PEOPLE OF MI V MELISSA ANN NUTT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 9, 2001
Plaintiff-Appellee,
V
No. 225887
Oakland Circuit Court
LC No. 99-167397-FH
MELISSA ANN NUTT,
Defendant-Appellant.
Before: Hoekstra, P.J., and Whitbeck and Meter, JJ.
WHITBECK, J. (dissenting).
The prosecutor appeals as of right from an order dismissing a charge of receiving or
concealing stolen firearms against defendant Melissa Nutt.1 The trial court concluded that the
charge violated the constitutional guarantee against double jeopardy.2 I agree with the trial court
and therefore respectfully dissent.
I. Basic Facts And Procedural History
On December 10, 1998, Nutt, along with others, burglarized at least three Lapeer County
residences, stealing four shotguns from one residence. Four days later, on December 14, 1998,
officers from Lapeer and Oakland Counties executed a search warrant at her rental cabin in
Oakland County, seizing three of the stolen shotguns, which she had concealed underneath a
mattress. In January 1999, pursuant to a plea agreement, Nutt pleaded guilty in Lapeer Circuit
Court to one count of second-degree home invasion.3
Nevertheless, in February 1999, the Oakland County prosecutor issued a felony warrant
and information charging Nutt with receiving and concealing the stolen firearms.4 After Nutt
was bound over in Oakland Circuit Court, she moved to dismiss the charge, arguing that, given
1
MCL 750.535b.
2
US Const Am V; Const 1963, art 1, § 15.
3
MCL 750.110a(3).
4
MCL 750.535b.
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her breaking and entering conviction in Lapeer County, the charge violated her right to be free
from double jeopardy.5 The trial court, relying on People v Hunt (After Remand),6 reasoned that
concealing the weapons was part of the same transaction as the breaking and entering. Therefore,
the trial court granted Nutt’s motion to dismiss. The sole issue on appeal is whether the trial
court properly dismissed the charge on double jeopardy grounds.
II. Double Jeopardy
A. Standard Of Review
This Court reviews a trial court’s decision to dismiss a charge for an abuse of the trial
court’s discretion.7 However, the decision to dismiss in this case depended in large part on how
the trial court interpreted case law relevant to double jeopardy. Review de novo is appropriate
when determining whether case law barred this prosecution.8 The trial court’s exercise of
discretion in dismissing the charge must be viewed in light of how that question of law is
resolved.
B. Legal Test And Application
The double jeopardy provision of the United States Constitution, US Const, Am V, and
its counterpart in the Michigan Constitution, Const 1963, art 1, § 15, protect individuals against
being punished more than once for the same offense9 and against being prosecuted more than
once for the same offense, no matter whether the prosecution results in acquittal or conviction.10
Courts refer to this first type of double jeopardy problem as “multiple punishment” and the
second type of double jeopardy problem as a “successive prosecution” or “multiple prosecution.”
This case involves the double jeopardy protection against multiple prosecutions for the same
offense, a constitutional right intended “to preserve the finality of judgments in criminal
prosecutions and to protect the defendant from prosecutorial overreaching.”11
5
The Double Jeopardy Clause of the United States Constitution provides that no “person [shall]
be subject for the same offense to be twice put in jeopardy of life or limb . . . .” US Const, Am
V. Similarly, the Double Jeopardy Clause of the Michigan Constitution provides that "[n]o
person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15.
6
People v Hunt (After Remand), 214 Mich App 313; 542 NW2d 609 (1995).
7
People v Stephan Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998).
8
People v Lugo, 214 Mich App 699, 705; 542 NW2d 921 (1995).
9
People v Harding, 443 Mich 693, 699; 506 NW2d 482 (1993).
10
People v Sturgis, 427 Mich 392, 398; 397 NW2d 783 (1986).
11
Id. at 398-399.
