People v. Ream

Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman FILED JUNE 11, 2008 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v No. 134913 DAVID GORDON REAM, Defendant-Appellee.

_______________________________ PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 134925 DAVID GORDON REAM, Defendant-Appellant.

_______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J.

At issue here is whether convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the “multiple punishments” strand of the Double Jeopardy Clause of the United States and Michigan constitutions. Following a jury trial, defendant was convicted and

sentenced for first-degree felony murder and first-degree criminal sexual conduct,

where the latter constituted the predicate felony for the former. The Court of

Appeals affirmed defendant’s first-degree felony-murder conviction and sentence,

but vacated defendant’s first-degree criminal sexual conduct conviction and

sentence on double-jeopardy grounds. We conclude that convicting and

sentencing a defendant for both felony murder and the predicate felony does not

necessarily violate the “multiple punishments” strand of the Double Jeopardy

Clause, and, thus, we overrule People v Wilder, 411 Mich 328, 342 ; 308 NW2d

112 (1981). Because each of the offenses for which defendant was convicted has

an element that the other does not, they are not the “same offense” and, therefore,

defendant may be punished for both. Accordingly, we reverse the part of the

Court of Appeals judgment that vacated defendant’s first-degree criminal sexual

conduct conviction and sentence, and we reinstate them. In addition, defendant’s

application for leave to appeal the judgment of the Court of Appeals is considered,

and it is denied, because we are not persuaded that the questions presented should

be reviewed by this Court.

I. FACTS AND PROCEDURAL HISTORY Defendant forced his 92-year-old neighbor into her bedroom, stripped her

of her clothing, and killed her by stabbing her in the abdomen and genital area 23

times with a kitchen knife. Following a jury trial, defendant was convicted and

sentenced for first-degree felony murder and first-degree criminal sexual conduct, 2

where the latter was the predicate felony for the felony-murder conviction. The

Court of Appeals affirmed defendant’s felony-murder conviction and sentence, but

vacated the criminal sexual conduct conviction and sentence on double-jeopardy

grounds. Unpublished opinion per curiam, issued July 31, 2007 (Docket No.

268266). Both the prosecutor and defendant filed applications for leave to appeal

in this Court. We heard oral argument on whether to grant the prosecutor’s

application or take other peremptory action permitted by MCR 7.302(G)(1). 480

Mich 935 (2007).

II. STANDARD OF REVIEW A double-jeopardy challenge presents a question of constitutional law that

this Court reviews de novo. People v Nutt, 469 Mich 565, 573 ; 677 NW2d 1

(2004).

III. ANALYSIS Const 1963, art 1, § 15 states, “No person shall be subject for the same

offense to be twice put in jeopardy.”1 The provision affords individuals “three

related protections: (1) it protects against a second prosecution for the same 1 Similarly, US Const, Am V states, “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . .” This Court has explained that although we are not “‘bound in our understanding of the Michigan Constitution by any particular interpretation of the United States Constitution,’” “we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 as well.” People v Smith, 478 Mich 292 , 302 n 7; 733 NW2d 351

(2007), quoting Harvey v Michigan, 469 Mich 1 , 6 n 3; 664 NW2d 767 (2003).

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offense after acquittal; (2) it protects against a second prosecution for the same

offense after conviction; and (3) it protects against multiple punishments for the

same offense.” Nutt, 469 Mich at 574 . The first two protections comprise the

“successive prosecutions” strand of double jeopardy, id. at 575 , while the third

protection comprises the “multiple punishments” strand. People v Smith, 478

Mich 292, 299 ; 733 NW2d 351 (2007).

In Nutt, 469 Mich at 576, a case involving the “successive prosecutions”

strand, this Court explained that “[a]pplication of the same-elements test,

commonly known as the ‘Blockburger test,’[2] is the well-established method of

defining the Fifth Amendment term ‘same offence.’” This test “‘focuses on the

statutory elements of the offense.’” Id. (citation omitted). “‘If each requires proof

of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a

substantial overlap in the proof offered to establish the crimes.’” Id. (citation

omitted). “In sum, offenses do not constitute the ‘same offense’ for purposes of

the ‘successive prosecutions’ strand of double jeopardy if each offense requires

proof of a fact that the other does not.” Smith, 478 Mich at 304 .

In Smith, 478 Mich at 316 , this Court further explained that the “the

ratifiers intended that the term ‘same offense’ be given the same meaning in the

context of the ‘multiple punishments’ strand of double jeopardy that it has been 2 Blockburger v United States, 284 US 299, 304 ; 52 S Ct 180 ; 76 L Ed 306

(1932).

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given with respect to the ‘successive prosecutions’ strand.” Therefore, multiple

punishments are authorized if ““‘each statute requires proof of an additional fact

which the other does not . . . .’”” Id. at 307 , quoting Blockburger v United States, 284 US 299, 304 ; 52 S Ct 180 ; 76 L Ed 306 (1932) (citation omitted).3 In Wilder, 411 Mich at 342 , this Court held that convicting and sentencing

a defendant for both first-degree felony murder and the predicate felony violates

the “multiple punishments” strand of the Double Jeopardy Clause. However,

Wilder did not apply Blockburger’s same-elements test. Instead, the Court held

that “[w]here the proof adduced at trial indicates that one offense is a necessarily

or cognate lesser included offense of the other, then conviction of both the

offenses will be precluded.” Id. at 343-344 . The Court then concluded that

because the predicate felony is a “necessary element of every prosecution for first-

degree felony murder,” convicting and sentencing a defendant for both the felony

murder and the predicate felony will always violate the Double Jeopardy Clause.

Id. at 345 . The Court proceeded to explain that “the fact that the elements of first-

degree felony murder do not in every instance require or include the elements of

armed robbery [the predicate felony in Wilder] does not mean the offense of

armed robbery is not necessarily included in the felony murder here.” Id. at 345 .

3 However, if “the legislature expressed a clear intention that multiple punishments be imposed,” “‘“imposition of such sentences does not violate the Constitution,’” regardless of whether the offenses share the ‘same elements.’” Smith, 478 Mich at 316 , quoting Missouri v Hunter, 459 US 359, 368 ; 103 S Ct 673 ; 74 L Ed 2d 535 (1983) (citation and emphasis omitted).

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“Though theoretically arguable, such a position is irrelevant when the legal

analysis depends not upon the theoretical elements of the offense but upon proof

of facts actually adduced.” Id. at 345-346.

However, this approach, as Wilder itself recognized, is inconsistent with

Blockburger:

[T]he test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts. Under Federal authority, the Supreme Court established the “required evidence” test enunciated in Blockburger v United States, 284 US 299 ; 52 S Ct 180 ; 76 L Ed 306 (1932). See also its original expression in Morey v Commonwealth, 108 Mass 433 (1871). In Blockburger, the Court outlined their test:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 US [at] 304.

This approach isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. See Harris v United States, 359 US 19, 23 ; 79 S Ct 560 ; 3 L Ed 2d 597 (1959); United States v Kramer, 289 F2d 909, 913 (CA 2, 1961). Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. From the perspective of lesser included offenses, the Supreme Court in cases concerning double jeopardy has thus adhered to the common-law definition of such offenses. See People v Ora Jones, [ 395 Mich 379 ,] 387[; 236 NW2d 461 (1975)].

The Federal test in Blockburger can thus be distinguished from this Court's approach in two principal ways. First, we find the proper focus of double jeopardy inquiry in this area to be the proof of facts adduced at trial rather than the theoretical elements of the 6

offense alone. Proof of facts includes the elements of the offense as an object of proof. Yet, the actual evidence presented may also determine the propriety of finding a double jeopardy violation in any particular case. See People v Martin, [ 398 Mich 303 ,] 309[; 247 NW2d 303 (1976)]; People v Stewart, [ 400 Mich 540 ,] 548[; 256 NW2d 31 (1977)]; People v Jankowski, [ 408 Mich 79 ,] 91[; 289 NW2d 674 (1980)].

