*1 оffenses, charged detected at Royce Hudgins with three all was D. U-turn, improper making 38-§ Detroit ordinances time: an one smoke, emitting 5-7; driving Detroit automobile excessive 38-10-11; carrying pistol in a motor vehicle ordinances § license, 750.227; 28.424. Before MCLA MSA without a charges, trial on the two ordinance date of his scheduled plea guilty and Ordinance in the Traffic entered a defendant improper charges U-turn Court to the of Recorder’s Division and fined smoke. He was convicted exhaust and excessive day, court to he moved in recorder’s The same the court. arguing pistol charge, transaction dismiss court, L. any prosecution. Robert The trial further rule barred Points Headnotes Reference 2d, seq. Law 182 et § Jur Criminal 21 Am [1-15] 397 Mich Evans, J., people appeal charge. The dismissed the on leave (Docket 56286). granted by Supreme Court No. Allen, Jr., charged driving James was under the influence of *2 liquor, 9.2325; assault, 257.625; MCLA MSA felonious MCLA 750.82; 28.277; carrying weapon, MSA a concealed MCLA 750.227; alleged MSA 28.424. ofAll the offenses were to have occurred at the scene of an automobile accident in which defendant was involved. Defendant was tried and convicted in the Traffic and Ordinance Division of Recorder’s Court on the charge liquor. Later, driving of the under influence of he moved remaining in charges. recorder’s court for of two dismissal the J., court, Evans, The trial Robert L. found that applied charges. people transaction test dismissed the (Docket appeal granted by Supreme on leave the Court No. 56298). Percy alleged F. pig” Jones in was arrested a raid of an "blind City separate charges of Detroit and three were filed against conduct, disorderly 39-1-10; him: Detroit ordinances § possession heroin, 335.341(4)(a); 18.1070(41)(4)(a); of MCLA MSA possession marijuana, 335.341(4)(d); of MCLA MSA 18.1070(41)(d). guilty by Defendant was found a referee in the Traffic and of Ordinance Division Recorder’s Court on the disorderly charge. Subsequently, conduct defendant’s motion to remaining charges ground dismiss the two on the that the same applied court, granted by transaction test was the trial Robert Evans, people appeal granted by L. J. The on leave the Su- (Docket 56446). preme Court No. Held: 1. adopted proper The same transaction test was as the applied examining to jeopardy standard be a claim of double objective ensuring with the that a criminal defendant re- meaningful protection prosecutorial ceives from harassment.
The definition of "same transaction” as those crimes committed sequence display single in a continuous time which intent or goal is not sufficient in cases where criminal intent is not an or element of some all of the offenses. (1) 2. Crimes arise out same transaction where crimi- they
nal intent is an
element
the crimes and
are committed
sequence
display
single
in a continuous time
criminal
(2)
objective,
intent or
or
one
or more
the offenses does not
intent,
part
involve criminal
the offenses are
of the same
episode,
and the offenses involve laws intended to
prevent
evil,
substantially
the same or similar harm or
not a
different,
very
of,
or a
different kind
harm or evil.
These,
3.
liquor
cases involved either
or
traffic
law violations
require
element,
do not
which
criminal intent as an
so the
54-A applies.
definition
second
transaction
There
of the same
the offеnses
establish that
was not
link between
a sufficient
only
they
transaction where
relation-
out of the same
arose
ship
the defendants’ arrest for an
was that
between offenses
discovery
provided
of other
for the
offenses.
offense
the occasion
by
driving
prevented
under
intended to be
The harm evil
requiring ability
the law
the influence of
law and
substantially
registration
different. The
are
a valid
improper
prevented by the
U-turn
harm
be
or evil intended to
law,
prohibiting
law and the law
emission
excessive smoke
substantially
carrying
pistol
are
in a motor vehicle
of a
disorderly
prohibiting
conduct
different. The ordinance
was
substantially
prevent
harm
different
or evil from
intended to
marijuana
possession
prohibiting
or heroin. The
the laws
prevented
the DULLlaw and the
harm or evil intended to be
weapon
substantially
prohibiting carrying
are
law
a concealed
felonious assault laws were intended
different. The DUIL and
substantially
kinds of harm or evil. In none
different
subsequent prosecutions be barred.
of the four cases should
concurred,
Levin,
Kavanagh
Justice
Justice
with whom Chief
*3
opinion:
separate
result in a
reached the same
charge
part
not
more serious
was
of the
1. In each case the
and, hence, prosecution is not barred
same criminal transaction
by
Jeopardy
arise out of the same
the Double
Clause. Offenses
in
there is a substantial connection
criminal transaction where
criminality
committed. There is no sub-
between the offenses
liquor
criminality
the traffic or
in
between
stantial connection
convicted and the
of which the defendants were
law offenses
they
dismissed. The arrests of
seek to have
other offenses
only
Crampton, Hudgins
traffic offenses were
and Allen for
charged. Similarly,
discovering the other offenses
occasions for
pig”
only
being in
"blind
was
the occasion
arrest for
Jones’
only
possession
discovering
factor
his
of narcotics.
connecting
the other is that one was discov-
one offense with
consequence
apprehension for the other.
of
ered
traffic or
law
2.
intent is not an element of
Criminal
violation,
shown to establish the other
but mens rea must be
laws,
by safety
and revenue
The interests secured
offenses.
violation,
significantly
by
a nature
their
is of
harm caused
designed
protect persons
in the case of laws
different than
predatory
property from
behavior.
