People v. Ford

687 N.W.2d 119 (2004) 262 Mich. App. 443

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Elijah Monroe FORD, Defendant-Appellant.

Docket No. 246136.

Court of Appeals of Michigan.

Submitted April 16, 2004, at Grand Rapids. Decided June 15, 2004, at 9:20 a.m. Released for Publication September 1, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, James A. Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by James R. Newmann and Gail Rodwan), for the defendant on appeal.

Before: WHITE, P.J., and MARKEY and OWENS, JJ.

MARKEY, J.

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

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, 469 Mich. 448, 450-451, 671 N.W.2d 733 (2003); People v. Davis, 468 Mich. 77, 79, 658 N.W.2d 800 (2003).

Both the United States and Michigan constitutions prohibit a person from twice being placed in jeopardy for the same offense. U.S. Const., Am. V; Const. 1963, art. 1, § 15; People v. Nutt, 469 Mich. 565, 677 N.W.2d 1 (2004). The Double Jeopardy Clause of the United States Constitution, Am. V, provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." The Clause applies to the states through the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The Michigan Constitution provides: "No person shall be subject for the same offense to be twice put in jeopardy." Const. 1963, art. 1, § 15. This provision is "essentially identical" to its federal counterpart, Nutt, supra at 575, 677 N.W.2d 1, and was intended to be "construed consistently with the corresponding federal provision." Id. at 594, 677 N.W.2d 1.

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, 677 N.W.2d 1; 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, 419 Mich. 458, 484, 355 N.W.2d 592 (1984). The purposes of double jeopardy protections against successive prosecutions for the same offense are to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986). But the purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended. Id. at 399, 397 N.W.2d 783; Calloway, supra at 451, 671 N.W.2d 733. "[T]he Double Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the Legislature." Robideau, supra at 469, 355 N.W.2d 592, citing Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Accordingly, the Double Jeopardy Clause does not limit the Legislature's ability to define criminal offenses and establish punishments, Sturgis, supra at 400, 397 N.W.2d 783, and the "only interest of the defendant is in not having more punishment imposed than that intended by the Legislature." Robideau, supra at 485, 355 N.W.2d 592.

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 so-called Blockburger^[1] or "same-elements" test. United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993); People v. Denio, 454 Mich. 691, 707, 564 N.W.2d 13 (1997). In general, the Blockburger test "inquires whether each offense contains an element not contained in the other; if not, they are the ``same offence' and double jeopardy bars additional punishment and successive prosecution." Dixon, supra at 696, 113 S. Ct. 2849.

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, 445 U.S. 684, 691-692, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980); People v. Wakeford, 418 Mich. 95, 107, 341 N.W.2d 68 (1983). A presumption arises under Blockburger that a legislature intends multiple punishments where two distinct statutes cover the same conduct but each requires proof of an element the other does not; the contrary presumption arises when the elements of one offense are encompassed in the elements of the other. Id. at 110 n. 14, 341 N.W.2d 68. But this presumption is overcome when a legislature clearly expresses a contrary intent. Whalen, supra. Thus, even where the crimes are the same, "``if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end [.]'" Sturgis, supra at 400, 397 N.W.2d 783, quoting Ohio v. Johnson, 467 U.S. 493, 499, n. 8, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).

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, 564 N.W.2d 13; People v. Dillard, 246 Mich.App. 163, 166, 631 N.W.2d 755 (2001). In Robideau, our Supreme Court found "the Blockburger test to have questionable status in the Supreme Court of the United States" and to be of questionable value in ascertaining legislative intent in multiple punishment cases. Robideau, supra at 485-486, 355 N.W.2d 592.^[2] The Robideau Court therefore eschewed the Blockburger test, "preferring instead to use traditional means to determine the intent of the Legislature: the subject, language, and history of the statutes." Robideau, supra at 486, 355 N.W.2d 592. As our Supreme Court later explained, the Robideau Court's rejection of the "wooden application" of the Blockburger test acknowledges the rule as one of statutory construction rather than a conclusive constitutional presumption. Sturgis, supra at 405 n. 5, 397 N.W.2d 783. In sum, under both the federal and Michigan double jeopardy clauses the test is the same: "in the context of multiple punishment at a single trial, the issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is solely one of legislative intent." Id. at 400, 397 N.W.2d 783.

