People v. Davis, Docket No. 125436.

• Court: Supreme Court of Michigan
• Citation: 472 Mich. 156,695 N.W.2d 45
• Docket Number: Docket No. 125436.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gevon Ramon DAVIS, Defendant-Appellee.
• Decision Date: 07 April 2005

695 N.W.2d 45
472 Mich. 156

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Gevon Ramon DAVIS, Defendant-Appellee

Docket No. 125436.

Supreme Court of Michigan.

April 7, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Research, Training, and Appeals, Flint, MI, for the people.

695 N.W.2d 46

Neil C. Szabo, Flint, MI, for the defendant

Charles Sherman, Kym L. Worthy, and Timothy A. Baughman, Detroit, MI, for amicus curiae the Prosecuting Attorneys Association of Michigan.

WEAVER, J.

The issue presented is whether our Double Jeopardy Clause¹ prohibits the state of Michigan from prosecuting defendant for the theft of an automobile from Michigan after defendant pleaded guilty in Kentucky, where he was apprehended, to a charge of attempted theft of the automobile by unlawful taking. We overrule People v. Cooper² and hold that our Double Jeopardy Clause does not bar defendant's successive state prosecution in Michigan because the entities seeking to prosecute defendant in this case — Kentucky and Michigan — are separate sovereigns deriving their authority to punish from distinct sources of power. The decision of the Court of Appeals affirming the trial court's order granting defendant's motion to quash the information is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.

Facts

It is not disputed that defendant stole a 1999 Chevrolet Malibu, valued at $8,200, and drove the automobile from Michigan to Kentucky, where he was apprehended.

On August 22, 2001, defendant was charged in Kentucky with theft by unlawful taking or disposition of property valued at $300 or more.³ On September 4, 2001, defendant pleaded guilty to an amended charge of attempted theft by unlawful taking or disposition of property valued at $300 or more.⁴ He was sentenced to 365 days in jail, to be suspended during two years' probation.

On March 22, 2002, defendant was charged in Genesee County, Michigan, with unlawfully driving away a motor vehicle and with receiving and concealing stolen property.⁵ Defendant moved to quash the information on the basis of double jeopardy, asserting that the double jeopardy provision of the Michigan Constitution⁶ and the case People v. Cooper prohibited a second prosecution in Michigan for the theft of the automobile, unless the interests of Michigan and Kentucky were substantially different. The trial court granted defendant's motion on June 11, 2002, and dismissed the charges, concluding that the case was controlled by People v. Cooper.

The prosecutor appealed, and the Court of Appeals affirmed in an unpublished opinion per curiam.⁷ The Court of Appeals concluded that Cooper was still the controlling law because only three justices from this Court would have overruled Cooper in People v. Mezy.⁸

This Court granted the prosecutor's application for leave to appeal.⁹

Standard of Review

Whether the information should have been quashed on the basis of double

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jeopardy is a question of law that this Court reviews de novo. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004). In interpreting a constitutional provision, the primary rule of constitutional interpretation has been described by Justice Cooley

"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.'" [Traverse City School Dist. v. Attorney General, 384 Mich. 390, 405, 185 N.W.2d 9 (1971)(quoting Cooley's Const. Lim. 81)(added emphasis omitted).]

Analysis

At issue in the present case is whether our Double Jeopardy Clause prohibits charging and trying defendant in Michigan for the theft of an automobile from Michigan after he pleaded guilty in Kentucky, where he was apprehended, to attempted theft of the automobile. Answering this question requires us to determine whether this Court correctly construed our Double Jeopardy Clause and correctly applied the doctrine of dual sovereignty in People v. Cooper.¹⁰

Michigan's Double Jeopardy Clause provides, "No person shall be subject for the same offense to be twice put in jeopardy." Const. 1963, art. 1, § 15. The federal provision is substantially similar, providing "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const., Am. V. In Nutt, supra, we explained that the protections provided by the Double Jeopardy Clause include: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense. Nutt, supra at 574, 677 N.W.2d 1.