necessary
They
to accommodate
would also hold that where
right
placed
jeopardy for
not to be
twice in
the constitutional
establishing jurisdiction
of
offense and the laws
the same
courts, prosecutor may
court or
file an information in circuit
Criminal a defendant arise out of the same (1) joined transaction and must be at one trial where the crimes intent, are ones of criminal are committed in a continuous time sequence, single objective, criminal intent or (2) they intent, if they are not all crimes of criminal are episode and violate laws intended to evil, the same or substantially similar harm or not a different kind of harm or evil. *4 Sufficiency 3. Criminal Law —Same Transaction Rule — of Rela- tionship. There was charges not a sufficient link between certain criminal against they a defendant to establish that of arose out the same require joinder transaction and only at one trial where the relationship charged between the offenses was that the defend- provided ant’s arrest for one offense occasion for the discovery of the others. 54-A Driving 4. Criminal Law —Same Rule —Drunk —Fail- Transaction Registration. Display ure to driving of Charges the influence intoxicat- under of the offenses of registration ing liquor a valid demand and failure require transaction which would do not arise from protects trial; charges joining the former statute at one traveling public against danger not in full control from drivers themselves, protects against the theft of of and the latter 9.2325). 9.1923, (MCL257.223, 257.625;MSA automobiles Carrying 5. Criminal Law —Same a Rule — Pistol Transaction Offense. Motor Vehicle —Traffic making improper Charges U-turn and of of the traffic offenses smoke, emitting driving and the crime excessive an automobile carrying pistol not arise from vehicle do in a motor charges requirе joining the at would same transaction which promotes trial; the flow of traffic one the first traffic ordinance prevents roadways, safety the second certain and conditions on public peace promotes pollution, statute and the criminal air ordinances, (MCL 28.424; 750.227; safety Detroit MSA and 38-10-11). 38-5-7, §§ 6. Criminal Charges —Possession of the ordinance the same transaction which harmful disturbance at one 18.1070[41] Law —Same Transaction trial; substances, possession [4] [a], violation of (MCL Marijuana criminal statute 18.1070[41][4] of heroin and the ordinance 335.341[4] disorderly — would Disorderly Conduct. Rule —Possession [d]; prohibits the use of possession marijuana [a], require joining the Detroit conduct do not arise prevents unlawful civil 335.341[4] ordinance, of Heroin [d]; physically charges § MSA from 39-1- 10). Driving.
7. Criminal Law —Same Transaction Rule —Drunk intoxicating liquor driving Charges influence of under the weapon carrying arise from the same concealed do not charges require joining the at one transaction which would against traveling public trial; protects the the former statute themselves, and the danger full control of from drivers not in (MCL 257.625, 750.227; safety promotes public peace and latter 28.424). 9.2325, MSA Driving —As- Transaction Rule —Drunk 8. Law —Same Criminal sault. driving felonious Charges influence of under the transaction same criminal did not arise out of the assault require joining charges it at one trial where which would *5 397 defendant, driving alleged was that while under the the influ- liquor, ence accident another was involved driver pointed weapon and at him after the and accident threatened him; driving liquor the under the influence of statute on protects public traveling against not drivers in full control themselves, punishing and the statute felonious assault protects (MCL public physical from violence and harm 28.277). 257.625, 750.82; 9.2325, MSA Concurring Levin, Kavanagh, J.,C. and Jeopardy 9. Criminal Law —Constitutional Law —Double —Same Transaction. greater
Prosecution aof offense is not barred under the Double Jeopardy by Clause conviction a lesser offense unless both (US part Const, offenses were of the same criminal transaction 15). V; Am Const art § Multiple 10. Criminal Law — Crimes —Same Transaction. Multiple by part crimes committed a defendant were all of a single criminal transaction where the crimes were committed sequence displayed single
ain continuous time intent goal. Jeopardy 11. Criminal Law —Constitutional Law —Double —Same Transaction. primary objective test, of the same transaction which re- quires prosecution join charges to at one trial all against arising single transaction, a defendant out of a meaningful insure a criminal defendant receives protection Jeopardy Clause; under the Double if actual situa- application tions should arise in which of the same transaction objective, would not test serve that the Court will consider the adoption exceptions of limited test. Multiple 12. Criminal Law — Crimes —Same Transaction. Multiple offenses committed a defendant were same criminal transaction where there was a substantial con- criminality robbery nection in between the offenses committed — kidnapping of a bar which escalated to barmaid rape culminated in her murder —and continuous time sequence between the offenses. 54-A Multiple 13. Criminal Law — Crimes —Same Transaction —Consti- Jeopardy. tutional Law —Double criminality There was no substаntial connection in between (fail- charged traffic and law offenses and other offenses demand, registration ure carrying a valid vehicle *6 pistol license, carrying in a motor vehicle without a a con- weapon, possession substances, cealed of controlled and feloni- connecting only handgun) factor where assault with a ous one offense with another is that the other offenses were discov- consequence apprehension ered in of a defendant for the offenses; separate traffic and law each is a transaction prosecution join single and the need not the offenses in a trial protection rights to ensure of a defendant’s under the Double (US 15). Const, V; 1963, Jeopardy 1, Clause Am Const art § 14. Criminal Law —Courts—Jurisdiction—Recorder’s Court of Detroit —Circuit Courts —District Courts. may An information be filed in circuit court or in Recorder’s offenses, arising Court of Detroit for all whether under state or felonies, local law and whether misdemeanors or which are necessary of the same transaction where to an accommo- right placed dаtion of the constitutional not to be twice in jeopardy provisions for the same offense and the of law estab- lishing jurisdiction of the district court and the Recorder’s (US Detroit, City Court of the Traffic and Ordinance Division Const, V; 1, §15; 600.8311, 725.18; Am Const art MCL 27.3958). 27A.8311, MSA
Opinion Concurring in Result
Coleman, J. Jeopardy Compulsory 15. Criminal Law —Double — Joinder —Court Rules. compulsory joinder adopted A court rule could be to achieve the objective curbing prosecutorial harassment of defendants eliminating prosecutions seriatim for different offenses commit- during criminality arbitrarily deciding ted a course of without (double jeopardy) applies that a rule of constitutional law some crimes and no to others. Wyhle, Church, Kritselis & Tesseris Thomas (by Hay), H. plaintiff Crampton. Kelley, Frank J. A. Robert General, Attorney Derengoski, Raymond L. Scodel- General, Solicitor 397 Mich Opinion of the Court ler, J. and Lawrence Emery, Prosecuting Attorney, for defendant Attorney, Assistant dis- Prosecuting judge. trict General, Robert A.
