People v. Ford

443 v FORD PEOPLE 16, 2004, Rapids. April Decided at Grand Submitted Docket No. 246136. sought. 15, 2004, appeal a.m. Leave June at 9:20 to by jury Court Elijah in the Berrien Circuit was convicted M. Ford 750.529; safe, robbery, or MCL vault of armed MCL 750.110a(2); pos- invasion, 750.531, first-degree MCL home felony, during of a MCL a firearm the commission session of Hammond, J., court, the defen- T. sentenced 750.227b. The John delayed imprisonment each The defendant’s dant for conviction. to respect granted only application appeal but to for leave to was with for that his and sentences the defendant’s claims convictions jeopardy violated double armed safe Michigan the United States Constitution and clauses of by admitting Constitution, court its discretion and that the abused by the purportedly defendant. into letters written evidence held,'. Appeals Court The Const, provide § that no 1. Am and Const art 15 US V put jeopardy for the same offense. The shall be twice consistently to be construed Michigan Double Clause is clause, provision. purposes For of the federal federal with the applied Blockburger is to determine if test “same-elements” punishments Congress multiple more intended violations test, if similar crimes. Under than statute that address one not, there are the other does one contains an element that jeopardy additional separate does not bar offenses and double two provi- Michigan jeopardy Similarly, punishment. for the determining sion, mul- factor in whether intent is proper is for the same tiple punishments different statutes Legislature Considering intended the “social norms” conduct. determining legislative protect by enacting is a statute an aid States, Blockburger Blockburger test from v United intent. (1932), determining legislative intent. an aid is also US controlling Shipe, App is on 190 Mich of the social norms issue 750.531, bank, safe, enacting or vault statute. MCL § Further, Shipe correctly 531 estab- determined that may means. only one offense that be committed lishes requires The statute for its violation the larcenous or felonious vault, bank, safe, depository money access a or other intent to actually requirement There is no valuables. be weapon. contrast, stolen or that the with offender armed statute, protecting people focus of MCL given Therefore, the that each statute a 750.529. fact has different prosecution” norms, protects “unit of and different social the separate permitting can be as statutes viewed and amenable to multiple punishments. Application Blockburger the the 3. of test shows that safe, robbery statute, 750.531, or vault MCL an contains element 750.529, robbery not contained in MCL the armed statute. The robbery require proof armed statute does not of an intent to steal bank, safe, vault, property depository from a or other of valuables. Also, robbery require deadly the bank does a not the use of proof weapon property presence that was taken from or in the Therefore, test, person. of a under this are the offenses distinct multiple punishments permitted. and are support 4. the The facts of case also the that conclusion the multiple punishments. Double bar Clause does not The completed robbery the defendant crime when he threatened open to shoot the victim if he did not a safe. The defendant then completed robbery the armed crime he when further threatened by gunshot the victim with death and took the victim’s in presence. the victim’s deciding did The circuit court not abuse its discretion in that properly having letters were authenticated as been written the defendant were into admissible evidence. The letters were girlfriend to the written defendant’s her mother and in- say police provide structed them on what the defendant Further, girlfriend with an alibi. that testified she believed the them, handwriting defendant wrote looked like defen- dant’s, jail the letters were sent from the same where defen- incarcerated, dant was the defendant’s nickname and actual name letters, some were on of the and the letters included references to personal Finally, girl- matters that others not would know. friend’s mother testified that the letter she received contained signature before, the defendant had used it discussed a meeting attorney, had mother with the defendant’s and the unequivocally handwriting mother testified was the defendant’s.

Affirmed. Ford Opinion the Court concurring dissenting in dissented part, White, J., part jeopardy majority’s other- but to the analysis, with respect of the in the remainder opinion. wise concurred appropriate Blockburger in a Application test of the is Rather, solely multiple where the issue punishment case. Robideau, only intent, guidelines set forth in determining punish- whether appropriate. ments are intended is controlling because the Shipe is not or instructive The case one, whether defendant from the current issue was different robbery and for the of bank could be convicted assault and theft. same robbery chapter penal of the of the Resort to an examination statute, supports MCL that the armed

code the conclusion 750.531, statute, 750.529, MCL and the bank property from Both statutes are persons theft. from assaults and punishable impris- life chapter, are both found onment, require engage in assaultive that the accused Thus, stealing property. purpose under Ro- conduct for the multiple punishment. did not intend bideau the with instructions to vacate case should therefore remanded prosecution chooses. whichever conviction — — Robbery - Bank, Safe, Armed Law Double Constitutional Robbery. Vault safe, bank, or vault statute and armed ele- distinct norms and contain different social ments; jeopardy clauses the federal and state the double is convicted and are not violated where defendant constitutions proofs violating establish sentenced both statutes where for (US Const, during were one incident that both statutes violated 750.531). 750.529, V; 15;§ Am art MCL Const General, L. Casey, Thomas Cox, Attorney Michael A. Prosecuting Attor- General, Cherry, James A. Solicitor Prosecuting Attor- Mead, J. Assistant ney, and Aaron ney, for people. (by R. Newmann Defender James Appellate