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In Michigan,12 the courts determine whether multiple prosecutions are constitutionally
sound by applying the “same transaction” test,13 which essentially determines whether the
prosecutor attempted to circumvent the double jeopardy limitation on multiple prosecutions by
splitting the separate criminal acts that make up a single criminal transaction into a series of
prosecutions.14 A prosecutor violates a defendant’s right to be free from double jeopardy by
failing “to join at one trial all the charges against a defendant which grew out of a continuous
time sequence and display a single intent and goal”15 when the crimes at issue share the same
intent.16 However, because home invasion is a specific intent crime17 and receiving and
concealing stolen property is a general intent crime,18 we must examine “whether the offenses are
part of the same criminal episode, and whether the offenses involve laws intended to prevent the
same or similar harm or evil, not a substantially different, or a very different kind of, harm or
evil.”19
The evidence presented at the preliminary examination indicated that Nutt broke into the
Lapeer County residence on December 10, 1998, and stole three shotguns, among other things.
The prosecutor now contends that the receiving and concealing offense did not occur until
December 14, 1998, with this four-day interval demonstrating that these offenses were not part of
the same criminal transaction. However, as the trial court concluded, the reasonable inference
from the record is that, in connected actions, Nutt and her companions stole the firearms,
transported them to the cabin where she was staying, and then concealed them under her
mattress. These actions of stealing, transporting, and then concealing the firearms for four days
are logically part of the same criminal episode.
In fact, this concealment was continually successful for four days because it prevented the
police from discovering the weapons. The record is simply devoid of any evidence that would
12
Because I ultimately conclude that prosecution in this case violates Const 1963, art 1, § 15, it
is not necessary to determine whether this prosecution would be constitutional under the Fifth
Amendment.
13
People v McMiller, 202 Mich App 82, 85; 507 NW2d 812 (1993).
14
People v Gonzales, 197 Mich App 385, 398; 496 NW2d 312 (1992).
15
Sturgis, supra at 401.
16
Id. at 401, n 3, citing Crampton v 54-A Dist Judge, 397 Mich 489, 502, n 9; 245 NW2d 28
(1976).
17
MCL 750.110a(3) (“A person who breaks and enters a dwelling with intent to commit a felony,
larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent
to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a
dwelling or enters a dwelling without permission and, at any time while he or she is entering,
present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home
invasion in the second degree.”) (emphasis added); see also Hunt, supra at 316.
18
MCL 750.535b (“A person who receives, conceals, stores, barters, sells, disposes of, pledges,
or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm
or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10
years or by a fine of not more than $5,000.00, or both.”); see also Hunt, supra at 316.
19
Crampton, supra at 502.
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suggest that Nutt committed the theft but then waited some period before receiving and
concealing the weapons. Further, there is no evidence that any time gap was long enough to
conclude that the concealment was completely unrelated to the theft.20 I cannot agree with the
prosecutor’s contention that a crime is only committed at the time the police discover it.21
From the preliminary examination testimony by the shotguns’ owner and the investigating
officer, I gather that the evidence used to support this receiving and concealing charge is
essentially identical to the evidence used to support Nutt’s conviction of home invasion. The
Oakland County prosecutor’s reliance on the same evidence concerning the same events at issue
in the Lapeer County case demonstrates that the separate crimes charged occurred in the same
transaction. The facts of the home invasion are inextricably intertwined with the alleged
receiving and concealing offense.
Further, both the second-degree home invasion statute and the receiving and concealing
statute, when viewed broadly,22 attempt to prevent and minimize the effect of property crimes.
These statutes work with each other. The home invasion statute attempts to prevent the specific
act of theft, while the receiving and concealing statute attempts to minimize the consequence of
theft by preventing stolen property from being kept or transferred. Because the test for this
multiple prosecution issue examines whether there are any “substantial” differences between the
statutes, any small or technical differences between the home invasion and receiving and
concealing statutes are irrelevant to the double jeopardy analysis.23 Thus, I find it clear that the
concealment not only occurred during the same criminal episode as the home invasion, the
statutes Nutt violated are sufficiently similarly in purpose to conclude that these crimes should
have been charged and tried with each other.