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, 355 N.W.2d 592.]

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, 165 Mich.App. 1, 418 N.W.2d 404 (1987), and People v. Witt, 140 Mich.App. 365, 364 N.W.2d 692 (1985). The Witt panel upheld the defendant's guilty plea to bank, safe, or vault robbery, MCL 750.531, and armed robbery, MCL 750.529, because it concluded that the Legislature intended to permit punishment of the defendant under both statutes. Witt, supra at 370, 364 N.W.2d 692. The Witt panel reasoned that the Legislature intended multiple punishments because, on the one hand, the bank, safe, or vault robbery statute was intended to protect "funds kept in a building, bank, safe, vault or other depository of money," as well as the persons guarding the money, and that the use of a weapon, or the taking of property, or the presence of another person was not required to prove the offense. Id. at 370-371, 364 N.W.2d 692. On the other hand, the Witt panel found that the armed robbery statute "is aimed at persons who violate social norms by taking property from the presence of another by force or threat of force while armed with a weapon." Id. at 371, 364 N.W.2d 692. The Witt panel, therefore, concluded that the Legislature intended punishment for both armed robbery and bank, safe, or vault robbery because the "purpose of the armed robbery statute is ... different from that of the vault robbery statute." Id.

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, 418 N.W.2d 404. The Campbell panel reasoned that bank robbery (to the extent the offense did not address safecracking) "was intended to protect people rather than funds or buildings." Id. (emphasis in original). The Campbell panel further opined that with respect to MCL 750.531 "[t]he language of the statute makes it clear that the prohibited conduct is the threatening or injuring of another in order to take money, not the actual stealing." Id. (emphasis in original). Thus, the Court held that the defendant was erroneously convicted of both bank robbery and unarmed robbery and vacated the defendant's conviction and sentence for the lesser offense of unarmed robbery. Id. at 7, 418 N.W.2d 404.

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, 190 Mich.App. 629, 634, 476 N.W.2d 490 (1991). The Shipe Court opined, id. at 632, 476 N.W.2d 490 (n. 10 omitted):

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

11 People v. Witt, 140 Mich.App. 365, 370-371, 364 N.W.2d 692 (1985); People v. Thomas, 118 Mich.App. 667, 672, 325 N.W.2d 536 (1982). But see People v. Campbell, 165 Mich.App. 1, 6, 418 N.W.2d 404 (1987) (holding that the proscription of bank robbery not involving safecracking is intended to protect people rather than funds or buildings).

The Court reviewed federal authority, including United States v. Canty, 152 U.S. App DC 103, 115-116, 469 F.2d 114 (1972), interpreting the federal bank robbery statute, 18 U.S.C. 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, 476 N.W.2d 490. 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, 476 N.W.2d 490.]

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), 191 Mich.App. 660, 663, 478 N.W.2d 737 (1991), which relied on Campbell to opine that the bank robbery statute "encompasses two distinct offenses: the assaultive crime of bank robbery perpetrated by any of several enumerated means, and the nonassaultive crime of safe breaking." Douglas is not controlling precedent under MCR 7.215(J)(1) because it was decided after Shipe. Moreover, the Douglas panel did not address legislative intent for the purpose of applying Michigan's double jeopardy prohibition against multiple punishments for the "same offense." Rather, the Douglas panel addressed whether the judicial sentencing guidelines applied to the defendant's conviction for violating MCL 750.531 and in doing so attempted to ascertain the intent of the drafters of the sentence guidelines. Douglas, supra at 662, 478 N.W.2d 737. The Court reasoned that the offense of "safe breaking" was not included in the judicial guidelines because it would be "more appropriate to group the offense in the burglary crime list, which concerns the offenses of breaking and entering, entering without breaking, and possession of burglar's tools," and there was no mention of the offense in that crime group. Id. at 665, 478 N.W.2d 737.

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, 466 Mich. 378, 382, 645 N.W.2d 275 (2002). The first step in doing so is to examine the language of the statute. Davis, supra at 79, 658 N.W.2d 800. MCL 750.531 is entitled "bank, safe and vault robbery," and provides:

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, 406 Mich. 320, 279 N.W.2d 534 (1979) (one sexual penetration accomplished through multiple aggravating circumstances constitutes one offense of first-degree criminal sexual conduct), and People v. Bigelow, 229 Mich.App. 218, 220-221, 581 N.W.2d 744 (1998) (one crime of first-degree murder even if committed by means of premeditation and deliberation during the course of an enumerated felony).

