People v. Gay

• Decision Date: 04 March 1980
• Docket Number: 6,60833,Docket Nos. 61202,Nos. 5,s. 5
• Citation: 407 Mich. 681,289 N.W.2d 651
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Steven Michael GAY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald Lee GERLOFS, Defendant-Appellee. Calendar407 Mich. 681, 289 N.W.2d 651
• Court: Michigan Supreme Court

Page 651

289 N.W.2d 651

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Steven Michael GAY, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donald Lee GERLOFS, Defendant-Appellee.

Docket Nos. 61202, 60833.

Calendar Nos. 5, 6.

407 Mich. 681, 289 N.W.2d 651

Supreme Court of Michigan.

Argued April 3, 1979.

Decided March 4, 1980.

James J. Gregart, Pros. Atty., Stephen M. Wheeler, Chief of Appellate Division, Kalamazoo, for plaintiff-appellant.

Howard & Howard, Thomas J. Hirsch, by Richard J. Howard, Kalamazoo, for defendant-appellee.

MOODY, Justice.

On August 20, 1974, defendants Steven Michael Gay and Donald Lee Gerlofs were charged in the United States District Court for the Western District of Michigan with bank robbery, assault with a dangerous weapon while committing a bank robbery and taking the life of teller Connie Marie Adams while committing a bank robbery. 18 U.S.C. § 2113(a); 18 U.S.C. § 2113(d); 18 U.S.C. § 2113(e). ¹ After a joint Federal jury trial which commenced October 14, 1974, defendant Gay was found guilty on all three counts and was sentenced to life imprisonment. Defendant Gerlofs was convicted on the first two counts, but acquitted of killing a teller while committing a robbery.

Concurrently, under Michigan's jurisdiction, defendants were charged in Kalamazoo Circuit Court with murdering Connie Marie Adams during the commission of an armed robbery, contrary to M.C.L. § 750.316; M.S.A. § 28.548. ² Following their conviction in Federal court, each defendant moved to dismiss the state prosecution on grounds that trying them on murder charges in Michigan would constitute double jeopardy. The cases were consolidated for purposes of the motion and heard before Circuit Judge Lucien F. Sweet. On December 30, 1974, the motion was denied as to both defendants.

Subsequently, on March 10, 1975, Judge Robert L. Borsos, successor to Judge Sweet, issued an order to stay proceedings pending an interlocutory appeal to the Michigan Court of Appeals, testing the prior denial of defendants' motion to dismiss. On July 7, 1975, the Court of Appeals denied the appeal on the authority of its decision in People v. Cooper, 58 Mich.App. 284, 227 N.W.2d 319 (1975). This Court denied defendants' interlocutory appeal on October 16, 1975. 395 Mich. 768 (1975).

Defendant Gay appealed his Federal conviction. The United States Court of Appeals reversed that conviction on the basis of error in the jury selection process. United States v. Gay, 522 F.2d 429 (C.A.6, 1975). Shortly afterward, defendant Gay pled guilty in Federal District Court to the three charges on which he had been convicted originally and was sentenced to 99 years imprisonment. Defendant Gerlofs has not appealed his Federal conviction.

Defendants were separately tried in state court on the murder charges. Defendant Gerlofs was convicted by jury on August 7, 1975. Defendant Gay was similarly convicted on October 15, 1975. They were both sentenced to life imprisonment.

Both defendants appealed their convictions to the Michigan Court of Appeals. Subsequent to filing appeal but prior to decision, this Court issued its opinion in People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). Consequently, on June 16, 1977, pursuant to defendant Gerlofs' motion for peremptory reversal, the Court of Appeals remanded that case to circuit court for reconsideration of an alleged double jeopardy violation in light of Cooper.

On remand, Judge Borsos found that defendant Gerlofs had been twice placed in jeopardy and therefore dismissed his state conviction of murder. The Court of Appeals affirmed in an order issued on December 7, 1977, granting defendant's original motion for peremptory reversal. A similar order was entered as to defendant Gay on January 6, 1978. The prosecutor applied to this Court for leave to appeal, and leave was granted as to both defendants. 402 Mich. 939-940 (1978).

We granted leave to resolve two questions: (1) whether, under the guidelines established by this Court's decision in People v. Cooper, the prosecution of defendants in a Michigan court subsequent to their conviction in Federal court for the same act violates Const.1963, art. 1, § 15, placing them twice in jeopardy; and (2) whether this Court's decision in People v. Cooper must be applied retroactively.