State Rodwan) appeal. for the defendant on and Gail WHITE, P.J., JJ. Before: OWENS, MARKEY and 262 op Opinion the Court jury defendant, J. A as charged, convicted MARKEY, safe, robbery, 750.529; bank, MCL or vault robbery, 750.531; first-degree invasion, MCL home 750.110a(2); during MCL of a possession firearm of a felony, commission MCL 750.227b. The trial court defendant to 15 to 40 years’ sentenced imprison- ment for armed to 40 robbery, years’ imprison- 7-1/4 ment for safe or vault to years’ 12-1/2 imprisonment first-degree invasion, for home all to run consecutively years’ to imprisonment felony- granted firearm. This Court delayed appli- defendant’s cation for to to appeal leave limited whether his convic- tions sentences for both armed safe Michigan violate federal or constitutional jeopardy prohibitions against multiple punish- ment offense,” for the “same and whether the trial court abused discretion in admitting its into evidence letters purportedly written defendant. We affirm. testimony

The victim’s supplies the pertinent facts. home, Defendant invaded the victim’s repeatedly victim, threatened to or kill shoot forced the victim to open his basement a safe from which defendant and escaped shotgun, removed with a a loaded .38 $2,980 caliber pistol, and leaving cash. Before with the stolen victim property, defendant forced lie facedown, put back, his foot on the victim’s and with gun pressed back, to the again victim’s threatened to kill victim get should he up.

We review jeopardy defendant’s double claim de novo it presents because a question of law and it requires this to construe the criminal statutes issue if determine punish- ments. v Calloway, 448; 450-451; (2003); Davis, 79; NW2d 733 v People 77, 468 Mich 658 (2003). NW2d 800 v Foed 447

Opinion of the Michigan States and constitutions Both United in being placed jeopardy from prohibit person twice Const, 1963, art V; US Am Const offense. for same Nutt, 565; 1 469 Mich 1, 15; People § v (2004). the United The Clause of Double Constitution, V, provides: Am “No States put offence to twice subject for the same be shall... The applies . . . .” Clause of life or limb jeopardy the Fourteenth Amendment. North through the states 711, 717; 2072; L Pearce, v 89 S Ct Carolina US (1969). Michigan provides: The Constitution Ed 2d 656 subject for the same offense to be person shall be “No 1963, 1, § 15. This put jeopardy.” Const art twice “essentially federal coun- provision is identical” to its Nutt, and was intended to be terpart, consistently federal corresponding “construed with provision.” Id. at Michigan jeopardy provi-

Both federal and double (1) against a protections: afford three related sions for the after prosecution acquittal, second same offense (2) for offense against prosecution a second the same (3) conviction, punishments against multiple after Pearce, Id. supra. for the same offense. The first “in- protections against prosecutions two successive Clause, the the core of the Double Jeopardy volve values concepts common-law convict.” acquit autrefois Robideau, 458, 484; 355 NW2d 592 (1984). protections of double purposes jeopardy are prosecutions successive the same offense against finality in criminal judgments pros- preserve prosecuto- from protect and to the defendant ecutions overreaching. People Sturgis, rial 398-399; But purpose NW2d against multiple punish- jeopardy protection the defendant ments for the same offense is Leg- than the having imposed more punishment 448 262 MICHAPP 443 Opinion of the Court Calloway, Id. 399; at at supra islature intended. Clause as a Jeopardy “[T]he Double acts restraint on prosecutor courts, the Legislature.” Robideau, supra Ohio, Brown v 469, citing at 432 US (1977). 161; 2221; 97 L Accordingly, S Ct 53 Ed 2d 187 Legisla- the Double Clause does not limit the ability ture’s to define criminal offenses and establish 400, Sturgis, supra punishments, at and the “only interest of the defendant not having punish- is in more imposed ment than that Legislature.” Robideau, supra at 485.

