Docket No. 49150.
Decided December 2, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Angela Baryames, Assistant Prosecuting Attorney, for the people.
Mardi Crawford, Assistant State Appellate Defender, for defendant on appeal.
Defendant pled guilty to larceny in a building, MCL 750.360; MSA 28.592. Defendant's plea was induced by the prosecutor's agreement to withdraw a supplemental information charging her as an habitual offender, MCL 769.11; MSA 28.1083. Defendant was sentenced to serve two to four years in prison and now appeals by right.
Defendant's statements at the plea-taking colloquy indicate that she committed the crime of larceny in a building by shoplifting some clothing from a store. Defendant concealed the clothing in her purse, paid for other items, and attempted to leave the store. Defendant was apprehended by a store security guard as she attempted to leave. The parties agree that, before defendant pled guilty in the instant case, she was convicted of assault and battery, MCL 750.81; MSA 28.276, in a separate proceeding in district court. The assault and battery charge arose out of defendant's attempt to escape from the security guard and other store employees.
Defendant first argues that the constitutional prohibition of double jeopardy was violated here because she was not afforded the opportunity of a single trial on all charges arising out of the same transaction. See People v White, 390 Mich. 245, 259; 212 N.W.2d 222 (1973). However, crimes arise out of the same transaction under the White rule when they are committed in a continuous time sequence and display a single intent and goal. Crampton v 54-A Dist Judge, 397 Mich. 489; 245 N.W.2d 28 (1976). The two crimes at issue here did not display a single intent and goal. Defendant committed larceny in a building to acquire the clothing for her own use; she committed assault and battery in an effort to escape from her captors. See People v Charles Johnson, 62 Mich. App. 240; 233 N.W.2d 246 (1975), and People v Grant, 102 Mich. App. 368; 301 N.W.2d 536 (1980).
Defendant argues that the Legislature did not intend the larceny in a building statute to apply in shoplifting cases. Instead, defendant argues that she should have been charged with the misdemeanor of larceny of property of a value less than $100, MCL 750.356; MSA 28.588. Dicta supporting defendant's position appear in People v Carmichael, 86 Mich. App. 418; 272 N.W.2d 667 (1978). However, it is well-settled that the prosecutor has broad discretion to determine under which of two applicable statutes a prosecution will be instituted. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 673, 683; 194 N.W.2d 693 (1972). The overwhelming weight of authority in this Court indicates that a prosecutor has discretion to charge a defendant with either of the two overlapping offenses of simple larceny and larceny in a building. See People v Jackson, 29 Mich. App. 654; 185 N.W.2d 608 (1971), People v Graves, 31 Mich. App. 635; 188 N.W.2d 87 (1971), People v Bohm, 49 Mich. App. 244; 212 N.W.2d 61 (1973), People v Shepherd, 63 Mich. App. 316; 234 N.W.2d 502 (1975), People v Evans, 94 Mich. App. 4; 287 N.W.2d 608 (1979), People v Hart, 98 Mich. App. 273; 296 N.W.2d 235 (1980), People v Holmes, 98 Mich. App. 369; 295 N.W.2d 887 (1980), and People v Freeland, 101 Mich. App. 501; 300 N.W.2d 616 (1980).
Defendant argues that this grant of discretion to the prosecutor to charge under either of two applicable statutes violates due process, citing Coates v Cincinnati, 402 U.S. 611; 91 S Ct 1686; 29 L Ed 2d 214 (1971), Papachristou v City of Jacksonville, 405 U.S. 156; 92 S Ct 839; 31 L Ed 2d 110 (1972), Grayned v City of Rockford, 408 U.S. 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972), and Smith v Goguen, 415 U.S. 566; 94 S Ct 1242; 39 L Ed 2d 605 (1974). The statutes at issue in those cases were void for vagueness because they provided no standards for determining whether particular conduct was criminal. In contrast, here it was clear that at least two statutes prohibited defendant's conduct. The prosecutor was not given discretion to decide whether defendant's conduct was criminal; his discretion extended merely to determining under which statute, if any, to charge defendant. Such discretion has long been a fundamental attribute of our criminal justice system. Defendant has not cited, and we cannot find, any authority declaring such discretion to be constitutionally defective.
Finally, defendant argues that the prosecutor abused his discretion by charging her with larceny in a building. As the conduct of a prosecution by the prosecutor is an executive act, review of a prosecutor's exercise of his charging discretion is generally precluded by the constitutional separation of powers. Genesee Prosecutor, supra. Such review is available only to determine whether the prosecutor's exercise of discretion amounted to malfeasance, People v Curtis, 389 Mich. 698, 711; 209 N.W.2d 243 (1973), or violated constitutional principles, Bordenkircher v Hayes, 434 U.S. 357, 365; 98 S Ct 663; 54 L Ed 2d 604 (1978). Neither occurred here.