Frank J. Kelley, Attorney Cahalan, L. Derengoski, William General, Solicitor Boyle, Principal Patricia J. Prosecuting Attorney, Research, Training Appeals, Attorney, Rоberts, L. Larry Prosecuting Attorney, Assistant people. for the Dennis H. Appellate
State Defender Office (by Baron), Benson Larry Hudgins, for defendants Allen, and Jones. White, People
Williams, 390 Mich Court, (1973), following NW2d the "same adopted the lead of jurisdictions,1 other proper as the standard be transaction” test *7 applied examining jeopardy.2 in a claim of double "provides it adopted only We this test because meaningful approach protec- to the constitutional tion against being placed twice in su- jeopardy”, pra, 257-258.
The cases now before this Court
us to
require
parameters
examine the
of the same transaction
1
adopted
Jurisdictions in which the same transaction test has been
Missouri,
by
Richardson,
court decision include:
State v
In opinion explore this we will the purposes test, behind the adoption of same transaction examine jurisdictions how other have developed transaction, the concept of the same set forth criteria for determining whether crimes arise out apply same transaction that standard to the facts of the four cases us. before Purpose Adoption
I — Behind Same
Transaction
Test
seeking
proper parameters
establish the
the same transaction
test we must be mindful of
the purposes
adopting
behind
the rule. We ex-
pressed the view in White the use of the same
transaction
test would promote both "the best
interests of justice
judicial
arid sound
administra-
Indeed,
tion”.
498 397 Mich 489 the of Court receives under the meaningful protection double 258, fn 6.4 jeopardy clause”. 390 Mich We observed: "A adopting far more basic reason for the same prevent transaction test is harassment a defend- joining charges arising ant. of all out of the same ' ** * episode at trial one will enable a defendant to consider the matter closed and sаve the ' * ** litigation.’ help costs equalize redundant It will also adversary capabilities grossly
the
unequal
litigants’
prosecutorial
shopping.
sentence
so,
doing
recognizes
'In
it
prohibition
of double
jeopardy
protection.’
is
the defendant’s
41
App
370,
(1972).”
378;
326,
200 NW2d
330
It is protection defendant from the possibility prosecutorial harassment which was foremost in our minds adopted when we transaction principle test5 and this is the which must kept be in mind we give as substance to the phrase, the same transaction. 4 Jeopardy guarantee "The Double Clause 'that the State power all its attempts repeated resources and not be allowed to make [shall] alleged offense, thereby to convict an individual for an subjecting embarrassment, expense compelling him and ordeal and * * * continuing anxiety insecurity him to live in a state of .’ 184, States, 221; 199; Green v United 355 US 187 S Ct L2 Ed 2d [78 (1957).” Concurring opinion 61 ALR2d 1119] of Justice in Brennan Swenson, 436, 450; 1189, 1197-1198; v Ashe 397 US 90 S Ct 25 L Ed 469, (1970). 2d recognize exception In White we did to the same transaction " completed despite test due of transaction 'where crime is not or not discovered diligence part police, on the until after the commencement prosecution arising for other crimes from same * * * Swenson, 436, 7; ’. Ashe n Ct US 90 S (1970) (Brennan, J., concurring).” 25 L Ed 2d exception Whether an to the same transaction test should be
recognized through prosecutor in those cases which the does not know diligence charges against due could not discover that other question the defendant exist is a that deserves our careful considera- However, opinion tion. instant this since we have ruled that none of (see appeals fall within the same transaction test IV of opinion), question it today. is a we need not answer *9 54-A Opinion of the Court White Crimes— Transaction — Intent II —Same Applies all White dealt with a series of offenses of which intent was an criminal involved crimes where White, this Court said: of the crime. element the three crimes com- that no doubt can be "[T]here single criminal part of a all were defendant mitted in a continu- committed were The crimes transaction. goal single intent and a sequence display ous time (Emphasis complainant.” with —sexual intercourse added.) 259.6 that еstablished: This was the case criterion single sequence continuous "a time [of] goal.” intent test generally
This workable provides criterion determine whether a apply most instances exists single jeopardy transaction vis-á-vis double crimes where if all the activities involve crite- intent accept is an We as the element. applied only in all cases where rion which must be intent crimes question. are in
Ill —Same
Crimes
Transaction — No-Intent
no
involve
either
a series of offenses
Where
crimes,
intent
crimes or
and no-intent
intent
work-
White
provide wholly
does not
criterion
opinion
with
deals
test. The cases
which
able
such fact
task therefore
involve
situations. Our
them
test
appropriate
criterion to
to formulate
of White.
