People v. Hermiz

Mezy PEOPLE v MEZY PEOPLE v HERMIZ January 10, 13). Argued (Calendar No. 102274. Docket No. July 31, 1996. Decided Court, jury Mezy in the Oakland Circuit was convicted Basil conspiracy possess Kuhn, J., to with intent deliver D. of to Richard Mezy pleaded Previously, grams had than 650 of cocaine. more for of guilty Court District in the United States District th^/éastem laundering money also had been con- instruments. He Court for the Middle District of in the United States District victed possess conspiracy intent to with to dis- Florida of one count of kilograms and two counts of more five of cocaine tribute than conspiracy. appealed, interstate travel to facilitate a cocaine jeop- County arguing indictment violated double that the Oakland Appeals, P.J., ardy protections. and The Court of Kelly, Michael JJ., (Docket 143092). No. The and M.J. reversed Cavanagh Shamo, appeal. people Court, jury in Hermiz the Oakland Circuit Issam was convicted conspiracy possess Kuhn, J., intent to D. to deliver Richard Previously, grams of Hermiz had been in excess of 650 cocaine. Court Middle in the United States District for the District convicted conspiring possess with intent to distribute five of Florida citing appealed, kilograms or Hermiz also more of cocaine. P.J., protections. Appeals, and J. Court B. Corrigan, JJ., per affirmed an curiam and N. O. Sullivan Holowka, appeals. 147116). (Docket No. The defendant opinion by joined by Justices Boyle In an Justice Weaver, Supreme opinion by an Justice Court Chief Brickley, Riley, held,-. permit required is trial court to consider whether Remand prohibited by 333.7409; prosecutions MCL successive were these 14.15(7409). MSA applies only 333.7409; 14.15(7409) MSA controlled 1. MCL complete bar crimes and is to dual substances production and act. the burden of the same The defendant bears applies. persuasion prevail argument that the on the statute agreement conspirators gist of the of the crime of 453 Mich acts, to commit one or more unlawful where one of the or more any conspirators object conspiracy. do act to effect the of the In agreement, i.e., to determine the order extent whether there conspiracies only one, totality-of-the- are two the same jeopardy analysis circumstances used in test constitutional double applied, including: time, persons acting coconspirators, is the as statutory charged, charged any offenses overt the the acts other description charged of the offenses that indicate the nature and scope activity sought punished case, of the to be in each and the places alleged part conspiracy where the events of the took place. The essence of determination the is whether there is one agreement agreement, to commit two crimes or than more one object. separate a each with Hermiz, improperly prosecution 2. In while the vouched for the credibility witness, given of its and no corrective instruction was following objection, prosecutor’s a defense the was misconduct harmless. joined by Riley, additionally Boyle Justice Justices and Weaver, Michigan stated that the Constitution and the United States Consti- prohibit prosecutions. tution do not state successive and federal prosecutions state Successive and federal do not violate the Fifth Amendment. A defendant who both has violated state and federal to, subject prosecution by, sovereign. laws is liable and to each compelling greater protection is Unless there a reason to afford Michigan Constitution, Michigan provi- under the the and federal protections. affording sions will be treated as the same Because governments may punish offenses, state and federal the same subsequent neither defendant’s state violated the jeopardy provisions double of the or United States Constitution. clearly Because the defendants met the initial estab- burden of lishing prima jeopardy, facie claim nonfrivolous of double the government by preponder- burden shifted to the to demonstrate why jeopardy principles ance of the evidence double bar do not prosecution. government burden, failing The did not its meet to

provide preponderance sufficient information to show of the Thus, purposes evidence that the offenses were for distinct. of the jeopardy claim, double it must be assumed that and the federal conspiracies state are the same. part concurring dissenting part, Chief in Justice in Brickley, appear suggest stated that several factors to that the defendants prosecuted alleged conspira- were not for The twice the same act. separate time, overlap although cies were was an there of some years. persons conspiracy different, two The involved in each were overlap. charged although again was some offenses were there same, consisting possess cocaine the the although charged it, were different. distribute the amounts intent to greatly acts between indictments. The locales overt varied Finally, conspiracies differed in also differed. of the offenses scope, aiming large-scale at national distribution and the with one However, local, transactions. because other at street-level proof, previously Supreme addressed the burden of it Court has not apply appropriate the cor- to allow the trial court is remand rect burden. statutory grounds, it these can be decided on is Because cases jeop- question unnecessary of double the constitutional reach ardy Cooper, People v Mich 450 It invites review of Cooper unnecessary is double to reach because also implicated by the facts. Mezy, reversed and remanded.

Hermiz, part and remanded. affirmed joined by dissent- Justices Justice Cavanagh Levin, Mallett, ing, court to evaluate the defendant’s remand to trial would statutory jeopardy provision, § 7409 claims that the making Michigan prosecutions, Code, it Health barred the Public unnecessary Supreme Court to consider these cases the People Cooper. Mezy’s proposal to overrule Defendant statutory plea bearing and do have a on the or constitu- indictment analysis. jeopardy tional double determining conspiracies, In are one or more whether there Supreme Supreme examine the United States Court’s Court should Ohio, (1977), 161 in Brown v 432 US which Court decision greater must considered held that and lesser included offenses be jeopardy analysis, and the same for federal constitutional double be, sequence may the Fifth Amendment forbids whatever the punishment greater prosecution and cumulative for successive Thus, conspiracy if offense. one is encom- and lesser included analysis, pros- passed by for constitutional double another uses “act” § is barred which the broader term to ecution prosecution charge also would be barred in when describe clear, “offense.” As Brown makes courts as the same first, allegations of held it even if a trial of the smaller subset is scope larger for the of offense. bars a second today Supreme Court announces a new standard for Because statutory claims, findings there no review of these are fact finding employing that to review. Remand for further fact standard necessary. therefore App 545; (1995) 208 Mich 528 NW2d reversed. 453 Mich J. Weaver, 449; App part. (1994)

207 Mich 526 NW2d 1 affirmed in Kelley, Attorney Frank L. General, J. Thomas Casey, Thompson, General, Solicitor Richard Pros- Attorney, ecuting Joyce Appellate F Todd, Chief, Division, and Robert C. Williams, Assistant Prosecut- Attorney, ing people. for the Mezy. R. Laurence Imerman for defendant Domnick Sorise for defendant Hermiz.

Amicus Curiae:

Michael D. Thomas, President, O’Hair, John D. Wayne County Prosecuting Attorney, Timothy A. Baughman, Training Appeals, Chief, Research, Prosecuting Attorneys Michigan. for Association question presented Weaver, J. The in these consoli- appeals Michigan dated criminal is whether was indicting conspiracy barred from these defendants possess with intent to deliver in excess grams they previously of cocaine when had been con- possess victed federal court of kilograms intent to distribute more than five cocaine and interstate travel facilitate a cocaine conspiracy. We would hold that Consti- tution, as the United States Constitution, does not prohibit prosecutions. successive state and federal In holding, People Cooper, so we would overrule Mich 247 NW2d Wewould remand allow the trial court to consider whether these suc- prosecutions prohibited by cessive were MCL 14.15(7409). 333.7409; MSA 273 Mezy Weaver,

I HERMIZ in fed- was indicted 1989,Issam Hermiz October, In conspir- for district of Florida the middle eral court kilograms ing possess to distribute five with intent to 841(a)(1). 21 Hermiz was cocaine, USC more of or prison charged to a term as and sentenced convicted July, 1990,Hermiz was indicted months. In of 211 possess County, Michigan, for Oakland grams of of 650 deliver in excess with intent to 333.7401(2)(a)(i); MSA MCL cocaine, jury 14.15(7401)(2)(a)(i). Hermiz was trial, After a imprison- charged to life and sentenced convicted appealed, arguing parole. without Hermiz ment County the double indictment violated the Oakland Appeals jeopardy prohibition. affirmed The Court of granted Court leave to Hermiz’ conviction.1 This part appeal.2 and remand with affirm We instructions.