C. Hunt And Squires
If applying double jeopardy principles did not lead me to conclude that this second
prosecution is unconstitutional, case law would compel that conclusion. Nutt contends that
Hunt, the case the trial court cited, bars this trial, while the prosecutor contends that People v
Squires,24 a newer opinion, controls the disposition of this appeal and mandates reversal.
In Hunt, on September 21, 1989, someone broke into a home in Eaton County and,
among other things, stole an imitation Rolex watch.25 The defendant pawned the watch the same
20
Compare People v Martinez, 58 Mich App 693, 694-695; 228 NW2d 523 (1975) (drug
transactions involved two different amounts of narcotics and occurred nine days apart, and there
was no evidence connecting the two transactions).
21
See People v Burgenmeyer, 461 Mich 431, 438-439; 606 NW2d 645 (2000).
22
Sturgis, supra at 399 (“It is . . . clear that ‘the term “same offense” has a different and broader
meaning in a case involving a subsequent prosecution than it does . . . where multiple
punishments [are] imposed during a single trial.’”) (emphasis added).
23
Crampton, supra at 502
24
People v Squires, 240 Mich App 454; 613 NW2d 361 (2000).
25
Hunt, supra at 315.
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day in Ingham County.26 The Ingham County prosecutor charged the defendant with receiving
and concealing the stolen watch, to which the defendant pleaded guilty.27 Slightly more than one
week later, the Eaton County police determined that the defendant was involved in the breaking
and entering during which the watch was originally stolen.28 The Eaton County Prosecutor
charged the defendant with the breaking and entering.29 After the Eaton County jury convicted
the defendant, the trial court vacated the conviction on double jeopardy grounds.30
On appeal, the prosecutor in Hunt contended that the Eaton County conviction was
proper. However, this Court disagreed, reasoning that the “breaking and entering and the
possession of the stolen goods were clearly part of a single criminal episode in which defendant
intended to convert the victim's property into his own.”31 The Court also noted that the breaking
and entering and the receiving and concealing statutes “involved may be said to be intended to
prevent similar harms.”32 Consequently, the Court affirmed the trial court’s decision to vacate
the conviction.33
Hunt is directly on point. Not only does Hunt involve a double jeopardy problem in the
context of multiple prosecutions, as in this case, it also involved remarkably similar facts. The
defendants in both cases committed a breaking and entering in a residence with the intent to
commit larceny. The defendants in both cases actually stole personal property from the homes
they broke into and entered. In both cases, the police were able to tie the theft offense to the
defendant because of each defendant’s role in receiving or concealing the property stolen. While
the statutes under which each defendant was charged evidently were specific to the type of
property stolen,34 a watch versus firearms, and the type of residence they broke into and entered,
these statutes are similar in their structure and purpose.35
Nevertheless, the prosecutor contends that this Court’s opinion in Squires mandates a
result opposite from the outcome in Hunt.36 In Squires, the defendant, who broke into a house
26
Id.
27
Id.
28
Id.
29
Id.
30
Id.
31
Id.
32
Id.
33
Id.
34
The Hunt opinion does not specify which receiving and concealing statute the prosecutor
charged the defendant with violating. I presume that it was MCL 750.535, the general receiving
and concealing statute.
35
Compare MCL 750.110 (breaking and entering statute in Hunt) with MCL 750.110a (home
invasion statute in this case) and MCL 750.535 (general receiving and concealing statute
presumably at issue in Hunt) with MCL 750.535b (receiving and concealing firearms statute in
this case).
36
See Squires, supra.