Second, we have held that double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses. People v Jankowski, [408 Mich at] 91. [Wilder, 411 Mich at 348 -349 n 10.][4]

Shortly after Wilder was decided, it was called into question by this Court’s

decision in People v Robideau, 419 Mich 458 ; 355 NW2d 592 (1984). Like the

Court in Wilder, the Court in Robideau rejected the Blockburger test; however, it

also rejected the Wilder test. In place of these tests, the Robideau Court, 419 Mich

at 487 , set forth “general principles” to be used to ascertain whether the 4 We are perplexed by Justice Cavanagh’s criticism that we “misappl[y] the Blockburger test,” post at 3, while at the same time asserting that he would “retain Wilder’s approach of relying ‘not upon the theoretical elements of the offense but upon proof of facts actually adduced’ in determining whether multiple convictions are permitted under the Double Jeopardy Clause,” post at 11, quoting Wilder, 411 Mich at 346 . In Wilder, the Court itself acknowledged that its decision was inconsistent with Blockburger because Blockburger looked to the abstract legal elements of the offenses, rather than to the specific facts alleged in a particular case. Wilder, 411 Mich at 348 -349 n 10.

We are similarly perplexed by Justice Kelly’s contention that Wilder is consistent with federal authority, post at 4, 5, when Wilder itself stated that “the test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts.” Wilder, 411 Mich at 348 n 10. Although Wilder stated, “The decision we reach in this case is fundamentally consistent with existing authority of the United States Supreme Court,” it immediately proceeded to explain the differences between its decision and federal decisions, which differences go to the very heart of the question that is at issue here. Wilder, 411 Mich at 348-349 .

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Legislature intended to impose multiple punishments, such as “[w]here 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.” In addition, “[w]here one statute incorporates most

of the elements of a base statute and then increases the penalty as compared to the

base statute, it is evidence that the Legislature did not intend punishment under

both statutes.” Id.

Robideau criticized Wilder for “appl[ying] a method of analysis taken from

successive-prosecution cases [to a “multiple punishments” case] . . . and look[ing]

to the facts of the case.” Robideau, 419 Mich at 482 . The Court explained:

[P]rior decisions of this Court [such as Wilder] have applied a factual test in single-trial multiple-punishment cases, creating areas in which arguably the Legislature cannot now act. To the extent that those decisions interpret the prohibition against double jeopardy as a substantive limitation on the Legislature, we now disavow them. [Id. at 485.]

Therefore, Robideau appeared to overrule Wilder.5 Even assuming that Robideau did not expressly overrule Wilder, it did so

implicitly. Robideau concluded that the Double Jeopardy Clause does not prohibit 5 Justice Kelly states that Robideau “noted that Wilder’s analysis did not expressly turn on legislative intent” and then accuses us of “stretch[ing] this criticism to argue that Robideau impliedly overruled Wilder.” Post at 9. However, as already discussed, and as any reader of Robideau can plainly see, this decision clearly said more about Wilder than Justice Kelly acknowledges. She further states that “Robideau emphasized that application of its principles to earlier double jeopardy decisions of this Court was unlikely to yield different results.” Post at 9. However, Robideau’s principles led to a different result in that very case as compared to the result reached in Wilder. See n 6 infra.

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multiple punishments for convictions and sentences of both first-degree criminal

sexual conduct, MCL 750.520b(1)(c) (penetration under circumstances involving

any “other felony”), and the underlying “other felony” used to prove the first-

degree criminal sexual conduct. That is, Rodideau held that convicting and

sentencing a defendant for both first-degree criminal sexual conduct and the

predicate "other" felony does not violate the “multiple punishments” strand of the

Double Jeopardy Clause. This conclusion is, of course, wholly at odds with

Wilder’s conclusion that convicting and sentencing a defendant for both felony

murder and the predicate felony violates the “multiple punishments” strand.6

Therefore, Robideau, if not expressly, at least implicitly, overruled Wilder.7 This Court’s recent decision in Smith, overruling Robideau, also called

Wilder into question.8 In Smith, 478 Mich at 318-319 , we concluded that

convicting and sentencing a defendant for both first-degree felony murder (where 6 In light of this, we have no idea how Justice Kelly can argue that the result reached in Wilder is “consistent with the result dictated by Robideau.” Post at 2, 10, 13, 14. In Wilder, the Court held that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates double jeopardy. In Robideau, the Court held that convicting and sentencing a defendant for both first-degree criminal sexual conduct and the predicate felony does not violate double jeopardy. These decisions are not at all consistent and, contrary to Justice Kelly’s contention, post at 13 n 41, the differences in sentences applicable to those offenses do not render these decisions consistent. 7 It is noteworthy that Justice Cavanagh does not refer at all to Robideau. It has slipped down a memory hole. 8 In her dissent, Justice Kelly restates a significant portion of her dissent in Smith. Rather than restating our response, we simply refer the reader to it. Smith, 478 Mich at 319-323 .

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the predicate felony was larceny) and the non-predicate felony of armed robbery

does not violate the “multiple punishments” strand. We explained that Robideau

was predicated on two propositions: “(1) Michigan's Double Jeopardy Clause

afforded greater protections than the Double Jeopardy Clause of the United States

Constitution, Wilder, [411 Mich] at 348 n 10; and (2) the Blockburger test did not

account for Michigan’s then-current recognition of ‘cognate’ lesser included

offenses as ‘lesser offenses’ under a fact-driven analysis.” Smith, 478 Mich at

314 . Wilder was also based upon these propositions. However, as we explained

in Smith, 478 Mich at 314 -315:

This conclusion that the Michigan Constitution affords greater protection than the Fifth Amendment has no basis in the language of Const 1963, art 1, § 15, the common understanding of that language by the ratifiers, or under Michigan caselaw as it existed at the time of ratification. Further, the concern expressed by the Court that Blockburger does not account for cognate lesser included offenses is no longer pertinent in light of People v Cornell, 466 Mich 335, 353 ; 646 NW2d 127 (2002).13 _______________________________________________________ 13 In Cornell, we held that an offense is an “offense inferior to that charged in the indictment” for purposes of MCL 768.32(1) when “‘the lesser offense can be proved by the same facts that are used to establish the charged offense.’” Cornell, supra at 354 (citation omitted). In other words, an offense is the “same offense” for purposes of jury instructions if conviction of the greater offense necessarily requires conviction of the lesser offense.[9] _______________________________________________________ 9 In Cornell, 466 Mich at 355 , this Court held that MCL 768.32 “foreclose[s] consideration of cognate lesser offenses, which are only ‘related’ or of the same ‘class or category’ as the greater offense and may contain some elements not found in the greater offense,” and Wilder, 411 Mich at 345 , recognized that “the underlying felony might be characterized as a cognate lesser included offense, not a necessarily included offense.”

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In addition, as discussed earlier, both Wilder and Robideau rejected the

Blockburger test for purposes of the “multiple punishments” strand.10 However, in

Nutt, 469 Mich at 591-592 , this Court re-adopted the Blockburger test for purposes

of the “successive prosecutions” strand of double jeopardy. And, in Smith, 478

Mich at 314-315 , we concluded that there is no reason to apply a different test to

the “multiple punishments” strand of double jeopardy:

[N]othing in the language of the constitution indicates that the ratifiers intended to give the term “same offense” a different meaning in the context of the “multiple punishments” strand of double jeopardy than it has in the context of the “successive prosecutions” strand. In the absence of any evidence that the term “same offense” was intended by the ratifiers to include criminal offenses that do not share the same elements, we feel compelled to overrule Robideau and preceding decisions that are predicated on the same error of law, and to hold instead that Blockburger sets forth the appropriate test to determine whether multiple punishments are barred by Const 1963, art 1, § 15.[11]

Finally, Wilder was also based on the proposition that it is the facts of the

case rather than the abstract legal elements that are determinative with regard to a 10 Defendant concedes that Blockburger’s “same elements” test is applicable here. 11 In People v Harding, 443 Mich 693, 712 ; 506 NW2d 482 (1993), this Court, using Robideau’s “general principles,” concluded that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the “multiple punishments” strand. However, as noted, Robideau was expressly overruled in Smith. On the other hand, because Smith involved a conviction and sentence for first-degree felony murder and a non-predicate felony, Smith did not address “Wilder’s holding that the constitution bars multiple punishments for first-degree felony murder and the predicate felony”; however, it did note that “Wilder’s focus on the ‘proof of facts adduced at trial[]’ seems questionable in light of the distinction between cognate lesser offenses and lesser included offenses dictated by the Court in Cornell.” Smith, 478 Mich at 318 n 16.

