People v. Robideau

419 Mich v ROBIDEAU PEOPLE PEOPLE v GRIFFIN PEOPLE v BROWN PEOPLE v BOUKNIGHT 67114, 7, 64548, 64549, 66010, Argued June Nos. 67760. Docket 4-7). 18, 1984. (Calendar Rehearing September de- Nos. Decided Griffín, 420 Mich 1201. nied in jury was convicted a Genesee Herbert M. Robideau Jr., J., Court, Bivins, first-degree of B. criminal Circuit Ollie conduct, robbery, possession of armed and two counts of sexual felony. during of of the armed a the commission a One firearm underlying felony required estab- as to robberies was used Appeals, first-degree of conduct. The Court lish criminal sexual JJ., P.J., Cavanagh Cynar, Kelly, M. J. (Docket M. F. and affirmed and 78-521). 78-520, appeals. The Nos. defendant by jury in the Midland Circuit Randall D. Griffin was convicted J., Court, Gillespie, first-degree Tyrone criminal sexual con- of underly- kidnapping kidnapping. as the duct The was used and ing required first-degree felony criminal sexual establish P.J., Appeals, Cavanagh, D. E. M. F. and conduct. The Court of JJ., unpublished Holbrook, Jr., Piercey, in an and affirmed 78-3343). (Docket ap- opinion per defendant No. The curiam peals. Freddy by jury Circuit Brown the Calhoun L. was convicted Nicolich, J., Court, two counts of criminal Paul kidnapping kidnapping. was sexual conduct and one of The required underlying one of used establish as The sexual conduct. Court [1, 7, [1, [2, 4-7, ^[3] 67 Am Seizure or detention for 65 Am Jur 7, 8, 11, 21 Am Jur ALR3d 699. similar offense as 8, 11] Jur 10] 12] 1 Am Jur 21 Am Jur 2d, Robbery 2d, Rape 2d, 21 Am References Criminal Law 268. 2d, Jur 32.§ constituting 2d, Abduction 48.§ 2d, Criminal purpose for Points in Headnotes §§ Criminal Law § Law committing Kidnapping §§ 244, 245, crime of 269, 276, rape, §§ kidnapping. 9, 277, 28. robbery, 552. 279. Robideau (R. Burns, P.J., Kallman, B. dis- Appeals, JJ. MacKenzie kidnapping senting), convic- reversed the conviction of it and remanded the sexual conduct founded on tion of criminal . on he could with instructions that retrial case to the trial court charges under federal constitutional convicted on both not be 46103). (Docket people appeal. No. law jury Bouknight by a in the Recorder’s was convicted Chester Connor, J., Detroit, first-degree Michael J. of Court of conduct, possession robbery, and of two counts of armed sexual felony. during the of a One of the armed a firearm commission required underlying felony to estab- used as the robberies was Appeals, conduct. The Court of criminal sexual lish Kaufman, JJ., Bronson, P.J., Cavanagh M. F. and N. J. and robbery the armed used as the under- vacated the conviction of ground lying the that convictions of on underlying felony conduct and the violated the criminal sexual (Docket jeopardy provisions the state constitution No. double 48817). people appeal. joined by opinion by Brickley, Chief Justice In an Justice Boyle, Supreme Ryan Justices the Court Williams and held: single first-degree criminal in a trial of both Convictions robbery underlying felony the of armed or sexual conduct and jeopardy provisions kidnapping by the double are barred Michigan either the United States or the Constitution. Clause, multiple Jeopardy where 1. The Double cases involved, punishment prosecutor on the is acts as a restraint courts, Legislature. prohibits It a court from and the not on the by Legisla- imposing more than that intended punishments multiple question legis- ture. Whether are is a protects lative intent. The Double Clause also person against prosecution a second for the same offense after constitution, pro- acquittal or conviction. Under the state priety prosecution judged part of a second must be on whether of the criminal transaction involved in the second trial was subject previous to a trial. by Supreme 2. United States The test used Court of the determining Legislature, the as an aid in the intent of the test,

