People v. Markham, 57205

• Citation: 397 Mich. 530,245 N.W.2d 41
• Decision Date: 27 August 1976
• Docket Number: No. 57205,57205
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Larry MARKHAM, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 41

245 N.W.2d 41

397 Mich. 530

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Larry MARKHAM, Defendant-Appellee.

No. 57205.

Supreme Court of Michigan.

Aug. 27, 1976.

William F. Delhey, Pros. Atty., John J. Hensel, Sr. Asst. Pros. Atty., Ann Arbor, for plaintiff-appellant.

George Bashara, Sr., Grosse Pointe Woods, for defendant-appellee.

PER CURIAM.

Defendant was convicted of kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, by a Wayne County Circuit Court jury on October 19, 1967. This conviction was affirmed by the Court of Appeals. 19 Mich.App. 616, 173 N.W.2d 307 (1969). The validity of that conviction is not before our Court. Subsequently, on March 19, 1970, defendant was convicted by a Washtenaw County Circuit Court jury of first degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, for the rapeslaying of the kidnapping victim. It is the validity of this conviction which is at issue in this appeal.

Originally, by unpublished per curiam opinion (No. 9933, rel'd December 3, 1973), the Court of Appeals affirmed the murder conviction. However, on November 1, 1974, defendant raised the issue of double jeopardy by filing a delayed motion for a new trial. This motion was denied by the circuit judge. The Court of Appeals granted defendant's motion for peremptory reversal of the murder conviction on May 28, 1975, citing only People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). In lieu of granting plaintiff's application for leave to appeal, pursuant to GCR 1963, 853.2(4), this Court hereby reverses the order of the Court of Appeals and reinstates defendant's murder conviction.

Defendant did not raise the White double jeopardy claim before or at trial. The issue of whether he thereby waived the claim is currently pending before this Court in People v. Cooper, 58 Mich.App. 284, 227 N.W.2d 319 (1975), Leave granted, 395 Mich. 753 (1975). Assuming for purposes of this opinion only that defendant has a viable claim, the issue is whether or not the rule of People v. White, decided November 20, 1973, is retroactive. Prosecution in both cases against Markham was commenced prior to that date. This decision on retroactivity will be governed by application of Linkletter v. Walker,381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and People v. Hampton,384 Mich. 669, 187 N.W.2d 404 (1971). Those cases establish a three-pronged test, namely, '(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.' 384 Mich. at 674, 187 N.W.2d at 405.

The first factor promotes an inquiry into whether the purposes of the rule can be effectuated by prospective application. When the ascertainment of guilt or innocence is not at stake, prospective application is possible.384 Mich. at 677, 187 N.W.2d 404. White and the guarantee against double jeopardy are not required to ascertain guilt or innocence.

'The second and third factors can be dealt with together, because the amount of past reliance will often have a profound effect upon the administration of justice.' Id.

When a decision overrules past settled law, more reliance is likely to have been placed in the old rule than in cases where the old law was unsettled or unknown. People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), was a restatement of 'settled' Michigan law and White specifically overruled it. Results of prosecutorial reliance may be seem in People v. Teague, 57 Mich.App. 347, 225 N.W.2d 761 (1975); People v. Joines (On Remand), 55 Mich.App. 334, 222 N.W.2d 230 (1974); People v. West, 54 Mich.App. 527, 221 N.W.2d 179 (1974); and People v. Davenport (On Remand), 51 Mich.App. 484, 215 N.W.2d 702 (1974). We hold that the same transaction test announced in People v. White shall be applicable only when the prosecution upon which a former jeopardy claim is based began on or after November 20, 1973, the date White was decided. Accord, State v. Fair, 263 Or. 383, 502 P.2d 1150 (1972).

This order of the Court of Appeals is reversed and defendant's conviction is reinstated.

LINDEMER, COLEMAN and FITZGERALD, JJ., concur.

WILLIAMS, Justice (concurring).

I concur with the result but in a memorandum opinion would limit the rule strictly to the facts and what is necessary to resolve the case.