spirit
in the
charged
kidnapping, felonious
White had been
Defendant
rape.
assault 397 Mich Opinion of the Court Institute Model Penal American Law Code prosecutions seeks to successive where offenses episode. are the same criminal 1.07(2) 1962) Draft, Section (Proposed pro- Official in pertinent vides part:
"A subject separate defendant shall not be to trials multiple for arising based on the same offenses conduct or episode,
from the same criminal
if such offenses
are known
appropriate prosecuting
to the
officer at the
time of the
of the first
trial
commencement
and are
jurisdiction
single
within the
of a
court.”
v
In
Campana,
Commonwealth
Pa
(1973),
bring,
single
proceeding,
charges
against
all known
”
'single
a defendant arising
episode.’
from a
criminal
(Footnote omitted.)
White
quotation
used above in
I
part makes
use
the term "criminal episode” as follows:
joining
"The
charges arising
of all
out
the same
'
*
* *
episode
will enable a defendant
to
consider the matter closed and save the
cost
redun-
”
litigation.’
dant
Both New Hawaii and York have approach problem at that suggests hand useful another Ahuna, State v criterion. 321, 326; 52 Hawaii (1970), 474 P2d the Supreme Cоurt Hawaii held: 54-A op the Court
"We satisfactory approach think that a prob- proposed lem is set forth in of the Hawaii § Penal approach prosecution, Code 1970. Under the a former although it has been for a violation of a different statutory provision, subsequent prosecution will bar a if subsequent prosecution is for an offense based on conduct, 'requires proof unless the offense of a required fact not by the former offense and the law defining each is offenses intended to ” substantially different harm or evil.’ provides A New York criminal statute likewise subsequent prosecutions will not be barred * * * where "the [contain] offenses an element other, which is not an element of the and the statutory provisions defining such offenses are de- signed prevent very different kinds of harm or 40.20(2)(b) (McKinney evil”. § NY Crim Pro L 1971).7 jurisdictions
A common criterion in both these *11 applied the same transaction rule where the prevent offenses involve laws intended to the same substantially evil, or similar harm or not "a differ- (Hawaii), "very ent harm or evil” or different (New York). kinds of harm or evil” Drawing upon these sources certain criteria for determining whether crimes arise out of the same transaction can be set forth.
1)
required
Where criminal
intent
is
in the
involved,
offenses
the criterion set forth in White
7
York,
Supreme
See also In re Martinis v
Court of
15
New
NY2d
(1965).
247;
165, 167;
206 NE2d
258 NYS2d
68
nature,
long
recognized
separate
"It has
been
that crimes
al
though arising
transaction, may
out of the same
be defined and
exposing
convictions thereon sustained without
defendant
to double
jeopardy (People Snyder,
App
742;
[1925],
v
214
Div
2) Where more of the offenses one or does not intent, involve criterion whether episode, the offenses are of the same criminal and whether offenses involve laws intended to evil, or similar harm not a substantially very different, of, or a different kind harm or evil.9 purport
The above
criteria do not
be all-inclu-
sive. Criteria could no doubt be fashioned to en-
compass
greater
number of fact situations and
perhaps
guidance
thereby promote
offer more
greater degree
ato
the efficient administration of
justice. However, we believe that
the criteria set
today
appropriate
forth
are
broad as
as
until we
upon
called
are
cases.
to consider further
illustrative
Application
IV —
Standard
The task
remains
determine whether
individual offenses involved in each of the four
cases before us arise out of the same transaction.
Each of the four cases include either
traffic or
require
law
Such
do
violations.
offenses
not
8
agree
Appeals application
We
Court
with the
of the White
following
Rolston,
People
146;
rationale
App
cases:
v
51 Mich
(On
(1974); People
Remand),
App
A. May Clyde Crampton 13, 1972, On was arrested Lansing charged driving under the liquor, 257.625; influence of MCLA MSA 9.2325. complaint alleging charge was filed in 54- May Subsequently, 16, A District Court on 1972. separate complaint charging Cramp- 28, on June display registration ton with failure to a valid demand, 257.223; 9.1923, MCLA MSA was also filed in the district court. It is clear that complaint May second was also based on the arrest. complaints, Crampton
Faced with the two
Mr.
guilty plea
display
entered a
to the failure to
registration charge
on October
1972. On No-
quash
driving
vember
moved to
liquor charge by arguing
under the influence of
any
that
further
the same transaction rationale barred
prosecution.
The district court held that
apply
the same transaction rule did not
and the
Appeals
circuit court affirmed. The Cоurt of
denied
granted
September
leave and we
4, 1974,
leave on
(1974).