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intending to steal property, actually stole several different items and then gave that property to
friends.37 He subsequently pleaded guilty of breaking and entering38 and receiving and
concealing property39 over $100.40 On appeal, the defendant argued that he could not be
convicted of both breaking and entering and receiving and concealing because they were the
same offense.41 This was a multiple punishment double jeopardy argument, not a multiple
prosecution argument.42 Though Hunt was a multiple prosecution case, the defendant in Squires
relied on a portion of Hunt that intimated that he could not be convicted of breaking and entering
and receiving and concealing even if he had been prosecuted for both charges in the same case.43
The Squires Court, however, rejected this argument.44 The Squires Court pointed out that this
statement concerning the possibility that breaking and entering and receiving and concealing
property impermissibly punished defendants more than once for the same offense was obiter
dicta because it “was not essential to determining the outcome in Hunt.”45
The Squires Court then proceeded to examine whether there were any differences
between the breaking and entering and receiving and concealing statutes.46 The Court concluded
that the statutes protected society in different ways and that they included different elements,
requiring different proofs at trial.47 The Court also determined that the statutes were not codified
with each other in the penal code, which meant that they “they are not hierarchical or
cumulative.”48 Considering these factors together, the Court concluded that the Legislature
intended to permit punishment for both crimes committed at the same time49 and, as a result,
“that defendant's convictions under both statutes did not violate double jeopardy protections
against multiple punishments.”50
37
Id. at 455-456.
38
MCL 750.110.
39
MCL 750.535.
40
Squires, supra at 455.
41
Id. at 456.
42
Id.
43
See id. at 458, referring to Hunt, supra at 318, citing People v Johnson, 176 Mich App 312,
315; 439 NW2d 345 (1989) (“As noted by defendant and the trial court, had the charges against
defendant been properly joined in a single prosecution, he could not have been convicted of both
breaking and entering and receiving and concealing.”).
44
Squires, supra at 458.
45
Id.
46
Id. at 458-459.
47
Id. at 459, 460.
48
Id. at 459.
49
Id. at 458.
50
Id. at 461.
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Squires supports my conclusion that affirming is the only constitutionally acceptable
result in this case because it endorses the analytical distinction between multiple punishment and
multiple prosecution when addressing double jeopardy issues. Because there is no doubt that
Hunt is a multiple prosecution case and that Squires is a multiple punishment case, I believe that
there is no question that, between the two, this Court plainly must follow Hunt, even under the
reasoning advanced in Squires. The fact that Squires narrowly criticized the dicta in Hunt
concerning multiple punishments has no practical effect on the binding precedent that Hunt
creates for multiple prosecution cases.
III. The Lead And Concurring Opinions
Four aspects of the reasoning in the lead and concurring opinions prevent me from
joining the conclusion that this Court must reverse the trial court’s decision.
First, I agree with the statement in the concurring opinion that determining whether the
time sequence in a crime passes the same transaction test requires a case-by-case analysis. To the
extent that the concurring opinion suggests that the Court must apply the double jeopardy
principles directly to the facts of the case in the absence of relevant case law, I have no quarrel.
Nevertheless, I do think that case law is instructive when it comes to applying most legal tests,
including double jeopardy’s same transaction test. In fact, the rule of stare decisis, a guiding
principle in the American jurisprudential emphasis on precedent, makes this not a question of
choice, but largely one of obligation.51 Moreover, a case-by-case analysis does not mean
working with a completely blank slate, ignoring the reasoning in other relevant opinions. Rather,
the analytical task is to take notice of the points of similarity and dissimilarity between a case
under consideration and precedent, and then apply the relevant points in the precedent to the case
at bar.52
This case might be slightly easier if it could be resolved by saying that neither Hunt nor
People v Flowers53 were relevant. At least, this would eliminate one facet of disagreement
between this dissent and the lead opinion. However, I have already explained the very close
similarity between the facts in Hunt and the facts of this case. Consequently, aside from the
debate regarding whether Flowers or Hunt controls the outcome here, I think it necessary to
apply precedent.
