People v. Smith

Decision Date20 June 2007
Docket NumberDocket No. 130353. Calendar No. 3.
Citation478 Mich. 292,733 N.W.2d 351
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bobby Lynell SMITH, Defendant-Appellee.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, Pontiac, for the people.

Michael J. McCarthy, P.C. (by Michael J. McCarthy), Redford, for the defendant.

MARKMAN, J.

We granted leave to appeal to consider whether Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984), sets forth the proper test in Michigan for determining when multiple punishments are barred on double jeopardy grounds.

Following a jury trial, defendant was convicted of two counts of first-degree felony murder, MCL 750.316(1)(b), with larceny as the predicate felony. Defendant was also convicted of two counts of armed robbery, MCL 750.529, and four counts of possession of a firearm during the commission of a felony, MCL 750.227b. Defendant appealed, asserting that his convictions for both first-degree felony murder and armed robbery violate the Double Jeopardy Clause of the Michigan Constitution, Const. 1963, art. 1, § 15. The Court of Appeals concluded that there was no evidence that defendant had committed the separate offenses of robbery and larceny and therefore held that defendant's armed robbery convictions violated double jeopardy. As a result, the Court of Appeals vacated defendant's two convictions and sentences for armed robbery and the accompanying convictions for felony-firearm. Unpublished opinion per curiam, issued December 27, 2005, 2005 WL 3536426 (Docket No. 257353). We conclude that the Court of Appeals erred in its double jeopardy analysis by comparing the felonymurder convictions to the non-predicate felonies of armed robbery. Because armed robbery was not the predicate felony involved in the instant felony-murder convictions, reversal is not required pursuant to People v. Wilder, 411 Mich. 328, 308 N.W.2d 112 (1981). We further conclude that the language "same offense" in Const. 1963, art. 1, § 15 means the same thing in the context of the "multiple punishments" strand of the Double Jeopardy Clause as it does in the context of the "successive prosecutions" strand addressed by the Court in People v. Nutt, 469 Mich. 565, 677 N.W.2d 1 (2004). We therefore hold that Blockburger sets forth the proper test to determine when multiple punishments are barred on double jeopardy grounds. Because each of the crimes for which defendant here was convicted, first-degree felony murder and armed robbery, has an element that the other does not, they are not the "same offense" and, therefore, defendant may be punished for each. Accordingly, we reverse the part of the judgment of the Court of Appeals that vacated the armed robbery convictions and sentences and two of the felony-firearm convictions and sentences, and remand this case to the trial court to reinstate defendant's convictions and sentences for armed robbery and the accompanying felony-firearm convictions and sentences.

I. FACTS AND PROCEDURAL HISTORY

At approximately 10:30 a.m. on January 7, 2003, a customer entering the City Tire store in Pontiac discovered the bodies of store employee Stephen Putman and store owner Richard Cummings. Putman had died of a gunshot wound to the neck and Cummings had died from two gunshot wounds to the head. The police determined that $2,000 in cash that Cummings brought to the store from home to use in the store's cash register was missing, as were the store's proceeds from that morning. In addition, Pontiac police officers interviewed the victims' families and determined that both Putman's and Cummings's wallets were missing and that the money Cummings carried in his front pocket was also missing.

On January 8, 2004, the police received a call from Tywanda Smith, defendant's wife, who informed them that defendant confessed to her that he had committed the murders.1 Smith testified that defendant told her that he first asked "the young guy" [Putman] for the money but that "the young guy acted like he didn't know what [defendant] was talking about and [defendant] shot him." Defendant then asked the "old guy" [Cummings] where the money was, and Cummings responded, "What do you think you are going to do? You going to rob me?" Cummings then hit defendant on the hand with an unknown object and defendant responded by shooting Cummings twice in the head. Defendant then admitted that, after the shootings, he took money and a set of keys from the store, but did not take any vehicle. Defendant also told Smith that the police had no evidence implicating him in the murders because he threw the gun into the river.

Defendant was prosecuted for two counts of first-degree felony murder, with larceny as the predicate felony, two counts of armed robbery, and four counts of felony-firearm. Following a jury trial, defendant was convicted on all charges. He appealed, contending that his convictions for two counts of felony murder and two counts of armed robbery committed during the course of the murders constituted a violation of the Double Jeopardy Clause of the Michigan Constitution. The Court of Appeals undertook its analysis by noting that larceny is a lesser included offense of robbery and that there was no evidence that defendant committed the separate offenses of robbery and larceny. Op. at 353. On that basis, the Court of Appeals concluded that armed robbery, not larceny, was the predicate felony for the instant felony-murder convictions and, therefore, that it was bound by Wilder to reverse the armed robbery convictions as well as the accompanying felony-firearm convictions.2 Id. We granted the prosecutor's application for leave to appeal.3 475 Mich. 864, 714 N.W.2d 310 (2006).

II. STANDARD OF REVIEW

A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo. Nutt, supra at 573, 677 N.W.2d 1.

III. ANALYSIS

Const. 1963, art. 1, § 15 states that "[n]o person shall be subject for the same offense to be twice put in jeopardy."4 The primary goal in interpreting a constitutional provision is to determine the text's meaning to the ratifiers, the people, at the time of ratification. Wayne Co. v. Hathcock, 471 Mich. 445, 468, 684 N.W.2d 765 (2004). Justice Cooley described this principle of constitutional interpretation as follows:

A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. "For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed." [Cooley, A Treatise on the Constitutional Limitations (Little, Brown, & Co., 1886), p. 81 (citation omitted).]

The Double Jeopardy Clause affords individuals "three related protections: (1) it protects against a second prosecution for the same 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, supra at 574, 677 N.W.2d 1. The first two protections are generally understood as the "successive prosecutions" strand of double jeopardy, while the third protection is commonly understood as the "multiple punishments" strand.

A. "SAME OFFENSE" FOR SUCCESSIVE PROSECUTIONS.

Before 1973, the Court consistently construed Michigan's Double Jeopardy Clause in a manner consistent with the federal courts' interpretation of the Fifth Amendment of the United States Constitution. See, e.g., In re Ascher, 130 Mich. 540, 545, 90 N.W. 418 (1902) (stating that "the law of jeopardy is doubtless the same under both [the federal and Michigan constitutions]");5 People v. Schepps, 231 Mich. 260, 267, 203 N.W. 882 (1925) (quoting Ascher for the proposition that the Court is "committed" to the view of double jeopardy protections set forth by federal courts); People v. Bigge, 297 Mich. 58, 64, 297 N.W. 70 (1941) (holding that "[t]his State is committed to the view upon the subject of former jeopardy adopted by the Federal courts under the Federal Constitution").6

In People v. Townsend, 214 Mich. 267, 183 N.W. 177 (1921), the Court addressed the issue whether a defendant's conviction in municipal court of driving an automobile while intoxicated served as a bar to a subsequent prosecution for manslaughter arising out of the same drunken driving incident. We began our analysis by noting that under the federal interpretation of the Fifth Amendment, a defendant who commits two or more separate offenses during a single criminal transaction may be prosecuted for each, as long as the offenses are different. Id. at 275, 183 N.W. 177, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). To determine whether an offense is the "same offense" for double jeopardy purposes, the Court cited the same-elements test articulated by the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The Morey rule, which would later be adopted by the United States Supreme Court in Blockburger, held that an offense is not the "same offense" if each statute requires proof of an element that the other does not. The Court concluded that the misdemeanor offense of driving an automobile while intoxicated was not the "same offense" as...

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