So whether inability offenses of DUIL and a valid registration part are of the same transaction. they employ Since are not intent we offenses second criterion "whether the offenses are episode, the same criminal and whether the of- fenses involve laws intended to *13 op Opinion the Court substantially evil, a differ- or similar or not harm very ent, of, or evil”. harm a different kind display inability a to valid Were DUIL and episode? registration part same criminal part Nothing were two offenses indicates these appears merely episode. DUIL the same criminal exposing inability to have been the occasion of display registration. to a valid
Furthermore, evil intended to the harm or be prevented requiring by the law the DUIL law and registration ability display are substan- to a valid protect tially to the tra- different. The former is velling public against danger not in from drivers protect to full themselves. The latter is control of against the theft of automobiles. Crampton short, are not the two offenses our of the same transaction under second guilty plea the failure to
criterion. The registration charge was not a bar therefore on circuit court and the district DUIL. The suit court
holdings correct. were therefore Hudgins B. Hudgins
Royce arrested on Daniel was October charged 5, with three offenses all de- making improper point time: an tected at one (Detroit 38-5-7); driving ordinances, § an U-turn (Detroit emitting ordi- excessive smoke automobile 38-10-11); pistol carrying nances, § in a (MCLA 750.227; motor vehicle without license 28.424). April 25, 1974, before the sched- MSA uled date of his trial on the two ordinance On
charges,
Hudgins
guilty plea in
Traffic
Mr.
entered a
to the
and
improper
Division of Recorder’s Court
Ordinance
exhaust
U-turn and excessive
smoke
charges.
by
was convicted
fined
the court.
He
54-A the Court
in recorder’s
The same
he moved
court
day,
gun charge,
arguing
dismiss
prosecution.
further
any
transaction
rule barred
agreed
charge.
The trial
and dismissed the
judge
granted
people appeal
bypass
Court,
(1974).
Hudgins poses question making whether *14 a improper operating U-turn vehicle which pistol a carrying emits excessive smoke in a part motor of the same vehicle are trаnsaction. making improper operating Since an U-turn and a vehicle which emits excessive smoke are non-in- offenses, again tent the second employ we criterion test, supra. of our
First, we connection only find that between making improper offenses of U-turn or excessive a carrying weapon smoke emission resulting was that the arrest from the traffic viola- discovering tions was the occasion for that Hud- gins pistol was a in the vehicle. As with carrying Crampton, such a connection is not sufficient to establish that part these offenses of the same were episode. harm
Secondly, pre- or evil intended to be law, by improper vented U-turn the excessive prohibiting smoke emission law and the law carrying are weapons substantially different. prohibits improper The law which U-turns is de- signed promote to the flow of traffic and safety designated roadways. conditions on certain prohibiting law excessive smoke emission is de- signed prevent polluting the air. Neither these offenses involves laws intended to sought the same or similar harm evil be or, the law prevented by рrohibiting carrying pistol vehicle, public motor namely, promote peace safety. Opinion of the Court
Therefore, the traffic offenses and the crime of carrying pistol in a motor vehicle were not of the same transaction under our second crite- ruling rion. The trial court was in error in its prosecution gun charge on the was barred the same transaction rule.
C. Jones February
On
17, 1974, Jones was arrested in a
alleged
pig”
City
raid of an
"blind
in the
of De-
separate charges
against
troit. Three
were filed
(Detroit
disorderly
him:
ordinances, §
conduct
39-1-
10);
(MCLA
possession of heroin
335.341[4][a];
[a]);
possession
MSA 18.1070[41][4]
of mari-
(MCLA
juana
335.341[4][d]; MSA 18.1070
[d]). Approximately
[41][4]
later,
one month
on
guilty by
15, 1974,
March
Mr. Jones was found
a referee in the Traffic and Ordinance Division of
disorderly
charge.
Recorder’s Court on the
conduct
imposed. Subsequently,
July
A fine of
was
$100
8, 1974, Mr. Jones moved to dismiss the two re-
*15
maining charges
arguing
by
that the same transac-
applied
judge
tion test
granted
to this case. The trial
people appealed
the motion and the
on
bypass
(1975).
granted by
Court,
this
disorderly conduct offense possession of heroin and mari- juana disorderly was that the arrest for conduct discovery was the occasion for the of the additional possession marijuana of heroin and offenses. Such a connection is insufficient to establish that these episode. offenses were of the same criminal
Secondly, purpose disorderly of the conduct prevent ordinance is to unlawful civil disturbance 54-A op the Court prohibiting while the the laws purpose of and heroin to ulti- possession marijuana of mately prohibit physically the use of harmful prohibiting the ordinance dis- Clearly, substances. was intended substan- orderly conduct tially prohib- or evil from the laws different harm possession iting or heroin. marijuana Therefore, disorderly conduct offense and crime possession marijuana heroin were not part of the same transaction.
The trial in its ruling court was error prosecution possession marijuana herоin offenses was barred because transaction rule.
D. Allen 29, 1973, Allen, Jr., September
On
James
was
charged
driving
arrested and
under
the influ-
(MCLA
9.2325);
257.625;
ence of
MSA
feloni-
(MCLA
28.277),
750.82;
ous assault
MSA
and car-
(MCLA 750.227;
MSA
rying
weapon
concealed
28.424). All offenses are
to have occurred
alleged
at
the scene of an automobile
accident
in which
26, 1973,
Allen was
Allen
involved. On November
trial
in the Trafile and
Division of
stood
Ordinance
charge. He
Recorder’s Court on the DUIL
was
court
days
convicted and sentenced
at
the Detroit
of Correction.
February
House
On
1974, he moved in recorder’s
court
for the dis-
remaining
charges.
missal of the two
The trial
applied
found that
the same transaction
test
judge
accordingly
charges.
people
dismissed the
Court, 393
appeal
granted by
bypass
(1974).