Blockburger is that where the same act or transaction statutory provisions, constitutes a violation distinct of two by only whether there are two or one is determined offenses provision requires proof whether each of a fact which the other crime, compound does not. In these cases one statute defines a involving penetration the commis- sexual under circumstances predicate felony, sion of other and another defines 419 Mich crime, "any felony”, kidnap- other in these cases ping. Application Blockburger compound of the test predicate difficulty; only statutory crimes raises a if lan- considered, guage compound predicate crime and the separate, crime are because has each an element that the other not; proof compound does but if the actual of the crime is considered, requires proof it of the crime. Neither the Supreme Court of the United States nor the Court of Michigan test, applying has been consistent in but has applied statutory language it sometimes and sometimes proofs case, required particular resulting to the in a with confusion. compounded by 3. The confusion has been a failure to distin- guish adequately between the different interests involved in successive-prosecution single-prosecution cases. Where the purely multiple punishments, issue is one rather than suc- prosecutions, cessive having the defendant’s interest is in not greater punishment imposed Legisla- than that intended Thus, Legislature ture. the intent of the is determinative. A test which focuses on whether one offense is a lesser included making offense of another is of no aid in such ultimate determi- Instead, nation. the intent of the should be deter- subjects statutes, mined reference to the their lan- guage, history. prohibiting and their Statutes conduct which is violative of generally distinct social norms can be viewed as permitting multiple punishment. and amenable to However, prohibit where two statutes violation of the same manner, social norm in a somewhat different or where one incorporates statute, statute most of the elements of a base but penalty aggravating occurs, increases the where conduct it is Legislature evidence that the did not intend under both statutes. legislative If no conclusive evidence of intent can discerned, be lenity requires the rule of the conclusion that separate punishments were not intended. first-degree 4. The focus of clearly criminal sexual conduct is penetration. penetration, on regardless Sexual of the circum- stances, violates social norms distinct from those norms vio- predicate cases, felony lated the robbery these or kid- —in napping. That the many ways common element of the of establishing first-degree penetration criminal sexual conduct is suggests Legislature separate punishment that the intended for first-degree criminal underlying felony. sexual conduct and the addition, first-degree the fact that criminal sexual conduct predicate robbery and the kidnapping crimes carry and Robideau Legislature strongly suggests penalties intended that same suggest separately punished. To that be the crimes first-degree Legislature sexual conduct to criminal intended Legislature co-equal felony attribute to would subsume purpose. Only allowed of both when á conviction is total lack first-degree felony sexual conduct predicate criminal and having penetration purpose under the crime of is there felony. involving any other circumstances Robideau, affirmed.

Griffin, and remanded. reversed Brown, affirmed, to the trial court and the cause remanded proceedings. for further

Bouknight, reversed. Jeopardy separately. Double Clause Levin wrote Justice cases of a theft or the convictions in these is not violated offense, kidnapping and of a criminal sexual conduct offense first-degree punishing for criminal sexual a defendant but during the com- because the sexual assault occurred conduct felony additionally punishing him for mission of another violate the Double Clause the other does felony. punishes twice for the same because it the defendant first-degree sexual conduct and convictions of When final, underlying robbery kidnapping become convictions of judgment amended so as the defendant is entitled to have the punished not to be twice for the same offense. cases, prosecutors required to elect In these should first-degree imposed reduction of the sentences crimi- either possible nal sexual conduct to the maximum sentence for third- degree change criminal sexual conduct with no in the sentences imposed predicate the sen- for the felonies or elimination of imposed predicate change in the tences for the felonies with no imposed sentences for the criminal sexual conduct convictions. courts, the The Court’s new test launches the trial Court