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double-jeopardy challenge. However, as the Court in Wilder, 411 Mich at 349 n

10, acknowledged, the Blockburger test focuses on the abstract legal elements.12

Blockburger, 284 US at 304 (concluding that there was no double-jeopardy

violation because “upon the face of the statute, two distinct offenses are created”)

(emphasis added). That is, “‘[i]n applying the Blockburger rule, the United States

Supreme Court has focused on the legal elements of the respective offenses, not on

the particular factual occurrence which gives rise to the charges.’” Smith, 478

Mich at 309 , quoting Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich

374, 395 ; 280 NW2d 793 (1979).13 12 As discussed earlier, the Court in Wilder, 411 Mich at 349 n 10, explained:

[The Blockburger test] isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. [Citations omitted.] 13 In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich at 397 , this Court held that convicting and sentencing a defendant for both felony-firearm and the underlying felony does not violate the “multiple punishments” strand because “[i]t is possible, legally, to commit felony-firearm without committing second- degree murder.” We explained, “[i]n applying the Blockburger rule, the United States Supreme Court has focused on the legal elements of the respective offenses, not on the particular factual occurrence which gives rise to the charges.” Id. at 395 . It is interesting that Justice Cavanagh does not even mention Wayne Co Prosecutor v Recorder’s Court Judge. As with Robideau, see note 7, this case has also fallen down a memory hole.

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In Iannelli v United States, 420 US 770 , 785 n 17; 95 S Ct 1284 ; 43 L Ed

2d 616 (1975), the Court held that “the [Blockburger] test focuses on the statutory

elements of the offense.” However, in Harris v Oklahoma, 433 US 682 ; 97 S Ct

2912 ; 53 L Ed 2d 1054 (1977), a “terse per curiam,” United States v Dixon, 509

US 688, 698 ; 113 S Ct 2849 ; 125 L Ed 2d 556 (1993), that did not even mention

Blockburger, the Court held that a subsequent prosecution for robbery with a

firearm was barred by the “successive prosecutions” strand because the defendant

had already been convicted of felony murder based on the robbery with a firearm.

Subsequently, in Whalen v United States, 445 US 684, 694 ; 100 S Ct 1432 ; 63 L

Ed 2d 715 (1980), expanding on Harris, the Court held that convicting and

sentencing a defendant for both first-degree felony murder and rape, where the

rape was the predicate felony, violated the “multiple punishments” strand because

“proof of rape is a necessary element of proof of the felony murder.” In Albernaz

v United States, 450 US 333, 338 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981), quoting

Iannelli, 420 US at 785 n 17, the Court again held that “‘the [Blockburger] test

focuses on the statutory elements of the offense.’” However, in Grady v Corbin, 495 US 508, 520 ; 110 S Ct 2084 ; 109 L Ed 2d 548 (1990), the Court, relying on

Harris for the proposition that “a strict application of the Blockburger test is not

the exclusive means of determining whether a subsequent prosecution violates the

Double Jeopardy Clause” because Blockburger only requires “a technical

comparison of the elements of the two offenses,” expressly adopted the “same

conduct” test that was used in Harris and Whalen-- a test that is directly at odds 13

with the notion that the focus is on the statutory elements.14 However, the “same

conduct” test was explicitly abandoned in Dixon, 509 US at 704 . Therefore, the

Blockburger test once again is the controlling test for addressing double-jeopardy

challenges, and “‘the [Blockburger] test focuses on the statutory elements of the

offense.’” Albernaz, 450 US at 338 , quoting Iannelli, 420 US at 785 n 17. See

Robideau, 419 Mich at 475-478 , which rejected Harris and Whalen even before

Dixon was decided, relying on Albernaz.15 14 Justice Cavanagh indicates that Whalen must not have been using the “same conduct” test because it did not specifically refer to the “same conduct” test. Post at 6-7. We disagree. The fact that a court does not specifically proclaim its utilization of a particular test does not mean that it was not, in fact, employing that test. Even a perfunctory review of the Court’s decision in Whalen indicates that it was using the “same conduct” test, as evinced by the fact that the Court focused on the defendant’s conduct in that particular case, rather than the abstract legal elements of the offenses at issue. 15 Although Justice Cavanagh is correct that “none of the United States Supreme Court cases cited by the majority for the proposition that Blockburger compels a comparison of abstract statutory elements involves a compound offense such as Michigan’s felony-murder statute,” post at 4 (emphasis omitted), we do cite two Michigan Supreme Court cases for this proposition that do involve a compound offense. In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich at 397 , this Court, as discussed earlier, held that convicting and sentencing a defendant for both felony-firearm and the underlying felony does not violate the “multiple punishments” strand because “[i]t is possible, legally, to commit felony- firearm without committing second-degree murder.” In addition, as also discussed above, this Court in Robideau, 419 Mich at 466 , concluded that the Double Jeopardy Clause does not prohibit multiple punishments for convictions and sentences of both first-degree criminal sexual conduct, MCL 750.520b(1)(c) (penetration under circumstances involving any “other felony”), and the underlying “other felony” used to prove the first-degree criminal sexual conduct.

Justice Cavanagh relies on three decisions to support his conclusion that Whalen remains controlling authority. However, only one of these decisions (. . . continued)

14

Further, we must not lose sight of the fact that the Blockburger test is a tool

to be used to ascertain legislative intent. Missouri v Hunter, 459 US 359, 368 ; 103

S Ct 673 ; 74 L Ed 2d 535 (1983). Because the statutory elements, not the

particular facts of the case, are indicative of legislative intent, the focus must be on

these statutory elements.16

(continued . . .) involved a compound offense such as Michigan’s felony-murder statute. Rutledge v United States, 517 US 292 ; 116 S Ct 1241 ; 134 L Ed 2d 419 (1996), involved a lesser included offense and Whalen was merely cited for the proposition that convicting a defendant of both the greater offense and the lesser included offense violates double jeopardy. In United States v Stafford, 831 F2d 1479, 1483-1484 (CA 9, 1987), the court held that convicting the defendant of violating a statute that required proof of an “overt act in furtherance of the underlying unlawful activity” and the underlying unlawful activity did not violate double jeopardy because committing an overt act in furtherance of a crime is not the “same” as actually committing the crime. Finally, although United States v Chalan, 812 F2d 1302 (CA 10, 1987), did involve a compound offense, it was decided before Dixon, which expressly overruled the “same conduct” test that Whalen used, and it did not discuss whether only the abstract legal elements or the particular facts of the case should be considered. 16 Contrary to Justice Cavanagh's assertion, post at 3, 11, 14, we certainly do recognize that the Blockburger test is a tool to be used to ascertain legislative intent and that it is not the exclusive tool for doing this. As this Court explained in Smith, 478 Mich at 316 :

In interpreting “same offense” in the context of multiple punishments, federal courts first look to determine whether the legislature expressed a clear intention that multiple punishments be imposed. Where the Legislature does clearly intend to impose such multiple punishments, “‘imposition of such sentences does not violate the Constitution,’” regardless of whether the offenses share the “same elements.” Where the Legislature has not clearly expressed its intention to authorize multiple punishments, federal courts apply the “same elements” test of Blockburger to determine whether multiple punishments are permitted. [Citations omitted; see also n 3 of this opinion.] (. . . continued)

15

Moreover, as we explained in Nutt, 469 Mich at 590 , in adopting Const

1963, art 1, § 15, the ratifiers of our constitution intended our double-jeopardy

provision to be construed consistently with the interpretation given to the Fifth

Amendment by federal courts at the time of ratification. And, at the time of the

ratification, federal courts had adopted the abstract legal elements test of

Blockburger. Blockburger, 284 US at 304 (concluding that there was no double-

jeopardy violation because “upon the face of the statute, two distinct offenses are

created”) (emphasis added); Harris v United States, 359 US 19, 23 ; 79 S Ct 560 ; 3

(continued . . .)

