Lead Opinion
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 iden
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.
I. FACTS
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
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.
On February 22, 1999, defendant pleaded guilty in Lapeer County of one charge of second-degree home invasion
The trial court granted defendant’s motion to dismiss. The court cited People v Hunt (After Remand),
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
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
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.”
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,
whether People v White,390 Mich 245 (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 US Const, Am V. See United States v Dixon,509 US 688 , 696-697 (1993). [467 Mich 901 (2002).]
II. STANDARD OF REVIEW AND RULES OF CONSTITUTIONAL CONSTRUCTION
A double jeopardy challenge presents a question of constitutional law that this Court reviews de novo. People v Herron,
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),
III. ANALYSIS
A. INTRODUCTION
The United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense. US Const, Am V;
Application of the same-elements test, commonly known as the “Blockburger test,”
The Blockburger analytical framework “reflected a venerable understanding” of the meaning of the term “same offence” as used in the Double Jeopardy Clause. Grady v Corbin,
American courts have long recognized and applied this common-law understanding of the meaning of the double jeopardy prohibition against multiple prosecutions and punishments for the “same offence.” See, e.g., Commonwealth v Roby, 29 Mass 496; 12 Pick 496 (1832) (“In considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact.”). The Blockburger test itself derives directly from Morey v Commonwealth, 108 Mass 433, 434 (1871), in which the court stated:
A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. [Emphasis supplied.]
The Morey analysis was adopted for the purpose of successive prosecutions in Gavieres v United States,
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provi*578 sions, 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.
Although Justice William Brennan was a persistent advocate of the same transaction test,
Instead, the Morey/Blockburger same-elements analysis was consistently applied by the Court, with
Justice Scalia dissented, noting that the majority’s holding was wholly without historical foundation and that it created a procedural mandatory joinder rule-.
[The Double Jeopardy Clause] guarantees only the right not to be twice put in jeopardy for the same offense, and has been interpreted since its inception, as was its common-law antecedent, to permit a prosecution based upon the same acts but for a different crime. ... In practice, [the majority’s holding] will require prosecutors to observe a rule we have explicitly rejected in principle: that all charges*580 arising out of a single occurrence must be joined in a single indictment. [Id. at 526-527 (emphasis supplied).][18]
Looking to the text of the Double Jeopardy Clause and its origins in the common law, Justice Scalia opined that the Blockburger rule best gave effect to the plain language of the Clause, “which protects individuals from being twice put in jeopardy ‘for the same offense,’ not for the same conduct or actions.” Id. at 529 (emphasis supplied).
The Grady same-conduct test was short-lived. In Dixon, the Court overruled Grady as wrongly decided for the reasons expressed in Justice Scalia’s Grady dissent and returned to the Blockburger formulation of the test for both successive prosecutions and multiple punishments:
Unlike [the] Blockburger analysis, whose definition of what prevents two crimes from being the “same offence,” US Const., Arndt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The “same-conduct” rule it announced is wholly inconsistent with earlier Supreme*581 Court precedent and with the clear common-law understanding of double jeopardy. [Dixon, supra at 704]
C. MEANING OF “SAME OFFENSE” IN MICHIGAN’S DOUBLE JEOPARDY PROVISION
1. PRE-1963 CONSTITUTIONAL LAW
Initially, it must be noted that the Fifth Amendment was not enforceable against this state until 1969, when the United States Supreme Court declared that its protections extended to the states through the Fourteenth Amendment. Benton v Maryland,
Until White was decided in 1973, this Court defined the scope of our Constitution’s double jeopardy protection by reference to the scope of the protection provided by the Fifth Amendment. See, e.g., People v Bigge,
In accordance with the principle that our double jeopardy provision was intended to embody English common-law tenets of former jeopardy, this Court more than one hundred years ago rejected the “same transaction” approach and instead embraced the federal same-elements test as supplying the functional definition of “same offense” under our Constitution’s Double Jeopardy Clause. In People v Parrow,
Similarly, in People v Ochotski,
There is a difference between one volition and one transaction.
* * *
In the present case it was not the same blow, even, which caused the injury to the two, but different blows. It was the same transaction, but not the same volition. [Ochotski, supra at 610.][21]
Thus, at the time of the ratification of our 1963 Constitution, it had long been established that (1) our double jeopardy provision in prior constitutions was construed coterminously with the common law and, more specifically, (2) the term “same offense” was defined by application of the federal same-elements test.