Appeals, and the Court on elusive search for clear an cases, or conclusive evidence of intent. In these predicate circumstance that the armed crimes of kidnapping carry penalties prison, of life in as does maximum conduct, suggest” criminal sexual "is taken separate punishments intended for the criminal ignores This that the sexual conduct offense. predicate felony might carry punishment and that it is a lesser Legislature separate punishment unlikely that intended others, suggest- respect predicate with to some felonies and 419 Mich ing legislative the absence of clear or conclusive evidence of provide separate sentencing. intent to for cumulative or Kavanagh first-degree Justice dissented. Convictions of crimi- involving felony nal sexual conduct the commission of another underlying felony robbery kidnapping of armed or guarantee against being contravene the state constitutional placed offense, jeopardy requiring twice in for the same vaca- underlying felony. tion of the conviction of the provides person 1. The may state constitution that no placed danger twice, of conviction of the same offense either people in one trial or in successive trials. The contend that the Jeopardy prosecutors, Double Clause restrains courts and but Legislature; may not the that whether defendants be simulta- neously prosecuted depends for the two offenses on whether the supported intended them to be. That contention is precedent underlying principle neither nor reason. The person pun- the Double Clause is that no should be Legislative authority ished twice for one offense. to define Legislature may subject offenses does not mean that jeopardy same, defendant to for two offenses which are the nor legislative it punish separately does mean that intent may is, effect, legal turn what one offense into two. informative, 2. dispositive. While intent is it is not inquiry The vital is whether the offenses are the same. In these cases, first-degree conviction of criminal sexual conduct re- quired proof kidnapping. underlying of armed or The felony necessary was a element of the criminal sexual conduct. any felony The fact felony suffices does not mean that the alleged necessarily question is not a included offense. The is not included, necessarily whether the lesser offense is definition but whether on the facts of the case it is. theOn facts of these cases, underlying felonies were lesser included offenses of first-degree criminal sexual conduct. Because the defendants were convicted of both criminal sexual conduct and underlying felony, they placed jeopardy. were twice in Cavanagh participated Justice only. and dissented in Brown If necessarily cognate one offense is a or lesser included offense of another, it is the purposes. same offense for state double Brown, convictions of criminal sexual conduct on penetration the basis of involving any sexual under circumstances underlying other kidnapping and the offenseof violated the prohibition against state jeopardy. constitutional double underlying or greater offense is included within the compound Impos- offense which relies on it for a conviction. Robideau constitutionally ing punishments offenses amounts for both multiple punishment offense. for the same impermissible (1980) 663; App affirmed. 289 NW2d 94 Mich (1981) affirmed. App NW2d 392 105 Mich (1981) reversed. App 308 NW2d 703 106 Mich Opinion the of Court Robbery First-Degree — Kidnapping — Rape — Criminal Armed 1. Jeopardy. — Double Sexual Conduct sexual single trial of both in a Convictions kidnap- underlying felony or of armed and the conduct provisions of either by the double ping not barred are (US Const, Michigan Am Constitution or the United States the 750.529; 750.349, 750.520b[l][c], 1963, 1, 15; V; MCL art § Const 28.797). 28.581, 28.788[2][l][c], MSA Jeopardy. — — Law Double 2. Criminal Law Constitutional punishment Clause, multiple Jeopardy in cases where The Double involved, prosecutor and the courts on the acts as a restraint is imposition greater prohibiting Legislature, not the Legislature; whether punishment intended than that (US question legislative multiple intent punishments are is 15). 1963, 1, Const, V; art § Am Const Jeopardy. — — Law Double 3. Criminal Law Constitutional against prosecu- protects a second Clause The Double conviction; acquittal under offense after tion for the same Constitution, prosecu- propriety Michigan of a second part judged transac- whether of the criminal tion must be on previous subject trial to a in the second trial was tion involved 15). (US 1963, 1, Const, V; art § Am Const Jeopardy — — — 4. Law Constitutional Law Double Criminal Multiple Punishment. constitutionally permissible punishment question what is punishments purely multiple and not where the issue is a case question prosecutions what from the successive is no different (US imposed punishment to be branch intended 15). Const, V;Am art § Const Jeopardy — — — 5. Criminal Law Constitutional Law Double Multiple Punishment. imposing punishment viola- Legislature for The intent of the purposes of should be determined tion of criminal statutes subject jeopardy analysis by reference to double statutes, history. language, their and their 419 Mich Jeopardy Multiple — — 6. Criminal Law Double Punishment. prohibiting Statutes conduct violative of distinct social norms generally permitting are viewed as and amenable to however, imposition multiple punishment; where two prohibit statutes violations of the same social norm in a differ- manner, incorporates ent or where a statute which most of the penalty elements of a base statute increases the for violation conduct, aggravating where there it is evidence that imposed did not intend to be- under both statutes for one transaction.

Separate Levin, — Jeopardy — — 7. Criminal Law Constitutional Law Double Sexual Criminal Conduct. Conviction of a criminal conduct sexual offense and another felony in the Jeopardy same case does not violate the Double Clause; however, charge where the criminal sexual conduct is ñrst-degree elevated to criminal sexual conduct because the during sexual assault occurred the commission of the other felony, imposition ñrst-degree of sentences for criminal sexual felony conduct and for the other does violate the Double Jeopardy punishes Clause it because the defendant twice for (Const 1963, 1, felony §15; 750.520b[l][c]; the same art MCL 28.788[2][1][cj). MSA

Dissenting Opinion by Kavanagh, J. Rape First-Degree — — Kidnapping 8. Criminal Sexual Conduct Robbery — Jeopardy. — Armed Double ñrst-degree involving

Convictions both criminal sexual conduct felony underlying commission of felony another and the robbery kidnapping armed or contravene the state constitu- guarantee against being placed tional jeopardy twice in for the (Const 1963, 1, §15; 750.349, same offense art MCL 28.797). 750.520b[l][c],750.529; 28.581, 28.788[2][l][c], MSA Jeopardy — Legislative Authority. — 9. Criminal Law Double authority Legisla- Double Clause limits the of the ture, prosecutors, punish as well as courts and to a criminal act accompanied by underlying felony underlying an and the fel- ony separate offenses; legislative authority as to define offenses may subjected does not jeopardy mean that a defendant same, two offenses which are the nor that intent punish separately may is, effect, legal turn what one (Const 1963, 15). 1, offense into two art § People v Robideau Jeopardy Multiple — — 10. Law Double Punishment. Criminal may subsequent A defendant not be convicted at the same or at a statutory offenses that are the same offense for trial of two purposes; starting point analysis jeopardy double always Legislature’s offense statement of criminal and a comparison of the offenses of which the defendant was con- 15). (Const 1963, 1, victed art § Rape First-Degree Kidnapping — — 11. Criminal Sexual Conduct Robbery Jeopardy. — — Armed Double robbery kidnapping