MEZY August, 1988, was indicted in federal In Basil conspir- district of court of eastern acy possess more than intent to distribute kilograms 841(a)(1) 21 USC and 846.3 cocaine, four Mezy money

pleaded guilty laundering instruments, App 449; (1994). NW2d Mich 450 Mich 871 provides: 841(a)(1) 21 USC any title, Except (a) shall be unlawful for as authorized this it intentionally— person knowingly or manufacture, distribute, dispense, possess with (1) or or manufacture, distribute, dispense, a controlled intent substance .... 453 Mich 269 Opinion by Weaver, J. exchange 1956(a)(2)(B)(ii)4 18 USC in a for dismissal conspiracy charge. thirty- He was sentenced to prison. three months Mezy June, 1989, In was indicted federal court conspiracy for the middle district of Florida for possess with intent to distribute more than five kilo- grams 841(a)(1) cocaine, USC 846, and and conspiracy, interstate travel to a facilitate cocaine Mezy 1952(a)(3). USC was convicted of one count of Mezy the former and two counts of the latter. was prison twenty-two sentenced to concurrent terms of years. consecutively and five These terms are to run money-laundering to the sentence. July, Mezy charged

In was in Oakland Circuit possess Court with with intent grams deliver more than 650 cocaine, MCL 1956(a)(2)(B)(ii) provided: 18 USC transports, transmits, transfers, attempts Whoever or or to trans- port, transmit, monetary or transfer a instrument or funds from a place place through in the United States to or outside the United place States through place or in the United States from or outside the United States— (B) knowing monetary that the instrument or funds involved in transportation represent proceeds of some form of unlawful activity knowing transportation designed that such is in whole part— or in (ii) requirement reporting to avoid a transaction under State or law, Federal $500,000 shall be sentenced to a fine of or twice the value of the monetary instrument transportation, or funds involved greater, imprisonment twenty whichever for not more than years, or both. Mezy Weaver, Mezy 14.15(7401)(2)(a)(i).5 MSA 333.7401(2)(a)(i); charged and received subsequently was convicted imprisonment without of life mandatory sentence the Oakland appealed, arguing parole. pro- violated the double County indictment relying the convic- Appeals, on The Court of hibition. eastern district of court for the the federal tion in This Court Mezy’s conviction.6 reversed Michigan, We would reverse appeal.7 leave to granted with instructions: remand

n whether, pur is Mezy’s In case the first issue con analysis, we should jeopardy of a double poses which was indicted on charge sider the conspiracy possess to Michigan, Eastern District kilograms four deliver more than with intent to pleaded guilty, he charge or to which cocaine, We follow the federal money instruments. laundering on dismissed charges hold that a rule and violate the plea to does not pursuant agreement a newly charged Jeopardy Clause where Double pur jeopardy a for double is different offense offense which the defendant has than the crime to poses Gamer, v See United States 32 F3d pleaded guilty. 5 provides: 14.15(7401)(2)(a)(i) 333.7401(2)(a)(i); MCL MSA person who violates this section to: A (a) 1 2 is a classified in schedule or A controlled substance 7214(a)(iv) drug and: described in section narcotic any grains (i) or more of mixture Which is in an amount of 650 felony impris- guilty containing of a and shall be that substance for life. oned 6 App 545; (1995). NW2d 783 Mich 528 208 7 Mich 871 453 Mich 269

Opinion by Weaver, (CA 1994); 1305, 1311, 8, n United v States Rivera- (CA 1991);8 Feliciano, 951, 1, 930 F2d 953-954 see 1, 8; also US S Adamson, 2680; Ricketts 107 Ct (1987) (the plea L97 Ed 2d 1 Court noted that guilty generally for a lesser included offense would precluded charge greater have offense on jeopardy grounds except double for the fact that the plea agreement). Jeopardy defendant violated his charges part plea does not attach dismissed as of a supra agreement. Gamer, 1311, at n 6. United States Vaughan, (CA 1983). F2d 1373, 1376-1377 may only charge Thus, we consider to which Mezy pleaded guilty, laundering money instruments, charge prior not the on which he was indicted. This laundering money conviction instruments no raises double issues under either the statute respect Mezy’s constitution with state court indict conspiracy possess ment for with intent to deliver grams more than 650 of cocaine. See United States v Felix, 378, 388-389; 503 US 112 S Ct 118L Ed 2d (1992) (a substantive crime and commit that crime are not the same offense for jeopardy purposes).9 8 course, bring newly Of charged a defendant could a claim that this plea agreement. Rivera-Feliciano, supra offense violated the terms of his 952, However, argument Mezy n at 1. such an would be of no avail for in plea agreement this case because he entered his with the United States agreement prevent Michigan, then cannot ask that this the State of party agreement, prosecuting not a to the from him. 9 suggests The dissent that the Federal District Court for the Eastern may Michigan drug conspiracy District of charges have dismissed the prejudice” accepted Mezy’s plea guilty money “with when it of on launder post ing. support See at 305. There is no in the record for this assertion. true, Mezy Even if this were this would assist because dismissal prejudice “acquittal” Gamer, 7409, is not an § under and under supra, jeopardy charges double does not attach to dismissed with prejudice. prejudice” only acquittal jeop- Dismissal “with is an for double 277 People v Weaver,

m Oakland Circuit their assert Both defendants were barred under Court indictments on Jeopardy Clause, relying Double Constitution’s regarding The information supra. Cooper, v considering very sparse. In the federal convictions pur- for conspiracies two there are one or whether following Jeopardy Clause, poses of the Double time, as cocon- persons acting are considered: factors indictménts, in statutory charged offenses spirators, places where charged government, overt acts place. part took events alleged 8, 1985). Thomas, (CA v 759 F2d United States burden of clearly met the initial The defendants nonfrivolous claim prima facie establishing by showing primarily was jeopardy. This done double and the substantial over- similarity charges, of the conspiracies charged. Thus, the two lap time of by a to demonstrate government to the burden shifted why jeopardy preponderance of the evidence prosecution. United States do not bar principles 5, peo- The 1064, (CA 1996).10 Schinnell, 80 F3d “ actually label, judge, ardy ruling purposes whatever its ‘when the of the not, favor, represents of some or correct or in the defendant’s resolution charged’ . . offense . United States all factual elements of the 300, 304; (1995), quoting App Lindsey, United F3d 310 US DC Scott, 82, 97; Ct 57 L Ed 2d 65 US 98 S States v employer’s illegally from her withdrew funds Schinnell Defendant completed government personal instituted and use. bank accounts for pursuant 981(a)(1)(C), proceedings to 18 USC administrative forfeiture Subsequently a condi Schinnell entered did not contest. which Schinnell right appeal fraud, reserving plea guilty on double her to wire tional prior jeopardy grounds her administrative forfeiture. on the basis of it the indictment because to dismiss denied her motion district court had man the forfeiture action in some not show how found that she did Schinnell placed a criminal offense. her twice ner allocating arguing the burden appealed, court erred that the district 453 Mich 269