The dissenting justices, on the other hand, would turn our (and the United States Supreme Court’s) double-jeopardy jurisprudence on its head by effectively holding that multiple punishments can only be imposed if the Legislature has expressly stated that multiple punishments for specific offenses are permitted. However, neither this Court nor the United States Supreme Court has ever adopted such a rule, and we will not do so here today. Instead, we continue to view the fact that the Legislature has authorized the punishment of two offenses that are not the “same offense,” i.e., each offense includes an element that the other does not, as a relatively clear legislative intent to allow multiple punishments. Although Justice Cavanagh states that he would not require “an explicit reference to multiple punishments and consecutive sentencing,” post at 13, we are at a loss as to how else the Legislature could sufficiently indicate to his satisfaction that multiple punishments are permitted given his conclusion that “[i]n the absence of clear legislative intent to the contrary, I would conclude that the Legislature did not intend to impose punishments for felony murder and its necessarily required predicate felony.” Post at 14. Likewise, although Justice Kelly states that she “do[es] not suggest that the only way to discern whether the Legislature intended to permit multiple punishments is to find explicit language in the statute,” post at 13 n 41, she repeatedly states that “the felony-murder statute contains no language indicating an intent to permit multiple punishments” and that “[n]o conclusive evidence can be discerned that the Legislature intended to permit convictions for both felony murder and the predicate felony.” Post at 10, 12, 14. What short of an explicit reference would suffice under the standards of the dissenting justices?

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L Ed 2d 597 (concluding that there was no double-jeopardy violation because “the

violation, as distinguished from the direct evidence offered to prove that violation,

was distinctly different under each of the respective statutes”) (emphasis omitted).

Finally, we note that a majority of the states focus on the abstract legal

elements. Hoffheimer, The rise and fall of lesser included offenses, 36 Rutgers L J

351, 413-414 (2005); see, e.g., Montana v Close, 191 Mont 229, 247 ; 623 P2d 940

(1981) (holding that convicting and sentencing a defendant for both first-degree

felony murder and the predicate felony does not violate the “multiple

punishments” strand).

For these reasons, we conclude that convicting and sentencing a defendant

for both first-degree felony murder and the predicate felony does not violate the

“multiple punishments” strand of the Double Jeopardy Clause if each offense has

an element that the other does not.

In deciding whether to overrule precedent, we consider “(a) whether the

earlier decision was wrongly decided, and (b) whether overruling such decision

would work an undue hardship because of reliance interests or expectations that

have arisen.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 757 ; 641 NW2d

567 (2002). With regard to the first inquiry, we believe, as we have already

discussed, that Wilder was wrongly decided because it is inconsistent with the

common understanding of “same offense.” With regard to the second inquiry, we

must examine “whether the previous decision has become so embedded, so

accepted, so fundamental, to everyone’s expectations that to change it would 17

produce not just readjustments, but practical real-world dislocations.” Robinson v

Detroit, 462 Mich 439, 466 ; 613 NW2d 307 (2000). “[T]o have reliance[,] the

knowledge must be of the sort that causes a person or entity to attempt to conform

his conduct to a certain norm before the triggering event.” Id. at 467 . Overruling

Wilder will disrupt no reliance interests because no person could conceivably have

relied on that decision to his or her detriment. That is, we cannot conceive that

anyone has committed a first-degree felony murder on the basis that, under Wilder,

he or she could only be punished for the first-degree felony murder and not also

the predicate felony. Finally, failing to overrule Wilder would produce

inconsistent rules regarding the meaning of the language “same offense” in Const

1963, art 1, § 15. For these reasons, assuming that there is still life left in Wilder,

we expressly overrule Wilder.

In the instant case, defendant was convicted of both first-degree felony

murder and first-degree criminal sexual conduct, where the latter constituted the

predicate felony for the felony-murder conviction. The killing of a human being is

one of the elements of first-degree felony murder. MCL 750.316(1)(b); People v

Carines, 460 Mich 750, 758-759 ; 597 NW2d 130 (1999) (citation omitted).

Sexual penetration is one of the elements of first-degree criminal sexual conduct.

MCL 750.520b(1). First-degree felony murder contains an element not included

in first-degree criminal sexual conduct, namely, the killing of a human being.

Similarly, first-degree criminal sexual conduct contains an element not necessarily

included in first-degree felony murder, namely, a sexual penetration. First-degree 18

felony murder does not necessarily require proof of a sexual penetration because

first-degree felony murder can be committed without also committing first-degree

criminal sexual conduct. First-degree felony murder is the killing of a human

being with malice “‘while committing, attempting to commit, or assisting in the

commission of any of the felonies specifically enumerated in [MCL

750.316(1)(b)].’” Carines, 460 Mich at 758-759 (emphasis added; citation

omitted). Therefore, unlike first-degree criminal sexual conduct, first-degree

felony murder does not necessarily require proof of a sexual penetration. That is,

“[i]t is []possible to commit the greater offense [first-degree felony murder]

without first committing the lesser offense [first-degree criminal sexual conduct].”

Cornell, 466 Mich at 361 . Because first-degree felony murder and first-degree

criminal sexual conduct each contains an element that the other does not, we

conclude that that these offenses are not the “same offenses” under either the Fifth

Amendment or Const 1963, art 1, § 15, and, therefore, defendant may be punished

separately for each offense.

IV. CONCLUSION We conclude that convicting and sentencing a defendant for both first-

degree felony murder and the predicate felony does not necessarily violate the

“multiple punishments” strand of the Double Jeopardy Clause, and, thus, we

overrule Wilder. Because each of the offenses for which defendant was convicted,

felony murder and first-degree criminal sexual conduct, contains an element that

the other does not, they are not the “same offense” and, therefore, defendant may 19

be punished for both. Accordingly, we reverse the part of the Court of Appeals

judgment that vacated defendant’s first-degree criminal sexual conduct conviction

and sentence, and we reinstate defendant’s first-degree criminal sexual conduct

conviction and sentence. In addition, defendant’s application for leave to appeal

the judgment of the Court of Appeals is considered and it is denied, because we

are not persuaded that the questions presented should be reviewed by this Court.

Stephen J. Markman Clifford W. Taylor Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr.

20

STATE OF MICHIGAN SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 134913

DAVID GORDON REAM, Defendant-Appellee.

_______________________________

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 134925

DAVID GORDON REAM, Defendant-Appellant.

_______________________________

CAVANAGH, J. (dissenting).

Today, the majority overrules longstanding precedent and replaces it with a

holding that will fail to preserve the constitutional protection against double

jeopardy. The majority misapplies the test enunciated by Blockburger v United

States, 284 US 299 ; 52 S Ct 180 ; 76 L Ed 306 (1932), and, in doing so,

unconstitutionally subjects defendant to multiple punishment for the same offense.

Thus, I respectfully dissent. The Double Jeopardy Clause of the Michigan and United States

constitutions protects against both successive prosecutions and multiple

punishments for the “same offense.”1 This case concerns the prohibition against

imposing multiple punishments for the same offense. The United States Supreme

Court has stated that in the multiple-punishment context, the interest that the

Double Jeopardy Clause seeks to protect is “‘limited to ensuring that the total

punishment did not exceed that authorized by the legislature.’” Jones v Thomas, 491 US 376, 381 ; 109 S Ct 2522 ; 105 L Ed 2d 322 (1989), quoting United States v

Halper, 490 US 435, 450 ; 109 S Ct 1892 ; 104 L Ed 2d 487 (1989). Thus, the

controlling matter is legislative intent, because it determines whether multiple

convictions impermissibly involve the same offense for purposes of the protection

against multiple punishment. Whalen v United States, 445 US 684, 688-689 ; 100

S Ct 1432 ; 63 L Ed 2d 715 (1980).2 The Supreme Court has described the

Blockburger test as a “rule of statutory construction to help determine legislative

intent.” Garrett v United States, 471 US 773, 778-779 ; 105 S Ct 2407 ; 85 L Ed 2d

764 (1985). In Blockburger, the Court held that “[t]he applicable rule is that, 1 Const 1963, art 1, § 15; US Const, Ams V and XIV. See also United States v Wilson, 420 US 332, 343 ; 95 S Ct 1013 ; 43 L Ed 2d 232 (1975), quoting North Carolina v Pearce, 395 US 711, 717 ; 89 S Ct 2072 ; 23 L Ed 2d 656 (1969). 2 However, although the constitution grants the legislative branch exclusive authority to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, “[t]his is not to say that there are not constitutional limitations upon this power.” Whalen, supra at 689 n 3.

2

where the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a fact which the other does

not.” Blockburger, supra at 304 .

This Court adopted Blockburger’s “same elements” test to determine

whether multiple convictions would violate Michigan’s Double Jeopardy Clause

in People v Smith, 478 Mich 292, 296 ; 733 NW2d 351 (2007). I dissented in

Smith, because I believed that the use of the Blockburger test alone is not always

sufficient to safeguard the double-jeopardy protections of the United States and

Michigan constitutions. I continue to oppose this Court’s exclusive use of

Blockburger to discern legislative intent, particularly in compound-offense cases.