Armed were lesser included offenses of ñrst-degree involving sexual conduct commission of kidnapping another where the armed or was a ñrst-degree conduct; necessary element of the criminal sexual ñrst-degree conviction of both criminal sexual conduct and the placed underlying felony the defendants twice (Const 750.349, 1, §15; 750.529; 750.520b[l][c], art MCL 28.797). 28.581, 28.788[2][1][c], MSA

Dissenting Opinion Cavanagh, Jeopardy. — — 12. Law Criminal Law Constitutional Double cognate necessarily Where one offense is a lesser included another, offense it is the same offense for state double 15). (Const 1963, jeopardy purposes art § Kelley, Frank J. Louis J. General, Attorney Caruso, Weiss, Robert E. General, Solicitor Prose- Kuebler, Chief, and Donald A. cuting Attorney, in Robideau. Division, Appellate people for the Spuhler Earl R. for defendant Robideau. Kelley,

Frank J. Louis J. General, Attorney Caruso, Sindt, Conrad J. General, Solicitor Prose- MacFarlane, H. John cuting and Chief Attorney, Brown. Prosecutor, Assistant in people for the Bennett) P. E. State Appellate Defender (by defendant Brown. Kim Robert Faw- Appellate State (by Defender

cett) for defendant Griffin. 419 Mich 458 op the Court General, Kelley, Attorney Frank J. Louis J. Caruso, Cahalan, L. William General, Solicitor Wilson, Reilly Edward Prosecuting Attorney, Dep- A. Chief, Timothy Appeals, Civil and uty Baughman, Principal Attorney, Appeals, for the Bouknight people in

Brickley, J. These cases require us to decide prohibition whether in either the United or Constitution1 Michigan against placing States in person jeopardy prohibits, single twice in a trial, convictions of both criminal sex- 750.520b(l)(c); ual conduct under MCL MSA 28.788(2)(l)(c) (penetration under circumstances in- volving "other any felony”) underlying "other of either or felony” robbery kidnap- armed ping used to of prove charge first-degree crimi- nal sexual conduct. We hold that convictions of both criminal sexual conduct and the underlying felony kidnapping of armed or in single trial are not barred either constitu- tion.

Herbert Robideau was of first-degree convicted conduct, sexual armed two counts of rob- 750.529; 28.797, bery, possession MCL MSA a firearm during commission of a felony, 28.424(2). 750.227b; Appeals MCL MSA The Court of Const, provides: US Am V person capital, "No shall be held to answer for a or otherwise crime, presentment infamous unless on a or indictment of a Grand forces, Jury, except arising in cases in the land or in the or naval Militia, public danger; when in actual service in nor time of War or any person subject put shall be for the same offence to be twice limb; compelled or life nor shall be Criminal Case himself, life, against deprived liberty, to be a witness nor he property, law; process private property without due nor shall use, public just compensation.” taken for without provides: Const art 15§ person subject put "No shall be for the same offense to be twice jeopardy.” People 467 Opinion op the Court finding convictions, affirmed his no violation of the prohibitions against jeopardy, double notwith- standing robbery that one of the armed counts was felony” used as the "other to establish the crime of first-degree App criminal sexual conduct. 94 Mich (1980). granted 663; 289 NW2d We leave to (1981). appeal. 412 Mich 871 Bouknight first-degree Chester was convicted of conduct, criminal sexual two counts of armed rob- bery, possession during of a firearm the com- felony. robbery mission of a One of the armed felony” counts was used as the "other to establish first-degree the crime of criminal sexual conduct. Appeals The Court of conviction, vacated that armed finding although multiple that, convictions did not constitution, violate the federal the convictions of criminal sexual con- underlying felony” duct and the "other did violate Michigan App Constitution. 106 Mich (1981). granted appeal. NW2d 703 We leave to (1981). Mich 871 Freddy Lee Brown was convicted of two counts (penetration criminal sexual conduct involving any felony under circumstances other penetration and another armed, while MCL 28.788[2][l][e]). 750.520b[l][e]; MSA Brown was also kidnapping, convicted of 750.349; MCL MSA felony” 28.581, the "other used to establish one first-degree Appeals count criminal sexual conduct. The Court of penetration reversed Brown’s convictions for involving

under circumstances kidnapping other and for because of an authority instructional error on the Barker, 307 NW2d 61 Court affirmed his conviction under MCL 28.788(2)(l)(e) 750.520b(l)(e); MSA and remanded the case for retrial. The Court instructed that on 419 Mich Opinion of the Court provisions Brown, consistent with the

remand again constitution, could not be con- the federal penetration under circumstances victed involving any both underlying

other and the kidnapping. App felony” 58; "other 105 Mich (1981). granted appeal. 306 NW2d 392 We leave to (1981). 412 Mich 864