51
See, generally, Parker v Port Huron Hospital, 361 Mich 1, 10; 105 NW2d 1 (1960) (limiting
departure from otherwise binding precedent to “the rare case when it is clearly apparent that an
error has been made, or changing conditions result in injustice by the application of an outmoded
rule”).
52
See, e.g., People v Watson, 245 Mich App 572, 586, 591; 629 NW2d 411 (2001) (comparing
the facts of published opinions to facts underlying the prosecutorial misconduct issue, even
though the issue required a “case by case” analysis); People v Echavarria, 233 Mich App 356,
363-364; 592 NW2d 737 (1999) (examining the facts of People v Booker [After Remand], 208
Mich App 163, 168; 527 NW2d 42 [1994], even though whether manifest necessity to declare a
mistrial had to be determined on a “case by case” basis when considering whether retrial would
violate double jeopardy).
53
People v Flowers, 186 Mich App 652; 465 NW2d 43 (1990).
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Second, as I have suggested, I firmly believe in the rule of stare decisis.54 Yet, the lead
opinion applies this principle to Flowers in a manner that tends to contradict the ordinary tenets
of legal reasoning. Specifically, when judges look at case law to determine the outcome in a
given case, we first ask whether the case law addresses the same legal question in the case at
bar.55 If the case law is unanimous in prescribing a particular outcome or legal conclusion, then
resolving the case under consideration is relatively simple: we need only reach that outcome or
conclusion.56 If, however, the case law does not unanimously reach the same outcome or legal
conclusion, judges must undertake an additional layer of analysis that focuses on determining
which published opinion controls the disposition of the case at bar.57 For the most part, this is a
factual inquiry.58 The published opinion that has the facts closest to the case under consideration
controls the outcome or legal conclusion.59 Only if there are two or more opinions that are
legally on point and have facts similarly close to the case being decided is it necessary to decide
which case is dispositive under the precedent rule set in MCR 7.215(I). In other words, in this
context,60 MCR 7.215(I) serves as a tie-breaking rule.
In this case, it is clear that there are numerous published opinions addressing double
jeopardy in general. I was able to exclude from this large number of cases those opinions
addressing multiple punishments, like Squires, because they do not address the multiple
prosecution problem in this case. The subset of double jeopardy opinions addressing the
multiple prosecution problem, including Hunt and Flowers, are relevant to the analysis of Nutt’s
predicament to the extent that their facts allow. Before determining that Flowers controls in this
case because it was the first case published, it is incumbent on this Court to determine whether it
is more factually analogous to the situation this case presents than Hunt.
Hunt, not Flowers, clearly “wins” when it comes to the facts. While I have no reason to
challenge the reasoning the Flowers panel applied to the facts it was considering, I think it
relevant that, unlike Hunt, the Flowers opinion identifies very few facts underlying the charged
offense and double jeopardy issues. At a practical level, this absence of information works
against applying Flowers instead of Hunt; how would we ever know if Flowers was more like
54
See MCR 7.215(I).
55
See, generally, People v Sobczak-Obetts, 463 Mich 687, 706-708; 625 NW2d 764 (2001)
(determining that a line of cases with a different legal foundation did not control the outcome in
the case).
56
See In re Parole of Bivings, 242 Mich App 363, 371; 619 NW2d 163 (2000) (“It is well settled
that, absent an error that renders a sentence invalid, a circuit court lacks authority to modify the
sentence a defendant has begun to serve. . . . [Therefore, t]he circuit court was without authority
to revisit that sentence.”) (citations omitted).
57
See Traverse City Light and Power Bd v Home Ins Co, 209 Mich App 112, 116-118; 530
NW2d 150 (1995).
58
Id. at 118.
59
Id.; see also Warren v Caro Community Hosp, 457 Mich 361, 367-369; 579 NW2d 343 (1998).
60
Of course, MCR 7.215(I) also guides this Court’s decisions when it disagrees with established
precedent.
