People v. Harding, Docket Nos. 91097

Citation443 Mich. 693,506 N.W.2d 482
Decision Date01 April 1993
Docket NumberNos. 6,7,91177,Docket Nos. 91097,s. 6
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Hezikiah HARDING, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher C. BUSH, Defendant-Appellant. Calendar
CourtSupreme Court of Michigan

[443 Mich. 695] Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Division by Thomas S. Richards, Asst. Pros. Atty., Pontiac, for the People.

Elizabeth L. Jacobs, Detroit, for Harding.

Michael J. McCarthy, P.C., Michael J. McCarthy, Redford, for Bush.

OPINION

BRICKLEY, Justice.

We granted leave to appeal in these cases to consider the double jeopardy implications of a criminal prosecution in which the defendants were tried and convicted of armed robbery, assault with intent to commit murder, and two counts of felony-firearm arising out of those felonies; and then, over four years later, after the victim died as a result of the assault, were prosecuted and convicted of felony murder and felony-firearm. For the reasons stated below, we hold that the subsequent prosecutions are not barred by the United States or Michigan Constitutions; however, we also hold [443 Mich. 696] that the defendants are entitled to relief from the convictions resulting from the first trial.

I

Defendants were convicted of armed robbery, 1 assault with intent to commit murder, 2 and two counts of possession of a firearm during the commission of a felony 3 in December 1983. The robbery occurred in the City of Troy on May 5, 1983. The victim was able to produce only one dollar. He was shot once in the heart and once in the abdomen, and then thrown headfirst into a sewer to die. The victim survived.

More than four years later, after numerous surgeries, the implementation of a number of pacemakers, many tests, and medication, the victim, Mr. Jeffrey Dudley, was apparently attempting to lead a "normal" life. 4 At a

family gathering on [443 Mich. 697] June 28, 1987, the victim was participating in a two-on-two, half-court basketball game for between sixty and ninety minutes. During the course of the game an argument ensued and turned to fisticuffs, quickly ending when Mr. Dudley began having convulsions. He died shortly thereafter

[443 Mich. 698] An autopsy revealed that the cause of death was a result of the permanent damage to Mr. Dudley's heart caused by the gunshot wound inflicted inMay 1983. 5 Defendants Harding and Bush were then charged with statutory felony murder 6 and another count of felony-firearm. Motions to dismiss the charges on the basis of double jeopardy were denied in the district and circuit courts.

During a joint trial with separate juries, defense counsel vehemently argued that there were intervening events that broke the chain of causation, namely, the passage of time and the failure to refrain from engaging in strenuous activity. Harding was found guilty of felony murder and not guilty of felony-firearm. Bush was found guilty of felony murder and felony-firearm.

The Court of Appeals consolidated both appeals. It held, inter alia, that the prosecution and conviction of defendants of felony murder were not precluded by double jeopardy, but that Bush's second conviction and sentencing for felony-firearm were. The Court further held that both defendants' prior convictions and sentences for [443 Mich. 699] armed robbery and assault with intent to commit murder, in light of the felony murder conviction, were violative of the protection from double punishment and were to be vacated and set aside, and that the time served by defendants as a result of their earlier convictions was to be credited to the sentences imposed for felony murder. 7

II

The double jeopardy provision of the Fifth Amendment of the United States Constitution states that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." This provision is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy guarantee protects against successive prosecutions for the same offense and protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The protection of each interest has operated in distinct ways, and the analysis utilized in fashioning each protection has differed

This case involves both protections. We first address the question whether it was a violation of the Fifth Amendment to prosecute these defendants for felony murder after they had been convicted of crimes involving the same conduct, and then address the question of multiple punishments.

A. SECOND PROSECUTION FOR SAME OFFENSE
1. FEDERAL CONSTITUTION

The purpose of the double jeopardy provision of [443 Mich. 700] the Fifth Amendment has been stated by the United States Supreme Court:

"[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). See also People v. Grimmett, 388 Mich. 590, 597, 202 N.W.2d 278 (1972).

The general rule for determining whether two offenses are materially indistinguishable so as to prevent a double punishment or successive prosecution under the United States Constitution was set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). 8 See Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), Garrett v. United States, 471 U.S. 773, 778-779, 105 S.Ct. 2407, 2411-12, 85 L.Ed.2d 764 (1985), and United States v. Dixon, 509 U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). However, the general rule of Blockburger does not operate without its exceptions, and, in fact, its application in recent years has been called into question in certain circumstances. See Brown, 432 U.S. at 166, n. 6, 97 S.Ct. at 2225, n. 6, and Whalen v. United States, 445 U.S. 684, 709, 100 S.Ct. 1432, 1447, 63 L.Ed.2d 715 (1980) (Rehnquist, J., dissenting).

In the present case, but for the subsequent death of the victim, it would appear that we are faced [443 Mich. 701] with a clear double jeopardy violation; 9 however, because of the subsequent death, the cases are easily distinguishable. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), presented similar facts. 10 The defendant, "by blows and kicks," inflicted bodily injuries upon the victim and was charged with assault and battery, tried, and found guilty. Subsequently, the victim died, and the defendant was charged with homicide. Relying on the testimony from the assault and battery hearing, the statement of the defendant, and the autopsy report, the defendant was convicted by "the court of first instance." The United States Supreme Court affirmed and held:

"The homicide charged against the accused in the Court of First Instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused

in jeopardy for that offense." Diaz at 448-449, 32 S.Ct. at 251

This exception to the bar against double jeopardy has been cited with approval for years in a variety of circumstances. In Brown, the Supreme [443 Mich. 702] Court, while interpreting the Blockburger rule and holding that the Fifth Amendment forbids successive prosecutions and cumulative punishments for greater and lesser included offenses, regardless of their sequence, stated:

"An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Brown, 432 U.S. at 169, n. 7, 97 S.Ct. at 2227, n. 7 (citing Diaz and Ashe v. Swenson, 397 U.S. 436, 453, n. 7, 90 S.Ct. 1189, 1199, n. 7, 25 L.Ed.2d 469 [1970] [Brennan, J., concurring].

In another double jeopardy case decided the same term as Brown, the Court, while discussing the rule established in Brown, stated that it "does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun." Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977).

Similarly, in a "continuing criminal enterprise" case, where three predicate crimes are required to establish the continuing criminal enterprise, the Supreme Court held that there was no double jeopardy violation where the facts underlying a prior conviction served to prove one of the predicate crimes. Garrett, supra. The Court determined that Congress intended a continuing criminal enterprise to be a separate offense and to authorize prosecution and punishment for both the predicate crimes and the continuing criminal enterprise. In ruling on the constitutionality of the prosecution of the continuing criminal enterprise after a previous prosecution for a predicate offense, the Court compared the case with Diaz. Just as the homicide [443 Mich. 703] had not occurred at the time of the trial for the assault and battery, the continuing criminal enterprise had not been...

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