Lead Opinion
A jury convicted defendant, as charged, of armed robbery, MCL 750.529; bank, safe, or vault robbery, MCL 750.531; first-degree home invasion, MCL 750.110a(2); and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to 15 to 40 years’ imprisonment for armed robbery, 7-1/4 to 40 years’ imprisonment for bank, safe or vault robbery, 12-1/2 to 20 years’ imprisonment for first-degree home invasion, all to run consecutively to 2 years’ imprisonment for felony-firearm. This Court granted defendant’s delayed application for leave to appeal limited to whether his convictions and sentences for both armed robbery and safe robbery violate federal or Michigan constitutional double jeopardy prohibitions against multiple punishment for the “same offense,” and whether the trial court abused its discretion in admitting into evidence letters purportedly written by defendant. We affirm.
The victim’s testimony supplies the pertinent facts. Defendant invaded the victim’s
We review defendant’s double jeopardy claim de novo because it presents a question of law and it requires this Court to construe the criminal statutes at issue to determine if the Legislature intended multiple punishments. People v Calloway,
Both the United States and Michigan constitutions prohibit a person from twice being placed in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v Nutt,
Both federal and Michigan double jeopardy provisions afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. Id. at 574; Pearce, supra. The first two protections against successive prosecutions “involve the core values of the Double Jeopardy Clause, the common-law concepts of autrefois acquit and convict.” People v Robideau,
Under the federal Double Jeopardy Clause, whether the Legislature intended to impose multiple punishments for violations of more than one statute during the same transaction or incident is generally determined by the application of the
But the Blockburger same elements test is merely a rule of statutory construction, which creates a presumption that is subject to clearly expressed legislative intent to the contrary. Whalen v United States,
Whether multiple punishments may be imposed under Michigan’s Double Jeopardy Clause when different criminal statutes cover the same conduct is also determined by whether the Legislature intended to impose multiple punishments. Denio, supra at 707; People v Dillard,
The Robideau Court suggested the following general principles as aids in ascertaining legislative intent:
Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments.
A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature.
We do not intend these principles to be an exclusive list. Whatever sources of legislative intent exist should be considered. If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended. [Robideau, supra at 487-488.]
In applying the Robideau principles to the question whether the Legislature intended to permit punishment for both armed robbery and safe robbery where the same conduct establishes both in a single trial, different panels of this Court have reached different results. See People v Campbell,
In Campbell, a jury convicted the defendant of bank robbery, MCL 750.531, and unarmed robbery, MCL 750.530, arising out of a robbery of a single bank teller. The Campbell panel applied the Robideau social norms test and found that Witt was wrongly decided, concluding “that the bank robbery statute and the armed and unarmed robbery statutes were all intended by the Legislature to prohibit conduct violative of the same societal norm.” Campbell, supra at 6. The Campbell panel reasoned that bank robbery (to the extent the offense did not address safecracking) “was intended to
Both Campbell and Witt are nonbinding precedent under MCR 7.215(J)(1) because they were decided before November 1, 1990. But this Court adopted and applied the reasoning of Witt in deciding that although multiple bank tellers may be present during a robbery, only one bank is robbed, and the Legislature did not intend multiple convictions and sentences. People v Shipe,
In ascertaining the legislative intent behind [MCL 750.531], it is helpful to compare it with the armed robbery statute. This Court has held that the bank robbery statute and the armed robbery statute, though involving comparable subject matter, were promulgated to protect different interests. The former statute is intended to protect those structures intentionally constructed to protect valuables, while the latter is intended to protect persons from assaultive takings by means of a dangerous weapon.11
The Court reviewed federal authority, including United States v Canty, 152 US App DC 103, 115-116; 469 F2d 114 (1972), interpreting the federal bank robbery statue, 18 USC 2113, which, “like its Michigan counterpart, punishes a variety of different theft offenses from banks, including the taking from a person or in the presence of another any property, money, or thing of value belonging to, or in the care or custody of, the bank.” Shipe, supra at 633. The panel then opined:
Consistent with this Court’s prior determination in Witt and Thomas of the interests the bank robbery statute is intended to protect, we adopt the reasoning in Canty of the federal Court of Appeals for the District of Columbia. We believe that the legislative intent of the bank robbery statute is that a defendant cannot be convicted of two bank robbery offenses under the circumstances of this case. As in Canty, the crime involved here is bank robbery, and it is clear that there was only one transaction and only one bank robbed. [Shipe, supra at 634.]