2. PEOPLE v WHITE AND PROGENY
This Court’s commitment to the same-elements test continued after ratification of our current Constitution. In People v Grinwiett,
Defendant. . . contends that we should prohibit multiple prosecutions arising out of the same factual situation. Defendant properly points out that in some cases multiple prosecutions are prejudicial to a defendant. In some cases multiple prosecutions may aid a defendant. Therefore, we believe a mandatory rule would be an unwise solution to this problem. Moreover, we believe that the type of rule proposed by the defendant, such as is found in the Model Penal Code, is properly a decision for the Legislature and not for this Court.
However, in White the majority overruled Grimmett and adopted the same transaction test advocated unsuccessfully by Justice William Brennan—one even more expansive than the defunct compromise Grady test.
The defendant in White followed the victim to her home in Inkster, forced her to get into his car, drove her to Detroit, and, while in Detroit, raped her. The defendant was first tried and convicted in Wayne Circuit Court on a kidnapping charge. Subsequently, the
Citing Justice Brennan’s concurring opinion in Ashe v Swenson,
The use of the same transaction test in Michigan will promote the best interests of justice and sound judicial administration. In a time of overcrowded criminal dockets, prosecutors and judges should attempt to bring to trial a defendant as expeditiously and economically as possible. A far more basic reason for adopting the same transaction test is to prevent harassment of a defendant. The joining of all charges arising out of the same criminal episode at one trial “* * * will enable a defendant to consider the matter closed and save the costs of redundant litigation.” It will also help “* * * to equalize the adversary capabilities of grossly unequal litigants” and prevent prosecutorial sentence shopping. “In doing so, it recognizes that the prohibition of double jeopardy is for the defendant’s protection.” [White, supra at 258-259, quoting41 Mich App 370 , 378;200 NW2d 326 (1972).]
Justice Thomas E. Brennan vigorously dissented in White and criticized the adoption of the same transaction test as contrary to the plain meaning of the term “offense” as used in our Constitution. Justice BRENNAN further noted that, far from being constitutionally mandated, the same transaction test constituted nothing more than a mandatory joinder rule. Id. at 263-265.
In Crampton v 54-A Dist Judge,
Where criminal intent is required in the offenses involved, the criterion set forth in White applies: “continuous time sequence and display [of] a single intent and goal.” [390 Mich 259 .]
[However], [w]here one or more of the offenses does not involve criminal intent, the criterion is whether the offenses are part of the same criminal episode, and whether the offenses involve laws intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of, harm or evil.
In recent years, this Court has looked generally to federal double jeopardy jurisprudence in determining whether the successive prosecutions strand of our Double Jeopardy Clause bars a prosecution. See, e.g., Herron, supra; People v Wilson,
3. RATIFICATION OF CONST 1963, ART 1, § 15
In our 1963 Constitution the narrower language of the 1850 and 1908 double jeopardy provisions was replaced with language similar to that of the original Constitution of 1835 and the Fifth Amendment: “No person shall be subject for the same offense to be twice put in jeopardy.” Art 1, § 15.
It is immediately striking that the plain language of the provision provides no support for the conclusion that the term “same offense” should be interpreted by reference to whether a crime arises out of the “same transaction” as another. Rather, we believe that the plain and obvious meaning of the term “offense” is “crime” or “transgression.”
The ultimate inquiry, of course, is the meaning ascribed to the phrase “same offense” by the ratifiers of our 1963 Constitution. Examination of the record
Constitutional Convention Committee Proposal Number 15 recommended that Const 1908, art 2, § 14 be revised to mirror the language of the Fifth Amendment, with the deletion of the “archaic” words “of life and limb.” 1 Official Record, Constitutional Convention 1961, pp 464-465, 540. Delegate Stevens explained that “[t]he Supreme Court of Michigan . . . has virtually held that [Const 1908, art 2, § 14] means the same thing as the provision in the federal constitution, and that is what we have put in . . . .” Id. at 539. It was reported that the change was not substantive and that the judiciary committee wished simply to bring the text of the double jeopardy provision “in line with the law as it now stands in the state of Michigan” and “in line with the federal constitution.” Id. at 542, 543. It was further noted that although the Convention of 1908 may have intended to restrict the double jeopardy protection to retrial following acquittal on the merits, “the court did not in fact go along with this [intention], and it never has.” Therefore, Delegate Stevens explained, the committee “want[ed] to make the constitution read the way the supreme court says it does read.” Id. at 542, 544.