This case illustrates the error of the majority’s treatment of Blockburger. The

majority misapplies the Blockburger test by comparing the abstract elements of a

compound offense to one of its predicate offenses, rather than comparing the

actual elements that were established at trial and that actually comprise the

defendant’s convictions. In addition, the majority errs by accepting the result

reached by its application of the Blockburger test without considering the

fundamental matter of legislative intent.

The majority applies Blockburger to this case by comparing the abstract,

statutory elements of felony murder with those of first-degree criminal sexual 3

conduct (CSC-I).3 MCL 750.316(1)(b); MCL 750.520b(1). It observes that CSC-

I contains the element of sexual penetration, while felony murder can be based on

a different predicate offense that does not necessarily require proof of a sexual

penetration. Ante at 19. The result of the majority’s approach is that the

compound offense of felony murder and the predicate offense of CSC-I are

deemed not to be the “same offense” because they each contain an element that the

other does not. In support of this method, the majority eagerly cites authority that

stands for the proposition that the Blockburger test operates by comparing the

abstract legal elements of the respective offenses under consideration, not the

actual proof of facts adduced at trial. Ante at 12-14.

Significantly, none of the United States Supreme Court cases cited by the

majority for the proposition that Blockburger compels a comparison of abstract

statutory elements involves a compound offense such as Michigan’s felony-

murder statute.4 Id. The Supreme Court did not address Blockburger’s 3 The felony-murder statute lists several offenses that may serve as predicate offenses to felony murder, such as arson, CSC-I, robbery, kidnapping, and child abuse, among many others; they constitute the abstract, statutory elements of felony murder. However, the predicate offenses are listed in the alternative, so proof of all the possible predicate felonies listed as elements in felony murder’s statutory definition is not required to secure a conviction for felony murder. 4 Iannelli v United States, 420 US 770 ; 95 S Ct 1284 ; 43 L Ed 2d 616

(1975), involved convictions for conspiring to violate and violating a federal gambling statute. Iannelli did not rely on Blockburger to reach its conclusion, but rather, was convinced by “the history and structure of the Organized Crime (. . . continued)

4

application to compound offenses until Whalen, which presented the opportunity

to consider whether convictions for rape and for the killing of the same victim in

the perpetration of rape could be sustained under the Double Jeopardy Clause.

Whalen, supra at 685-686 . The felony-murder statute at issue required proof of a

killing and of the commission or attempted commission of one of six specified

felonies, in the course of which the killing occurred.5 Id. at 686 . Rape was one of

the specified felonies; it was also punishable separately under its own statutory

provision. Id.

The Court relied on legislative history to determine that Congress intended

the federal courts to apply the Blockburger test when construing the criminal

provisions of the District of Columbia Code; thus, the Court applied the

Blockburger test to the felony-murder and rape statutes. Id. at 692-693 . Notably,

(continued . . .)

Control Act of 1970,” which “manifest[ed] a clear and unmistakable legislative

judgment” to treat conspiracy to violate the act and the consummated crime as

separate offenses. Id. at 791 .

Albernaz v United States, 450 US 333 , 101 S Ct 1137 , 67 L Ed 2d 275

(1981), concerned convictions for conspiracy to import marijuana and conspiracy to distribute marijuana. The issue was whether consecutive sentences could be imposed under those two provisions when the convictions arose from participation in a single conspiracy with multiple objectives. Id. at 336-337 .

Blockburger considered whether a defendant could be convicted under two different statutes for a single criminal act—in particular, where a single sale of drugs violated a provision that prohibited selling the drug other than in its original packaging, as well as a provision that prohibited selling the drug not in pursuance of a written order of the purchaser. Blockburger, supra at 301 . 5 The provisions at issue were part of the District of Columbia Code.

5

the Court did not focus on the abstract statutory elements of these offenses, but,

rather, compared the elements that were necessary to prove felony murder with

those of the predicate felony. Id. at 694. It observed that “[a] conviction for

killing in the course of a rape cannot be had without proving all the elements of

the offense of rape.” Id. at 693-694. Thus, “Congress did not authorize

consecutive sentences for rape and for a killing committed in the course of the

rape, since it is plainly not the case that ‘each provision requires proof of a fact

which the other does not.’” Id. at 693.

Moreover, the Court specifically rejected the argument that felony murder

and rape were not the “same” offense under Blockburger simply because felony

murder does not always require proof of a rape, but can be based on one of the

other enumerated felonies. Id. at 694. The Court stated:

In the present case . . . proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it. [Id.]

In short, the Court unequivocally held that double-jeopardy analysis for compound

offenses relies not on the abstract statutory elements of the offenses, but on the

elements that actually comprise the convictions under consideration.

Significantly, Whalen appeared to view its holding as consistent with Blockburger;

6

it never indicated that it was departing from Blockburger or that it was using a

“same conduct” test, as the majority suggests. Ante at 13-14. Whalen simply

recognizes that in applying the Blockburger test to compound offenses, it is

essential to consider the elements of the actual predicate offense involved, rather

than merely to compare the abstract elements of the offenses—an approach that

would overlook the actual relationship between the convictions. Given that this

Court has adopted the Blockburger test, Whalen’s approach to applying the

Blockburger test to compound offenses should guide this Court’s application.

However, the majority implies that Whalen is no longer relevant authority.

Ante at 14. To support its theory, the majority equates Whalen’s application of

Blockburger with the “same conduct” test that was adopted by Grady v Corbin, 495 US 508 ; 110 S Ct 2084 ; 109 L Ed 2d 548 (1990), which was overruled by

United States v Dixon, 509 US 688 ; 113 S Ct 2849 ; 125 L Ed 2d 556 (1993).6 But

Whalen’s approach and the Grady “same conduct” test are meaningfully distinct;

thus, it is erroneous to conclude that the overruling of Grady extends to Whalen as

well. To begin with, Grady developed the “same conduct” test as a special

accommodation for successive-prosecution cases only, while Whalen was a

multiple-punishment case. Grady, supra at 520-521 . Moreover, Grady indicated 6 Grady describes the “same conduct” test as barring “any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady, supra at 521 .

7

that the “same conduct” test was an additional inquiry to be made after the

Blockburger test was applied, while Whalen simply described how to apply the

Blockburger test to compound-offense cases. Id. at 521 . Finally, unlike Grady,

Whalen remained focused on the elements of the offenses, not the broader

consideration of the conduct constituting the offenses. It is also noteworthy that

when Dixon overruled Grady, it dismissed the notion that Harris v Oklahoma, 433

US 682 ; 97 S Ct 2912 ; 53 L Ed 2d 1054 (1977), had been an antecedent to Grady.

Dixon, supra at 706 . Harris mirrored Whalen’s conclusion in the context of a

successive-prosecution case, and the majority has asserted that Harris and Whalen

both used the Grady “same conduct” test. But Dixon itself rejected the suggestion

that Harris applied the “same conduct” test: “Harris never uses the word

‘conduct,’ and its entire discussion focuses on the elements of the two offenses.

See, e.g., 433 U.S. at 682-683 , (to prove felony murder, ‘it was necessary for all

the ingredients of the underlying felony’ to be proved.)” Id.

In sum, Dixon did not overrule Whalen, and none of the cases cited by the

majority even hints that Whalen’s approach is inconsistent with the Blockburger

test or with prevailing law. In fact, since Whalen was decided, a number of cases

have followed or cited its rule.7 The majority suggests that two arguably relevant

Michigan cases I have not addressed in my dissent have fallen “down a memory 7 See, e.g., Rutledge v United States, 517 US 292 , 297 n 6; 116 S Ct 1241 ;

134 L Ed 2d 419 (1996); United States v Stafford, 831 F2d 1479, 1482 (CA 9, 1987); United States v Chalan, 812 F2d 1302, 1316-1317 (CA 10, 1987).

8

hole,” ante at 9 n 7; 12 n 13, but meanwhile, the majority engages in the truly

Orwellian tactic of arguing that Whalen has been overruled and is not to be

followed, though in fact it remains valid United States Supreme Court precedent.

The statutory provisions discussed in Whalen are similar to the provisions

under consideration in this case, and I find Whalen’s reasoning applicable here.