Opinion by J. Weaver, pie obligation, enough failed to meet this because not provided by preponder- information was to show a ance of the evidence that the offenses were distinct. people The have not demonstrated that the trial court any findings committed clear fact, error its application that it erred in its of the constitutional people concluding test under Thomas in that the carry purposes failed Thus, their burden. of the jeopardy claim, constitutional double we must conspiracies assume that the federal and state are the requested by same. address, This us to leads as plaintiffs, validity continuing Cooper. provides:

The United States Constitution “[N]or any person subject shall be for the same offence to put jeopardy be twice of life or limb . ...” US Supreme Const, Am V. The United States Court has consistently held that successive state and federal prosecutions are violation of the Fifth Amend- ment. Bartkus v Illinois, 121, 132; 359 US S Ct (1959). reasoning 3 L Ed 2d 684 behind this hold- clearly ing was set out in Heath v Alabama, 474 US 82, 88; 106 S Ct 433; 88 L Ed 2d 387 sovereignty dual doctrine is founded on the common- conception law against of crime an offense the sover- eignty government. single When a defendant in a act “peace dignity” by violates sovereigns of two break- ing each, laws he has committed two distinct explained “offences.” As the Court in Moore v Illinois [55 proof to the on defendant the double issue. The United States Appeals Court of for the Fifth Circuit found that the correct standard was to make “the establishing prima defendant ] initial burden of bear[ jeopardy, facie nonfrivolous claim of double after which burden shifts government preponderance to the to demonstrate of the evidence why jeopardy principles prosecution,” citing United do not bar Deshaw, States v (CA 5, 1992). 974 F2d Opinion Weaver, offence, How) 13, 19; (1852), (14 14 L Ed 306 “[a]n

US] transgression legal signification, of law.” its means the transgresses Consequently, laws of the same act the when truly sovereigns, be that the offender “it cannot averred two offence; only that punished for same but has been twice the offences, for each he has committed two one act justly punishable.” which he is omitted.] [Citations Constitution’s Michigan of the language substantially to that of provision is similar Consti- Michigan the United States Constitution. “No provide: person was amended in 1963 tution put to be twice subject for the same offense shall be 1, 1962, the 1963, art 15. Before jeopardy.” § Const Jeopardy was, Clause wording Michigan’s Double merits, be acquittal upon the shall person, “No after 1908, 2, 14. offense.” Const art § for the same tried constitution, the Court’s task construing When provi- the understanding’ “divine the ‘common minds, great sion, ‘which reasonable meaning ” Peo- themselves, give would it.’ people mass of the 341 NW2d Nash, 418 Mich ple considerations include the constitutional Relevant debates, people, the address to convention adoption provi- to the leading circumstances accomplished. be Id. sion, puxpose sought at 209. delegate

At Convention the 1961 Constitutional virtually Supreme that the Court of stated same prior provision thing to mean “the had held the constitution, which is provision as the delegate . put we in . . .” Another what have change language in the expressly agreed that we hitherto “in the rule have change would make no Convention Record, Constitutional had.” Official 453 Mich 269 Opinion by Weaver, J. 1961, p light expression 539. In of this clear of intent by the convention delegates that there be change no in the then-existing law, case we find it significant that in 1958 this held, Court had “When a defendant has violated both State and Federal laws he is liable to each sovereign subject prosecution each.” In re Illova, 204, 209; Mich 88 NW2d 589 (1958).11

In 1976 this Court held that this pro constitutional “prohibits vision a second for an offense arising out of the same criminal act unless it appears from the record that the interests of the State Michigan and the jurisdiction which initially pros are substantially ecuted People v different.” Cooper, supra 461. at Finding the case to have been wrongly we decided, would People overrule v Cooper.

Cooper questioned stated that it the continued validity of United Supreme States decisions,12 Court and “preferred therefore the Court to rest the deci- 11 Cooper, As subsequently by this Court noted was Illova overruled Carey, 378, 381; (1964), In re 372 Mich 126 NW2d 727 to the extent it that disagreed Carey’s holding that “where a defendant has been sen court, subsequently tenced Federal and sentenced in or State court courts, may imposed completion sentence not be to commence at the expiration sentence, statutory authority.” of Federal in the of absence However, suppose there is no reason to that Illova was an accurate expression jeopardy of the state of law the case on double at of the time Convention, the Constitutional which is the relevant for issue our purposes. 12 plausible very position. “Scholarly We note that in 1976 this was analysis exception sovereignty uniformly critical, the dual was almost States, and the decisions 206; described above v United 364 US [Elkins 80 1437; (1960), Murphy S Ct 4 L Ed 2d 1669 and v Comm New Waterfront Harbor, 52; 1594; York (1964)] 378 S suggest US 84 Ct 12 L Ed 678 2d that moving the Indeed, Court was in the same direction as the commentators. general the thrust the decisions of the 1960’sled at least one commen suggest Supreme might tator to that the Court well abandon the dual sov ereignty exception.” Murchison, exception sovereignty dual to double jeopardy, 383, Change 14 NYU R Law & Social 419 281 v Opinion Weaver, doing In so this on our state constitution.”13

sion rule that general failed to follow the Court “[u]nless protec- greater reason to afford compelling there is Constitution, Michigan Michigan under the tion affording will be treated provisions and federal 313, People Perlos, v Mich protections.” same 436 7;n NW2d 310 (1990). 462 join overwhelming majority

We would now validity of recognize dual state courts recog- In with this and state convictions.14 accordance may punish governments that state and federal nition offenses, we would hold that neither the same subsequent prosecution violated the state defendant’s provisions or United States Constitution.

13 Although Supreme Court’s treatment of the United States seriously underpinnings question of Bartkus leads us its rational Therefore, vitality, expressly we current it has not been overruled. preferred have rest on our state constitution. In the decision so, have, appropriately, “assign[ed] proper weight doing we policy.” opposing public give[n] some consideration interests [Cooper, supra at 461.] 14 majority own of states hold that both the United States and their govern prosecutions allow dual the state and federal constitutions State, 410; (1971), Hall v Com App Nance v 181 123 Ga SE2d 295 ments. Castonguay, monwealth, Ky 179; (1923), A2d State 441 240 197 246 SW State, (Miss, 1970), State (Me, 1968), Bankston v So 2d 757 236 Pope, 689; Turley, (Mo App, 1974), State v SW2d 190 Neb Cooper, (1969), (1973), State v 54 NJ NW2d 923 255 A2d State, 1971). rely (Tex App, Breedlove v Crim Others on 470 SW2d merely principle of cite Bartkus for the dual sover federal constitution or Tiche, Duncan, v 681; (1953), State v eignty. SW2d State 221 Ark 255 430 State, App Supp 51; Richardson v (1976), 135 163 Ind 33 Conn 360 A2d State, 496; App 222; (1975), 677 Bell v 22 Md 323 A2d 323 NE2d 291 Fletcher, State, v (1974), 593; (1976), State 26 Crane v 92 Nev 555 P2d 845 State, 221; (1971), (Tenn, Beard v 271 485 SW2d 882 Ohio St 2d NE2d 567 Ceci, 432; (1970). v 1972), and State ex rel Cullen Wis 2d 173 NW2d 175 see, 262; Hogg, contra, (1978), Com State v NH 385 A2d 844 But Mills, monwealth 286 A2d 638 447 Pa 453 Mich

Opinion by Weaver,

IV Defendants also assert their Oakland Circuit Court indictments were MCL 333.7409; barred MSA 14.15(7409), arguing that the indictments in state court arose out of the same acts on which their con- victions in the Florida federal court were MCL based. 333.7409; 14.15(7409), MSA in 1978, applies enacted only to controlled substance crimes. Section 7409 reads:

If a violation of this article is a violation of a federal law state, acquittal or the law of another conviction or under law law of another state for the same act is a prosecution bar to in this state.