Randall Dale Griffin was convicted of kidnapping, criminal sexual conduct and with the kidnapping being used to establish the "other felony” criminal for sexual conduct. Appeals The Court of unpublished opinion per affirmed his conviction in an August

curiam, released granted appeal. 412 1980. We (1981). leave to Jeopardy The contour of the basic Double Clause succinctly was set forth in North Carolina v Pearce, 711, 717; 2072; 395 US 23 L Ed S Ct 2d (1969): protects against

"It prosecution a for the same second acquittal. against offense protects after It a second prosecution for And the same offense after conviction. it protects against multiple punishments the same offense.” Maryland, 784; Benton v 89 S Ct US

2056; 23 L Ed 2d 707 the United States Jeop- Court held that the federal Double ardy applicable by Clause was to actions present protec- states. the third cases concern protection against multiple punishment, tion, the give and, them, in order to decide as well as to guidance some in an area has described been upon as a state of "confusion confusion”2 a (1940). Note, Jeopardy, Criminal Law—Double 24 Minn L Rev 522 Opinion op the Court Sargasso begin Sea”,3 "veritable we must with a multiple-punishment aspects review of the Jeopardy by as Double States Clause declared the United

Supreme Court, as best those decisions can interpreted. begin stating is, We what least at the at time pun- multiple decision, of this law. settled Where Jeopardy involved, ishment the Double Clause prosecutor acts courts, on as restraint Legislature. Ohio, Brown 432 US Ct L 97 S 53 Ed 2d 187 prohibits The Double Clause court imposing from more in- than that Legislature. question tended punishments "[T]he whether

imposed by a court after a defen- upon charges dant’s conviction are uncon- stitutionally multiple cannot resolved without determining punishments Legislative what States, Branch has authorized”. v Whalen United 684, 445 688; 1432; US S 63 L 2d 715 100 Ct Ed (1980). expression principle The most recent of this — Johnson, 2536, is found 2541; —; Ohio v 104 US S Ct (1984): 81 L Ed 2d 433 "In protection against contrast to jeopardy the double trials, multiple component, the final of double —protection against punishments cumulative de —is signed to sentencing ensure that discretion courts of is to by legislature. confined the limits established power Because the determine prescribe substantive crimes and punishments legislature, is vested with the Wheat) (5 Wiltberger, 76, 93; United States v 18 5 L US (1820), Ed question 37 under the Double punishments Clause 'multiple’ whether essen are Hunter, tially legislative intent, one see Missouri v (1983).”4 359; 673; 459 US 103 S Ct 74 L 2d 535 Ed 3 States, 333, 343; Albernaz United 450 US 101 67 L Ed S Ct 2d 275 suggested multiple punishment It has been could be issues of Opinion of the Court legisla- determining the intent aid to

As an approach an Court has used ture, although in Gavieres v which, first established L 338, 342; 31 S States, 220 Ct US United Blockburger known as the is now Ed Blockburger v United its use test because 180; 76 L Ed 306 304; 52 S Ct States, 284 US (1932): act or is that where the same applicable rule

"The statu- violation of two distinct constitutes a transaction applied to determine to be provisions, the test tory one, only is whether two offenses there are whether fact which the other requires proof of a provision each does not.” under the "same offense”

If statutes constitute two Legis- presumed Blockburger test, that the it is to be the defendant did not intend to allow lature punished under statutes. both Leg- assumption underlying the rule is "The [the the same punish ordinarily does not intend islature] v United Whalen offense under two different statutes.” States, supra, pp 691-692. presumption rebut- the test can be raised intent, and