Defendant was convicted of felony murder under MCL 750.316(1)(b), which

provides:

A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:

* * * (b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first and second degree under section 145n, torture under section 85, or aggravated stalking under section 411i. [Emphasis added.]

Defendant was also convicted of CSC-I, MCL 750.520b(1):

A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists . . . .[8]

8 The requisite circumstances are enumerated in MCL 750.520b(1)(a)-(h); in this case, the jury was required to find that defendant was armed at the time with a weapon or with any other object used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon. See MCL 750.520b(1)(e).

9

Like the District of Columbia felony-murder statute examined in Whalen, the

Michigan felony-murder statute lists several offenses that may serve as the

predicate offense for felony murder. The predicate offenses are listed in the

alternative, so a conviction for felony murder does not always require proof of

CSC-I. But even though defendant was convicted under a statute listing a number

of other possible predicate felonies, his conviction did not require proof of the

elements of all of the possible predicate felonies; it only required proof of the

elements of CSC-I. The information charging defendant and the jury instructions

from his trial specify that the felony-murder charge was based on CSC-I. In other

words, in defendant’s case, proof of all the elements of CSC-I was a necessary

element of the felony-murder conviction. But applying the Blockburger test as the

majority suggests—by comparing only the abstract statutory elements—will not

reflect the reality that proof of CSC-I was necessarily included in defendant’s

felony-murder conviction. When the abstract elements of a statute differ from the

actual elements that can sustain a conviction under that statute, basing a

comparison on the abstract statutory elements will not adequately protect against

double jeopardy.

This Court recognized this shortcoming in People v Wilder, 411 Mich 328 ;

308 NW2d 112 (1981), and reached a conclusion that was consistent with Whalen.

In Wilder, this Court held that conviction of both felony murder and the

underlying felony of armed robbery violates the Double Jeopardy Clause of the

Michigan Constitution. Id. at 352 . We observed that “the fact that the elements of 10

first-degree felony murder do not in every instance require or include the elements

of armed robbery does not mean the offense of armed robbery is not necessarily

included in the felony murder here.” Id. at 345 . For double-jeopardy analysis,

“‘the question is not whether the challenged lesser offense is by definition

necessarily included within the greater offense also charged, but whether, on the

facts of the case at issue, it is.’” Id. at 346 , quoting People v Jankowski, 408 Mich

79, 91 ; 289 NW2d 674 (1980). I would retain Wilder’s approach of relying “not

upon the theoretical elements of the offense but upon proof of facts actually

adduced” in determining whether multiple convictions are permitted under the

Double Jeopardy Clause. Id. at 346. Thus, using the approach presented by

Wilder and Whalen, the Blockburger test would indicate that convictions for both

felony murder and the underlying CSC-I offense are not permissible because CSC-

I contains no elements that are not also required for a felony-murder conviction.

Regardless of the method employed for comparing offenses for double-

jeopardy purposes, legislative intent remains the determinative factor. The

majority compounds its erroneous application of Blockburger by accepting its

flawed result without considering the fundamental matter of legislative intent.

After concluding that felony murder and CSC-I are not the same offense according

to its construction of the Blockburger test, the majority fails to consider whether

this result resonates with discernable legislative intent. Ante at 15.

The United States Supreme Court has rejected the “application of

Blockburger rule as a conclusive determinant of legislative intent, rather than as a 11

useful canon of statutory construction . . . .” Garrett, supra at 779 . Moreover, the

Blockburger rule is not controlling when the legislative intent is clear from the

face of the statute or the legislative history; otherwise, the factual inquiry with

regard to legislative intent would be transformed into a conclusive presumption of

law. Id. In sum, the Court does not rely solely on Blockburger in determining

whether multiple punishments are constitutionally prohibited; rather, the result of

the Blockburger test is considered along with indications of legislative intent.

This procedure applies whether the outcome of the Blockburger test

indicates that the offenses under consideration are the “same offense” or not. For

example, in Whalen, the Court applied the Blockburger test and held that the two

statutes in controversy proscribed the “same” offense. Whalen, supra at 694 . Yet,

the Court did not conclude its inquiry there; instead, it held that “where two

statutory provisions proscribe the ‘same offense,’ they are construed not to

authorize cumulative punishments in the absence of a clear indication of contrary

legislative intent.” Id. at 692 . The Court observed no clear appearance of

congressional intent to impose cumulative punishments for the two offenses, so it

held that cumulative punishments were not permitted. Id. at 695 . Conversely,

applying the Blockburger test in Albernaz resulted in the opposite conclusion from

Whalen. There, the Court concluded that the two statutes at issue did not proscribe

the same offense under the Blockburger test because each provision required proof

of a fact that the other did not. Albernaz, supra at 339 . If the Blockburger test 12

served as the exclusive means for determining legislative intent, the Court’s

inquiry would have ended there. But instead, the Court elaborated:

The Blockburger test is a “rule of statutory construction,” and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. Nothing, however, in the legislative history which has been brought to our attention discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test. [Id. at 340.]

The Court deduced that because the results of the Blockburger test were confirmed

by the absence of evidence of legislative intent to the contrary, cumulative

punishments of those particular offenses were permissible. Id. at 343-344 .

Similar to the conclusion reached by Whalen Court, I see no evidence of

legislative intent to impose multiple punishments for violations of Michigan’s

felony-murder statute and the underlying felony. The felony-murder statute does

not indicate that punishment for that offense should be imposed in addition to

punishment for the underlying felony. By contrast, the felony-firearm statute,

MCL 750.227b(2), provides:

A term of imprisonment prescribed by this section is in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

While an explicit reference to multiple punishments and consecutive sentencing is

not the only way the Legislature could evince its intent to impose multiple

punishment, the felony-firearm statute provides an example of a clear indication of 13

legislative intent to impose multiple punishments.9 In the case of the felony-

murder statute, there is no such indication. In the absence of clear legislative

intent to the contrary, I would conclude that the Legislature did not intend to

impose punishments for felony murder and its necessarily required predicate

felony.

In conclusion, I disagree with the majority’s application of Blockburger,

which fails to account for the unique properties of compound and predicate

offenses. I also dissent from the use of the Blockburger test as an exclusive means

of discerning legislative intent for double-jeopardy purposes. I would retain

Wilder’s holding that multiple convictions for felony murder and the underlying

felony violate the Double Jeopardy Clause of the Michigan Constitution, and,

accordingly, would affirm the Court of Appeals.

Michael F. Cavanagh 9 The majority mischaracterizes my statement by stating that I effectively conclude “that multiple punishments can only be imposed if the Legislature has expressly stated that multiple punishments for specific offenses are permitted.” Ante at 16 n 16. In fact, I have plainly stated to the contrary.

14

STATE OF MICHIGAN SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 134913

DAVID GORDON REAM, Defendant-Appellee.

_______________________________

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 134925

DAVID GORDON REAM, Defendant-Appellant.

_______________________________

KELLY, J. (dissenting).

With this case, the majority continues its unprecedented crusade to

dismantle Michigan’s historic double jeopardy jurisprudence.1 I dissent.

1 See People v Smith, 478 Mich 292, 336-340 ; 733 NW2d 351 (2007) (Kelly, J., dissenting). As I explained in Smith, “there are few areas of the law in which the current Michigan Supreme Court majority has altered state law more than double jeopardy jurisprudence.” Id. at 336 . The justices who constitute the majority in this case are the justices who chipped away at the protections afforded by the Double Jeopardy Clause of the Michigan Constitution in Smith, supra at (. . . continued) I agree with Justice Cavanagh that the majority misapplies Blockburger v

United States2 in this case by failing to account for the unique properties of

compound offenses. I write separately because I continue to adhere to the

principles set forth in my dissent in People v Smith.3 As I explained in Smith,

People v Robideau4 provided the appropriate protection against multiple

punishments in Michigan. People v Wilder5 held that multiple convictions for

felony murder and the predicate felony violate the Double Jeopardy Clause of the

Michigan Constitution.6 That holding is consistent with the result dictated by

Robideau. Accordingly, I would retain Wilder’s holding. I would affirm the

judgment of the Court of Appeals vacating defendant’s first-degree criminal

sexual conduct conviction.

(continued . . .)