In Nutt, we further concluded that in adopting art. 1, § 15, the people of this state intended that our double jeopardy provision would be construed consistently with Michigan precedent and the Fifth Amendment. [Id. at 591, 677 N.W.2d 1.]

This conclusion was based, in part, on an examination of the record of the constitutional convention in 1961. Id. at 588-590, 677 N.W.2d 1. In 1835, Michigan's Constitution, art. 1, § 12, contained language similar to that of the federal constitution: "No person, for the same offense, shall be twice put in jeopardy of punishment." Nutt, supra at 588, 677 N.W.2d 1. In 1850 and 1908, the language of this provision was changed to "No person, after acquittal upon the merits, shall be tried for the

695 N.W.2d 48

same offense." Const. 1850, art. 6, § 29; Const. 1908, art. 2, § 14; Nutt, supra at 588, 677 N.W.2d 1; 1 Official Record, Constitutional Convention 1961, p. 465. At the 1961 constitutional convention, it was proposed that the provision be revised to once again mirror the language of the federal constitution. Nutt, supra at 589, 677 N.W.2d 1; 1 Official Record, Constitutional Convention 1961, p. 465. In discussing the proposed amendment at the constitutional convention, it was noted by Delegate Stevens that even when the language differed from the federal provision in 1850 and 1908, this Court had "`virtually held that this means the same thing as the provision in the federal constitution....'" 1 Official Record, Constitutional Convention 1961, p. 539. This historical context supports Nutt's conclusion that Michigan's double jeopardy provision should be construed consistently with the Fifth Amendment

In Bartkus v. Illinois,¹¹ the defendant was tried in federal district court for the robbery of a federally insured savings and loan association and was acquitted. After his acquittal, a state grand jury indicted the defendant on robbery charges from the same robbery. The defendant was tried, convicted, and sentenced to life imprisonment. On appeal, the defendant asserted that his state conviction was barred by double jeopardy. The United States Supreme Court disagreed, concluding that successive state and federal prosecutions based on the same transaction or conduct were not barred by the Double Jeopardy Clause. 359 U.S. at 122-124, 79 S.Ct. 676.¹² The Court reasoned:

It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States. [Id. at 137, 79 S.Ct. 676.]

In People v. Cooper, the defendant was acquitted in federal court of attempting to rob a bank. He was then tried in state court on charges stemming from the same criminal act. 398 Mich. at 453, 247 N.W.2d 866. In addressing the defendant's argument that his trial in state court was barred by double jeopardy, this Court acknowledged the holding in Bartkus that successive prosecutions were not barred by double jeopardy, but decided that a "trend in United States Supreme Court decisions" suggested "that the permissibility of Federal-state prosecutions as a requirement of our Federal system [was] open to reassessment." Id. at 457, 247 N.W.2d 866. The Court opined that the trend it perceived required increased scrutiny of the dual sovereignty doctrine, and that double jeopardy may bar successive prosecutions. Id. at 459-460, 247 N.W.2d 866.¹³ The Court explained:

695 N.W.2d 49

The dual sovereignty notion is predicated on the belief that state criminal justice systems should be strong. Additionally, there is the fear that Federal legislation which covers a criminal act may involve interests unlike the interests which state legislation covering the same criminal act may seek to promote. We agree that where an individual's behavior violated state and Federal laws which are framed to protect different social interests, prosecution by one sovereign will not satisfy the needs of the other sovereign. In such a case, given the Federal government's preemptive power, the inability of the state to vindicate its interests would truly be an "untoward deprivation of the historic right and obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system". Bartkus, supra, at 137, 79 S.Ct. 676 (Frankfurter, J.). Therefore, we cannot accept defendant's proffered alternative to the dual sovereignty doctrine which would prohibit all successive prosecutions by two sovereigns for the same act.

However, the interest of the Federal and state governments in prosecuting a criminal act frequently coincide. When state and

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