Under Clause, the federal Double Jeopardy whether impose multiple punish- intended to ments for violations more than one during the same generally transaction or incident is deter- mined application of so-called Blockburger1 Dixon, test. United v States “same-elements” 509 US 688, 696; 2849; (1993); 113 S Ct Ed 125 L 2d 556 Denio, v (1997). 691, 707; 454 Mich 564 NW2d 13 the Blockburger general, “inquires test whether each offense contains an element other; not contained in the not, if are they the “same offence” jeopardy and double bars additional punishment successive prosecu- Dixon, supra tion.” at 696.

But the Blockburger same test merely elements is of statutory construction, rule which a pre- creates sumption subject clearly that is expressed legislative v States, contrary. intent to the Whalen United 445 US 684, 691-692; 1432; 100 Ct 63 L 2d (1980); S Ed 715 v People Wakeford, 95, 107; 341 NW2d 68 (1983). A presumption Blockburger arises that a legislature multiple punishments intends where two distinct statutes cover the same conduct but each 1 Blockburger States, v United 299, 180, 304; 182; US S Ct L76 (1932). 306, Ed Ford . Opinion of the Court not; an element the other does proof requires when the elements one contrary presumption arises Id. in the elements of other. encompassed are offense is when a presumption 110 n 14. But this overcome Whalen, intent. clearly expresses contrary legislature “ same, crimes ‘if it Thus, even where the are supra. intended to authorize legislature evident that a state an a court’s is at punishments, inquiry cumulative ” 400, Johnson, Ohio quoting Sturgis, end[.]’ L Ed 2536; n Ct 2d 425 467 US 104 S un- punishments may imposed be multiple Whether when different Michigan’s Jeopardy der Double Clause also cover the same conduct is deter- criminal statutes by impose the intended to Legislature mined whether Denio, 707; at multiple punishments. supra Dillard, 163, 166; 631 755 NW2d Court “the Block- Robideau, Supreme our found Supreme in the burger questionable test to have status questionable and to of Court of the United States” be multiple ascertaining legislative pun- intent value Robideau, at 485-486.2 The Ro- supra ishment cases. Blockburger test, the Court therefore eschewed bideau to means to deter- instead use traditional “preferring Legislature: subject, of the the lan- mine intent 2 Blockburger predicted proved test The Robideau Court’s demise of People White, Recently, prescient. Supreme our Court less than overruled adopted which had “same prosecutions review claims that successive were transaction” test Nutt, supra 1963, 1, § 568. The held prohibited art 15. at Court Const Blockburger test, reviewing longstanding guidepost for claims that the punishment multiple prosecution violations of of hoth successive Dixon, supra Clause, applied should be see Jeopardy at Double federal prosecution the “same offense” is that a successive to review claims Nutt, supra at Michigan’s Clause. 588. The Double barred multiple punishment prong Court, however, Michi address of did not Nutt, supra n gan’s jeopardy provision. n double 262 MICHAPP 443 Opinion of Robideau,

guage, history statutes.” Supreme 486. As our Court later the Ro- explained, bideau Court’s of the rejection application” “wooden the Blockburger acknowledges test the rule one of as statutory construction rather than a consti- conclusive presumption. sum, tutional 405 n Sturgis, supra at 5. In under both the federal and Michigan jeopardy “in clauses the test is the same: the context of multiple trial, punishment single at a the issue whether two convictions involve the same offense for of the purposes protection against multiple punishment solely one of legislative intent.” Id. at 400.

The Robideau Court suggested following general as principles ascertaining aids in legislative intent: prohibiting Statutes conduct is violative of distinct social generally norms can separate be viewed as permitting multiple punishments. amenable A court identify must type Legislature harm prevent. prohibit Where two statutes violations of the same norm, social manner, albeit in somewhat different as a general principle be it can concluded that the punishments. did not intend A further source of intent can found in the punishment expressly by amount of Legisla- authorized the ture. principles

We do not intend these to be an exclusive list. legislative Whatever sources of intent exist should be con- sidered. no If conclusive of evidence intent can discerned, lenity requires the rule of the conclusion that separate punishments [Robideau, supra were not intended. 487-488.] People