We conclude that Shipe is controlling precedent, pursuant to MCR 7.215(J)(1), on the issue of the “social norms” the Legislature intended MCL 750.531 to protect. We distinguish People v Douglas (On Remand),
Shipe also was correctly decided. MCL 750.531 establishes only one offense that may be committed by multiple means. The “bedrock rule” of judicial interpretation of a statute is to “ascertain and give effect to the intent of the Legislature.” People v Pasha,
Any person who, with intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or attempt, or threaten to confine, kill, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any building, bank, safe or other depository of money, bond or other valuables, or shall by intimidation, fear or threats compel, or attempt to compel any person to disclose or surrender the means of opening any building, bank, safe, vault or other depository of money, bonds, or other valuables, or shall attempt to break, burn, blow up or otherwise injure or destroy any safe, vault or other depository of money, bonds or other valuables in any building or place, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years. [Emphasis added.]
The plain language of the statute requires for its violation, by whatever means accomplished, the larcenous or felonious intent to access a bank, safe, vault, or other depository of money or valuables. In every case the statute does not require that property actually be stolen or that the offender be armed with a weapon. By whatever means accomplished, the focus of the offense is on accessing a bank, safe, vault, or other depository containing valuables for the purpose of stealing its contents. This Court and our Supreme Court have held in other contexts that although a statute may be violated by multiple means, only one criminal offense is created. See, e.g., People v Johnson,
We also find support for the Shipe panel’s analysis by analogy from our Supreme Court’s construction of MCL 750.529a(1), the carjacking statute, which provides:
A person who by force or violence, or by threat of force or violence, or by putting in fear robs, steals, or takes a motor vehicle as defined in section 412from another person, in the presence of that person or the presence of a passenger or in the presence of any other person in lawful possession of the motor vehicle, is guilty of carjacking, a felony punishable by imprisonment for life or for any term of years.
In Davis, supra at 78, our Supreme Court held that although the defendant stole a car by threatening both its driver and its passenger, only one carjacking occurred. The Court reasoned:
A straightforward reading of this language shows that the conduct to which the statute applies is the taking of a motor vehicle under certain circumstances. Those circumstances include the nature of the taking and from whom the motor vehicle is taken. The core and focus of the offense, however, are the taking of a motor vehicle. Because defendant took one motor vehicle, the language of the carjacking statute allows only one carjacking conviction. [Id. at 80 (emphasis added).]
Like the carjacking statute, which involves assaultive conduct directed at a person yet its focus is on the theft of particular property, the bank robbery statute, though it may involve assaultive conduct against a person, has its core and focus on the attempted theft of property from a bank, safe, vault, or other depository. The “unit of prosecution” under MCL 750.531 is the bank, vault, or safe. In contrast, the focus of the armed robbery statute is quite different. “The focus of the armed robbery statute is on the person assaulted.” Davis, supra at 81-82. Indeed, the primary purpose of the armed robbery statute is the protection of persons, and “the appropriate ‘unit of prosecution’ for armed robbery is the person assaulted and robbed.” Wakeford, supra at 111-112. Accordingly, because the armed robbery statute and the bank, safe, or vault robbery statute are intended to protect different social norms, Shipe, supra at 632, the statutes “can generally be viewed as separate and amenable to permitting multiple punishments.” Robideau, supra at 487.
We find further support for this conclusion in the legislative sentence guidelines. Both armed robbery and bank robbery are punishable by up to life in prison. Both are categorized as offenses against persons under the guidelines. MCL 777.16y. But armed robbery is a class A offense while bank robbery, by whatever means committed, is a class C offense. Id. Thus, a conviction for armed robbery will invariably result in a greater recommended sentence under the guidelines then a conviction for bank robbery, even though both are life offenses. See MCL 777.62 (class A grid) and MCL 777.64 (class C grid). This disparate sentencing treatment supports the conclusion that the Legislature’s primary focus in the bank robbery statute was the type of property targeted by the offender rather than that the offense be committed by assaulting a person.