As 1995, fall of twenty-six states had enacted some form of statute barring subsequent prosecu- Bollinger, tions. Defending prosecutions: dual Learn- ing how to line, draw 10 Crim Just (Fall, 1995).

A enacting In MCL 333.7409; MSA 14.15(7409) the Legislature was not codifying the rule set forth People Cooper, supra, as can be seen the signifi- cant differences between the statute and case law. Cooper applies to all offenses, criminal while § only concerns controlled substances. Cooper allows for dual when the state’s interest is not protected by the federal prosecution, 7409, by while § contrast, complete prosecution. bar to dual

B We would hold that the defendants bear the burden both of production persuasion prevail on their 283 People v Opinion by Weaver, to bar second applies statute the

argument has the rule, this Court general As a prosecution. v proof. People of burden power to allocate the 655 167, 182; 257 NW2d D’Angelo, 401 Mich who shall bear the does not state Because the statute fit, to it as we see assign we are free proof, burden of transgress the constitutional as we do not long on defendant place that we not requirement to an element of the negate of persuasion burden S York, 197; 432 US 97 Ct v New crime. Patterson People Pegenau, v 2319; (1977); L Ed 2d 281 J., con- (1994) (Boyle, NW2d 325 Mich statutory exclusion does This curring result). guilt or innocence. question call into defendant’s be insulated that he should alleging The defendant is guilty. of whether he is prosecution regardless from provides: 333.7531; 14.15(7531) MCL MSA any exemption necessary negate It is not for this state information, exception complaint, in a or in this article trial, hearing, indictment, pleading or in a or other or other proof an article. The burden of proceeding under this exception upon person claiming exemption it. or is is Pegenau, supra, As in defendant exemption exception attempting to an establish situation, In a controlled substances offense. this acquittal presence a conviction or under federal same act is law or the law of another state for the Thus, Id. an affirmative defense. at 289. analogous proof by place the burden of appropriate it See the evidence on the defendant. preponderance at D’Angelo, supra 182.15 proof People D’Angelo, In this Court allocated burden entrapment showing to the defendant. the defense of 453 Mich

Opinion by Weaver, J.

C pro- We are asked to determine whether the statute key hibits the state’s of defendants. The phrase § this, in 7409is “the same act.” In the statute differs from the United States Constitu- of tions, both which discuss the same offense. Jersey

New has an statute,16 almost identical which applied was Ableman, State v 72 NJ 145; 368 A2d (1977). In that case the defendant had been con- conspiracy victed in federal court of to distribute and possess with intent to hashish, distribute and of possession with intent to distribute hashish. The issue presented to the court was whether the statute barred subsequent prosecution charge state of of unlawful explained distribution of hashish. As in the concur- ring opinion, the court ruled that “where a defendant large-scale operation drug illegal involved in a traf- pleads guilty possession fic intent dis- quantity great tribute a narcotics in federal court foreign in a state, located [the statute] does not stand prosecution as a bar to a State of a distribution portion (Pashman, of those narcotics.” Id. at 151 J., concurring result). in the gist conspiracy agree- of the crime of is the conspirators

ment of the to commit one or more conspirators acts, unlawful where one or more of the “any object conspiracy.” do act to effect the of the Braverman v United States, 49,US 99; 63 S Ct provides part: NJ Stat Ann 24:21-25 any (Uniform Drug Act) In case where a violation this act any state,

violation aof Federal law or the law of the conviction or acquittal under Federal law or law of another state for the same act is bar to in this State. People Mezy Opinion by Weaver, L In 87 Ed 23 order to determine what the may agreement is, of the extent so that we determine conspiracies only whether there are two or one, we “totality will use the same of the circumstances” test jeopardy analysis. used in constitutional double This following 1) 2) persons time, test includes the factors: coconspirators, statutory acting 3) as offenses charged 4) charged indictments, in the the overt acts government any description other of the charged scope offenses that indicate the nature and activity government sought punish of the that the 5) places alleged in each case, and where the events part place. took The essence of agreement the determination is whether there is one agreement to commit crimes, two or more than one separate object. each with a United States v Thomas, supra.

Because this is the first time this Court has proof addressed the burden of 333.7409; for MCL 14.15(7409), fully MSA and the lower courts did not applicability address of the statute, we remand to any proceedings allow the trial court to hold further necessary and make a determination of whether there multiple conspiracies. were

v argues Defendant Hermiz that in his rebuttal at closing arguments improperly credibility vouched for the of its witnesses. Defendant objected argument judge to this at trial. The trial merely objection give noted defendant’s and did not Although agree corrective instructions. we that the prosecutor’s improper, conduct was we would affirm Hermiz’ conviction because we find the misconduct 453 Mich 269 C.J. Brickley, Review of the record convinces us to be harmless. only slight negligible influence that the error had Therefore, the error was harmless. on the verdict. People Mateo, 203, 221; 453 Mich 551 NW2d 891 (1996).

CONCLUSION opinion part in We would affirm of the Court of Appeals affirming conviction, defendant Hermiz’ Appeals opinion vacating defend- reverse Court of Mezy’s pro- and conviction, ant remand for further jurisdiction. ceedings. We do not retain Riley, JJ., Boyle Weaver, concurred (concurring part dissenting Brickley, C.J. in opinion part). agree in I with the decision of the lead may remand the case so the trial courts deter- multiple conspiracies mine there whether were purposes newly under the statute articulated proof. parts Accordingly, I, n, burden of I concur with opinion. IV and v However, of the lead I am unable to support the decision to overrule this Court’s People Cooper, 398 Mich 247 NW2d part I therefore dissent from of the lead opinion. though

I concur with the decision to remand even appear suggest several factors that the defendants prosecuted were not twice for the same act. The alleged conspiracies separate although time, were overlap years. persons there was an of some two conspiracy although different, involved in each again were overlap. charged there was some offenses pos- consisting same, were the although it, sess cocaine with the intent to distribute People Mezy Opinion by Brickley, C.J. the amounts charged were different. The overt acts varied greatly between the indictments. The locales of the offenses also differed. Finally, conspiracies scope, differed in with one at aiming large-scale national distribution and the other at local, street- level However, transactions. because this Court has previously addressed the proof, burden of it is appropriate to remand to allow the trial court apply the correct burden.

