PEOPLE
v.
ROLSTON
Docket No. 14259.
Michigan Court of Appeals.
Decided January 15, 1974.*147 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Richard S. McMillin and Dennis H. Benson, Assistants State Appellate Defender, for defendant.
Before: BRONSON, P.J., and V.J. BRENNAN and WALSH,[*] JJ.
BRONSON, P.J.
Defendant, Robert Rolston, was convicted by a Wayne County jury of kidnapping. MCLA 750.349; MSA 28.581. He appeals as of right.
On January 23, 1967, defendant and Larry Markham entered a bar in River Rouge, Michigan, engaged the barmaid in conversation, and then left the premises. Shortly thereafter, patrons in the bar found the barmaid missing and the owner found a shortage in the cash register.
The barmaid was found shot to death in a wooded area in Washtenaw County. It was shown by defendant's statement to police that he and Markham had taken the barmaid from the bar at gunpoint, driven to Markham's cottage in Chelsea, Michigan, raped her, shot her, and buried the body in a swamp. Defendant's statement indicated, and *148 he subsequently testified, that his involvement was the product of Markham's threats against him and established the defense of duress.
Both Markham and this defendant had been convicted of this kidnapping in Wayne County Circuit Court. Markham's conviction was affirmed by this Court, People v Markham, 19 Mich. App. 616; 173 NW2d 307 (1969). However, defendant's conviction was reversed. People v Rolston, 31 Mich. App. 200; 187 NW2d 454 (1971). After that reversal, defendant and Markham separately stood trial for murder of the barmaid in Washtenaw County.
At defendant's trial in Washtenaw County, evidence of the entire criminal episode was shown to the jury. The jury was then instructed to find defendant guilty of first-degree murder if it was shown he either aided in felony-murder, or committed or aided in the commission of deliberate premeditated murder. The jury was further instructed on the elements of second-degree murder. See People v Carter, 387 Mich. 397; 197 NW2d 57 (1972).[1] The jury in Washtenaw County acquitted defendant.
Thereafter, this case was brought to trial in Wayne County. Defendant's motions to dismiss on grounds of double jeopardy and collateral estoppel were denied. Again the entire transaction was shown. Defendant contends on appeal that his acquittal of murder for the events arising out of this single criminal episode of robbery, kidnapping, rape, and murder bars further prosecution by the state. We agree.
Evidence at trial established Markham wished *149 to flee the country because of pending criminal charges against him. He sought out defendant for assistance. The robbery was committed in furtherance of that objective. The barmaid knew Markham; her kidnapping was designed to prevent successful police investigation of the robbery. It can readily be deduced from the record that her murder was similarly motivated. The prosecution, on appeal, does not contest that these tragic events were part of one criminal transaction. The theory of the prosecution in Washtenaw County was grounded on the fact that this was but one criminal transaction.
In People v White, 41 Mich. App. 370; 200 NW2d 326 (1972), it was noted that liberal joinder rules more than adequately allow the state to vindicate its interest in the prosecution of several crimes that arise out of the same transaction.[2] It was held in White that where a defendant has one objective and commits several crimes in preparing for and attaining that objective, only one prosecution may be brought. Accord, State v Brown, 262 Or 442; 497 P2d 1191 (1972); Commonwealth v Campana, 452 Pa 233; 304 A2d 432 (1973). See, also, Model Penal Code (Proposed Official Draft, 1962, § 1.07, p 12).
