved by this Court in People v Riley, 45 Mich. App. 338; 206 N.W.2d 458 (1973).
Thereafter, on June 19, 1973, defendant was allowed to plead guilty in Livingston County Circuit Court to an added count of assault with intent to commit a felony. The kidnapping and armed robbery charges were dismissed. Defendant filed a motion to set aside the plea arguing for the first time that further prosecution following his prison escape conviction was barred by the double jeopardy provisions of the Federal and Michigan Constitutions, US Const, Am V; Const 1963, art 1, § 15.
The double jeopardy assertion was not made before or at the plea-taking proceeding. The Michigan Supreme Court has held that a claim of double jeopardy is waived if not raised before or during trial. People v Powers, 272 Mich. 303; 261 N.W. 543 (1935), People v McDonald, 306 Mich. 65; 10 N.W.2d 309 (1943), cited in People v Cooper, 58 Mich. App. 284, 290; 227 N.W.2d 319 (1975). Additionally, it appears that the defendant offered to plead guilty at a time when all charges were pending, and that he therefore waived his right to a single trial. See People v Goans, 59 Mich. App. 294; 229 N.W.2d 422 (1975). Nevertheless, to avoid further uncertainty in the present case, we will evaluate the defendant's double jeopardy claim in light of the same transaction test.
The Michigan Supreme Court in People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), adopted the same transaction test as the required standard to be applied when examining a claim of double jeopardy. As seen by our Supreme Court, the same transaction test consists of two elements; it must appear that "the crimes were committed in a continuous time sequence", and they must "display a single intent and goal". People v White, supra, 390 Mich at 259.
In White, the defendant was convicted of kidnapping following a jury trial in Wayne County Circuit Court, and subsequently was convicted of rape and felonious assault in Detroit Recorder's Court. The Supreme Court held that the second trial was improper and reversed the rape and felonious assault convictions because the crimes "were all part of a single criminal transaction" and that they shared a common objective, "sexual intercourse with the complainant".
Decisions of this Court applying the White same transaction test have also required the close, unified purpose relationship between the crimes, and have demanded that the defendant support his double jeopardy claim by demonstrating a direct factual connection, not mere temporal happenstance. For example, in People v Rolston, 51 Mich. App. 146; 214 N.W.2d 894 (1974), lv den, 392 Mich. 762 (1974), a barmaid was kidnapped and robbed in Wayne County and taken to Washtenaw County where she was raped and murdered. Defendant was convicted of murder in Washtenaw County and later tried and convicted of kidnapping in Wayne County. On appeal, the kidnapping conviction was reversed in an opinion which acknowledged the then very recent Supreme Court decision in White, and which restated the standard as found in the opinion of this Court in People v White, 41 Mich. App. 370; 200 N.W.2d 326 (1972). "It was held in White that where a defendant has one objective and commits several crimes in preparing for and attaining that objective, only one prosecution may be brought."
Again, the closely related crimes of kidnapping and rape were considered in conjunction with the double jeopardy test in People v Joines, 55 Mich. App. 334; 222 N.W.2d 230 (1974). The defendant there had been acquitted on a charge of kidnapping in Genesee County. He was thereafter convicted of assault with intent to rape in Livingston County. The later conviction was reversed by this Court which concluded that as in White, both crimes were part of one criminal transaction, committed in a continuous time sequence and with the single intent and goal of sexual intercourse with the complainant.
Another group of cases in which application of the same transaction test required reversal of subsequent convictions involved less serious offenses. The defendant in People v Davenport (On Remand), 51 Mich. App. 484; 215 N.W.2d 702 (1974), lv den, 392 Mich. 761 (1974), offered resistance when an officer attempted to arrest him for being a disorderly person. He was acquitted on a disorderly person charge, but later he was tried and convicted of resisting arrest. This conviction was reversed upon application of the White rule:
"As in People v White, supra, the two crimes with which defendant was charged were committed, if committed at all, in a continuous time sequence and in pursuit of a single intent or goal. When a police officer stopped defendant for a traffic infraction, defendant allegedly refused to cooperate with him and directed obscene epithets at him, and then, when the officer attempted to arrest defendant because of those epithets, defendant refused to submit peacefully. The continuousness of the time sequence is obvious. The unity of intent is also readily apparent — a refusal to submit to a police officer's authority." 51 Mich App at 486.
Quoting the statement of the standard from Davenport, this Court in People v West, 54 Mich. App. 527; 221 N.W.2d 179 (1974), ruled that a motion to quash a resisting arrest charge should have been granted where the defendant had entered a plea of nolo contendere to a charge of being a disorderly person. Even though this case involved a plea, the Court found that the presence of the dual elements of a continuous time sequence and the unity of intent brought the case within the White rule as applied in Davenport.