Of even greater significance to our analysis is the Address to the People, 2 Official Record, Constitutional Convention 1961, p 3355, accompanying Const 1963, art 1, § 15.
This is a revision of Sec. 14, Article II, of the present constitution. The new language of the first sentence involves the substitution of the double jeopardy provision from the U.S. Constitution in place of the present provision which merely prohibits “acquittal on the merits.” This is more consistent with the actual practice of the courts in Michigan. [2 Official Record, p 3364.]
Thus, the ratifiers were advised that (1) the double jeopardy protection conferred by our 1963 Constitution would parallel that of the federal constitution, and (2) that the proposal was meant to bring our double jeopardy provision into conformity with what this Court had already determined it to mean.
In 1973, this Court disregarded decades of precedent and, without consideration of the will of the people of this state in ratifying the Double Jeopardy Clause in our 1963 Constitution, adopted Justice William Brennan’s long-rejected “same transaction” test. In adopting this definition and equating the word “transaction” with the constitutional term “offense,” the White Court accorded to that term a meaning quite at odds with its plain meaning or the common understanding. In the absence of any evidence that the term “offense” was understood by the people to comprise all criminal acts arising out of a single criminal episode, we are compelled to overrule White
We conclude that in adopting art 1, § 15, the people of this state intended that our double jeopardy provision would be construed consistently with Michigan precedent and the Fifth Amendment. It has long been understood that our Double Jeopardy Clause derives from the common law and that its meaning must be discerned by reference thereto. At the time of the ratification of art 1, § 15, in 1963, it was established that the term “same offense” was defined by reference to the same-elements test as set forth by the Massachusetts Supreme Court in Morey, supra (and subsequently adopted by the United States Supreme Court). See People v Townsend,
D. APPLICATION
Defendant’s Oakland County prosecution for possession of stolen firearms, following her conviction for second-degree home invasion in Lapeer County, withstands constitutional scrutiny under the same-elements test. Defendant was convicted of home invasion pursuant to MCL 750.110a(3), which provided:
*593 A person who breaks and enters a dwelling with intent to commit a felony or a larceny in the dwelling or a person who enters a dwelling without permission with intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the second degree.
Required for a conviction of this offense was proof that defendant (1) entered a dwelling, either by a breaking or without permission, (2) with the intent to commit a felony or a larceny in the dwelling.
Defendant now stands charged with receiving and concealing a stolen firearm in violation of MCL 750.535b(2), which provides:
A person who receives, conceals, stores, barters, sells, disposes of, pledges, or accepts as security for a loan a stolen firearm or stolen ammunition, knowing that the firearm or ammunition was stolen, is guilty of a felony, punishable by imprisonment for not more than 10 years or by a fine of not more than $ 5,000.00, or both.
Thus, the Oakland County Prosecutor is required to prove that defendant (1) received, concealed, stored, bartered, sold, disposed of, pledged, or accepted as security for a loan (2) a stolen firearm or stolen ammunition (3) knowing that the firearm or ammunition was stolen.
Clearly, there is no identity of elements between these two offenses. Each offense requires proof of elements that the other does not. Because the two offenses are nowise the same offense under either the Fifth Amendment or art 1, § 15, we affirm the result reached by the Court of Appeals majority and hold that defendant is not entitled to the dismissal of the Oakland County charge.
We respectfully disagree with the dissent’s assertion that our decision to overrule White is “grounded in the improper belief that the same-elements test is the sole test used by the United States Supreme Court to protect citizens’ constitutional rights under the United States Constitution.” Post at 597. First and foremost, the critical inquiry in determining the meaning of our constitutional analogue of the federal Double Jeopardy Clause is the intent of the ratifiers in adopting our 1963 Constitution. Thus, the meaning ascribed to a federal constitutional provision by the United States Supreme Court is not dispositive, except to the extent that it appears—as we have explained that it does in the case of Const 1963, art 1, § 15—that the ratifiers of our Constitution intended that a provision be construed consistently with the corresponding federal provision.