Opinion of the Court Robideau to the principles question applying In the punishment to permit the intended Legislature whether the robbery where same robbery armed safe for both trial, panels in a different single conduct establishes results. See reached different this Court have of (1987), and 1; 418 NW2d Campbell, App Witt, guilty plea the defendant’s The Witt panel upheld 750.531, safe, robbery, or MCL bank, vault 750.529, it concluded that robbery, MCL because of the defen- permit punishment intended to Legislature Witt, at 370. The Witt dant under both statutes. Legislature intended reasoned that panel hand, safe, because, bank, on the one punishments robbery intended to “funds vault statute was safe, depository or other of building, in a vault kept money, money,” persons guarding as well as the or the weapon, taking property, the use of a of was not presence required prove another Id. Witt hand, the panel On the other offense. 370-371. “is aimed at robbery found that the armed statute taking who social norms persons violate force presence of another force or threat of The Witt Id. at 371. weapon.” panel, armed with a while therefore, pun- concluded that bank, safe, robbery for both armed or vault ishment robbery of the armed “purpose because ... from that of the vault different statute Id. statute.” Campbell, a convicted the defendant bank jury 750.531, MCL robbery, MCL and unarmed

750.530, single bank teller. arising out of Robideau social norms Campbell panel applied decided, conclud- Witt wrongly was test and found and the armed and ing “that App 452 262 Mich 443 Opinion of the Court all robbery unarmed statutes were prohibit to conduct violative same Campbell, Campbell norm.” societal 6. The (to panel robbery reasoned that bank extent safecracking) did not offense address “was intended to (em- Id. protect people than or buildings.” rather funds The Campbell phasis original). panel in opined further that MCL respect language “[t]he with to 750.531 of the it statute makes clear conduct is prohibited threatening injuring of another in order take Id. not the money, stealing.” (emphasis origi- actual nal). Thus, held that the defendant was erroneously convicted of bank and un- armed and vacated the defendant’s conviction and sentence for the lesser offense of unarmed robbery. Id. at 7. Campbell and Witt are nonbinding precedent

Both 7.215(J)(1) they under MCR because were decided be- 1, fore adopted November But this Court Witt reasoning applied deciding that although bank multiple may during tellers present robbed, bank only one is and the Legislature did not intend convictions and sentences. People v (1991). Shipe, 629, 190 Mich App 634; 476 490 NW2d (n omitted): Shipe Court opined, id. at 632 ascertaining [MCL intent behind 750.531], helpful compare it is it with the armed statute. This Court held has that the bank robbery statute, though involving compa- subject matter, promulgated protect rable were different interests. The protect former statute is intended to those intentionally valuables, structures protect constructed to protect persons while the latter is intended to from assault- takings by dangerous weapon.11 ive of a means

11People Witt, App 370-371; v 140 Mich (1985); Thomas, 672; App Opinion of the Court Campbell, 165 People But see NW2d (1987) proscription of (holding 1, 418 NW2d 404 safecracking intended to involving robbery not buildings). people rather than funds authority, including federal reviewed The Court 103, 115-116; App 152 US DC Canty, United States federal bank (1972), interpreting 469 F2d 2113, which, Michigan “like its statue, 18 USC theft of- variety of different counterpart, punishes taking from a banks, including the fenses money, any property, another in the presence of, to, custody the care or or in belonging of value thing panel opined: then at 633. Shipe, supra the bank.” in prior determination Witt this Court’s Consistent with is the bank statute of the interests and Thomas reasoning Canty of the adopt protect, we intended to of Columbia. We Appeals for the District Court of federal legislative of the bank intent believe be convicted of two a defendant cannot is that As in of this case. under the circumstances offenses it is here is bank Canty, the crime involved only one only one transaction clear that there was [Shipe, supra 634.] bank robbed. controlling precedent, Shipe conclude that

We 7.215(J)(1), of the “social on issue to MCR pursuant to pro- MCL 750.531 norms” (On Remand), 191 Douglas distinguish People tect. We relied which App robbery statute the bank opine Campbell on the assaultive offenses: two distinct “encompasses any of several robbery perpetrated crime of bank of safe crime means, and the nonassaultive enumerated controlling precedent is not breaking.” Douglas 7.215(J)(1) Shipe. decided after it was because MCR did not address Moreover, panel Douglas Opinion of the Court purpose Michigan’s intent for the applying jeopardy prohibition against multiple punishments Rather, panel “same offense.” ad- Douglas the judicial guidelines dressed whether sentencing ap- plied to the defendant’s conviction for violating MCL 750.531 and doing attempted so to ascertain the intent of the drafters of the guidelines. sentence Dou- glas, at 662. The Court reasoned that the offense breaking” “safe judicial was included in the guidelines because it would be appropriate “more group list, the offense in the burglary crime which breaking concerns offenses of and entering, enter- ing breaking, possession without of burglar’s tools,” there was no mention of the offense in that crime group. Id. at 665. also was