In Cooper, this Court held that the Michigan Consti- tution prosecution forbids a second for the same offense the state unless the interests of the state prosecutor and the initial “substantially are different.” Id. at 462. Whether or not the members of this Court feel that the case was wrongly decided, principles of stare require decisis its vitality continued until and unless review required for the resolution of the case before us. The may instant cases be decided on statutory grounds, making unnecessary it to reach the question constitutional of double jeopardy that invites Cooper. review of On remand, the trial may court con- clude that MCL 333.7409; MSA 14.15(7409) bars the prosecutions second so, defendants. If there will be no need perform jeopardy analysis. double

It is also unnecessary Cooper to reach because implicated by is not the facts before us. The lead does that, conclude for double jeopardy purposes, the defendants established prima facie claim that prosecutions were for the same offense and that government then failed to demonstrate that was not barred. I would conclude that prima defendants did not make a facie and that a showing preponderance of the evi- dence demonstrated that the offenses were distinct. 453 Mich 269

Dissenting J. Levin, opinion’s on the reliance lead from the I dissent similarity charges overlap and the in time made an unrefuted defendants conclude that they prosecuted showing prima twice were that facie assign the at 277. I cannot Ante same offense. for the opinion weight lead as the similarities to these same charged persons Unfortunately, are far more does. drug linked could ever be offenses than identical with many Similarly, drug conspiracy. together in one being con- same time without occur at the offenses charges overlap is more time and in the nected. The society problems symptomatic drug in than our charged. any offenses between the connection preponderance the Court dem- the evidence before separate. conspiracies were onstrates that the the defend- is sufficient to overcome The evidence jeopardy prima if, indeed, facie double ants’ case— they showing. courts should Both lower made such government burden of dem- met its have held that the conspiracies separate. onstrating I were that double is no need for further hold that there would analysis, jeopardy need not address so this Court Cooper. question (dissenting). is whether the J.

Levin, may prosecute the defendants for State of possess to deliver in excess with intent they pros- grams had been of cocaine after of 650 in federal court of similar ecuted and convicted opinion join signers of the lead offenses. We opinion remanding concurring the trial in and the claims that the stat- to evaluate the defendants’ court People Mezy Dissenting Opinion by Levin, utory provision, 7409 of the Public § Health Code,1 Michigan prosecutions. barred the disposition may unnecessary

This make it for this in proposal Court to consider the instant cases the part in of the lead this Court overrule People Cooper, Mich NW2d 866 (1976). Because the lead opinion part why states in it Cooper, respond would overrule we stating why we would not do so.

We also disagree opinion’s with the lead conclu- sion, part Mezy’s that defendant indict- II, plea ment and statutory have no on the bearing jeopardy analysis. constitutional double

i provides: Section 7409

If a violation of this article is a violation of federal law or state, acquittal the law of another a conviction or under fed- eral law or the law of another state for the same act is a bar prosecution to in this state.

As opinion observes, the lead codify 7409 did not § this Court’s ruling Cooper. Its reach is both more only applies limited —it to violations of the Public Health Code—and less limited —it does not state the exceptions enumerated in Cooper that allow a might subsequent prosecution in some cases. expressed

The Legislature its concern with succes prosecutions by sive 7409 of enacting § the Public Health Code. Other provi states have enacted similar sions under the Uniform Controlled Substances Act.2 are 2 New MCL among Jersey, Ohio, 333.7409; the states that have enacted a version of this statute. NJ Stat MSA Alabama, Arkansas, 14.15(7409). North Carolina, and Tennessee 453 Mich Dissenting Levin, of the United States Attorney General Similarly, the as the to be known what has come promulgated prosecu of federal Petite prohibition policy, general approval absent prosecution a state' following tions the United attorney general from an assistant States." suc- The rationale for the Petite policy respecting prosecutions is informative cessive federal and state 7409. The enacting intent in regarding legislative § over- Supreme Court said United States “[t]he of the Petite protect is to policy whelming purpose any unfairness associated with the individual from multiple prosecutions.”4 needless 7409 can be seen as measure Additionally, § has government If the federal conserve resources. prosecute, already expenditures investigate, made defendant, prosecution, a second and incarcerate 2925.50; 20-2-77; 24:21-1; Ala Ark Stat Ann Ann Ohio Rev Code Ann Code 90-97; (repealed 1990). 5-64-405; Ann 53-11-404 NC Gen Stat Tenn Code jeopardy principles suggests codifying Code The Model Penal Commentaries, 1.10, pp § all criminal Model Penal Code and offenses. prohibition. adopted have some form of this 167-178. A number of states 12.20.010; 111; E.g., Stat Ann NY Crim P 40.20. Alas Stat 18 Pa Cons Supreme Shortly Court’s decision in Abbate v after the United States 666; affirming States, (1959), L 2d 729 United 359 US 79 S Ct 3 Ed trial, right government initiate after a state of the federal Attorneys Attorney make an instructed all United States General prosecute a with local law enforcement and defend effort to coordinate appropriate Supreme The States Court ant in the most forum. United 450; policy States, 529; 4 L v 361 US 80 S Ct Ed noted this Petite United Israel, Procedure, 24.5, p (1960). § 100. 2d 490 See 3 LaFave & Criminal policy guide- that the Petite is an internal The federal courts have ruled rights Department provides of Justice that no substantive line of the policy. See, e.g., challenge the United States v defendants to a violation of however, 1084, (CA 3, 1990). Michigan, Pungitore, In the 1120 910 F2d statutory, policy respecting drug providing with an offenses is defendants opportunity challenge § that violates 7409. 4 States, 22, 31; 81; L 2d 207 434 US 98 S Ct 54 Ed Rinaldi v United (1977). People v Dissenting by Levin, duplicate investigation, prosecution, with costs of and can be as wasteful. legislature incarceration seen provided Alabama has another reason for its ver- sion of this statute. purposes enacting the the

One of Alabama Controlled Act all this Substances was “to standardize laws in State to conformity Comprehensive Drug be in with the new Federal Clearly pur and Act Abuse Prevention Control of 1970.” the pose prosecu intent of Section 20-2-77is to bar a state previously tion when the defendant has been convicted in (or state) federal court the court another for the same act.[5] legislative protect

These from goals citizens contin- harassment, ual coordinate federal and state drug prosecutions, protect taxpayers from unnec- essary costs.

The lead from quotes concurring opin ion in Ableman, State NJ 368 A2d 356 (1977). majority in Ableman affirmed reason ing court, approval of the lower which had cited Krell, State Super 457, 461-462; NJ 311 A2d 399 Krell, In said: judge preceding comparable sections four section 25 [the Jersey statutory provision], captions reading New under Acts,” expressly “Prohibited set forth what acts are unlaw- Since, therefore, expressly . ful ... the act forth sets unlawful, acts which are it follows that what meant specified any expressly act” the “same in section 25 is act prohibited by preceding through sections 19 22. at 284. ^[6] Ante Barnett v State, 373 So 2d (Ala Crirn App, 1979). Mich 269 Dissenting Levin, J. not been in Krell had the defendants Because narcot- charged with distribution court in federal Jersey stat- New listed in the acts of the four ics, one they superior face state could held that court ute, charge conspiracy charge. prosecution was A on that pros- federal of an earlier however, because barred, pos- charges conspiracy, and the state ecution for possession were distribute with intent to session possession prosecution with for the federal barred intent to distribute. Jersey a common-sense court thus took New Similarly,

approach act.” definition of “same to the prosecu- prohibit Michigan’s read to should be statute conspiracy Michigan federal when the in for tions conspiracy, prosecution if the even the same is for partly, though broader and Michigan. exclusively, includes the conduct A analysis statutory begins stat- its lead key phrase § ing, act.’ In 7409 is ‘the same “The States and from the United statute differs this, of which discuss Constitutions, both “key” Although noting difference, this same offense.”7 signifi- explanation opinion provides of its no lead gained Insight from Justice can be cance. Coleman’s part Cooper. disagreed She concurrence majority, stating: rationale of the Commonwealth v accepted I would narrow rale from “prohibits a Mills, (1971), which 286 A2d 638 447 Pa arising of the same prosecution an offense out second original). (emphasis in Ante at 284 People Mezy Dissenting Opinion by Levin, “prohibits which criminal act" to one second [Cooper (emphasis added).] same for the at 463 offense." applied analysis Tennessee similar when constru- statutory jeopardy its double bar. ing apparent Drug is It that the Act Tennessee Control compliment existing 1971 was enacted to then federal the regarding drug laws control and that Code 53- [Term Ann] purpose. provi- 11-404was included to effectuate that prosecution necessarily that sion bars for “same act” contemplates jurisdictions prohibit may that the different by defining differently an act means of offenses while still protecting interests, i.e., criminalizing drug the same traf- ficking. requires analysis . . . TCA 53-11-404 a factual person prosecuted being determine whether or not a is for upon an an offense based act when such act was an offense jurisdiction or was an included in offense in another and' person previously which act that has been convicted or acquitted. Mongiove, App 1991 Term Crim [State LEXIS 77, *18.]