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 412 from 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, 658 N.W.2d 800, 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, 658 N.W.2d 800 (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, 658 N.W.2d 800. 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, 341 N.W.2d 68. 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, 476 N.W.2d 490, the statutes "can generally be viewed as separate and amenable to permitting multiple punishments." Robideau, supra at 487, 355 N.W.2d 592.

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, 418 N.W.2d 404, 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 that every word has some meaning and should avoid any construction that would render any part of the statute surplusage or nugatory." People v. Borchard-Ruhland, 460 Mich. 278, 285, 597 N.W.2d 1 (1999).

We also apply the Blockburger"same-elements" test as an aid to statutory construction. People v. Hurst, 205 Mich.App. 634, 638, 517 N.W.2d 858 (1994). When the elements of the offense of armed robbery are compared to the elements of bank, safe, and vault robbery, it is clear that "each offense contains an element not contained in the other." Dixon, supra at 696, 113 S. Ct. 2849. The elements necessary to prove armed robbery are: "``(1) an assault, (2) a felonious taking of property from the victim's presence or person, (3) while the defendant is armed with a weapon described in the statute.'" People v. Carines, 460 Mich. 750, 757, 597 N.W.2d 130 (1999), quoting People v. Turner, 213 Mich.App. 558, 569, 540 N.W.2d 728 (1995). Thus, armed robbery lacks an element necessary to violate the bank, safe, or vault robbery statute: the intent to steal property from "any building, bank, safe, vault or other depository of money, bonds, or other valuables." MCL 750.531; People v. Monick, 283 Mich. 195, 197, 277 N.W. 883 (1938). Similarly, the offense of armed robbery contains elements never required to prove bank, safe, or vault robbery: the use of "a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon" and the taking of property from or in the presence of a person. MCL 750.529; People v. Randolph, 466 Mich. 532, 536, 648 N.W.2d 164 (2002); Witt, supra at 370-371, 364 N.W.2d 692. Because armed robbery and bank, safe, or vault robbery are distinct offenses under Blockburger, it is presumed that the Legislature intended to authorize multiple punishments. Even where the same facts in a single trial show the commission of each the federal Double Jeopardy Clause is not offended. Sturgis, supra at 403, 397 N.W.2d 783.

Thus, utilizing both the Robideau test and the Blockburger 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, 397 N.W.2d 783. 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, 517 N.W.2d 858, 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, 397 N.W.2d 783, citing Robideau, supra at 484, 355 N.W.2d 592.

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, 250 Mich.App. 59, 644 N.W.2d 790 (2002), this Court held that convictions of assault with intent to murder and assault with intent to do great bodily harm less than murder did not violate prohibitions against double jeopardy. This Court opined that "``there is no violation of double jeopardy protections if one crime is complete before the other takes place, even if the offenses share common elements or one constitutes a lesser offense of the other.'" Id. at 63, 644 N.W.2d 790, quoting People v. Lugo, 214 Mich.App. 699, 708, 542 N.W.2d 921 (1995). That is exactly what occurred in the case at bar. When defendant threatened to shoot the victim if he did not go to the basement and open the safe, the offense of bank, safe, or vault robbery was complete. MCL 750.531. The offense of armed robbery was not completed until the victim, after further threats of death by gunshot, opened the safe, and defendant took property from it in the victim's presence. MCL 750.529.

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, 150 Mich.App. 630, 637, 389 N.W.2d 713 (1986). This Court will find an abuse of discretion only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. People v. Williams, 240 Mich.App. 316, 320, 614 N.W.2d 647 (2000). We find the trial court did not abuse its discretion here.

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 Buren 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 sometimes signed his letters with "Elis" instead of "Elijah." Although Palmer had only personally received one letter from defendant, she knew that defendant sometimes used "Elis" on the basis of "little notes in Nieche's letter telling [Wanda] hi." Palmer testified that she did not have the envelope in which the letter came, but that she thought it was possible that the letter had been enclosed with a letter to Nieche in an envelope addressed to Nieche. The letter referred to Palmer's contacting defendant's lawyer, which she had already done. Finally, Palmer unequivocally testified that the handwriting in the letter was defendant's.

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, 389 N.W.2d 713. 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.