*16
offense,
is a non-intent
we once
Since DUIL
test. In
again employ
second criterion of our
As for DUIL carrying weapon, concealed we find that part these two offenses are not same First, transaction. we find that these offenses are not part of episode. the same criminal The only connection between DUIL carrying weapon concealed in this case is that arrest for the DUIL violation was the occasion for the discovery of the concealed weapon. As we have seen in Crampton, Hudgins, Jones, this is not a suffi- cient link to establish that these offenses were part of the same episode. Secondly, we find that the harm or evil intended pre- to be vented by the DUIL law and the law prohibiting the carrying of a concealed weapon are substan- tially different. purpose law, of the DUIL as we noted in our Crampton, discussion of is to protect travelling public against danger from drivers not in full control of themselves. The pur- pose of the law prohibiting carrying a concealed weapon is to promote public peace So, and safety. clearly, these offenses involve laws intended substantially diffеrent harm or evil. Therefore, the trial court was in error in ruling that DUIL and carrying a concealed weapon were transaction, of the same barring prosecu- thus tion on the concealed weapon offense.
As for DUIL assault, and felonious we find that these two offenses are also not part of the same transaction. It is a question close whether DUIL offense and the felonious assault offense this case were part of the same criminal episode. However, we need not make this determination *17 v 54-A Levin, Opinion by J. because, part test, the other of the applying we find that the DUIL and felonious assault laws were intended to substantially different kinds of harm or evil. have already We reiterated purpose of the DUIL law: to protect the tra- velling public against danger from drivers not in full control of themselves. The purpose of the felonious assault protect public law is to from physical Therefore, violence and harm. the trial court was also in error when it concluded DUIL and felonious assault were part the same trans- action. Prosеcution on the felonious assault charge was not barred under the same transaction rule.
IV — Conclusion Under adopted standard for today determin- ing whether offenses arose out of the same trans- action, we conclude in none of the four cases should subsequent prosecutions be barred. In Crampton the district court affirmed. Hud- gins, Jones, Allen and recorder’s court is reversed and those cases are remanded for trial. JJ., Fitzgerald,
Coleman concurred with Williams, J. JJ., Ryan, took no in the
Lindemer decision of this case. J. (concurring). Crampton, Hudgins and
Levin, Allen were arrested for traffic offenses. Jones was in being arrested a blind pig, offense related to the enforcement laws. a result As arrests, of such the police discovered other law case, violations. In Crampton’s a less serious of- fense was discovered: failure a valid 397 Mich Levin, registration motor on demand.1 In vehicle cases, other more serious offenses were discovered:2 Hudgins, pistol carrying in motor in a vehicle possession Jones, license;3 without a of heroin4 marijuana;5 carrying Allen, a concealed weapon6 and felonious assault7 committed on the driver another vehicle. In each case the was convicted of defendant (either plea guilty less serious offense his *18 trial)
following sought and dismissal of the more charge ground serious on the that both offenses part [People White, were of the same transaction v (1973)] and, 390 212 222 NW2d under Jeopardy prosecution Clause, the Double further Crampton barred. was refused but the other de- requested. fendants obtained the relief granted by-pass. We
We conclude in each case the more serious charge part and, was not of the same transaction prosecution by hence, is not barred the Double Jeopardy Clause.
I People supra, White, In v the defendant was 1 257.223; MCLA MSA 9.1923. 2 Crampton, driving In the more serious offense was under intoxicating liquor. 257.625; Allen, influence of MCLA MSA 9.2325. In driving intoxicating under the influence of was the less serious Allen, Crampton charges offense. In both law violations. In all the were for state Hudgins Jones, the less serious offenses were Hudgins, making improper for violation of local ordinances: in U- (Detroit driving emitting turn and аn automobile excessive smoke ordinances, §38-5-7; 38-10-11); Jones, disorderly in in conduct being ordinance, pig. in a blind Detroit 39-1-10. § 3 750.227; MCLA MSA 28.424. 18.1070(41)(4)(a). 335.341(4)(a); MCLA MSA 18.1070(41)(4)(d). 335.341(4)(d); MCLA MSA 750.227; MCLA MSA 28.424. 750.82; MCLA MSA 28.277. 54-A v Opinion by Levin, charged kidnap- in circuit court of and convicted ping separately charged a woman. He was Court convicted in Detroit Recorder’s of the of- rape fenses assault of the and felonious woman. adopting test, the same transaction this Court charges said that both arose "out of the same episode”. criminal
"There can be no doubt that the three crimes com- single mitted defendant were all of a transaction. The crimes were committed in a continu- sequence single time goal ous intent and —sexual complainant.” People with the intercourse White, supra, p 259. holding footnote,
In a this Court said that the present White was limited "to case facts * * * empha- and to similar factual situations. size that our We primary objective adopting same transaction test is to insure that a criminal meaningful protection defendant receives under jeopardy the double clause. If actual situations application should arise in which transaction test would not serve that of the same
objective, we adoption will, case, in such a consider the of exceptions limited to the same transaction test.” People supra, p White, 258, v fn 6. Appeals applied
The Court of has the White rationale. People App Rolston,