Shipe correctly decided. MCL 750.531 estab- only lishes one that may be committed by offense means. The “bedrock rule” ofjudicial interpre- tation of a statute is to “ascertain and effect give to the intent of the Legislature.” Pasha, People 378, 382; 645 NW2d 275 The step doing first so is to examine language Davis, of the statute. supra at 79. MCL “bank, 750.531 is entitled safe and robbery,” vault and provides:

Any person who, intent with to commit crime of any confine, larceny, felony, maim, or injure wound, shall or attempt, confine, or kill, maim, injure or threaten to or wound, put any person shall or purpose fear for the of bank, stealing any building, depository or other safe or shall of money, valuables, bond or other by intimidation, compel, attempt any fear or threats compel person or disclose or surrender opening any building, the means of bank, safe, bonds, vault depository money, or other or of valuables, attempt burn, break, other or shall up blow or injure destroy any safe, or deposi- otherwise vault other or tory money, any bonds or building other valuables in or of place, shall, whether he succeeds or perpetra- fails in the Opinion of the Court felony, punish- a felony, guilty of larceny or tion of such any life or prison for in the state by imprisonment able [Emphasis added.] years. of term for its requires the statute of language plain larce- accomplished, violation, means by whatever safe, vault, or to access intent felonious nous or every case money or valuables. of depository other actually be stolen require does By what- weapon. armed with offender be that the or is on of the offense the focus accomplished, means ever contain- depository bank, safe, vault, or other accessing a stealing its contents. purpose for the valuables ing held in other have Supreme Court Court and our This by violated may be a statute although contexts See, created. offense is means, only one criminal Johnson, 406 Mich 279 NW2d People v e.g., (one through (1979) accomplished penetration sexual one of- constitutes circumstances multiple aggravating conduct), sexual first-degree criminal fense of 220-221; Bigelow, (one (1998) if commit- first-degree murder even crime of during and deliberation by premeditation ted means of felony). of an enumerated the course by panel’s analysis the Shipe find support alsoWe of MCL Court’s construction Supreme from our analogy statute, provides: which 750.529a(1), carjacking violence, by or by threat of force force or A who steals, robs, motor violence, or takes a putting in fear person, in the 412 from another defined in section vehicle as passenger or in presence of a person or the presence of that possession of the any person in lawful presence other felony punishable vehicle, carjacking, a guilty of motor years. any life or for term imprisonment for held that Court Davis, Supreme our supra In threatening both car stole a the defendant although Opinion op the only passenger, carjacking its driver its one oc- curred. Court reasoned: straightforward reading language A of this shows applies taking the conduct to which statute is the of a vehicle motor under certain circumstances. Those circum- taking stances include the nature of whom offense, the motor vehicle taken. The is core focus of however, taking are the a motor vehicle. Because defen- of vehicle, language took carjacking dant one motor of the only carjacking one [Id. statute allows at 80 conviction. added).] (emphasis carjacking statute, Like the which involves assaultive conduct directed at its on person yet focus is the theft statute, of particular property, robbery bank though it involve may against person, assaultive conduct has attempted its core and on the focus theft of property bank, safe, vault, from a depository. other The “unit MCL prosecution” vault, under 750.531 is the contrast, or safe. robbery focus the armed is quite statute different. “The focus of armed robbery Davis, statute on the person is assaulted.” Indeed, at 81-82. supra primary purpose robbery armed protection statute is the of persons, and appropriate “the ‘unit of prosecution’ for armed rob- bery assaulted and robbed.” Wakeford, supra at 111-112. Accordingly, because the armed rob- bery bank, safe, statute and the vault are norms, intended to different social Shipe, the statutes “can generally be viewed as separate and amenable to permitting multiple punish- Robideau, supra ments.” at 487. find support

We further for this conclusion in the guidelines. sentence Both armed punishable up are in prison. life categorized Both against are as persons offenses guidelines. MCL But 777.16y. ais People