Moreover, the proposition advanced by the dissent—that the term “same offence” is accorded different meanings in different contexts—has been squarely rejected by the United States Supreme Court in Dixon. We need not refurrow the ground that was so thoroughly plowed by the Dixon Court. However, we refer the reader to Dixon, supra at 704-709, where the Court emphatically held that “there is no authority, except Grady, for the proposition that [the Double Jeopardy Clause] has different meanings [in different contexts],” id. at 704, and supported that conclusion with an exhaustive review of federal case law. Indeed, many of the very cases that our dissenting colleague cites in support of his assertion that the term “same offence” in the federal Double Jeopardy
The dissent further asserts that we have given short shrift to the purpose of the double jeopardy provision’s successive prosecutions strand, which is to prevent the state from making repeated attempts to obtain a conviction for an alleged offense. However, the instant case in fact illustrates that this venerable purpose is in no way served by the ill-conceived rule set forth in White. Defendant was not subjected to repeated attempts to convict her of “an alleged offense.” Rather, she was subjected to prosecution for two independent offenses in two separate jurisdictions. Application of the White rule, rather than ensuring that the state would not get more than “one bite at the apple,” would preclude the state from ever trying defendant for one of the charges against her. This is not at all consistent with the purpose of the double jeopardy protection.
The White Court improperly imposed on the text of art 1, § 15 its own notions of prosecutorial policy and, in so doing, conflated the constitutional double jeopardy protection with a self-created procedural mandatory joinder rule. Because it is clear that the ratifiers of our 1963 Constitution intended to continue to accord the same double jeopardy protection under art 1, § 15 that was provided by the Fifth Amendment, we overrule White and its progeny as contrary to the will of the people of the state of Michigan. We hold that the Blockburger same-elements test, as the reigning test in both this Court and the federal courts in 1963, best gives effect to the will of the people in ratifying art 1, § 15. Because the prosecution was not required to bring against defendant in a single trial all charges arising from the same transaction, and because second-degree home invasion and receiving and concealing stolen firearms are not the same offense under either art 1, § 15 or the Fifth Amendment, we vacate the judgments of the lower courts, affirm the result reached by the Court of Appeals on other grounds, and remand the case to the trial court for further proceedings.
Notes
Trial has not yet occurred in this matter. Our recitation of facts is drawn from the preliminary examination transcript and other documents in the record.
MCL 750.535b.
A second count in the complaint and warrant alleged that defendant had received stolen property in excess of $100 in violation of MCL 750.535 on the basis of the theft of Smith’s bow and arrows, as well as electronics and other property stolen from another residence. This second count was dismissed following defendant’s preliminary examination because of the unavailability of a complaining witness.
MCL 750.110a(3).
Unpublished opinion per curiam, issued November 9, 2001 (Docket No. 225887).
Judge Whitbeck cited our opinion in People v Herron,
See n 22 and accompanying text.
Additionally,
our task is not to impose on the constitutional text at issue .. . the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer, but to search for contextual clues about what meaning the people who ratified the text in 1963 gave to it. [Michigan United Conservation Clubs v Secretary of State (After Remand),464 Mich 359 , 375;630 NW2d 297 (2001) (Young, J., concurring) (emphasis in original).]
“No person shall... be subject for the same offence to be twice put in jeopardy of life or limb . . . .”
“No person shall be subject for the same offense to be twice put in jeopardy.”
The purpose of the constitutional protection against successive prosecutions is to prevent the state from making repeated attempts at convicting an individual for an alleged crime, subjecting him to “ ‘embarrassment, expense and ordeal’ ” and compelling him “ ‘to live in a continuing state of anxiety and insecurity,’ ” and enhancing the “ ‘possibility that even though innocent he may be found guilty.’ ” Herron, supra at 601, quoting Green v United States,
We wish to stress at the outset that we are not here concerned with the meaning of the term “offense” as it applies to the double jeopardy protection against multiple punishments. See People v Colvin,
Blockburger v United States,
“That the framers and ratifiers of the Bill of Rights intended to constitutionalize the common law’s protection against double jeopardy is unquestioned.” People v Harding,
See, e.g., Werneth v Idaho,
In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This “same transaction” test of “same offence” not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience. [Ashe, supra at 453-454.]
Rejection of the “same transaction” framework for defining the “same offence” was consistent with the English common law and with application of the common law by early American courts. See, e.g., State v Standifer, 5 Port 523, 531 (Ala, 1837) (“It is not of unfrequent occurrence, that the same individual, at the same time, and in the same transaction, commits two or more distinct crimes, and an acquittal of one, will not be a bar to punishment for the other").