In 146; v 51 Mich 214 (1974), NW2d 894 it was claimed that the defend- kidnapped, raped ant had robbed a bar and and Appeals murdered a barmaid. The Court of that defendant’s held "acquittal of murder for the arising single, episode events out of this of robbery, kidnapping, rape and murder bars further prosecution by People Similarly, the state”. in v (On Remand), App 334; Joines 55 Mich 222 NW2d
512 397 489 Mich Levin, Opinion by acquitted (1974), was defendant where the County, charge kidnapping in of Genesee subsequent Living- Appeals his Court of reversed County with intent of assault ston conviction rape kidnapping. the victim of (On Remand), People Davenport
In
v
(1974),
People
App
West,
and
v
In 58 Mich (1975), was NW2d 523 the defendant convicted February proceeding possession one 20, of of heroin on separate proceeding possession 1973 and in a of heroin on March 1973 as the result trans- agent. police with the same actions undercover affirming conviction, the defendant’s Court second Appeals the deliveries heroin said while during agent were "to the same the course * * * investigation these undercover continuous intimately not the events facts do relate alone 8Davenport acquitted was was convicted. West 750.479; MSA 28.747. MCLA *20 10 750.479; MSA 28.747. MCLA 54-A 513 v Levin, Opinion by enough being so to them as as charаcterize a single adopted of a under the test transaction * ** People v White. record does not dis- [T]he any sales], close between two such [the connection agreement delivery as an after the first to return for another sale.” People Goans, v 294, App 297;
In 59 Mich 229 (1975), charged NW2d 422 defendant was driving11 pled felonious to an guilty added charge of stop failure to at a motor vehicle acci- involving damage.12 dent property The Court Appeals plea guilty held that a to one of two counts a multi-count information does pre- not proceeding clude on other counts where the de- plea fendant enters a "with the full awareness the prosecutor proceed that intends to trial See Genesee Prosecutor v charge.”13 the other Judge, Genesee Circuit 115; 391 Mich 215 NW2d (1974). 145 Williams, v People 61 App 646;
In Mich 233 (1975), 122 NW2d the defendant entered a plea of guilty breaking entering occupied an dwell- ing. Subsequently person the defendant as- dwelling injuries. saulted in the died his referring exception Court of Appeals, noted White, in footnote 6 of held "that since the crime charged with which defendant was was not here complete plea, at the time of his his earlier convic- is not jeopardy”. tion barred double Jackson, People v 391 Mich 217 (1974), NW2d the defendant was arrested when plea. considerations.” 422 (1975). MCLA "We MCLA the other A case where emphasize 257.618; MSA 752.191; MSA 28.661. charge People that defendant had would 9.2318. Goans, plea be dismissed pled guilty gase App would was not a 294, 298; in the present expectation 229 NW2d negotiated different *21 489 397 514 Levin, J. stolen, during card the sought credit
he to use a bar, person from a rob a attempt of course plea of held that defendant’s the bar. This Court attempted posses- unlawful of guilty the offense prosecution not bar of a credit card14 did sion being armed.15 While to rob assault intent attempted to the related charge credit card was sense that credit card robbery in the charge attempt, sepa- these were during stolen that was transactions: rate not license subse-
"The does Jeopardy Double Clause or quent growing out of a theft excuse offenses theft upon trial for one or another оffense.” People
The Jackson adopted was analysis Johnson, 240, 249; 233 NW2d Charles App 62 Mich (1975), where, escape, following prison 246 knifepoint at to accom- defendant forced a woman drove in her The they him while automobile. pany prison escape16 of and defendant was convicted with intent was convicted assault subsequently Appeals de- felony.17 to commit a Court jeopardy "the clause not double does clared subsequent growing prison license offenses out upon of one or escape escape or excuse the trial offense”. another
II White, Joines, West, Davenport In there a com- sequence both a continuous time were sought He arrested when he to use the credit card. Jackson was charge attempted possession pled guilty to the reduced unlawful card. a credit 750.89; MSA 28.284. MCLA 750.193; MSA 28.390. MCLA 750.87; MSA MCLA 28.282. v 54-A Levin, Opinion by goal mon or intent —sexual intercourse with the (White Joines) victim or refusal to submit police West). (Davenport officers’ authority Rolston, goal common intent did ap- not but pear, there was a substantial connection in criminality between the offenses committed. Rob- bery of to kidnapping the bar escalated of the rape barmaid and in her culminated and murder. There episode was but one criminal and all offenses were same criminal transac- *22 tion.18 Martinez, contrast, in the two sales of heroin
were nine days apart and there was no connection between the sales. There were two criminal epi- sodes, separate two transactions. In Jack- son, while the attempt use the credit card was possible made by during attempt its theft the bar, rob the the chain of criminality was broken departure when Jackson his bar; secured from the there was no in substantial connection criminality between the credit card offense and the offenses Johnson, committed in Similarly, the bar. in the escape defendant had good made his from Jackson State Prison and had traveled a considerable dis- tance before he in Living- encountered the woman ston County. While Johnson still fleeing was and the subsequent against offense "the woman was made possible by prison escape, the chain of criminality was broken some time between escape from prison and his encounter with the woman; police in pursuit, were not hot there continuing was no criminality course of such as hostage victimization of might a which connect prison escape with the assault.
In the instant
appear
cases it does not
there is a
felony-murder
750.316;
recognizes
statute MCLA
MSA 28.548
criminality
a substantial
connection in
between
offenses
certain
against property
against persons.
