People v. Nutt, Docket No. 120489, Calendar No. 6.

CourtSupreme Court of Michigan
Citation677 N.W.2d 1,469 Mich. 565
Docket NumberDocket No. 120489, Calendar No. 6.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melissa Ann NUTT, Defendant-Appellant.
Decision Date02 April 2004

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

Van Norman & Associates, P.C. (by Daniel G. Van Norman), Lapeer, for the defendant.

David Morse, President, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, for amicus curiae the Prosecuting Attorneys Association of Michigan.



At issue in this case is the prohibition against successive prosecutions found in Const. 1963, art. 1, § 15, Michigan's Double Jeopardy Clause. In particular, we are called upon to determine the meaning of the term "same offense" as used in art 1, § 15. Until 1973, Michigan had defined that term to mean the "same crime" such that, where a defendant had committed a series of crimes with different elements, the defendant could be prosecuted serially for each distinct crime, irrespective of whether the crimes were committed during the course of one crime spree or "transaction." Thus, our Double Jeopardy Clause had, until 1973, consistently been interpreted to preclude serial prosecutions only of crimes sharing identical elements. In People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), this Court abandoned the "same-elements" test in favor of a "same transaction" test that prohibits serial prosecutions for entirely different crimes that were committed during a single criminal episode.

Because defendant challenges as an unconstitutional successive prosecution under the White same transaction test her prosecution for receiving and concealing stolen weapons in Oakland County after being convicted of second-degree home invasion in Lapeer County, we must determine whether the White test is consonant with art. 1, § 15. We conclude that, by abandoning the same-elements test, the White Court ignored the ratifiers' common understanding of the "same offense" term in our Constitution. Accordingly, we overrule White, reinstate the same-elements test, and affirm, on different grounds, the Court of Appeals' holding that defendant may be prosecuted in Oakland County for receiving and concealing stolen firearms.


On December 10, 1998, Darrold Smith's home in Lapeer County was burglarized. Four firearms and a bow and arrows were stolen from the home. Lapeer County police officers and those of adjacent Oakland County conducted a joint investigation concerning three Lapeer County burglaries, including the burglary of Smith's home. The officers obtained a search warrant for a cabin in Oakland County that was occupied by defendant and John Crosley. During the execution of the warrant on December 14, 1998, three of Smith's stolen firearms were found hidden underneath a mattress inside the cabin. Smith's bow and arrows and property stolen from another residence were also seized during the search.

Defendant confessed to a Lapeer County detective that she participated as a getaway driver during three burglaries that occurred the week of December 10, 1998, including the burglary of the Smith residence. Defendant admitted that three of the guns stolen from Smith were concealed underneath a mattress in the Oakland County cabin.

In January 1999, defendant was charged in Lapeer County with three counts of second-degree home invasion and three counts of larceny in a building. Meanwhile, on February 16, 1999, an arrest warrant was issued in Oakland County alleging that defendant had committed one offense of receiving and concealing a stolen firearm.2

On February 22, 1999, defendant pleaded guilty in Lapeer County of one charge of second-degree home invasion3 in connection with the burglary of the Smith residence and the theft of the firearms. The remaining five charges were dismissed pursuant to a plea agreement. Defendant was sentenced to probation.

In July 1999, defendant was bound over for trial in Oakland County on the charge of receiving and concealing a stolen firearm. Defendant moved to dismiss the charge, contending that it constituted an improper successive prosecution in violation of the double jeopardy clauses of the federal and state constitutions. Defendant argued that pursuant to White, the state was required to join at one trial all charges arising from a continuous time sequence that demonstrated a single intent and goal. Thus, defendant maintained, she could not be tried in Oakland County for possession of the same firearms that she was alleged to have stolen during the home invasion for which she was convicted in Lapeer County.