Moreover, the legislative guidelines list but one offense for MCL 750.531: “bank robbery/safebreaking.” MCL 777.16y. If the Court in Campbell, supra at 6, correctly determined that the bank robbery statute actually sets forth two distinct offenses, “bank robbery involving assaultive conduct and safecracking,” then that part of the statute providing the offense may be committed by means of assault is rendered superfluous because such conduct is prohibited by other statutes, including unarmed robbery, MCL 750.530; assault with intent to rob while armed with a dangerous weapon, MCL 750.89; and assault with intent to rob while unarmed, MCL 750.88. “When construing a statute, the court must presume
We also apply the Blockburger “same-elements” test as an aid to statutory construction. People v Hurst,
Thus, utilizing both the Robideau test and the Block-burger test, we arrive at the same conclusion: the Legislature intended to permit separate punishment for both armed robbery and bank, safe, or vault robbery. Accordingly, “since a legislature may specifically authorize penalties for what would otherwise be the ‘same offense,’ cumulative punishment of the same conduct under two different statutes in a single trial does not run afoul of the Double Jeopardy Clause in either the federal or state system.” Sturgis, supra at 403. That the facts in this case prove that the commission of bank robbery is factually encompassed within the commission of armed robbery does not alter this result. See Hurst, supra at 637, rejecting a “factual identity test” in holding that the defendant’s convictions for both unlawfully driving away an automobile and armed robbery did not violate double jeopardy. Our Supreme Court has clearly rejected “the actual evidence factual double jeopardy test.” Sturgis, supra at 404, citing Robideau, supra at 484.
Moreover, the facts of this case support the conclusion that two separate and distinct offenses occurred, and that the federal and Michigan double jeopardy clauses do not preclude conviction and punishment for both. In People v Colon,
For all of the foregoing reasons, we conclude that the Legislature intended to permit an offender to be convicted and sentenced for violating both MCL 750.729 and MCL 750.531 where the proofs at a single trial disclose both statutes were violated during the same incident. Accordingly, neither the Double Jeopardy Clause of the United States Constitution nor the Double Jeopardy Clause of the Michigan Constitution precludes defendant’s conviction and sentence for both bank robbery and armed robbery arising out of the same incident. Defendant’s constitutional right not to have more punishment imposed than the Legislature intended has not been violated.
Next, defendant argues that the trial court abused its discretion by admitting into evidence without adequate authentication letters defendant allegedly wrote while in jail. MRE 901. “The decision whether a letter has been properly authenticated for admission into evidence is a matter within the sound discretion of the trial court.” People v Martin,
The letters at issue were written to defendant’s girlfriend, Nieche Palmer, and to her mother, Wanda Palmer, instructing them on what to tell the police to provide defendant with an alibi. Defendant argues that Nieche Palmer testified that the handwriting on the letters looked like defendant’s, but that she was not certain that the handwriting was his, that her brother was incarcerated in the same jail during that period and also wrote her letters, and that some of the letters did not have defendant’s name on them. Defendant also argues that Wanda Palmer testified that she only received one letter from defendant (and therefore had no other letters with which to compare his handwriting), and that she did not have the envelope in which the letter came. We find defendant’s arguments without merit.
Nieche Palmer testified that there was nothing to indicate that defendant did not write the letters, that she believed he wrote them, and that the handwriting looked like defendant’s. Palmer also testified that the letters came from the Van Burén County Jail where defendant was incarcerated. Palmer further testified that defendant’s nickname was “Drama Boy,” and that this nickname was on some of the letters. Additionally, defendant’s actual name was on some of the letters. Palmer also stated that the letters discussed personal matters between herself and defendant, including sexual references and other things that people may not know.
Wanda Palmer testified that she knew the letter was from defendant because it said “Elis” in the corner, and that he
On the basis of Nieche Palmer’s and Wanda Palmer’s testimony, the trial court determined that the “contents and distinctive characteristics of the letter[s] provided the proper identification.” Martin, supra at 638. Consequently, the trial court did not abuse its discretion in finding that the letters were sufficiently authenticated for admission pursuant to MRE 901(a), (b)(2), and (4).