ted a clear indication of respected, found, it must be such an intent is when Blockburger regardless test. the outcome of the 333, 340; 101 S States, 450 US v United Albernaz prohibi- analyzed and under under the Due Process Clause better Eighth against punishments Amend- of the cruel and unusual tions ment Drubel, & See Westen under the Double Clause. instead of Supreme Jeopardy, Theory of Double Toward a General Although approach makes eminent such an Court Review 114-115. reading Amendment and of the Fifth sense on the basis of a literal consistency, Court has analytical States the United jeopardy. placed multiple of double within the ambit Opinion op the Court (1981); 1137; Ct 67 L Ed 2d 275 Hunter, Missouri v 459 US 103 S Ct L74 Ed 2d 535 Although Blockburger simply test stated, subject interpretation, it is to more than one de- pending on the statutes involved. When one of the necessarily two statutes involved is a lesser in- application other, cluded offense of the Blockburger always presumption test will raise the the two statutes involve the "same offense”. necessarily The included lesser offense will never required by greater have an element not of- arise, fense. however, Problems when one statute is not a lesser included offense of the other. Such compound predi- is the case with the so-called cate crimes that are involved in the cases before compound first-degree us. The crime of criminal requires proof penetration sexual conduct of a during felony. the commission of other "any felony” predicate other crime, is the in these robbery kidnapping. cases, either armed or only statutory language, If one looks to the compound crimes are un- Blockburger First-degree der test. requires proof penetration,

sexual conduct element not of a an required by kidnapping either or rob- bery. robbery requires proof Armed of an armed taking person presence from the or in the kidnapping requires another, and the movement or confinement of another. None of these elements required are, in sense, the strict for the crime of Any felony criminal sexual conduct. will do.

If, however, one looks to how the crimes with charged which actually the defendants were were proved compound evidence used—the crime —the of predicate criminal sexual conduct and the kidnapping

crime of either 419 Mich Court of the Blockburger. In under offenses not are Bouknight, prosecu- the of Robideau the cases predicate of the defendants the tion convicted predi- robbery used the and also armed crime the to establish of armed crime cate felony” of the the defendants to convict "other compound sexual criminal

crime Similarly, Griffin and in the cases of conduct. predi- the convicted of Brown, defendants were the kidnapping kidnapping, was crime cate felony” to convict the "other to establish used Look- sexual conduct. them of ing at instead of facts of case to the us, in all four cases before in the abstract statutes predicate required prove prosecutor was compound If Block- crime. to establish crime applied burger cases, the to the facts presumptively compound crimes are the same offense.

This the United States Court and applied approaches Block- to the have both Court always explicable. burger test for reasons compounded by resulting has been confusion distinguish adequately the dif- between failure to successive-prosecution interests involved ferent single-prosecution Nevertheless, we cases. versus begin of the double must with a review of some States Su- the United cases decided preme the Blockbur- Court to determine whether ger applied or to the is to in the abstract test be us, it or whether should facts of the cases before applied at all. Blockburger, convicted the defendant was single selling from not in or trial of narcotics selling original stamped package nar- and of their two order. The an official written cotics without same sale. The Court convictions resulted from the Opinion of the Court statutory crimes, looked definitions of the as by evidenced Court’s statement that "[e]ach requires proof the offenses created of a different p Id., element”. 304. The Court concluded that required proof because the first statute original narcotics were not sold in or from their container, not, while the second did and the second required proof statute that the sale was made order, an not, without official while the first did separate. Therefore, the two crimes were the de- doubly punished, notwithstanding fendant could be legislative "double-description” of crimes that had made one act into two crimes.

Although Blockburger specifically did not state determining legislative the test used was for by looking statutory intent crime, to the elements of a point

later decisions made that clear. In States, Gore 386; v United 357 US 78 S 1280; Ct (1958), L Ed 2d the Court stressed that Block- burger had been decided as a matter of intent. In States, Iannelli v United 420 US 17; fn 1284; 95 S Ct 43 L Ed 2d 616 concluding Court, Blockburger that under conspiracy gambling test to violate laws and viola- gambling tion laws offenses, were stated statutory that "the test focuses on the * * * notwithstanding elements of the offense overlap proof substantial the crimes”. in the offered to establish Blockburger applied test was in a case involving prosecution a successive in Brown v Ohio, 432 US 161; 97 S Ct 53 L Ed 2d 187 (1977). The case involved a defendant who was joy-riding. jail, convicted of he was After his release from charged theft, with automobile a crime of joy-riding, which law, under Ohio was a necessar- ily offense, included i.e., lesser all the elements of 419 Opinion op the Court

joy-riding theft. also elements automobile were necessarily always in- the case when true As is greater involved, offenses are lesser and cluded Blockburger application of the test re- Court’s finding the two crimes constituted in a sulted the separately therefore, and, were not to be "same offense” punished. concurring opinion, Brennan, in his did