OWENS, J., concurred.

WHITE, P.J., (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^[1] test is not appropriate in a multiple punishment case. People v. Robideau, 419 Mich. 458, 485-486, 355 N.W.2d 592 (1984). As the majority states, ante at 122, defendant's only double jeopardy interest in a multiple punishment case is in not having more punishment imposed than intended by the Legislature. Robideau, supra at 485, 355 N.W.2d 592. The issue is solely one of legislative intent, and Robideau sets forth guidelines for determining whether multiple punishment was intended. Ante at 123-24.

The majority concludes, in accord with People v. Witt, 140 Mich.App. 365, 364 N.W.2d 692 (1985), that the Legislature intended multiple punishment under the armed robbery and bank robbery statutes because the statutes are intended to protect different social norms — the protection of persons (armed robbery), and the protection of property in a bank, vault, safe, or other depository (bank robbery). I would hold, however, in accord with People v. Campbell, 165 Mich.App. 1, 418 N.W.2d 404 (1987), that the Legislature did not intend multiple punishment. I read both statutes as expressing legislative intent to protect both persons from assault, and property from theft. I note that Witt appears to be the only case where dual convictions of armed robbery and bank robbery were sustained. And, although the Witt Court engaged in a Robideau analysis of the two statutes, Witt involved a fact situation where the armed robbery involved the separate larcenous act of taking the guard's gun. Witt, supra at 373, 364 N.W.2d 692 (Shepherd, P.J., concurring in part).^[2]

I do not regard People v. Shipe, 190 Mich.App. 629, 476 N.W.2d 490 (1991), or People v. Davis, 468 Mich. 77, 658 N.W.2d 800 (2003), as controlling or instructive here. The question whether the Legislature intended multiple punishments under the bank robbery statute (Shipe), or the carjacking statute (Davis), where one bank or one car was involved, but two victims were present, is a separate question from the question whether the Legislature intended that a defendant would be convicted of both carjacking and armed robbery, or bank robbery and armed robbery for the same assault and theft.

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.^[3] Such an examination also supports the conclusion that Shipe and Davis are consistent with Campbell's conclusion that multiple punishment under the armed robbery and bank robbery statutes was not intended.

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. More particularly, the Legislature determined that if a perpetrator takes a car from someone's lawful possession by force, the perpetrator should be subject to life imprisonment, whether or not a dangerous weapon was employed, and when a perpetrator uses force or threats to steal from, or gain access to, a depository, or tries to break or otherwise injure that depository, the perpetrator should also be subject to life imprisonment without regard to whether a dangerous weapon is employed and without regard to whether the efforts are successful. Because these two species of robbery are focused on the special circumstances presented, i.e., the theft of a car and the threat to the person in possession, or the threat to a depository and the persons present or with access, the statutes have been construed to contemplate only a single conviction for a single car (Davis), or a single depository (Shipe), regardless of the number of persons present.^[4] It does not follow, however, that the Legislature intended that where the facts of the offense also constitute armed robbery, the person be convicted of both armed robbery and bank robbery or carjacking.^[5]

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.

NOTES

[1] Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).

[2] The Robideau Court's predicted demise of the Blockburger test proved less than prescient. Recently, our Supreme Court overruled People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), which had adopted the "same transaction" test to review claims that successive prosecutions were prohibited by Const. 1963, art. 1, § 15. Nutt, supra at 568, 677 N.W.2d 1. The Court held that the Blockburger test, the longstanding guidepost for reviewing claims of both successive prosecution and multiple punishment violations of the federal Double Jeopardy Clause, see Dixon, supra at 696, 113 S. Ct. 2849 should be applied to review claims that a successive prosecution for the "same offense" is barred by Michigan's Double Jeopardy Clause. Nutt, supra at 588, 677 N.W.2d 1. The Court, however, did not address the multiple punishment prong of Michigan's double jeopardy provision. Nutt, supra at 575 n. 11, 595 n. 30, 677 N.W.2d 1.

[1] Blockburger v. Untied States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

[2] This was also the case in People v. Parker, 230 Mich.App. 337, 584 N.W.2d 336 (1998), where convictions of armed robbery and carjacking were sustained on the basis that the defendant took the victim's car and also stole the victim's money at gunpoint.

[3] 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 lives 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.

[4] 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.

[5] 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.