Opinion of the Court means robbery, by whatever A offense while bank class Thus, a conviction C offense. Id. committed, is a class greater in a invariably result robbery will for armed then a guidelines recommended sentence are life robbery, though even for bank conviction (class A and MCL 777.64 grid) MCL 777.62 offenses. See (class sentencing treatment disparate grid). C This Legislature’s primary that the the conclusion supports type robbery statute was in the bank focus rather than that the offender targeted by by assaulting person. offense be committed one of- Moreover, guidelines list but robbery/safebreaking.” “bank fense for MCL 750.531: 777.16y. Campbell, supra If the Court MCL determined that correctly offenses, two distinct “bank

actually sets forth then safecracking,” conduct and involving assaultive may the offense providing of the statute part superfluous rendered by means of assault is committed statutes, by other prohibited such conduct is because 750.530; MCL assault with including unarmed dangerous weapon, armed with a intent to rob while 750.89; with intent to rob while MCL and assault statute, unarmed, construing MCL “When 750.88. meaning has some every word presume court must that would render any construction and should avoid nugatory.” People surplusage of the statute any part 278, 285; Borchard-Ruhland, 460 Mich 597 NW2d v (1999). test Blockburger “same-elements” apply

alsoWe Hurst, 205 v statutory construction. as an aid to (1994). 634, 638; When App compared are of armed of the offense elements bank, safe, robbery, it is and vault to the elements not con- contains an element that “each offense clear 262 MICH 443 Opinion of the Court Dixon, tained in the other.” 696. The elements “ ‘(1) necessary prove armed robbery are: an assault, (2) a taking felonious of property from the victim’s (3) presence person, while the defendant is armed ” with a weapon described in the statute.’ Carines, 750, 757; NW2d 130 quoting People Turner, 213 Mich App 569, 540 NW2d 728 Thus, lacks an ele- ment necessary to violate bank, safe, or vault robbery statute: the intent to steal property “any building, bank, safe, vault or other depository of money, bonds, or other 750.531; valuables.” MCL v People Monick, (1938). 195, 197; 283 Mich 277 NW 883 Simi- larly, the offense of contains elements required never to prove bank, safe, or vault robbery: use of “a dangerous weapon, any article used fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon” and the taking property from or in the presence person. of a MCL 750.529; People v Randolph, 532, 536; 466 Mich (2002); Witt, NW2d 164 supra at 370-371. Because armed robbery bank, safe, or vault robbery are distinct offenses under Blockburger, it is presumed that the Legislature intended to authorize multiple punish- ments. Even where the same facts in a single trial show the commission of each the federal Double Clause is not offended. Sturgis, supra at 403.

Thus, utilizing both the Robideau test and the Block- burger test, we arrive at the same conclusion: Legislature intended permit separate punishment for both armed robbery safe, or vault robbery. Accordingly, “since a legislature may specifically autho- penalties rize for what would otherwise be the ‘same offense,’ punishment cumulative of the same conduct under two different statutes in a single trial does not run afoul of the Double Jeopardy Clause either the People Opinion of the Court 403. That Sturgis, supra at system.” state federal or of bank the commission that prove in this case facts the commission encompassed within factually robbery is Hurst, result. See not alter this robbery does of armed holding identity test” 637, a “factual rejecting at supra unlawfully for both convictions that the defendant’s not robbery did and armed an automobile driving away clearly has Supreme Our jeopardy. double violate jeopardy double evidence factual “the actual rejected Robideau, at citing Sturgis, supra test.” the conclusion support case Moreover, facts of this occurred, and offenses and distinct separate that two do jeopardy clauses Michigan double the federal and for both. and punishment conviction preclude Colon, 59; 644 NW2d with intent of assault held that convictions this Court harm bodily do great intent murder and assault with against prohibitions murder did not violate less than “ ‘there is no Court opined This jeopardy. if one crime is jeopardy protections of double violation if the of- even place, the other takes complete before or one constitutes common elements fenses share ” quoting Id. of the other.’ lesser offense 699, 708; 542 NW2d 921 214 Mich App Lugo, When occurred the case bar. exactly That what go if he did not to shoot the victim defendant threatened safe, the offense open to the basement The MCL 750.531. safe, complete. or vault was until completed not of armed was offense by gunshot, opened threats of death victim, after further it in the safe, and defendant took MCL 750.529. presence. victim’s reasons, conclude that we foregoing For all of the con- offender to be to an permit Legislature 262 Mich Opinion op the Court violating victed and sentenced MCL 750.729 and MCL where at a proofs single 750.531 trial during disclose both statutes were violated the same Accordingly, incident. neither the Double Jeopardy United Clause of the States Constitution nor the Double Clause of the Michigan Constitution precludes defendant’s conviction and sentence for both arising out of the same incident. Defendant’s right constitutional not have more than punishment imposed intended has not been violated.