The trial court granted defendant's motion to dismiss. The court cited People v. Hunt (After Remand), 214 Mich.App. 313, 542 N.W.2d 609 (1995), for the proposition that where a defendant is accused of one or more offenses not having specific intent as an element, the test for determining whether they constitute the same offense for the purpose of Michigan's Double Jeopardy Clause is whether the offenses involve laws intended to prevent the same or similar harm or evil. The court opined that because defendant in this case was charged with one "general intent crime" and one "specific intent crime," and because those offenses were designed to prevent similar harms, defendant could not be tried for receiving and concealing a stolen firearm following her conviction for home invasion. The prosecution's appeal from the trial court's dismissal yielded three separate Court of Appeals opinions, the net result of which was to reverse the trial court's order dismissing the charge.4 In the lead opinion, Judge Meter opined that the Oakland County prosecution did not violate the prohibition against double jeopardy because the home invasion charge and the receiving and concealing charge did not arise from the "same transaction"; that is, they did not arise out of a continuous time sequence and did not display a common goal. Judge Meter relied on People v. Flowers, 186 Mich.App. 652, 465 N.W.2d 43 (1990), in which the Court held that where the defendant robbed an individual in Oakland County and absconded to Wayne County with the victim's vehicle, he could be prosecuted in Oakland County for armed robbery notwithstanding his prior Wayne County conviction for possession of the stolen vehicle. The Flowers Court held that the two offenses on different days were not part of the same criminal transaction. Judge Meter stated that to the extent that Hunt conflicted with Flowers, the latter controlled because it was first decided. Judge Meter further concluded that the harm or evil to be prevented by the home invasion statute differed substantially from the harm or evil to be prevented by the concealing stolen firearms statute: the former was directed toward peaceful habitation, while the latter was directed toward the trafficking of firearms, and the two statutes were located in different chapters of the Penal Code.

Judge Hoekstra issued a concurring opinion in which he indicated his disagreement with Judge Meter's conclusion that the home invasion offense and the receiving and concealing offense were not part of a continuous time sequence. Rather, Judge Hoekstra agreed with dissenting Judge Whitbeck's conclusion that the "actions of stealing, transporting, and then concealing the firearms for four days are logically part of the same criminal episode." However, relying on People v. Squires, 240 Mich.App. 454, 613 N.W.2d 361 (2000), Judge Hoekstra determined that the two offenses did not "share a single intent and goal" as required by the second part of the White same transaction test and that defendant's double jeopardy claim therefore failed.

In dissenting Judge Whitbeck's view, Hunt was directly on point and required the conclusion that the two offenses arose out of a continuous time sequence and shared a single intent and goal. Judge Whitbeck noted that Squires, on which Judge Hoekstra relied, was distinguishable because it involved multiple punishments and not successive prosecutions. Judge Whitbeck also suggested that the prosecutor had "never articulated any manifest necessity that would justify this separate prosecution."5

As the three-way split among the members of the Court of Appeals panel below and a number of conflicting previous Court of Appeals cases in the area demonstrate,6 there appears to be significant difficulty inherent in application of the White rule. Accordingly, we granted defendant's application for leave to appeal. We also directed the parties to address

whether People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), sets forth the proper test to determine when a prosecution for the "same offense" is barred on double jeopardy grounds under Const. 1963, art. 1, § 15, and whether our constitution provides greater protection than does U.S. Const., Am. V. See United States v. Dixon, 509 U.S. 688, 696-697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). [467 Mich. 901, 654 N.W.2d 331 (2002).]

A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo. People v. Herron, 464 Mich. 593, 599, 628 N.W.2d 528 (2001); People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998).

At issue in this case is the meaning of the term "same offense" in art. 1, § 15. Our goal in construing our Constitution is to discern the original meaning attributed to the words of a constitutional provision by its ratifiers. People v. DeJonge (After Remand), 442 Mich. 266, 274-275, 501 N.W.2d 127 (1993). To this end, we apply the rule of "common understanding." Lapeer County Clerk v. Lapeer Circuit Court (In re Lapeer...

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