B signers of the opinion rely lead on federal cases for assistance articulating standard for determining whether there conspira- are one more cies.8 The Court should also to the look United States Supreme Court’s Ohio, decision in Brown v 432 US 8 totality opin While the of the test circumstances outlined in the lead useful, inquiry ion is it should not finish the whether these defendants prosecuted were for the “same act.” Other states have held federal conspiracy charges prosecution conspiracy bar for an in-state when the acts, conspiracy two involve same set criminal even if the federal scope. Krell, supra; Savage, was broader Commonwealth v 388 Pa Super 561; (1989); People Abbamonte, 74; 566 A2d 272 43 NY2d (1977). Thus, disagree NYS2d NE2d 485 we while do not with the opinion, might test outlined in the lead that federal test be sufficient adequately implement legislative intent bar successive federal drug prosecutions. and state 453 Mich Dissenting Levin, (1977), in L Ed 2d 187 2221; S Ct 161, 168-169; greater included and lesser held that this Court which “same” for be considered offenses must analysis, jeopardy and that double constitutional may sequence “[wjhatever be, the Fifth Amend- prosecution and cumulative ment forbids successive greater punishment included offense.” and lesser for a encompassed another is Thus, if one analysis, prosecu- for constitutional by § broader term which uses the tion is barred charge prosecution also of the when to describe “act” the same courts as in the federal be barred would clear, even if trial makes “offense.”As Brown allegations bars a first, held it subset of smaller scope larger for the second offense.

c Appeals Mezy agree and the in the Court of I “totality opinion circumstances” that the lead against Michigan’s applying bar in test is useful jeopardy, and the state under the statute both double Appeals for of United States Court The constitution. emphasized Eighth States v United Circuit the immediately 1985), (CA 8, F2d Thomas, 759 opinion listing in the lead five factors cited after the inquiry: comprehensive this is a only. The essence of the guidelines factors are These agreement to commit is one is whether there determination sepa- crimes, agreement, each with more than one two object. rate beyond and con- the indictments

We will therefore look includes evi- have before us. This all the evidence we sider expected previous trial, evidence the dence adduced at developed trial, presented and information at the second be Mezy Dissenting Levin, evidentiary hearing at the conducted on the double- jeopardy issue. Appeals said,

The Court of review “[w]hile applies de to a novo trial court’s holdings concerning single whether there was a criminal transaction and substantially whether the state interests are dis- . . tinct, . the court’s findings of fact are reviewed for clear error.”9 today

Because this Court is a new announcing stan- Mezy’s dard of statutory for review and Hermiz’ claims, there are no of fact findings employing that standard to Remand review. for further fact finding necessary. therefore

D opinion, The lead in explaining the test to be employed degree proof and the of satisfy it, needed to App 545, 551; 208 Mich 528 NW2d 783 concurring opinion suggests question The resolution the factual being appellate remanded to the trial court. Before an court can ade- quately findings error, review trial court’s for clear it must first have the findings proper trial court’s made under the standard. The record before preemptively this Court is insufficient determine whether the defend- multiple prosecution ants faced the same act. Similarly, concurring opinion finding, also errs under the consti- analysis, separate conspiracies. opinion tutional that these were does findings fact, not discuss trial court made after that tes- court heard the timony trials, in the state both reviewed the federal and state indictments exhibits, accompanying the federal and state statutes the defendants violated, testimony were found to have trial, at the witnesses testimony grand juries, before both the federal state the tes- timony preliminary during taken examination and at a federal forfei- proceeding, testimony during evidentiary hearing ture and the on claim. attempt away explain findings fact, does these laboriously considering made the trial court “after all these factors.” designed protect against appellate judge The clear is error standard to an hastily substituting generally his reaction to limited evidence before judge. him for the considered evaluation of a informed more trial court 453 Mich 269 Opinion by Dissenting Levin, J. prove places that the on the defendants to the burden statutory agree applies.101 the burden should bar placed 333.7531; MCL under be on the defendants 14.15(7531). MSA Appeals of in are of that the Court

We employing for not the Thomas test Hermiz erred in narrowly multiple conspiracies. focused on Instead, it language People Sturgis, 392, 401; in 427 Mich (1986), that, under the state constitutional NW2d part Michigan’s analysis, broader “same transac charges whether “demon tion” test includes all the ”11 single goal.’ ‘a intent strate Appeals was indi- The Court said that there “no ‘single goal’ in the that the intent and cation record conspirators conspire possess in Florida was to grams more with intent deliver than 650 cocaine analysis Michigan.”12 holding ignores the This prosecution a lesser Brown that a for included prosecution subsequent greater for bars a offense offense. prosecuted

If were for and Hermiz Florida buy conspiracy in Oak- cocaine for distribution County Michigan, prosecu- land and elsewhere in County tion in Oakland distribute county prosecution that cocaine in that would be a if for the same This true even others in the offense. solely were focused on sell-

Florida County. ing the cocaine in Oakland Court of approach produce anomaly Appeals would the same ^[10] Ante at 282-283. ^[12] at 452. Id. 207 Mich App 449, 451; NW2d Dissenting Opinion by Levin, J. conspiracy

in a context that the United States Court Appeals Eighth for the Circuit noted in Thomas: If is the sole standard used to [this test] determine multiple conspiracies exist, prosecutors whether then could up by skillfully drawn two indictments and choosing [sic] conspiracy different sets of overt appear acts make one be two. at [Id. 662.][13]

n Ignoring the rule of construction that constitutional questions statutory analy- should not be reached if a inquiry, opinion proposes sis obviates the the lead Cooper. overrule opinion In the circumstance that the lead necessary concludes that a remand is to eval- statutory uate the claim, there is no reason to reach Cooper. opinion Because the lead does so, I write to explain why opin- we are of the that the lead analysis Cooper proposal ion errs in its and its overrule it. opinion proposes Cooper

The lead to overrule because it concludes that this Court failed to follow “general compelling rule” that, “[u]nless there is a greater protection reason to afford under the Michi- gan provisions Constitution, the and federal affording protections.”14 will be treated as the same explains why This also greater Brown v Ohio’s discussion of applies greater lesser included offenses conspir also and lesser factual unique conspiracy prosecution acies. justifies nature of a the broad Thomas, test outlined in rather than the traditional “same elements” test Blockburger States, 180; v United 284 US 52 S Ct 76 L Ed (1932). analysis The essence of the under Thomas and the other federal agreement one, possibly tests is whether extended, is for enterprise, one; criminal or more than it is not a narrow determination of goal” any conspirators. “intent and one of the 281, quoting People Perlas, 305, 7; Ante at 436 Mich n 462 NW2d 310 453 Mich Dissenting Levin, J. “compelling until announced was not reason” test principally Cooper been it has decided, and was after arising employed Fourth under in cases Amendment. Court in this and briefs of the record