Next, argues defendant that the trial court its abused discretion by admitting into evidence without adequate authentication letters allegedly defendant wrote while in jail. MRE “The decision whether a letter has been properly authenticated for admission into evi- dence is a within matter the sound discretion of the trial Martin, court.” People App 630, 637; (1986). NW2d 713 This Court will find an abuse discretion an only unprejudiced if person, considering acted, facts on the trial which court would say there justification was no or excuse for the ruling made. Williams, 316, 320; 240 Mich App find the We trial court did not abuse its discretion here. issue letters were written to defendant’s

girlfriend, Palmer, mother, Nieche her Wanda Palmer, instructing them on to tell police what provide defendant with an Defendant argues alibi. that Nieche Palmer testified that handwriting on the defendant’s, letters looked like that but she was his, certain that handwriting was her brother was in the jail during incarcerated same period letters, also wrote her and that some did letters not have defendant’s name on them. Defendant also People y Ford op Opinion the Court only re- argues that she Palmer testified that Wanda (and had no therefore defendant letter from ceived one handwriting), compare his with which other letters envelope in which did not have and that she arguments without find defendant’s came. We letter merit. nothing to there was that Palmer testified

Nieche letters, that not write the did indicate that defendant handwriting them, and that he wrote she believed that the also testified Palmer like defendant’s. looked County Burén Jail where the Van came from letters further testified Palmer was incarcerated. defendant Boy,” that “Drama was that defendant’s nickname Additionally, of the letters. nickname was on some this of the letters. name was on some actual defendant’s personal that the letters discussed also stated Palmer including defendant, matters between herself may things people that references and other sexual know. letter was that she knew the Palmer testified

Wanda corner, “Elis” in the it said from defendant because signed with “Elis” instead his letters that he sometimes only Although personally “Elijah.” re- Palmer had defendant, that defen- she knew one letter from ceived “little notes on the basis of used “Elis” dant sometimes telling [Wanda]hi.” Palmer testified letter in Nieche’s envelope letter in which the that she did not have thought possible it came, was but that she in an a letter to Nieche had enclosed with letter been envelope referred to The letter addressed to Nieche. lawyer, contacting had which she defendant’s Palmer’s unequivocally Finally, already testified Palmer done. handwriting in the letter was defendant’s. Palmer’s Palmer’s Wanda the basis of Nieche On testimony, that the “contents court determined the trial 262 MICH Opinion White, EJ.

and distinctive characteristics of the provided letter[s] Martin, the proper identification.” supra at 638. Con- sequently, the trial court did not abuse its discretion in finding that the letters were sufficiently authenticated (4). for admission pursuant 901(a), to MRE (b)(2), and We affirm. J.,

OWENS, concurred. WHITE, P.J. in (concurring part and in dissenting I part.) respectfully dissent from majority’s jeopardy analysis. I concur in the remainder of the opinion.

Application of the Blockburger1 test is not appropri- ate in a multiple punishment Robideau, case. People v (1984). 419 Mich 458, 485-486; 355 NW2d 592 As the majority states, ante at defendant’s only double jeopardy interest in a multiple punishment case inis not having punishment more imposed than Legislature. Robideau, supra 485. The issue is solely legislative one of intent, and Robideau sets forth guidelines for determining whether multiple punish- ment was intended. Ante at 450.

The majority concludes, in accord Witt, with v People 140 Mich App 365; 364 (1985), NW2d 692 Legislature intended multiple punishment under the armed and bank robbery statutes because the statutes are protect intended to different social norms (armed protection —the of persons robbery), and the protection of property in a vault, safe, or other (bank depository I robbery). hold, would however, accord with People v Campbell, 165 Mich App 1; 418 404 (1987), NW2d Legislature did not intend 1 States, Blockburger v Untied 299; 180; 284 US 52 S Ct 76 L Ed 306 463 Opinion White, EJ. expressing as I read both statutes multiple punishment. assault, persons intent to I to be appears note that Witt from theft. armed convictions of case where dual only And, although the robbery were sustained. and bank two analysis of the in a Robideau engaged Witt a fact situation where statutes, involved Witt taking larcenous act of separate involved (SHEPHERD, EJ., Witt, 373 gun. guard’s concurring part).2 629; Mich 476 regard People Shipe,

I do Davis, (1991), NW2d here. controlling or instructive as NW2d intended mul- whether question statute bank punishments tiple (Davis), one where carjacking or the (Shipe), involved, were but two victims or one car was question from the question separate is a present, a defendant intended that Legislature the whether and armed rob- carjacking convicted of both would be robbery for the same robbery and armed bery, or bank and theft. assault code penal the of the chapter

