People v. Robideau

• Citation: 355 N.W.2d 592,419 Mich. 458
• Decision Date: 18 September 1984
• Docket Number: 64549,67114 and 67760,66010,Nos. 64548,Nos. 4-7,s. 64548,s. 4-7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert M. ROBIDEAU, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randall Dale GRIFFIN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Freddy Lee BROWN, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Chester BOUKNIGHT, Defendant-Appellee. Calendar419 Mich. 458, 355 N.W.2d 592
• Court: Supreme Court of Michigan

Page 592

355 N.W.2d 592

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert M. ROBIDEAU, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randall Dale GRIFFIN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Freddy Lee BROWN, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Chester BOUKNIGHT, Defendant-Appellee.

Nos. 64548, 64549, 66010, 67114 and 67760.

Calendar Nos. 4-7.

419 Mich. 458, 355 N.W.2d 592

Supreme Court of Michigan.

Argued June 7, 1983.

Decided Sept. 18, 1984.

Robert E. Weiss, Genesee County Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., Chief Asst. Pros. Atty., for plaintiff-appellee in Nos. 64548 and 64549.

Earl R. Spuhler, Fenton, for defendant-appellant in Nos. 64548 and 64549.

Kim Robert Fawcett, Asst. State Appellate Defender, Ron Steinberg, Denise Chrysler, David Kirschenheiter, Research Assistants, Detroit, Mich., for defendant-appellant in No. 66010.

Calhoun County Prosecutor's Office, John H. MacFarlane, Chief Asst. Prosecutor, Battle Creek, for plaintiff-appellant in No. 67114.

P.E. Bennett, Asst. State Appellate Defender, Lansing, for defendant-appellee in No. 67114.

William L. Cahalan, Pros. Atty., Wayne County, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Timothy A. Baughman, Principal Atty., Research, Training & Appeals, Detroit, for plaintiff-appellant in No. 67760.

BRICKLEY, Justice.

These cases require us to decide whether the prohibition in either the United States or Michigan Constitution ¹ against placing a person twice in jeopardy prohibits, in a single trial, convictions of both first-degree criminal sexual conduct under M.C.L. Sec. 750.520b(1)(c); M.S.A. Sec. 28.788(2)(1)(c) (penetration under circumstances involving any "other felony") and the underlying "other felony" of either armed robbery or kidnapping used to prove the charge of first-degree criminal sexual conduct. We hold that convictions of both first-degree criminal sexual conduct and the underlying felony of armed robbery or kidnapping in a single trial are not barred by either constitution.

Herbert Robideau was convicted of first-degree criminal sexual conduct, two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm during the commission of a felony, 750.227b; M.S.A. Sec. 28.424(2). The Court of Appeals affirmed his convictions, finding no violation of the prohibitions against double jeopardy, notwithstanding that one of the armed robbery counts was used as the "other felony" to establish the crime of first-degree criminal sexual conduct. 94 Mich.App. 663, 289 N.W.2d 846 (1980). We granted leave to appeal. 412 Mich. 871 (1981).

Chester Bouknight was convicted of first-degree criminal sexual conduct, two counts of armed robbery, and possession of a firearm during the commission of a felony. One of the armed robbery counts was used as the "other felony" to establish the crime of first-degree criminal sexual conduct. The Court of Appeals vacated that armed robbery conviction, finding that, although the multiple convictions did not violate the federal constitution, the convictions of first-degree criminal sexual conduct and the underlying "other felony" did violate the Michigan Constitution. 106 Mich.App. 798, 308 N.W.2d 703 (1981). We granted leave to appeal. 412 Mich. 871 (1981).

Freddy Lee Brown was convicted of two counts of first-degree criminal sexual conduct (penetration under circumstances involving any other felony and another penetration while armed, M.C.L. Sec. 750.520b[e]; M.S.A. Sec. 28.788[e] ). Brown was also convicted of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, the "other felony" used to establish one count of first-degree criminal sexual conduct. The Court of Appeals reversed Brown's convictions for penetration under circumstances involving any other felony and for kidnapping because of an instructional error on the authority of People v. Barker, 411 Mich. 291, 307 N.W.2d 61 (1981). The court affirmed his conviction under M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e) and remanded the case for retrial. The court instructed that on remand Brown, consistent with the provisions of the federal constitution, could not again be convicted of both penetration under circumstances involving any other felony and the underlying "other felony" of kidnapping. 105 Mich.App. 58, 306 N.W.2d 392 (1981). We granted leave to appeal. 412 Mich. 864 (1981).

Randall Dale Griffin was convicted of first-degree criminal sexual conduct and kidnapping, with the kidnapping being used to establish the "other felony" for first-degree criminal sexual conduct. The Court of Appeals affirmed his conviction in an unpublished opinion per curiam, released August 14, 1980. We granted leave to appeal. 412 Mich. 871 (1981).

The basic contour of the Double Jeopardy Clause was succinctly set forth in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969):

"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court held that the federal Double Jeopardy Clause was applicable to actions by the states. The present cases concern the third protection, the protection against multiple punishment, and, in order to decide them, as well as to give some guidance in an area that has been described as a state of "confusion upon confusion" ² and a "VERITABLE SARGASSO SEA" ³, we musT begin wIth a review of the MULTIPLE-punishment aspects of the Double Jeopardy Clause as declared by the United States Supreme Court, as best those decisions can be interpreted.

We begin by stating what is, at least at the time of this decision, settled law. Where multiple punishment is involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the Legislature. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

The Double Jeopardy Clause prohibits a court from imposing more punishment than that intended by the Legislature. "[T]he question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized". Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). The most recent expression of this principle is found in Ohio v. Johnson, --- U.S. ----, ----, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984):

"In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent, see Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)." ⁴

As an aid to determining the intent of a legislature, the Supreme Court has used an approach which, although first established in Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), is now known as the Blockburger test because of its use in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

"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."

If two statutes constitute the "same offense" under the Blockburger test, it is presumed that the Legislature did not intend to allow the defendant to be punished under both statutes.

"The assumption underlying the rule is that [the Legislature] ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States, supra, 445 U.S. pp. 691-692, 100 S.Ct. pp. 1437-1438.

The presumption raised by the test can be rebutted by a clear indication of legislative intent, and when such an intent is found, it must be respected, regardless of the outcome of the Blockburger test. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Although the Blockburger test is simply stated, it is subject to more than one interpretation, depending on the statutes involved. When one of the two statutes involved is a necessarily lesser included offense of the other, application of the Blockburger test will always raise the presumption that the two statutes involve the "same offense". The necessarily included lesser offense will never have an element not required by the greater offense. Problems arise, however, when one statute is not a lesser included offense of the other. Such is the case with the so-called compound and predicate crimes that are involved in the cases before us. The compound crime of first-degree criminal sexual conduct requires proof of a penetration during the commission of any other felony. The "any other felony" is the predicate crime, in these cases, either armed robbery or kidnapping.

If one looks only to the statutory language, the compound and predicate crimes are separate under the Blockburger test. First-degree criminal sexual conduct requires proof of a penetration, an element not required by either kidnapping...