324; People v Davis, 472 Mich 156, 169 ; 695 NW2d 45 (2005); and People v Nutt, 469 Mich 565, 596 ; 677 NW2d 1 (2004).

2 Blockburger v United States, 284 US 299 ; 52 S Ct 180 ; 76 L Ed 306

(1932). 3

Smith, supra at 331-347 (Kelly, J., dissenting). 4 People v Robideau, 419 Mich 458 ; 355 NW2d 592 (1984), overruled by Smith, supra at 315 . 5 People v Wilder, 411 Mich 328 ; 308 NW2d 112 (1981). 6 Const 1963, art 1, § 15.

2

THE MULTIPLE-PUNISHMENTS STRAND OF DOUBLE JEOPARDY JURISPRUDENCE The Double Jeopardy Clause of the Michigan Constitution provides that

“No person shall be subject for the same offense to be twice put in jeopardy.”7

The Double Jeopardy Clause of the United States Constitution similarly provides

that “No person shall be . . . subject for the same offence to be twice put in

jeopardy of life or limb . . . .”8 The federal Double Jeopardy Clause is applicable

to actions by the states.9 As I stated in Smith: “The Double Jeopardy Clause primarily offers three

protections: it protects against (1) a second prosecution for the same offense after

acquittal, (2) a second prosecution for the same offense after conviction, and (3)

multiple punishments for the same offense.”10 This case concerns the third double jeopardy protection: protection from

multiple punishments for the same offense. The multiple-punishments strand of

double jeopardy jurisprudence protects a defendant from the imposition of greater

punishment than the Legislature intended.11 Accordingly, the question whether a 7 Id.

8 US Const, Am V.

9 Benton v Maryland, 395 US 784, 795-796 ; 89 S Ct 2056 ; 23 L Ed 2d 707

(1969). 10

Smith, supra at 335 (Kelly, J., dissenting). 11

Robideau, supra at 485 .

3

particular punishment is an impermissible “multiple” punishment can be

determined only by ascertaining legislative intent.12 THIS COURT’S DECISION IN PEOPLE V WILDER In Wilder, this Court addressed whether the defendant’s right not to be

subjected to multiple punishments for the same offense was violated. Defendant

had been convicted and sentenced for both first-degree felony murder and the

predicate felony of armed robbery.13 As a matter of state constitutional law,

Wilder held that the conviction for the predicate felony and felony murder violated

the prohibition against double jeopardy.14 In so holding, Wilder focused on the

facts necessary for conviction.15 The Court reasoned that the predicate felony was

a lesser included offense of first-degree felony murder because first-degree felony

murder could not have been committed without necessarily committing the

predicate felony.16 The Wilder Court observed that its decision was

“fundamentally” consistent with federal authority.17 12

Id. at 469 . 13

Wilder, supra at 336 . 14

Id. at 347 . 15

Id. at 343-346 . 16

Id. at 364 . 17

Id. at 348-352 .

4

The Blockburger “same elements” test18 adopted by the majority is only

one means of ascertaining legislative intent.19 As a rule of statutory construction,

the same-elements test is not controlling “where, for example, there is a clear

indication of contrary legislative intent.”20 In Wilder, this Court recognized that

the basic Blockburger same-elements analysis was inadequate to protect against

multiple punishments when dealing with compound crimes. Thus, as Justice

Cavanagh has thoroughly and persuasively explained, Wilder adopted what is

essentially a modified version of the same-elements test applicable to compound

crimes. Justice Cavanagh’s analysis makes clear that this approach is

fundamentally consistent with federal authority.21 18

Blockburger, supra at 304 . 19 Ante at 11-12 (Cavanagh, J., dissenting). 20 Albernaz v United States, 450 US 333, 340 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981). 21 See Whalen v United States, 445 US 684 ; 100 S Ct 1432 ; 63 L Ed 2d 715

(1980). In Whalen, the United States Supreme Court addressed whether convictions for both rape and the killing of the victim in the perpetration of the rape violated the defendant’s double jeopardy rights. Id. at 685-686 . The Court indicated that it was applying the Blockburger test. Id. at 693-694 . However, Whalen did not focus on the abstract elements of the rape and felony-murder statutes. Id. Rather, the Court considered the elements necessary to prove felony murder and compared them with those necessary to prove the predicate offense.

Id. at 694 .

As I explain later, the federal double jeopardy analysis does not control how Michigan interprets its own constitutional prohibition against double jeopardy. Nevertheless, Whalen is important because it highlights the fact that the (. . . continued)

5

THIS COURT’S DECISION IN PEOPLE V ROBIDEAU This Court addressed the multiple-punishment strand of Michigan’s Double

Jeopardy Clause in 1984 when it decided Robideau.22 It explicitly rejected use of

the Blockburger test23 and reasoned that, although Blockburger’s “creation of a

presumption may make a court’s task easier, it may also induce a court to avoid

difficult questions of legislative intent in favor of the wooden application of a

simplistic test.”24 Instead, this Court used the traditional means of determining

legislative intent: the subject, language, and history of the statutes.25

(continued . . .) basic Blockburger same-elements analysis is inadequate as pertains to compound offenses. If it is to be used, it should be applied as it was in Whalen. The elements necessary to prove felony murder must be compared with the elements necessary to prove the predicate offense. The Court must then consider any other indicators of legislative intent. By failing to adopt this approach, the majority misapplies Blockburger in the context of a compound offense.

The majority claims to be “perplexed” by my assertion that Wilder is consistent with federal authority. Ante at 7 n 4. Yet Wilder clearly states that its decision is “fundamentally consistent with existing authority of the United States Supreme Court.” Wilder, supra at 348-349 . 22

Robideau, supra at 458 . 23

Id. at 485-486 . 24

Id. at 486 . 25

Id.

6

In 2007, a majority of the Court used Smith to overrule Robideau.26 I

dissented from that decision.27 I continue to believe that Robideau was correctly

decided for the reasons expressed in my dissenting opinion in Smith:

In Robideau, this Court exhaustively reviewed federal caselaw concerning double jeopardy. Robideau, 419 Mich at 472 - 480. After concluding that federal jurisprudence offered no concrete guidance, this Court exhaustively reviewed Michigan caselaw concerning Michigan’s Double Jeopardy Clause. Id. at 480-484 . Similarly, this Court found that Michigan’s double jeopardy analysis had not been consistent. Id. at 484 .

This Court noted that it had concluded in White[28] that the transactional approach was the correct standard to use with regard to successive prosecutions. Id. at 485 . However, because different interests were involved, a different standard was needed for cases involving multiple punishments. Id. Accordingly, after conducting an extensive caselaw analysis, this Court explicitly rejected the Blockburger test, preferring instead traditional means of determining the intent of the Legislature: the subject, language, and history of the statutes. Id. at 486 .

Robideau was based on the Michigan Constitution and Michigan caselaw. The test in Robideau adequately safeguards a Michigan citizen’s right to be free from multiple punishments for the same offense. As noted in Robideau, when multiple punishments are involved, the Double Jeopardy Clause is a restraint on the prosecution and the courts, not on the Legislature. Id. at 469 . The test in Robideau ensures that the defendant does not receive more punishment than intended by the Legislature. Accordingly, it adequately protects the double jeopardy rights of Michigan citizens.

26

Smith, supra at 315 . 27

Id. at 331-347 (Kelly, J., dissenting). 28 People v White, 390 Mich 245 ; 212 NW2d 222 (1973), overruled by Nutt, supra at 591 .

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Moreover, the Robideau Court was free to use its own preferred methods of ascertaining judicial [sic: legislative] intent. As noted repeatedly throughout Robideau, the Blockburger test is simply a method for determining legislative intent. Robideau, 419 Mich at 473, 478 , citing Gore v United States, 357 US 386 ; 78 S Ct 1280 ; 2 L Ed 2d 1405 (1958) (stressing that Blockburger was decided as a matter of legislative intent), and Albernaz, 450 US at 338 (noting that the Blockburger test was merely a means to determine legislative intent and that the presumption created by the Blockburger test could be rebutted by a clear indication of legislative intent to the contrary).

I believe this is the proper lens through which to view Blockburger: It is simply one of many methods by which a court can discern the Legislature’s intent. It is not a definitive test that should, or could, be used in every case. Indeed, as noted by this Court in Robideau, “it would be quite contrary to established principles of federalism for the United States Supreme Court to impose on the states the method by which they must interpret the actions of their own legislatures.” Robideau, 419 Mich at 486 . Accordingly, the Robideau Court was within its authority to reject the Blockburger test and instead fashion a test that properly reflected the protections of the Michigan Constitution.