A review Cooper error in decided demonstrates when was Cooper’s opinion’s brief to Marx assertion. lead all curiae, the briefs of amici Court, as well as this protecting an accused the conflict between discussed put being the dual sover- twice from eignty Illinois, 359 US forth in Bartkus doctrine set 676; 3 L Ed 2d 684 121; 79 S Ct only how the not addressed The defendant’s brief underlying reasoning had been undermined Bartkus by subsequent law, but it also discussed federal case pro- why Michigan be read as Constitution should the jeopardy protections. viding stronger scholarly criti- discussed some defendant also (whether sovereignty doctrine the dual cisms of practical subsequent the law, federal case based on disagreeing or constitu- Bartkus, reasons for tional/jurisprudential

objections trying someone provided essentially act) this the same twice for scholarly comprehensive articles list of with a Court sovereignty reviewing doctrine.15 the dual be hard said, in that case “It would The defendant universally practice condemned to find a more jeopardy practice legal than this double scholars This for the same act.”16 federal-state trials successive appeal, Cooper’s appendix defendant-appellant brief and on Marx See discussion, pp 1976, pp 3, for citations of 23-25 for 87a-89a No. June term sovereignty principle. discussing the dual sources opinion acknowledges of the dual the criticism Id. at 23. The lead community. sovereignty legal n 12. Ante at doctrine Dissenting Opinion by Levin, provided

Court was full review the case law and supplementary on materials this issue. This Court material, reviewed this made decision, its and chose Michigan prohibiting read Constitution as most prosecutions. opinion’s successive state The lead bold unsupported but assertion that Court this failed to give proper consider the issue before it and deference clearly to federal law is case incorrect.

Cooper rely anticipated change an did on in fed- jeopardy jurisprudence eral double that has not Cooper Cooper occurred since was decided. While noted the rationale had Bartkus been under- by subsequent explicitly mined cases, the Court resting stated that it was not its decision on what the Supreme might United States Court had done do.17 opinion The Court based its on the Consti- persuaded requires tution because it was that it heightened protection of double values. Cooper

There is no evidence in that this Court did consequences not understand the its decision or opinion that it acted on a whim. The was reasoned Although and careful. did not use “compelling signifi- reason,” words the Court found compelling cant, merit in the criticisms the dual sovereignty doctrine and the failure of that doctrine protect rights the accused. Court bal- prosecuting anced the state’s in interests who those right had broken the law and the defendant’s to avoid multiple prosecutions, and said: “We feel that interests of the state and the defendant best are approach Pennsylvania accommodated Supreme Court in Commonwealth Mills, 447 Pa

[17] Cooper, ^[398] Mich 461. 453 Mich Opinion by

Dissenting Levin, (1971).”18 not While Coleman did Justice 286 A2d Cooper, fully agree reasoning con- in she with the making to read the result, in that decision curred multiple barring federal- Constitution prosecutions unanimous. state support this Court Further view fully thoughtfully and considered its decision depart from the Bartkus that it should concluded subsequent appears in this Court’s deci- construction Cooper. affirming result and the rationale in sions People Gay, Mich 289 NW2d651 681, 693-694; In Cooper, (1980), that, “we this said found that Court years emerging and the dic- Federal trends recent impose required us tates our own Constitution permit. sovereignty on would . . . limits what dual recognized Court the fundamental need to [T]his also safeguard rights. We there- defendants’ constitutional prohibited prosecution where the interests fore dual ” ‘substantially (Empha- of the state are not different.’ added.) public policy stated the reasons sis The Court for its and said: decisions,

Cooper strong represents uncompromising state- right ment that a defendant’s not be twice this Court tried Federal and state court for the same criminal act jealously guarded except will be in extreme cases where protect substantially Federal laws are framed to different Cooper a. social . . . makes clear that as rule interests. firm ordinarily dual will be tolerated in Michi- gan. Further, safeguard right . . . since this of defendant’s magnitude, against of a it constitutional close at 694- must receive this Court’s consideration. [Id. (emphasis added).] 18 Mich 460. 301 People by Dissenting Opinion Levin, J. the Court all the members of while not again,

Once balancing of the application with the in Gay agreed in the Court unani Cooper, test outlined interests Cooper and unani the rationale mously upheld decision necessary apply mously it was agreed unanimously retroactively. again This Court in v Formi Cooper rationale of reaffirmed the 284 NW2d 334 293; 407 Mich cola, Illova, 351 Mich relies on In re opinion The lead that this proposition for the (1958), 88 NW2d 589 principle accepted sovereignty had the dual Court distinguished was decided. This Court Cooper before jurisdiction, not Cooper concerning as a case Illova Contrary opinion’s to the lead jeopardy.19 suppose “reason to that Illova claim, every there is expression an accurate of the state was not the Con- jeopardy at the time of case law on double (Emphasis added.) . . . .”20 stitutional Convention proper lead also fails to accord defer- of stare decisis. This Court once principle ence to the long ago: observed certainty, uniformity,

The rule of stare decisis establishes stability perpet- law, in the but it was never intended to prevent or to the consideration of rule of law to uate error applied business, economic, ever-changing be to the community Only political life of a in the rare case when it clearly apparent made, chang- that an error has been injustice by application ing result of an conditions jurisdic passage of time does not alter this conclusion. “The by petitioner’s brief, tional question presented not controverted State, reads . . . jurisdiction by petitioner claim, then, is a loss of the State when “The imposed transferred to the Federal authorities to serve the sentence was supra Illova, added.) Federal courts.” In re (Emphasis at 207. 280, n 11. Ante at Mich Dissenting Opinion Levin, rale, following from outmoded should we deviate estab- Hosp, 1, 10; v Port Huron lished rale. 361 Mich [Parker (I960).] NW2d 1 clearly appar- the when it

This is not “rare case is ent made,” that an error has been but rather one opinion simply disagrees where the lead with the Cooper principles ignores decision in and the basic underlying stare decisis. There is not a crisis of terrorizing people criminals the of this after a state drug or for a other There offense. change has not a factual been other than the failure Supreme States United Court to Bart- overrule (in part principles kus because of the of stare deci- sis), explicitly Cooper change that this Court in dis- requiring. tanced itself from Supreme recently As the United States Court stated in the context debate: abortion pretend reexamining could Court not to be [T]he

prior any justification beyond present law with doctrinal disposition differently come out from the Court 1973. prior To overrule law for reason no other than that would repeated run cases, counter to view our that deci- special sion to should overrule rest on some over reason belief prior wrongly above the that a case was decided. Pennsylvania Parenthood Southeastern [Planned Casey, 833, 864; 505 US 112 CtS 120 L Ed 2d 674 (1992).] “special