An examination of that the conclusion supports “Robbery” entitled protecting are directed towards in that chapter statutes from theft.3 and from assaults persons 2 Parker, App in also the case This was robbery carjacking and of armed where convictions NW2d 336 defendant took the victim’s car basis that the sustained on the were money gunpoint. the victim’s also stole Campbell erroneously, argues, that Court was prosecution The robbery armed and grouping statute the bank with in mistaken they grouped together statutes, arguing robbery that are while unarmed group originally the same time. I now, they enacted as a or at not were prosecution further The to be irrelevant. date of enactment find the 1897, appeared as Compiled of the three statutes in the Laws that asserts 262 MICH Opinion White, E J. examination

Such an also supports conclusion are consistent Shipe Campbell’s Davis with conclu- multiple punishment sion that the armed rob- robbery bery and bank statutes was not intended. robbery assault, an a requires dangerous Armed with or to lead weapon, or article used fashioned the person dangerous weapon, to believe it to a and a completed larceny. punishable by imprisonment. It is life Unarmed (force violence, robbery assaultive conduct requires fear) putting completed larceny, in and a but without dangerous punishable by It is weapon. imprisonment years. not more than fifteen carjacking The statute was 1994, enacted in and was in the placed robbery chapter. Although offense, robbery, carjacking like armed a life is. relaxed the requirements for conviction in from those found statute. If the object larceny is a car that is taken from a person in lawful possession, only force or violence is required, dangerous the use of a weapon. bank, safe, and vault statute is also found in chapter, and it is also a life offense. One part of the requires statute accused engage maim, wound, in (confine, injure, assaultive conduct or attempt confine, kill, or maim, threaten injure, fear) wound, put or for the purpose any stealing building, bank, safe, or other deposi- tory of money, compelling any person or or disclose surrender means of opening any building, safe, or vault. An accused is if he guilty also attempts break, burn, up, injure blow any otherwise or destroy safe, vault, other depository. Guilt is established 11484, 11486, However, §§ respectively. the bank appeared § chapter as was included entitled against persons,” “Offenses the bves as were armed and unarmed my view, legislative history support, statutes. In this does not but undermines, prosecutor’s argument. rather Opinion White, EJ. successfully larceny is to whether regard without offense, the life Thus, of this guilty to be accomplished. put fashion some either assault accused must a entry into gaining of purpose in fear for the another break, burn, blowup, vault, attempt or must bank or require did not etc, Legislature the depository. the offense be or that dangerous weapon, of a use complete. robbery stat- and bank carjacking enacting types two distinct

utes, recognized Legislature particular constitute it perceived robberies or punished deterred adequately that were not threats statute, requires which use the armed larceny. In enact- completed and a dangerous weapon tailored the statu- statutes, Legislature ing these perceived. harms More tory specific to the requirements that if a perpe- determined particularly, possession from someone’s lawful trator takes a car to life force, subject impris- should be perpetrator was em- onment, dangerous weapon whether or not a force or threats to perpetrator and when a uses ployed, from, to, a or tries gain depository, access steal injure perpetra- depository, break or otherwise subject imprisonment to life without tor should also be weapon employed regard dangerous to whether are successful. to whether the efforts regard without on the two are focused species Because these i.e., the theft of a car presented, special circumstances threat or the possession, and the threat to the access, persons present or with depository to a only a contemplate construed to the statutes have been (Davis), single or a single conviction for a car single persons the number of regardless of depository (Shipe), follow, however, Legisla- that the It does present.4 4 Presumably, prosecutor choose in such cases between could offense are if all the elements of that counts of armed Opinion by White, EJ. ture intended that where the facts of the offense also constitute armed robbery, be convicted of .5 robbery both armed robbery and bank or carjacking

I Robideau, conclude that under did not intend multiple punishment under the armed rob- bery and statutes. Both statutes are regarded by the Legislature as robbery statutes express legislative intent to protect both persons from assault and property from I theft. would remand with instructions to vacate whichever conviction the pros- ecution chooses. present, single carjacking or a count or bank if armed prosecutor cannot be charge established. The could also under both jury counts, statutes and seek a leaving verdict on all it to the court to appropriate enter the taking convictions after into account double

jeopardy concerns. Davis, I note that in gunpoint, yet the defendant took the car at he had not been convicted carjacking, of both armed and in Shipe, the handgun, yet defendant brandished a BB he had not been robbery. convicted of both armed and bank

Case Details

Case Name: People v. Ford

Court Name: Michigan Court of Appeals

Date Published: Sep 1, 2004

Citation: 687 N.W.2d 119

Docket Number: Docket 246136

Court Abbreviation: Mich. Ct. App.