The prosecution was allowed, in this trial, to show the elements of the robbery, rape, and murder of the victim, ostensibly for the purpose of showing the victim was placed in hostile environment consistent with kidnapping. Yet, the defense was not allowed to directly show defendant had *150 been acquitted of the murder, ostensibly because this jury might have been swayed by another jury's finding. Defendant's theory of duress, apparently accepted by the jury in Washtenaw County, was fragmented by the artificial isolation of the kidnapping charge, only part of which occurred within the boundaries of Wayne County. References in the transcript, notwithstanding the exemplary caution on the part of the trial judge, clearly indicated that the witnesses in this retrial had testified against this defendant on these same facts before, which, by itself was not prejudicial, but left the result of the previous murder trial for speculation by the jury. We have no reluctance in finding the mandatory rule announced in People v White, supra, now followed in Oregon and Pennsylvania, of constitutional importance designed to protect defendants from being twice placed in jeopardy while promoting efficient and effective prosecution by the state.[3]
The by-product of the violation of the "same transaction" test for double jeopardy as announced in People v White, supra, allows us to transcend mere application of that holding to this case, since here further analysis in terms of collateral estoppel shows why multiple prosecution is irrefragably problematical.
As indicated, the Washtenaw County jury, called upon to determine defendant's culpability for murder, heard evidence of the robbery, kidnapping, and rape and was instructed accordingly on the elements of first- and second-degree murder. The jury also heard defendant's theory of duress as it related to all those incidents. Ashe v Swenson, 397 *151 US 436; 90 S. Ct. 1189; 25 L. Ed. 2d 469 (1970), directs an examination of that prior trial to determine whether a rational jury could have grounded its verdict of acquittal on an issue other than that which the defendant seeks to foreclose from further litigation. In the instant case, the issue sought to be foreclosed concerns the merits of defendant's theory of duress. We are of the opinion that the Washtenaw County jury conclusively and rationally determined that defense was valid as it related to the charge of murder.
By his own admission, defendant drove the trio to the cottage, was present at all events, and assisted in covering the body. He explained he was forced to be present and acted in fear. The only logical conclusion is that while the jury could find the murder was committed during robbery, kidnapping, and rape, defendant was an unwilling participant in all the events. Any other finding would have resulted in conviction. That finding compels us to conclude the relitigation of the defense of duress as it related to the kidnapping charge was not constitutionally permissible. See Turner v Arkansas, 407 U.S. 366; 92 S. Ct. 2096; 32 L. Ed. 2d 798 (1972).
Reversed.
WALSH, J., concurred.
V.J. BRENNAN, J. (concurring).
This case involves a defendant who was allegedly involved in the four separate and distinct criminal offenses of robbery, kidnapping, rape, and murder. Despite the fact that these four crimes each have their own independent elements and that none of them is an included offense of the other, nor do any depend upon the other for proof, we are required to reverse this defendant's conviction of kidnapping *152 because of the recent decision of our Supreme Court in People v White, 390 Mich. 245; 212 NW2d 222 (1973), in which the "same transaction" test of double jeopardy was adopted as the law of this state. In adopting the "same transaction" test of double jeopardy our Supreme Court relied heavily on language contained in the concurring opinion of Mr. Justice Brennan in Ashe v Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). In Ashe, however, the Court was faced with a defendant who allegedly was one of four persons who had robbed six men at one time during a poker game. The defendant was tried and acquitted of robbing one of the participants but then, six weeks later, was convicted of robbing one of the other participants. There he was tried twice for the same crime. That clearly was not the situation in White and is not the situation in the case at bar. Our Supreme Court, however, chose to apply Mr. Justice Brennan's language to this type of situation and extend its mandate.
Reluctantly, therefore, I must also vote to reverse this defendant's conviction.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] To avoid confusion, we note that at the time of the offense, kidnapping was not one of the enumerated felonies which would support felony-murder. MCLA 750.316; MSA 28.548 has since been amended to include larceny, extortion, and kidnapping as supporting felonies.
[2] Proper venue for the murder charge, if there was any doubt on that issue, could have been designated by the Attorney General. MCLA 762.3; MSA 28.846. Kidnapping may be prosecuted in any county where the victim is taken. MCLA 750.349; MSA 28.581. Even the robbery of the bar in River Rouge could have been joined for prosecution in Washtenaw County. See MCLA 767.63; MSA 28.1003.
[3] People v White, supra, affirmed by the Supreme Court, 390 Mich. 245; 212 NW2d 222 (1973), subsequent to the original draft of this opinion, adopted the "same transaction" test on constitutional grounds.