Justice Blockburger apply He instead treated test. multiple punishment if were the case as issues deciding proposed the case on the involved and not ground that the interest of defendant avoid- prosecution. ing a second trial barred second involving prosecu- previous successive cases applied approach tions, the Court had the factual Nielsen, 672; 33 L In re 131 US 9 S Ct Ed first If the same evidence used in the substantially in the second trial was to be used constitutionally trial, the defendant could not p supra, Nielsen, time. As stated in tried second 188: a person tried and convicted for has been "[A] [who] * * * in it included

crime which has various incidents one of incidents cannot be a second time tried for those being put in for the same of- without twice fense.” gone beyond the

But Justice Brennan would have approach prosecutions all successive of Nielsen. He viewed as barred the Double part Clause if the second trial same transaction involved long litigated in trial. So the first events was as the same transaction of criminal require involved, that all Justice Brennan would against charges possible brought the defendant be in the trial. first majority’s in was criticized

The decision Brown op the Court right wrong reaching for the rea- decision as Drubel, & Toward General son. See Westen Jeopardy, Theory Court Double of 81, Perhaps, however, the most valid 157. Review explain fully Court failed to that criticism is opinion why reasoning. never addressed its prosecution analysis of the traditional successive applied. supra, Nielsen, was opinion, Court’s failure to In Brown our reasoning appears apply to of Nielsen be ex- judge plained by "[w]here its statement impose for cumulative forbidden single proceeding, the at the end of a two crimes prosecutor strive for the same is forbidden to proceedings”. supra, p Brown, result successive appears if It decided as 166. thus Brown was punishment. only multiple issue one of were imposed Multiple punishment not be under could question, regardless of the number statutes unnecessary It therefore trials. was multiple pun- whether, allowed, Court to decide if imposed separate trials. could ishments Ct Oklahoma, 97 S Harris US 2912; 53 L Ed another case involv- 2d ing prosecution presented which also successive predicate compound crimes, the Court its first analysis inexplicably the Court reverted to the ignored Blockburger. Nielsen and The Oklahoma allowing crimes, had linked two predicate one of the crime of to act as second-degree aggravating crimes raised which compound fel- murder to the crime ony had tried and murder. The defendant been first-degree felony in the murder convicted of robbery. was subse- course of a The defendant quently rob- tried and convicted of the bery. Mich 458 op the Court opinion per Court’s curiam revers- conviction,

ing subsequent the without robbery mentioning Blockburger, that stated simply the greater conviction of the crime could be had crime, a without conviction the lesser and for Brown, Nielsen. Unlike authority upon relied the ground case the that it was decided on involved a prosecution. successive Doing suggests so the in question the Blockburger crimes had satisfied multiple punishments test and that in a single trial That result would allowed. can be reached Blockburger if one only applies to test in question abstract, elements the crimes in the i.e., requires proof murder killing, of a course, not, which robbery, does and robbery required requires proof of robbery, which is not (under to establish murder Oklahoma do). law, specified felony would Applying Blockburger test to facts of the case before the was, fact, Court would re- show quired murder, prove first-degree would, and it therefore, have been unnecessary to consider case under of Nielsen. analysis in Harris

If Court ap- had indeed silently plied the Blockburger test in the abstract it, statutes before its method of analysis could be all, considered consistent with After prior law. Blockburger numerous had decisions stated that looked to Yet, the statutory elements of a crime. when faced with the next case a com- involving pound and predicate crime, applied the Court Blockburger to the facts of the case. States, Whalen v United 100 S US defendant,

Ct L Ed 2d 715 was charged prosecution a single with the compound crime of first-degree murder and also with rape, crime which elevated second-de- Robideau v Opinion of the Court to effort apparent first. In an murder to gree Harris, in as that reached result same achieve in the that Harris was decided notwithstanding Court, de- prosecutions, of successive context refo- contrary, to the footnote disclaimer spite a the elements of Blockburger from away cused the Court crimes, was that The result charged Blockburger into one that test transformed charges led to the the conduct which to looked proved facts or to the actual the defendant against they that could trial, suggesting the while all at intent: legislative of indicative Blockburger case, rule leads resort to the "In this not authorize consecu- Congress that did conclusion in killing committed rape and for a for tive sentences plainly not the case rape, it is of the since the course requires proof of a fact which the provision that 'each killing in the course of A does not.’ conviction other proving the elements of all rape be had without cannot Greene, See United States US rape. of the offense (1973). Harris v Cf. 21, 34; 489 F2d App DC Oklahoma, L 682-683; 97 S Ct 53 Ed 433 US felony that The Government contends 2d under rape not the 'same’ offense murder and are Blockburger, in former offense does all since the is, 22-2401 require proof rape; of a that DC Code cases (1973) § in killing person