See Grady, supra at 528-529 (Scalia, J., dissenting). The exceptions apply (1) where a statutory offense expressly incorporates another statutory offense without specifying the latter’s elements, see Harris v Oklahoma,
The majority noted that Blockbwrger was a multiple punishments case and that the test was formulated as a means of determining legislative intent, while the successive prosecutions strand of the double jeopardy provision was intended to protect against the state making repeated attempts to convict an individual. Grady, supra at 517-518. To that end, the Court held that the test for successive prosecutions should limit the prosecution’s ability to use the defendant’s conduct against him in more than one prosecution.
18 As noted by Justice Scalia, the policy interests espoused by the majority might well be served by application of the doctrine of collateral estoppel-.
The collateral-estoppel effect attributed to the Double Jeopardy Clause [in Ashe, supra] may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the Government “must.. . bring its prosecutions ... together.” It is entirely free to bring them separately, and can win convictions in both. [Dixon, supra at 705.]
Quoting early dictionaries, Justice Scalia further noted that the term “offense” was commonly understood in 1791 to mean “transgression,” i.e., “the violation or breaking of a law.” Grady, supra at 529. Thus, the Clause did not protect against successive prosecutions for the same conduct, but for a violation of the same law.
Significantly, this Court consistently construed our Double Jeopardy Clause in accordance with federal jurisprudence notwithstanding that our constitutions of 1850, art 6, § 29, and 1908, art 2, § 14, appeared to provide a narrower double jeopardy protection than the Fifth Amendment in that the 1850 and 1908 provisions offered protection against only retrial, and then only “after acquittal upon the merits." This Court, acknowledging that our constitutional double jeopardy protection was a creature of the common law, applied the double jeopardy clauses of the constitutions of 1850 and 1908 in the same manner as the Fifth Amendment was traditionally understood to apply. See, e.g., In re Ascher,
The narrower language used in our constitutions of 1850 and 1908, and this Court’s steadfast adherence to common-law double jeopardy jurisprudence in the face of that restrictive language, are relevant to the reason that this language was changed in our 1963 Constitution. See the discussion at 588-590.
21 See also People v Townsend,
To further complicate matters, the Court of Appeals has since put a different, and wholly unfounded, spin on the White/Crampton test such that the cases now recite that the Crampton “legislative intent” test applies where one of the offenses involved is not a “specific intent crime.” See Flowers, supra-, Hunt, supra. This is certainly not an accurate reflection of Crampton (which stated that the rule it announced pertained to non-intent crimes), nor is it responsive to the problem that Crampton intended to resolve (the application of the “single intent and goal” element of the White same transaction test to a defendant who did not necessarily harbor any intent at all). The tripartite split among the Court of Appeals judges in the case before us exemplifies the difficulty that inheres in the application of the same transaction test, particularly as that test has been muddled by Crampton and the Court of Appeals’ “specific intent” jurisprudence.
See, for example, the American Heritage Dictionary of the English Language, New College Ed, which defines “offense,” in relevant part, as “[a]ny violation or infraction of a moral or social code; a transgression or sin[;] ... [a] transgression of law; a crime.”
“Obviously, the word transaction is broader than the word offense." White, supra at 263 (Brennan, J., dissenting).
As noted by Delegate Stevens, it was “difficult to understand why the supreme court has ruled that it means what we are putting in here now.” Id. at 543. We agree with Delegate Stevens that this Court’s pre-1963 constructions of our Double Jeopardy Clause seemed obviously at variance with the terms of the Clause. See n 20. Our holding today is meant to bring our jurisprudence into conformity with the intent expressed by the people in ratifying art 1, § 15—an intent that was wholly overlooked or
The Address to the People, widely distributed to the public prior to the ratification vote in order to explain the import of the sundry proposals, “is a valuable tool in determining whether a possible ‘common understanding’ diverges from the plain meaning of the actual words of our constitution.” Michigan United Conservation Clubs, supra at 378, 379 n 11 (Young, J,. concurring).
The dissent notes that the same-elements test “permits multiple prosecutions stemming from a single incident." Post at 600 (emphasis supplied). The dissent conflates, as did the White Court, the terms “offense” and “incident,” which certainly do not have identical meanings.
