People v. Cooper, 3

CourtSupreme Court of Michigan
Citation247 N.W.2d 866,398 Mich. 450
Docket NumberJ,No. 3,3
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marx Ernest COOPER, Defendant-Appellant. une Term. 398 Mich. 450, 247 N.W.2d 866
Decision Date21 December 1976

Page 866

247 N.W.2d 866
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Marx Ernest COOPER, Defendant-Appellant.
No. 3, June Term.
398 Mich. 450, 247 N.W.2d 866
Supreme Court of Michigan.
Dec. 21, 1976.

Page 867

[398 MICH 453] John J. Rae, Pros. Atty., Marshall, for plaintiff-appellee.

Marx Ernest Cooper, defendant-appellant in pro per.

Gary A. Colbert, Detroit, for Michigan Committee for Human Rights, amicus curiae.

American Civil Liberties Union of Michigan by Sheridan V. Holzman, Gen. Counsel, Detroit, amicus curiae.

LINDEMER, Justice.

On December 18, 1970, defendant-appellant attempted to rob a bank with the use of bombs in Battle Creek, Michigan. Heroic action by bank and police officials prevented what might otherwise have been a tragic loss of life.

We granted leave in this case to consider whether defendant's trial in state court following his acquittal in Federal court on charges for the same criminal act violated his right to be free from double jeopardy under either Const.1963, art. 1, § 15 or U.S.Const., Am. V.

On February 10, 1971, defendant was arraigned in Federal court on alternative counts of violating 18 U.S.C. § 2113(a), the Federal bank robbery statute. A trial commenced and on June 5, 1971, the jury returned a verdict of not guilty on both counts.

Subsequently, on June 22, 1971, defendant was arraigned in a state court on three charges: (1) attempted murder, M.C.L.A. § 750.91; M.S.A. § 28.286; (2) bank robbery, M.C.L.A. § 750.531; M.S.A. § 28.799; and (3) assault with intent to rob being armed, M.C.L.A. § [398 MICH 454] 750.89; M.S.A. § 28.284. The case went to trial and the jury found defendant guilty of all three offenses. He received a sentence of from 5 to 25 years in prison on each count, the terms to run concurrently.

The Court of Appeals dismissed the attempted murder count but, citing Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and In re Illova, 351 Mich. 204, 88 N.W.2d 589 (1958), concluded that defendant's double jeopardy claim failed under both the United States and Michigan Constitutions.


We turn first to the preliminary question of whether defendant is precluded from raising the defense of double jeopardy on appeal when he failed to raise it before or at trial. There is some confusion in the courts below as to the propriety of presuming such a waiver from a silent record. Compare People v. McPherson, 21 Mich.App. 385, 391, 175 N.W.2d 828 (1970) (waiver of double jeopardy not presumed from a silent record) with People v. Cooper, 58

Page 868

Mich.App. 284, 290, 227 N.W.2d 319 (1975) (double jeopardy must be raised before or during trial or it is waived). The decisions of this Court, too, are not without inconsistency. Compare People v. Powers, 272 Mich. 303, 261 N.W. 543 (1935) with People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972).

In Powers, supra, the Court quoted with approval the language in L.R.A.1917A, 1233 which provided that double jeopardy claims are waived if not raised before or at trial. Powers, 272 Mich. at 307, 261 N.W. 543. The defendant in People v. Powers was charged with receiving stolen property and larceny. He was convicted on the larceny count. In a subsequent [398 MICH 455] trial for receiving stolen property, defendant did not raise a double jeopardy claim and he was convicted. It was the established law at that time that 'where a defendant is charged with distinct offenses in separate counts, a conviction on one of the counts works an acquittal on the others.' 272 Mich. at 306, 261 N.W. at 544. Nevertheless, the defendant was held to have waived his claim because he did not raise his conviction of larceny prior to his subsequent conviction of receiving stolen property.

Since that time, the constitutional law regarding double jeopardy has changed. Not the least of those changes has been the application of the Fifth Amendment guarantee against double jeopardy to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

In Grimmett, supra, wherein the prosecutor contended that defendant waived his double jeopardy claim because he did not raise the issue and requested and consented to a new jury, this Court reviewed the United States Supreme Court's Post-Powers analyses of the waiver concept. We concluded:

'Thus, waiver consists of two separate parts: (1) a specific knowledge of the constitutional right; and (2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.'

In light of both Benton and Grimmett, we must conclude that the holding in Powers does not extend beyond its particular factual setting. Because the instant record contains no evidence of 'an intentional decision to abandon the protection of the constitutional right' pertaining to double [398 MICH 456] jeopardy, the defendant is not precluded from presenting his double jeopardy claim to this Court.


We begin our analysis of defendant's claim that he was twice put in jeopardy with Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and its companion case of Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). In a five to four decision, Bartkus held that an acquittal on a prior Federal charge of bank robbery was not a bar on double jeopardy grounds to a successive state prosecution for the same criminal act. Abbate held that a conviction on a state charge of conspiracy was not a bar on double jeopardy grounds to a successive Federal prosecution based on the same criminal act.

Justice Frankfurter, writing for the majority, based his decision upon two principles: (1) that the Fifth Amendment Double Jeopardy Clause is not binding on the states; and (2) that our concept of dual sovereignty in a Federal system compels maintenance of a strong state, as well as Federal, system of justice. He discussed a long line of American cases to demonstrate that repeated prosecutions are an ingrained part of American criminal procedure. In addition, limitation of dual sovereignty 'would be a shocking and untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines'. Bartkus, 359 U.S. at 137, 79 S.Ct. at 685. Bartkus includes a sharp dissent. In his dissent Justice Black analyzed the situation not from the viewpoint of maintaining a state's prerogatives,

Page 869

but rather from the perspective of defendant's rights. He wrote that the notion that successive Federal and state trial for the same act are somehow less offensive than [398 MICH 457] repeated prosecutions by one sovereign was 'too subtle for me to grasp'. Bartkus at 155, 79 S.Ct. at 697.

The trend in United States Supreme Court decisions leads us to conclude that the permissibility of Federal-state prosecutions as a requirement of our Federal system is open to reassessment. Indeed, the reasoning supporting Bartkus has been seriously undermined. In Benton v. Maryland, the Court declared the Fifth Amendment guarantee against double jeopardy to be a fundamental right which was applicable to the states through the due process clause of the Fourteenth Amendment. Subsequent United States Supreme Court decisions have also cut away at Bartkus' remaining rationale, the dual sovereignty theory.

In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Court denied that evidence obtained by state authorities during a search, which if conducted by Federal officers would have violated the Fourth Amendment, could be admitted in a Federal prosecution because of the dual sovereignty doctrine. The court, viewing the issue from the defendant's perspective, observed that '(t)o the victim it matters not whether his constitutional right has been invaded by a federal agent or by a state officer'. Elkins at 215, 80 S.Ct. at 1443.

In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), wherein the issue was whether the Fifth Amendment privilege against self-incrimination protects state and Federal witnesses against incrimination under both state and Federal law, the Court held that a state witness need not testify if his answer might incriminate him unless his immunity covered Federal...

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