People v. Ream

• Decision Date: 11 June 2008
• Docket Number: Docket No. 134925.,Docket No. 134913.
• Citation: 481 Mich. 223,750 N.W.2d 536
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David Gordon REAM, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellee, v. David Gordon Ream, Defendant-Appellant.
• Court: Michigan Supreme Court

750 N.W.2d 536

481 Mich. 223

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. David Gordon REAM, Defendant-Appellee.

People of the State of Michigan, Plaintiff-Appellee, v. David Gordon Ream, Defendant-Appellant.

Docket No. 134913.

Docket No. 134925.

Supreme Court of Michigan.

Argued December 13, 2007.

Decided June 11, 2008.

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

Shirley J. Burgoyne, Ann Arbor, for the defendant.

Opinion

MARKMAN, J.

At issue here is whether convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the "multiple punishments" strand of the Double Jeopardy Clause of the United States and Michigan constitutions. Following a jury trial, defendant was convicted and sentenced for first-degree felony murder and first-degree criminal sexual conduct, where the latter constituted the predicate felony for the former. The Court of Appeals affirmed defendant's first-degree felony-murder conviction and sentence, but vacated defendant's first-degree criminal sexual conduct conviction and sentence on double-jeopardy grounds. We conclude that convicting and sentencing a defendant for both felony murder and the predicate felony does not necessarily violate the "multiple punishments" strand of the Double Jeopardy Clause, and, thus, we overrule People v. Wilder, 411 Mich. 328, 342, 308 N.W.2d 112 (1981). Because each of the offenses for which defendant was convicted has an element that the other does not, they are not the "same offense" and, therefore, defendant may be punished for both. Accordingly, we reverse the part of the Court of Appeals judgment that vacated defendant's first-degree criminal sexual conduct conviction and sentence, and we reinstate them. In addition, defendant's application for leave to appeal the judgment of the Court of Appeals is considered, and it is denied, because we are not persuaded that the questions presented should be reviewed by this Court.

I. FACTS AND PROCEDURAL HISTORY

Defendant forced his 92-year-old neighbor into her bedroom, stripped her of her clothing, and killed her by stabbing her in the abdomen and genital area 23 times with a kitchen knife. Following a jury trial, defendant was convicted and sentenced for first-degree felony murder and first-degree criminal sexual conduct, where the latter was the predicate felony for the felony-murder conviction. The Court of Appeals affirmed defendant's felony-murder conviction and sentence, but vacated the criminal sexual conduct conviction and sentence on double-jeopardy grounds. Unpublished opinion per curiam, issued July 31, 2007, 2007 WL 2189076 (Docket No. 268266). Both the prosecutor and defendant filed applications for leave to appeal in this Court. We heard oral argument on whether to grant the prosecutor's application or take other peremptory action permitted by MCR 7.302(G)(1). 480 Mich. 935, 740 N.W.2d 656 (2007).

II. STANDARD OF REVIEW

A double-jeopardy challenge presents a question of constitutional law that this Court reviews de novo. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004).

III. ANALYSIS

Const. 1963, art. 1, § 15 states, "No person shall be subject for the same offense to be twice put in jeopardy."¹ The provision affords individuals "three related protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense." Nutt, 469 Mich. at 574, 677 N.W.2d 1. The first two protections comprise the "successive prosecutions" strand of double jeopardy, id. at 575, 677 N.W.2d 1, while the third protection comprises the "multiple punishments" strand. People v. Smith, 478 Mich. 292, 299, 733 N.W.2d 351 (2007).

In Nutt, 469 Mich. at 576, 677 N.W.2d 1, a case involving the "successive prosecutions" strand, this Court explained that "[a]pplication of the same-elements test, commonly known as the `Blockburger test,'[<sup>2</sup>] is the well-established method of defining the Fifth Amendment term `same offence.'" This test "`focuses on the statutory elements of the offense.'" Id. (citation omitted). "`If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.'" Id. (citation omitted). "In sum, offenses do not constitute the `same offense' for purposes of the `successive prosecutions' strand of double jeopardy if each offense requires proof of a fact that the other does not." Smith, 478 Mich. at 304, 733 N.W.2d 351.