As noted by Justice Scalia in Grady and by our own Justice Brennan in White, principles of collateral estoppel and properly adopted procedural joinder rules might well compel the dismissal of charges in certain circumstances. See, e.g., MCR 6.120. Nevertheless, collateral estoppel and joinder are discrete, nonconstitutional concepts that should not be conflated with the constitutional double jeopardy protection.
This Court has appointed a committee to review the Rules of Criminal Procedure and to determine whether any of these rules should be revised. In light of our decision here today that the constitution does not require the prosecutor to join at one trial all the charges against a defendant arising out of the same transaction, we will be requesting the Committee on the Rules of Criminal Procedure to consider whether our permissive joinder rule, MCR 6.120(A), should be amended to impose mandatoiy joinder of all the charges against a defendant arising out of the same transaction and to provide this Court with its recommendation within sixty days. In considering whether a mandatory joinder rule should be adopted, the committee should consider statutory provisions concerning prosecutorial jurisdiction, including MCL 767.45(l)(c), MCL 767.63, MCL 762.3, MCL 762.8, and MCL 762.10.
MCL 750.110a was subsequently amended by enactment of
Two of the cases cited by the dissent, Ball v United States,
The dissent asserts that our holdings in Parrow, supra, and Ochotski, supra, illustrate the evil that will spring from abrogation of the White rule. See post at 600-601. Although reasonable minds might differ with respect to whether a prosecutor is morally obligated to join in a single pros
Dissenting Opinion
(dissenting). Today’s majority overrules People v White,
This Court’s decision to overrule White is grounded in the improper belief that the same elements test is the sole test used by the United States Supreme Court to protect citizens’ constitutional rights under the United States Constitution.
In numerous cases, the United States Supreme Court has used other tests because it recognized that the same elements test is not an adequate safeguard to protect a citizen’s constitutional right against double jeopardy. In Ashe v Swenson,
Further, in In re Nielsen,
The majority relegates the purpose of the Double Jeopardy Clause to a footnote, ante at 575 n 10; however, it is worth stating clearly that the purpose of the constitutional protection against double jeopardy is “to limit the state to having generally only one attempt at obtaining a conviction. Otherwise, the state could repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment.” People v Dawson,
*600 the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v United States,355 US 184 , 187-188;78 S Ct 221 ;2 L Ed 2d 199 (1957).]
Our Double Jeopardy Clause is meant to protect our citizens from government zeal and overreaching; yet, the same elements test permits multiple prosecutions stemming from a single incident. “The same-elements test is an inadequate safeguard, for it leaves the constitutional guarantee at the mercy of a legislature’s decision to modify statutory definitions.” United States v Dixon,
In contrast to the same elements test, the same transaction test requires the government to join at
The same transaction test best protects Michigan citizens against government harassment and overreaching, while the same elements test increases the potential for government abuse. To this end, the majority has helpfully provided cases that illustrate that the government will expend resources and repeatedly prosecute citizens for crimes that stem from one incident and that could have been consolidated at one trial. In People v Parrow,
In this case, defendant pleaded guilty of second-degree home invasion, MCL 750.110a(3). She was subsequently charged with receiving and concealing stolen firearms, MCL 750.535b. Notably, defendant was the driver in the home invasion during which the
Government maneuvering and manipulation should not be used to evade the protections granted our citizens by the Double Jeopardy Clause. Protecting our citizens’ constitutional rights is a constitutional obligation, not merely a moral one. The same transaction test best meets our Constitution’s mandate against twice putting a person in jeopardy for the same offense. Without double jeopardy protections, our citizens are at risk of facing multiple prosecutions by the government, regardless of a prior acquittal. “Further, because the state can devote its resources to improving the presentation of its case, the probability of a conviction may increase with each retrial.” Dawson, supra at 251.
Accordingly, I respectfully dissent and would reverse the decision of the Court of Appeals. After pleading guilty of second-degree home invasion, defendant’s subsequent prosecution for receiving and concealing stolen firearms violated her double jeopardy rights.
“No person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15.
Federal jurisprudence is relevant to our analysis because of the majority’s argument that the ratiñers of our Constitution wanted Michigan’s double jeopardy protection to be parallel with that conferred by the federal constitution.
Blockburger v United States,
The majority states that many of these “very cases” were addressed “point by point” in United States v Dixon,