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this case than Hunt from the six shorts paragraphs that make up the Flowers opinion? Further,
Flowers involved armed robbery61 and possessing stolen property,62 offenses that are
substantively different from the charges the prosecutors in Lapeer and Oakland Counties brought
against Nutt. In contrast, the defendant in Hunt faced charges highly similar to the charges in this
case.63 When it comes to the facts of Hunt and Flowers, in my view, there is no tie to be broken
with MCR 7.215(I) because Hunt is the closer case.
Third, I cannot agree that reversal is warranted in this case because of the distinction the
lead opinion draws between the date when Nutt committed the home invasion and the date when
the police discovered the concealed the firearms. Yes, the Hunt Court distinguished the facts of
the case it was considering from Flowers on the basis that the crimes in Flowers occurred on
different days while the crimes in Hunt occurred during the “same criminal episode.”64
However, the Supreme Court has since clarified, in a general sense, that a single offense “can
take place over an extended period.”65 There is no question here that the single receiving and
concealing offense took place over a number of days and was a logical extension of the home
invasion. This case would be much different if, for example, there were evidence that Nutt and
others committed home invasion, one of her accomplices took physical possession of the
firearms, and then at some later time that accomplice gave Nutt the firearms to hide. However,
there is no evidence of similar circumstances in this case. Rather the record suggests that
sequence of events between the home invasion and receiving and concealing offenses is
unbroken, making them part of the same transaction.
Finally, I disagree with the emphasis both the lead opinion and the concurrence give to
the distinctions between the two statutes at issue here. Under the lead opinion’s approach, which
the concurrence adopts, the double jeopardy protection against multiple prosecutions disappears
unless the charges at issue are virtually identical. In part, this results from the fact that the lead
opinion relies on Squires and People v Peerenboom,66 both of which are multiple punishment
cases.67 In contrast, the binding Supreme Court authority involving multiple prosecutions that
discusses the relationship between offenses emphasizes that only if “the offenses involve laws
intended to prevent the same or similar harm or evil, not a substantially different, or a very
different kind of, harm or evil”68 would they not be considered part of the same transaction for
the purpose of double jeopardy. Plainly, this standard tolerates some differences, likely because
comparing the similarity of the offenses in this context is intended to illustrate whether the
offenses can be logically viewed as part of the same transaction. In fact, this Court in Hunt
61
MCL 750.529.
62
MCL 750.535(1).
63
See nn 17, 18, 35, supra.
64
See Hunt, supra at 317.
65
Burgenmeyer, supra at 439.
66
People v Peerenboom, 224 Mich App 195; 568 NW2d 153 (1997).
67
See Squires, supra at 456; Peerenboom, supra at 200.
68
Crampton, supra at 502 (emphasis added); see also Sturgis, supra at 399.
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determined that receiving and concealing and crimes involving breaking and entering are
sufficiently similar to pass the same transaction test.69
IV. Conclusion
In applying Hunt to the facts of this case I am mindful that the purpose of the prohibition
against multiple prosecutions is to level the playing field between prosecutors and defendants.70
I certainly do not laud Nutt’s alleged criminal behavior and acknowledge that there is no
evidence of bad faith underlying the Oakland County prosecutor’s approach in this case.71
However, the prosecutor has never articulated any manifest necessity that would justify this
separate prosecution.72 Moreover, the disposition of this case is exactly the sort of “vexatious”
proceeding against which double jeopardy protects.73 Because the trial court applied the correct
analysis and reached the correct legal result in this case, I would conclude that it did not err in
granting the motion to dismiss.
/s/ William C. Whitbeck
69
See Hunt, supra at 317, citing People v Leonard Adams, 202 Mich App 385, 387; 509 NW2d
530 (1993).
70
Flowers, supra at 258-259.
71
See Gonzalez, supra at 396 (splitting prosecutions can make plea bargain illusory).
72
See People v Herron, 464 Mich 601-603; 628 NW2d 528 (2001).
73
People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984).
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