PEOPLE OF MI V DAVID GORDON REAM
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
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).
3
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).
4
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 firstdegree 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 firstdegree 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).
5
“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.
7
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.
8
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 firstdegree 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.
9
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.”
10
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.
11
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 seconddegree 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.
12
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 felonyfirearm 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 doublejeopardy 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?
16
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)].’”
omitted).
Carines, 460 Mich at 758-759 (emphasis added; citation
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 firstdegree 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 CSCI 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 felonymurder 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 CSCI contains no elements that are not also required for a felony-murder conviction.
Regardless of the method employed for comparing offenses for doublejeopardy 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 felonymurder 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 472480. 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.
7
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.
9
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.
10
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).
11
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.
12
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.
13
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.
14
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