In contrast to the result reached in these decisions, the White double jeopardy test has been discussed in numerous other cases wherein the test was not satisfied. Following an acquittal on a charge of possession of heroin in Federal court, the defendant in People v Martin, 53 Mich. App. 321; 220 N.W.2d 186 (1974), was tried and convicted on a similar charge in Detroit Recorder's Court. He appealed arguing that the second trial constituted a double jeopardy violation. This argument was rejected, and the conviction was affirmed. The Court stated:
"While this case is one requiring application of the same-transaction test, it is clear, nonetheless, that defendant could be tried and convicted in Detroit Recorder's Court. His trial in that court was predicated upon evidence and testimony obtained prior to his arrest, and subsequent acquittal, on Federal charges. The fact that both acts occurred the same day does not make the defendant's possession one long continuous transaction." 53 Mich App at 322, 323.
A sale of heroin was made to the same police agent by the defendant on two occasions in People v Martinez, 58 Mich. App. 693; 228 N.W.2d 523 (1975). Defendant was convicted following a trial of possession of heroin for the first sale, and he pled guilty to the same charge resulting from the second delivery. On appeal, he argued that the double jeopardy provision required that both sales be viewed as a single transaction. The Court declined to accept this argument:
"The deliveries of heroin in the instant case were made to the same agent during the course of a continuous undercover investigation. But these facts alone do not relate the events intimately enough so as to characterize them as being a part of a single transaction under the test adopted in People v White. Nine days separated the two sales in the instant case; the amounts involved were substantially different; and the record does not disclose any connection between them, such as an agreement after the first delivery to return for another sale.
"We hold that the two deliveries therefore constituted separate transactions and that the defendant's plea-based conviction for the second delivery did not place him twice in jeopardy. People v White, supra." 58 Mich App at 695.
In People v Teague, 57 Mich. App. 347, 350; 225 N.W.2d 761 (1975), the defendant was convicted of breaking and entering with intent to commit a larceny after he had pled guilty to an unspecified, related misdemeanor. His double jeopardy contention, relying on People v White, supra, was answered on appeal to this Court by the observation that White was not intended to apply to those facts because the defendant had "been convicted of two criminal offenses arising out of separate criminal transactions".
Finally, without mention of its decision in White, the Supreme Court in People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974), applied the same transaction test to refute defendant's double jeopardy claim. During an attempt to rob a bar, the defendant stole a credit card from a vending machine attendant. He pled guilty to the offense of attempted unlawful possession of a credit card, and was later also convicted after a bench trial of assault with intent to rob being armed. While reversing the conviction on other grounds, the Supreme Court addressed itself to the defendant's double jeopardy argument. Pointing out in a footnote that the defendant "was arrested when he attempted to use the credit card to make a purchase three hours after the attempted robbery at the bar" the Court concluded:
"Although the attempted unlawful possession of a credit card charge grew out of the assault with intent to rob charge, in the sense that the credit card was taken from the vending machine operator, the assault with intent to rob and the attempted possession of a credit card were separate transactions. The Double Jeopardy Clause does not license subsequent offenses growing out of a theft or excuse the theft upon trial for one or another offense." 391 Mich at 342.
An analysis of the factual circumstances surrounding the reported cases which have applied the White same transaction test establishes that the appellate courts of this state have required a very close connection between the crimes. The crimes must be so interrelated that they comprise an "essentially unitary criminal episode". At least one of the crimes must be of an ongoing nature such that all of the offenses are committed at the same time to achieve a single purpose.
In the present case, the first element of the White same transaction test, that the crimes "were committed in a continuous time sequence", may appear to be met because both offenses occurred on the same day. However, that fact alone does not make the offenses one long continuous transaction. People v Martin, supra. Furthermore, the crime of prison escape was completed at the time that the defendant did "leave said prison without being discharged". MCLA 750.193; MSA 28.390.
The second element, that the crimes "display a single intent and goal", is not satisfied. The defendant could not have assaulted the victim with the same intent and goal that he had when escaping prison. The prison escape was a completed act. The assault was an independent act intended to allow the defendant to elude capture. As such, while the assault was made possible by the escape, the assault was a separate transaction. To paraphrase the concluding remarks of the Supreme Court in People v Jackson, supra, 391 Mich at 342, the double jeopardy clause does not license subsequent offenses growing out of a prison escape or excuse the escape upon trial of one or another offense.
Affirmed.