Defendant was tried more than three years before White and did not raise the White issue until almost one year after the White opinion was handed down. Defendant would not be eligible to rely upon White under the broadest saving clause to a nonretroactive rule.

RYAN, Justice (concurring).

I concur with the result but would limit the application of the rule herein announced to the facts of this case.

In Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), the United States Supreme Court decided that the question of whether a double jeopardy decision should be given limited retroactivity is 'not readily susceptible of analysis under the Linkletter (v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)) line of cases', because these cases 'dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis.' Id. at 508, 93 S.Ct. at 877.

Robinson held that Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), is fully retroactive. Waller held that the concept of dual sovereignty cannot be applied to two prosecutions for the same act, one under municipal law and another under state law. The analysis proceeded in terms of the 'same evidence' construction of the Double Jeopardy Clause.

People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), held that the same transaction test is the proper construction of the term 'offense' as it is used in the Double Jeopardy Clause of the state and federal constitutions. That decision was unique in that it encompassed both a substantive constitutional interpretation, and simultaneously created a new procedural mandate.

Substantively, in reading 'same transaction' as the equivalent of 'same offense,' White swept within the Double Jeopardy Clause all the elementally similar or identical crimes committed 'where a single criminal episode involved several victims' or 'where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense').' See Ashe v. Swenson, 397 U.S. 436, 448, 451, 90 S.Ct. 1189, 1197, 1198, 25 L.Ed.2d 469, 478, 480 (1970) (Brennan, J., concurring).

Procedurally, White compelled the joinder of elementally distinct crimes committed as part of the same transaction, E.g., rape, felonious assault and kidnapping which theretofore had been prosecuted in separate informations. The Court's reason for the rule adopted was to curb prosecutorial discretion which was used to sentence shop and harass defendants.

The Court's motivation in adopting the 'same transaction' test in White was, of course, salutary, and although, as Justice Brennan observed dissenting in White, the purpose could have been achieved by adopting a court rule requiring joinder of offenses under such circumstances, the Court chose to elevate this procedural mandate to constitutional stature.

This dual aspect of the White decision is crucial in analyzing its retroactive effect. First, cases involving the proscription of multiple prosecutions for the same or similar criminal act deal with the Substantive expansion of the Double Jeopardy Clause, and are indeed 'not readily susceptible of (retroactivity) analysis'. Therefore, White should be fully retroactive to cases of this nature. Second, however, cases involving the joinder of elementally distinct crimes occurring in the course of a continuous transaction deal with a new, constitutionally compelled, Procedural rule. To these cases, the majority's retroactivity analysis based on the three-pronged test of Linkletter v. Walker, supra, and People v. Hampton, 384 Mich. 669, 187 N.W.2d 404 (1971) is particularly appropriate.

To cases, like the case at bar, which involve the issue of compulsory joinder, People v. White would not apply retroactively.

LEVIN, Justice.

In People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), this Court held that the Double Jeopardy Clause requires the people to join at one trial all charges against a defendant that arise out of the same criminal transaction.

The questions presented by this appeal are whether White applies retroactively and whether failure to raise a White defense before trial waives it.

We are of the view that White should apply retroactively, at least in cases pending on direct appeal when White was announced, ¹ and that failure to assert a White defense does not waive it.

Markham was convicted in Wayne Circuit Court in 1967 of kidnapping ² and was sentenced to 30 to 40 years. His conviction was affirmed by the Court of Appeals ³ and this Court denied leave to appeal. The finality of that conviction is not in dispute.

After Markham sought, but before this Court denied, leave to appeal his kidnapping conviction, ⁴ he was convicted in Washtenaw Circuit Court of first-degree murder ⁵ for the death of the victim of the kidnapping.

The double jeopardy issue was not raised in the trial court or on direct appeal. The opinion of the Court of Appeals affirming Markham's murder conviction did not advert to the White opinion which was released November 20, 1973 about 13 days before such affirmance. ⁶ Markham did not seek leave to appeal his murder conviction to this Court. He filed a delayed motion for a new trial in October, 1974, asserting for the first time that the Double Jeopardy Clause barred the murder prosecution...