The majority believes that the constitution’s ratifiers intended our double jeopardy provision to be construed consistently with the interpretation given the Fifth Amendment by federal courts at the time of ratification. I disagree. As I noted in my dissent in Davis, the sole concern in revisiting the Double Jeopardy Clause in our state constitution was to clarify that jeopardy attaches when a jury is sworn, as our courts had interpreted. Davis, 472 Mich at 181

(KELLY, J., dissenting).

In Davis, I also rejected the majority’s claim that the people of Michigan intended to adopt the federal interpretation of the Double Jeopardy Clause. Id. Specifically, I did not agree with the majority that the ratifiers knew how the United States Supreme Court had interpreted the federal Double Jeopardy Clause and that they accepted it. Id. I did not agree that the ratifiers were willing to allow the federal government to interpret our constitution for us. Id.

I continue to believe that my analysis in Davis was correct. Therefore, I continue to reject the majority’s presumption that the 8

voters of our state intended that Michigan’s Double Jeopardy Clause be interpreted exactly as the federal provision is interpreted.

The majority overturns Robideau also in the belief that the Michigan Constitution does not afford greater protections than does the Fifth Amendment of the United States Constitution. As an initial matter, I would note that the Robideau Court did not expressly base its decision on this assertion. Regardless, this Court has, for decades, determined that our constitutional prohibition against double jeopardy affords greater protection than does the Fifth Amendment. See, e.g., Robideau, 419 Mich at 507 n 5 (CAVANAGH, J., dissenting), citing People v Wakeford, 418 Mich 95 , 105 n 9; 341 NW2d 68 (1983), People v Carter, 415 Mich 558, 582-584 ; 330 NW2d 314 (1982), Wilder, 411 Mich at 343-349 , People v Jankowski, 408 Mich 79, 91-92, 96 ; 289 NW2d 674 (1980), and White. Accordingly, for the reasons I have stated, I continue to believe Robideau was correctly decided.[29]

THE RESULT REACHED IN WILDER IS NOT AT ODDS WITH ROBIDEAU Robideau noted that Wilder’s analysis did not expressly turn on legislative

intent.30 The majority stretches this criticism to argue that Robideau impliedly

overruled Wilder. I disagree. In fact, Robideau emphasized that application of its

principles to earlier double jeopardy decisions of this Court was unlikely to yield

different results.31 Robideau only disavowed prior multiple-punishment cases to

the extent that those decisions suggested that the prohibition against double 29

Smith, supra at 341-344 (Kelly, J., dissenting). 30

Robideau, supra at 482 . 31

Id. at 488 n 7.

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jeopardy operates as a substantive limitation on the Legislature.32 The result

reached in Wilder is consistent with the analysis dictated by Robideau. Using the

traditional means of discerning legislative intent, I conclude that the Legislature

did not intend to impose multiple punishments for first-degree felony murder and

the predicate felony.

The starting point for determining legislative intent is the text of the

statute.33 Here, the felony-murder statute contains no language indicating an intent

to permit multiple punishments.34 “A further source of legislative intent can be found in the amount of

punishment expressly authorized by the Legislature.”35 In Robideau, this Court

noted that first-degree criminal sexual conduct and the predicate crimes of robbery

and kidnapping carry the same penalties. This demonstrates, the Court reasoned,

that the Legislature intended the crimes to be punished separately.36 Robideau

explained that this analysis is consistent with the result reached in Wilder:

Since felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more 32

Id. at 485 . 33 People v Morson, 471 Mich 248, 255 ; 685 NW2d 203 (2004). 34 See MCL 750.316. 35

Robideau, supra at 487 . 36

Id. at 488-489 .

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than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes. While someone in the process of committing a predicate felony has a real disincentive to commit murder (mandatory life) even absent the threat of dual convictions, the same person, assuming the predicate felony carries an up-to-life maximum penalty, would have no such disincentive to commit criminal sexual conduct unless dual convictions are imposed.[37]

Thus, the sanctions authorized by the Legislature for felony murder and the

predicate felonies support a conclusion that the Legislature intended to punish a

defendant only once.

It is true that prohibiting felony murder and prohibiting the predicate

felonies generally protect different social norms. This raises an inference of a

legislative intent to permit multiple punishments.38 However, this inference is not

conclusive evidence of legislative intent in light of the contrary inferences raised

by the statutory language and authorized punishments.

As Justice Ryan stated in his concurring opinion in Wilder, the Double

Jeopardy Clause works “as a particularized version of the rule of lenity.”39 This

accords with Robideau’s holding that if “no conclusive evidence of legislative

intent can be discerned, the rule of lenity requires the conclusion that separate 37

Id. at 489 n 8 (emphasis in original).

38

Id. at 487 .

39

Wilder, supra at 364 (Ryan, J. concurring).

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punishments were not intended.”40 No conclusive evidence can be discerned of

the Legislature’s intent to permit convictions for both felony murder and the

predicate felony. Hence, the rule of lenity requires the conclusion that separate

convictions were not intended.

The prosecution has suggested that the rule of lenity must be abandoned in

light of the Legislature’s adoption of MCL 750.2, which states:

The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.

It is not clear that the Legislature can dictate a rule of statutory construction

to this Court. However, that issue need not be resolved here. This statutory rule

aims to ensure that courts construe the criminal code in accordance with the

Legislature’s intent. If the felony-murder statute is construed according to the fair

import of its terms, we must conclude that it does not permit multiple

punishments. It contains no language evidencing a legislative intent to permit

multiple punishments.

Moreover, construing the felony-murder statute to prohibit multiple

punishments promotes justice by ensuring that offenders are not subjected to

multiple punishments for the same offense. This construction also conforms to the

law’s objective of ensuring that those who commit felony murder are severely 40

Robideau, supra at 488 .

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punished. The trial judge must sentence a defendant to a mandatory term of

imprisonment for life when a defendant is convicted of felony murder. This is the

most severe punishment permitted under Michigan law. The result reached in

Wilder is consistent with the analysis set forth in Robideau and with MCL 750.2.

The Legislature did not intend to impose multiple punishments for first-degree

felony murder and the predicate felony.41 CONCLUSION I dissented from the majority’s decision to overrule Robideau because

Robideau provided the appropriate protection against multiple punishments in

Michigan. Today, I dissent from the majority’s decision to overrule Wilder’s 41 The majority proclaims that it cannot understand how the result reached in Wilder is consistent with Robideau. The consistency in the two hinges on the distinction between first-degree criminal sexual conduct and first-degree felony murder. Robideau examined the former, whereas Wilder examined the latter. Applying the double jeopardy analysis set forth in Robideau to these different statutes yields different results. Robideau held that multiple punishments are permissible for first-degree criminal sexual conduct and the predicate felony. This holding was largely premised on the fact that first-degree criminal sexual conduct and its predicate crimes carry the same penalties. Robideau, supra at 488-490 . As Robideau explained, felony murder is distinguishable because it is punishable by a mandatory life sentence, whereas its predicate felonies are punishable by lesser sanctions. Id. at 489 n 8. This leads to different inferences regarding legislative intent. As any reader of Robideau can see, it is the majority that fails to acknowledge what that decision actually says.

Also contrary to the majority’s assertion, I do not suggest that the only way to discern whether the Legislature intended to permit multiple punishments is to find explicit language in the statute. Legislative intent must be discerned from the subject and history of the statute as well as from its language.

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holding that convictions for both felony murder and the predicate felony violate

the Double Jeopardy Clause of the Michigan Constitution. The result reached in

Wilder is consistent with the result reached under the analysis set forth in

Robideau.42 No conclusive evidence can be discerned that the Legislature

intended to permit convictions of both felony murder and the predicate felony.

The rule of lenity requires the conclusion that separate convictions were not

intended. I would affirm the judgment of the Court of Appeals.

Marilyn Kelly 42 I do not read Wilder as suggesting that the prohibition against double jeopardy operates as a substantive limitation on the Legislature. Whether a particular punishment is an impermissible “multiple” punishment can only be determined by ascertaining legislative intent. Therefore, the Legislature may amend the felony-murder statute to permit multiple punishments for felony murder and the predicate felonies.

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