We affirm.
Notes
Blockburger v United States,
The Robideau Court’s predicted demise of the Blockburger test proved less than prescient. Recently, our Supreme Court overruled People v White,
People v Witt,
Concurrence Opinion
(concurring in part and dissenting in part.) I respectfully dissent from the majority’s double jeopardy analysis. I concur in the remainder of the opinion.
Application of the Blockburger
The majority concludes, in accord with People v Witt,
I do not regard People v Shipe,
An examination of the chapter of the penal code entitled “Robbery” supports the conclusion that the statutes in that chapter are directed towards protecting both persons from assaults and property from theft.
Armed robbery requires an assault, with a dangerous weapon, or article used or fashioned to lead the person to believe it to be a dangerous weapon, and a completed larceny. It is punishable by life imprisonment. Unarmed robbery requires assaultive conduct (force and violence, putting in fear) and a completed larceny, but without a dangerous weapon. It is punishable by imprisonment of not more than fifteen years. The carjacking statute was enacted in 1994, and was placed in the robbery chapter. Although like armed robbery, carjacking is. a life offense, the Legislature relaxed the requirements for conviction from those found in the armed robbery statute. If the object of the larceny is a car that is taken from a person in lawful possession, only force or violence is required, not the use of a dangerous weapon.
The bank, safe, and vault robbery statute is also found in the robbery chapter, and it is also a life offense. One part of the statute requires that the accused engage in assaultive conduct (confine, maim, injure, wound, or attempt or threaten to confine, kill, maim, injure, wound, or put a person in fear) for the purpose of stealing from any building, bank, safe, or other depository of money, or compelling any person to disclose or surrender the means of opening any building, bank, safe, or vault. An accused is also guilty if he attempts to break, burn, blow up, or otherwise injure or destroy any safe, vault, or other depository. Guilt is established without regard to whether the larceny is successfully accomplished. Thus, to be guilty of this life offense, the accused must either assault or in some fashion put another in fear for the purpose of gaining entry into a bank or vault, or must attempt to break, burn, blowup, etc, the depository. The Legislature did not require the use of a dangerous weapon, or that the offense be complete.
In enacting the carjacking and bank robbery statutes, the Legislature recognized two distinct types of robberies that it perceived to constitute particular threats that were not adequately deterred or punished under the armed robbery statute, which requires use of a dangerous weapon and a completed larceny. In enacting these statutes, the Legislature tailored the statutory requirements to the specific harms perceived.
I conclude that under Robideau, the Legislature did not intend multiple punishment under the armed robbery and bank robbery statutes. Both statutes are regarded by the Legislature as robbery statutes and express legislative intent to protect both persons from assault and property from theft. I would remand with instructions to vacate whichever conviction the prosecution chooses.
Blockburger v Untied States,
This was also the case in People v Parker,
The prosecution argues, erroneously, that the Campbell Court was mistaken in grouping the bank robbery statute with the armed and unarmed robbery statutes, arguing that while they are grouped together now, they were not originally enacted as a group or at the same time. I find the date of enactment to be irrelevant. The prosecution further asserts that in the Compiled Laws of 1897, the three statutes appeared as §§ 11484, 11486, and 506, respectively. However, the bank robbery statute appeared as § 11506, was included in the chapter entitled “Offenses against bves and persons,” as were the armed and unarmed robbery statutes. In my view, this legislative history does not support, but rather undermines, the prosecutor’s argument.
Presumably, the prosecutor could choose in such cases between multiple counts of armed robbery, if all the elements of that offense are present, or a single count of carjacking or bank robbery, if armed robbery cannot be established. The prosecutor could also charge under both statutes and seek a jury verdict on all counts, leaving it to the court to enter the appropriate convictions after taking into account double jeopardy concerns.
I note that in Davis, the defendant took the car at gunpoint, yet he had not been convicted of both armed robbery and carjacking, and in Shipe, the defendant brandished a BB handgun, yet he had not been convicted of both armed robbery and bank robbery.