Levin,
criminality between the
substantial connection
liquor
the defend-
of which
offenses
traffic or
law
they
offenses
the other
were
ants
seek to have dismissed.19
convicted
driving
the influ-
Crampton’s
under
for
arrest
intoxicating
for
the occasion
but
was
ence of
discovering
registra-
inability
a valid
his
improper
making
Hudgins’
tion,20
for
arrest
as
emission was
smoke
U-turn and excessive
carrying
discovering
a
that he was
occasion for
license,
pistol
without
in motor vehicle
driving
influence of
under the
Allen’s arrest for
intoxicating liquor
discovering
the occasion
was
weapon.
carrying
Simi-
a concealed
that he was
larly,
pig
being
but
was
in a blind
Jones’ arrest for
discovering
possession of her-
his
the occasion for
appear
marijuana;
that Jones
it does not
oin
acquired
pig.
ity
ing
marijuana
the blind
or the
the heroin
in criminal-
connection
no substantial
There is
only
factor connect-
offenses where
between
that one was
other is
offense with the
one
apprehension
consequence
for the
discovered in
separate transaction.
other;
each is
of traffic
element
intent
is not an
Criminal
*23
wrongdo-
However, conscious
law violation.
ing,
establish
rea,
shown to
mens
must be
possession
weapon,
carrying
offenses of
a concealed
prohibited
assault.21
felonious
or
substances
19
jeopardy
is a misdemeanor
whether the offense
A defendant
is in
accordingly,
properly
and,
felony
be drawn
distinction cannot
or a
on the basis
the basis of the
felony
or a
or
misdemeanor
of characterization as a
length
potential
imprisonment.
v
See Waller
(1970),
1184;
398
Florida,
387;
reh den
21 240; States, 246; L Ed 96 72 S Ct v United 342 US Morissette See v 54-A 517 Levin, Opinion by safety While measures are and revenue sometimes penal sanctions, enforced with interests thereby secured, the harm caused their viola- significantly tion, is of nature different than in protect designed persons the case of laws to property predatory from behavior. We need not attempt anticipate myriad to situations that may ground arise or fill in the between the two groups Allen, broad of offenses. In there is no criminality substantial connection between driving drunk gun; and felonious assault with a hand- separate each is a transaction.
Ill necessary In the accommodation of the constitu- right placed jeopardy tional not to be twice in provisions statutory the same offense and the establishing jurisdiction and local law22 City court23 district and the Recorder’s Court of the preser- Detroit, Division,24 Traffic and Ordinance right impair- vation of the constitutional without requires ment of full enforcement of the laws thát necessary we hold that where to accommodate objectives prosecutor may those file an informar tion in circuit court recorder’s court for all arising offenses, whether under state or local law (1952). 288 procedural allocating jurisdiction try “A rule between offenses the several courts of the state must be subordinated the defend right put jeopardy ant’s not be constitutional twice in for the same States, 298, 261, 266; Cf Gouled v United offense. 255 US S41 Ct (1921). 647, judicial is, power 65 L Ed This state’s under our Constitution, 6, justice’. in 'one vested court of among Const art 1. § power courts, is divided While parts-of several all courts are judicial White, system.”' People the same unified 41 Mich (1972). App 380; 200 NW2d 600.8311; MCLA MSA 27A.8311. 725.18; MSA 27.3958. MCLA *24 397 Mich Coleman, J. felonies, and whether which misdemeanors are the same transaction.25 court affirmed. In In the district is. Jones, Hudgins, Allen and recorder’s court reversed and those cases are remanded for trial.
Kavanagh, J., Levin, C. concurred with J. result). Coleman, in In (concurring an effort situation, to alleviate an my colleagues untenable have determined that the "same transaction” the- ory is inapplicable agree to certain situations and I with the opinions. results of both 1963, 1, 15,
Const provides: art § person subject "No shall be for the same offense to be put twice in jeopardy.” White,
In People
245;
v
Although colleagues solutions, my stop-gap offer they approach do not problem. fundamental A sound protection constitutional has been strained (On Remand), People Davenport 484, App 51 Mich (1974), NW2d 702 the Court said: protection against jeopardy "The conflict between the double jurisdiction among the allocation of the district and circuit courts can courts, by authorizing probably be resolved one of those the circuit court, charges, fеlonies, try all misdemeanors and in cases such as However, grant authority may the instant one. only of such made be Legislature Supreme by the or the Court. Const act, art 13.§ must, prosecutors Until either or both of those bodies when one, charge confronted with pursue.” case such as this elect which *25 54-A District by Coleman, Opinion J. beyond jurispruden- reasonable accommodation to tial limits.
The wisdom of Justice former dissent Brennan’s apparent by in White is the made more resultant legal snarls, some of which we now address. Jus- tice said: Brennan "My disagreement majority the lies not in the is,
objective* It curbing prosecutorial discretion. rather, logic with the the route chosen achieve the objective. " support While I would an amendment the court offenses, mandating joinder rules of related I would bar, having affirm the conviction at with same been procedural obtained in accordance rules extant at added.) proceedings (Emphasis time below.” objective”
It is the "route chosen to achieve the in White that led to the has rationalization necessary deemed to аvoid results. absurd sought Ostensibly, majority in White to curb prosecutorial by harrassment of defendants elimi- nating prosecutions. However, seriatim the Court objective through could have achieved mandating joinder amendment1 to the court rules of related offenses as Justice Brennan advocated in his dissent. joinder mandatory
Because
does not rise to the
dignity
law,
of a rule of constitutional
the Court
exceptions
permit
could carve out
to the rule and
1963,
6,
provides:
Const
art
5§
supreme
general
establish,
by
modify,
"The
court shall
rules
amend
simplify
practice
procedure
in all courts of this
* *
*
.”
state
Rhodes,
In Buscaino v
385 Mich
Every practice not rest need desirable expansion our elastic further constitution encompass interpreted every- which, if it can be thing, may nothing. eventually mean affirming Cramp-
I concur in the district court reversing I ton. also concur in recorder’s court and remanding Hudgins, Allen and Jones. trial