In Smith, 478 Mich. at 316, 733 N.W.2d 351, this Court further explained that the "the ratifiers intended that the term `same offense' be given the same meaning in the context of the `multiple punishments' strand of double jeopardy that it has been given with respect to the `successive prosecutions' strand." Therefore, multiple punishments are authorized if "each statute requires proof of an additional fact which the other does not...." Id. at 307, 733 N.W.2d 351, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (citation omitted).³

In Wilder, 411 Mich. at 342, 308 N.W.2d 112, this Court held that convicting and sentencing a defendant for both first-degree felony murder and the predicate felony violates the "multiple punishments" strand of the Double Jeopardy Clause. However, Wilder did not apply Blockburger's same-elements test. Instead, the Court held that "[w]here the proof adduced at trial indicates that one offense is a necessarily or cognate lesser included offense of the other, then conviction of both the offenses will be precluded." Id. at 343-344, 308 N.W.2d 112. The Court then concluded that because the predicate felony is a "necessary element of every prosecution for first-degree felony murder," convicting and sentencing a defendant for both the felony murder and the predicate felony will always violate the Double Jeopardy Clause. Id. at 345, 308 N.W.2d 112. The Court proceeded to explain that "the fact that the elements of first-degree felony murder do not in every instance require or include the elements of armed robbery [the predicate felony in Wilder] does not mean the offense of armed robbery is not necessarily included in the felony murder here." Id. at 345, 308 N.W.2d 112. "Though theoretically arguable, such a position is irrelevant when the legal analysis depends not upon the theoretical elements of the offense but upon proof of facts actually adduced." Id. at 345-346, 308 N.W.2d 112.

However, this approach, as Wilder itself recognized, is inconsistent with Blockburger:

[T]he test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts. Under Federal authority, the Supreme Court established the "required evidence" test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See also its original expression in Morey v. Commonwealth, 108 Mass. 433 (1871). In Blockburger, the Court outlined their test:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. [at] 304, 52 S.Ct. 180.

This approach isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. See Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); United States v. Kramer, 289 F.2d 909, 913 (C.A.2, 1961). Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. From the perspective of lesser included offenses, the Supreme Court in cases concerning double jeopardy has thus adhered to the common-law definition of such offenses. See People v. Ora Jones, [395 Mich. 379,] 387, [236 N.W.2d 461 (1975)].

The Federal test in Blockburger can thus be distinguished from this Court's approach in two principal ways. First, we find the proper focus of double jeopardy inquiry in this area to be the proof of facts adduced at trial rather than the theoretical elements of the offense alone. Proof of facts includes the elements of the offense as an object of proof. Yet, the actual evidence presented may also determine the propriety of finding a double jeopardy violation in any particular case. See People v. Martin, [398 Mich. 303,] 309, [247 N.W.2d 303 (1976)]; People v. Stewart, [400 Mich. 540,] 548, [256 N.W.2d 31 (1977)]; People v. Jankowski, [408 Mich. 79,] 91, [289 N.W.2d 674 (1980)].

Second, we have held that double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses. People v. Jankowski, [408 Mich. at] 91, 289 N.W.2d 674. [Wilder, 411 Mich. at 348-349 n. 10, 308 N.W.2d 112.][⁴] Shortly after Wilder was decided, it was called into question by this Court's decision in People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). Like the Court in Wilder, the Court in Robideau rejected the Blockburger test; however, it also rejected the Wilder test. In place of these tests, the Robideau Court, 419 Mich. at 487, 355 N.W.2d 592, set forth "general principles" to be used to ascertain whether the Legislature intended to impose multiple punishments, such as "[w]here two statutes prohibit violations...