The lead does state a reason” Cooper. overruling strong It does not discuss scholarly opposition sovereignty to the dual doctrine explain in Bartkus, or other states’ decisions that sovereignty flaws in the doctrine, dual Court’s this consistently Cooper. decisions have that reaffirmed opinion simply support The lead states without that Dissenting Levin, proper give to federal deference Court did not this Cooper. proposes to overrule This decisions, and then prior nothing a “belief that a case was more than is wrongly decided.” opinion’s approach is It lead troublesome. authority this Court. As Justice

undermines observed: O’Connor ways speak and act in

The Court must take care people accept its decisions on the terms the Court allow truly principle, them, grounded not as com- claims for as political pressures having, promises with social such, bearing principled on the choices that the Court is no Thus, legitimacy depends obliged on to make. the Court’s making legally principled decisions under circumstances sufficiently plausible principled which their character plausibly There is a limit to the amount of error that can be imputed prior exceeded, If that limit should be courts. prior rulings disturbance of would be taken as evidence way justifiable principle given that reexamination of had particular legiti- in the short term. The drives for results frequency macy fade with the of its vac- Court would illation. US [505 865-866.] in Planned

While Justice O’Connor’s decision by some, has been criticized her articula- Parenthood principles underlying of stare tion of the the doctrine appellate obligation of an court to decisis and the only prior and its decisions after careful overrule strong thoughtful producing conviction deliberation only prior wrongly when decided, case was prior “compelling” to abandon the there is a reason precedent legally decision, is sound. To overrule costs and this Court with so little evaluation of the the established rule would be a lamentable benefits of departure law. from the rule of 453 Mich 269 Dissenting Opinion by Levin, by Cooper

The concerns addressed this Court in judicial Gay, opinions as well those stated in scholarly writings, in other states and remain. The put right against being jeopardy personal is a twice right impinged be that would successive federal prosecutions. way right give and state This must prosecutions significantly when the serve different subsequent prosecution ends. But unless the state is Cooper, shown to meet the test set forth in the indi- right protection governmental vidual’s from further prosecution prevail. Nothing should has occurred fac- tually jurisprudentially change the fundamental impolicy prosecutions. of successive Until it can be shown we otherwise, should continue to follow Cooper.21

III “Jeop- The lead states, case, ardy charges part does not attach to dismissed as of a agreement.”22 plea agree

We would that if a defendant withdraws a guilty plea prosecutor and the seeks to reinstate the original charges, has not attached to the original charges.23 plea accepted If, however, remanding Because this Court is these cases evaluation under the statute, Cooper, might the trial court reevaluate its decision under but Michigan’s need not do so. Its conclusion that interests were not vindi question open cated the federal remains an that this Court it, remanding has not addressed. As we see this Court is the cases for prejudice parties’ arguments evaluation under the without the statute Cooper. under 22 Ante at 276. 23 Baggett, 1546, (CA 11, United v 1990), States 901 F2d 1550 held that jeopardy “the double clause for counts dis [does not] bar[ ] subsequently plea bargain.” missed as a result of a withdrawn People Mezy v 305 Levin, Opinion by Dissenting with prejudice, are dismissed counts

accompanying play. come into considerations other “rule” opinion’s reference The lead adopted have this law. Courts that the overstates foot- in such in the passing, it “rule” have stated main or, when in the by opinion,24 the lead notes cited in the is cases where discussion body opinion, the issue the to resolution of before not critical opinion are thus by cited the lead The cases Court.25 24 8, Gamer, 1305, 1311, (CA 1994), n 6 cited v 32 F3d United States apply, opinion, states, if did Gamer’s “Even the double the lead depend opinion res did not on this are merit” court’s claims olution, without analysis importance degree lack of in that of reflects its and the 473, 1, Soto-Alvarez, 482, (CA Similarly, 958 F2d n 7 States v case. United Garcia-Rosa, (CA 1, 209, 1992), simply F2d States v 876 235 cites United arguing. explained 1989), what the defendant was not in which the court plea guilty on two and that his counts The defendant there “concede[d] respect jeopardy to with the indictment did not cause attach five of 1985 that Circuit thus counts of indictment.” First to the dismissed “adopted” did was not contested. The court rule in a case where it this (CA 1983), 9, refer, 21, Vaughan, 1373 n v 715 F2d to United States 518, 5, 1987), (CA Lynaugh, F2d where the United Fransaw 810 524-525 wrote, Appeals “The with for the Circuit cases hold Court of Fifth States apparent unanimity repudiates plea bargain, when the defendant successfully by withdrawing plea challenging convic his either jeopardy (or other) appeal, no double obstacle to restor tion on there is prior ing relationship and state as it to the between defendant existed (Emphasis added.) bargain.” defunct Dahlstrum, (CA 9, 1981), United 655 F2d is cited States 1376-1377, supra proposition Vaughan, n at that a “dismissal ” acquittal prejudice.’ equivalent is ‘with Dahl an even if dismissal actually judge’s as one that a characterization of dismissal strum holds prejudice basis for the is actu does not control where the dismissal “ ” ‘governmental ally finding misconduct.’ 655 F2d 974. the court’s Dahlstrum, Appeals Additionally, for the the United States Court “ultimately ‘acquittal’ relying on that it was not Ninth Circuit noted 975, 5, appellee,” “[ajppellee’s n but on involvement in the termina id. at Vaughan on at best Id. at 975. also relied tion of trial was minimal[.]” Barker, 9, 1982), (CA F2d that the which held United States v charges first-degree government murder reinstate could successfully plea to after the had her to commit murder defendant only id., Vaughan, second-degree aside. F2d 1377. murder set See might the facts be seen as somewhat cited in the lead where case 453 Mich 269 Dissenting Opinion by Levin, J. point, on not nor are the cases cited the cases opinion. cited the lead literally speaks only

Section 7409 of “a conviction acquittal subject or law,” under federal and thus is prejudice the that a construction a dismissal prosecution, being a not either “conviction or acquittal,” is not bar to in this state. “plain or literal, stated, as it is sometimes meaning” of a statute is often held be correct legislative cases, construction intent. But in other beyond meaning this Court has looked the literal spirit guidance of the statute for to the correct construction. “Few words have a ‘content so intrinsic’ meaning their that does become doubtful in the question.” particular People context of a McFarlin, (1973), 563; 389 Mich 557, 208 NW2d 504 where this providing disposi- Court held statute that the chapter probate of a child, tion under court concerning juveniles, any any shall not in “criminal or proceeding other cause or whatever” be evidence against any purpose the child “for whatever,” does judge considering not bar from an adult offender’s juvenile imposing offense record as a factor sen- upon tence him. Since the lead does not rec- ognize statutory and discuss the issue as one of con- respond struction, there no need to further in this regard. Toys See also Lawrence v R Us, Mich (1996), today 551 NW2d where this Court simi- larly departs “plain meaning” from a literal compensation in con- struing the worker’s act. analogous, propositions relied on cases which stood for far different than

what the Ninth Circuit claimed for them. Dissenting Opinion by Levin, certainly a dismis- whether doubtful it is while

And plea bargain part charge can aof as a federal sal of having was in accused after the occurred as seen be principles, jeopardy, constitutional are other there might abar particularly Clause, that Process the Due following prosecution, a federal dismissal state essentially bargain, part plea charge aof Cooper concluded that this Court reasons same prosecutions multiple and the the state both unnecessarily and to government onerous compelling except circumstances be avoided present instant cases. in the

Cavanagh Levin, Mallett, JJ., concurred

Case Details

Case Name: People v. Hermiz

Court Name: Michigan Supreme Court

Date Published: Jul 31, 1996

Citation: 551 N.W.2d 389

Docket Number: Docket Nos. 101689, 102274, Calendar No. 13

Court Abbreviation: Mich.