We hold that the interest of the State of Michigan in trying these defendants for murder does not differ substantially from the interest previously addressed in defendants' Federal prosecution. Accordingly, we find that subsequent trial in this state for the same act violated the Michigan constitutional prohibition against double jeopardy. We also hold that this Court's decision in People v. Cooper must be accorded retroactive effect.

I

This Court broke with Federal precedent and held in People v. Cooper that limitations did exist under the Michigan Constitution upon the state's ability to prosecute a defendant in a state court following a conviction in Federal court for crimes arising out of the same acts. 398 Mich. 457, 460-461, 247 N.W.2d 866. We recognized in Cooper that state criminal justice systems must retain their strength and independence. This principle of dual sovereignty has long maintained ascendance in the American system of justice. In fact, the Federal precedent established prior to our decision in Cooper largely bases its authorization for dual prosecution on this principle. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

However, we found that emerging Federal trends in recent years and the dictates of our own Constitution required us to impose limits on what dual sovereignty would permit. We held that where a criminal act involves the legitimate interests of both the state and Federal governments and the Federal criminal prosecution cannot adequately represent the state's independent interests, then the state in those rare instances is justified in protecting its interest by prosecuting the defendant, even after conviction or acquittal in Federal court. 398 Mich. 459-460. Dual prosecution of these differing interests violates neither the Federal nor Michigan Constitution. See U.S.Const., Am. V; Const.1963, art. 1, § 15. See also Bartkus v. Illinois, supra, 359 U.S. 137, 79 S.Ct. 685.

On the other hand, this Court also recognized the fundamental need to safeguard defendants' constitutional rights. We therefore prohibited dual prosecution where the interests of the state are not "substantially different". People v. Cooper, supra, 398 Mich. 461, 247 N.W.2d 866. Distinct risks and penalties arise for defendants from the very fact of multiple prosecution, among which are (1) continued embarrassment, expense and ordeal; (2) being compelled to live in a continuing state of anxiety and insecurity; and (3) the possibility that even though innocent they may be found guilty through repeated prosecutions. See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

When weighed against the interest of the state in dual prosecutions, we concluded that the defendant's right not to be twice tried and convicted prevailed and that second prosecutions were prohibited unless the record demonstrated substantially different state interests. People v. Cooper, supra, 398 Mich. 461, 247 N.W.2d 866. See also Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978). We rested our decision on Const.1963, art. 1, § 15. See People v. Beavers, 393 Mich. 554, 567-568, 227 N.W.2d 511 (1975).

Cooper represents a strong and uncompromising statement by this Court that a defendant's right not to be twice tried in Federal and state court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests. 398 Mich. 459, 247 N.W.2d 866. Cooper makes clear that as a firm rule dual prosecution ordinarily will not be tolerated in Michigan. It is only in the rare instance where the social interests of the state are not addressed in substance by the Federal statute that a second prosecution will be allowed. Further, since this safeguard of defendant's right against double jeopardy is of a constitutional magnitude, it must receive this Court's close consideration. It is thus within this context that our Court determines whether a possible second prosecution may be allowed.

Cooper accounts for rare exceptions to the rule by suggesting certain conditions for the limited instances when such prosecution will be allowed. These guidelines are "nonexclusive" in the sense that other factors militating against dual prosecution and in favor of protecting defendant's constitutional right may be considered. See People v. Formicola, 407 Mich. 293, 298, 284 N.W.2d 334 (1979). The guidelines stated in Cooper include whether the maximum penalties of the statutes involved vary greatly, whether some cause exists to believe the Federal court cannot adequately vindicate the state interest in obtaining a conviction, and whether the differences in the statutes are merely jurisdictional rather than substantive. People v. Cooper, supra, 398 Mich. 461, 247 N.W.2d 866.

The first factor suggested is "whether the maximum penalties of the statutes involved are greatly disparate". The "maximum penalty" which this Court considers in relation to allowing dual prosecution is the potential statutory sentence, not the actual sentence assessed. What we compare in this case is the maximum possible sentence in Federal court for killing during a bank robbery as against the maximum possible sentence in Michigan for murder during an armed robbery. The potential maximum sentences are the focus of any inquiry.

To discern what was...