proscribes the of another kidnaping or or committing rape robbery of course arson, proved does not etc. the offense to be Where is proof rape example, the offense include of where —for offense is killing perpetration a a of —the rape, and the different from the offense of course believing cumulative Government is correct that rape punishments murder and for felony for the Blockburger. In the present permitted would be under case, however, necessary element proof rape murder, unpersuaded proof we are other differently from this case should be treated requires proof cases in which one criminal offense 419 Mich Opinion of the Court Whalen, every supra, pp element of another offense.” 693-694. dissenting justices recognized majority’s Blockburger test, transformation of noting into a factual doing precedent so was without contrary purpose to the avowed of the test Nevertheless, determine senters did not intent. the dis-

propose using to decide the case Blockburger. They proposed looking instead to all legislative history relying sources of on the rather than "arbitrary assumptions” "syntactical implicit any application subtleties” of Blockbur- ger compound predicate to Whalen, crimes. supra, p 712. application Blockburger

The of to the facts of a given multiple punishment case when was in- proved practice. volved to be a short-lived In Al- States, bernaz v United US 101 S Ct repaired 1137; 67 L Ed 2d 275 the Court to description Blockburger its test as one " statutory which 'focuses on the elements of the offense’ ”. The Court found that the offense of conspiracy import marijuana conspiracy to to marijuana punished separately distribute could be though even one on the facts of the case there was but

conspiracy. The Court’s conclusion that two statutes before it were under Block- burger, inquiry. however, did not end its The Blockburger merely Court noted that the test was legislative pre- a means to determine intent. The sumptions by by created the test could be rebutted legislative a clear indication of intent to the con- trary. Supreme Court found such a clear indica-

tion of Hunter, intent in Missouri v supra. prosecution single Hunter involved a where compound the defendant was convicted of the of Court (possession aof "armed criminal action” crime of dangerous during weapon the commission predicate underlying felony) on the crime robbery. case, The Missouri armed facts of Appeals the defendant’s convic- reversed Court of activity, relying on deci- armed criminal tion of Supreme Court, had which the Missouri sions of Blockburger applied test to the facts the Double it and concluded that cases before offended convictions Clause was action and the both armed criminal (Mo, Haggard, felony. 619 SW2d See State v 1981). Supreme Court reached The Missouri Legisla- notwithstanding the Missouri conclusion express provision for double ture’s the statute. disap- Court did not

The United States interpretation prove Supreme Court’s the Missouri Legis- Blockburger, found that the Missouri but expressly presumption lature had rebutted pass the Block- raised the statute’s failure burger though criminal action test. Even armed predicate, robbery, underlying and the armed were ap- the same offense under proach the Whalen factual Blockburger, multiple punishment was permissible in- because the had so tended. Supreme

The United States Court’s treatment of multiple struggle, punishment suggests issues of and an standard a single prescribe one, a

unsuccessful applicable It to the statutes considered. especially multiple difficulty evidences recent punishment compound, legisla- cases where tively multiple linked, In crimes are involved. exception, cases, Court, with one applied Blockburger statutory has to the test exception, however, elements of crimes. This one 419 Mich the Court involving of a case a looked to the facts which analogous compound crime, is to the question present left unanswered case. analysis Supreme of Whalen Court whether compound predi- proper analysis is the when inconsistency involved. The cate crimes are turn law forces us to to state law federal case guidance. Supreme comparison In with the United States multiple punish- of issues of Court’s treatment ment, rocky, experience similarly Court’s has been our although we have followed a somewhat path. experience As was the of the different Supreme Court, United States first double jeopardy cases to come before this Court involved prosecutions. People Cox, In successive v (1895), 435; 65 NW 283 the defendant was tried keeping bawdy and convicted of house. He was keeping later tried and convicted same house as a house of ill fame under a opinion by statute. In an Justice this Hooker, finding conviction, Court reversed the defendant’s that on the facts of the case one statute was opinion included within the other. The supra, Nielsen, United States Court was found to be "decisive”.

By the time this Court first dealt with an issue multiple punishment single factual, trial, in a approach same-evidence was well established prosecution Cook, successive cases. v See (1926); People 333; 236 Mich 210 NW 296 v Bev- erly, 247 Mich NW2d 481 People White, 390 Mich NW2d jeop- this Court even extended the double ardy protection prosecutions from successive adopting, Michigan Constitution, under the Justice approach. Brennan’s transactional See Ashe v People 481 Robideau v Opinion of the Court Swenson, 436, 448; 1189; 397 US 90 S Ct 25 L Ed (1970) (Brennan, J., concurring). 469 ap- 2d This expands the proach United States Court’s test by forbidding same-evidence a second trial part when transaction has been trial. subject prior to Martin, v People 303; 247 NW2d (1976), this Court faced single-prosecu- its first

tion, multiple-punishment case. The defendant had been convicted both of heroin delivery of to Block- possession of heroin. Without reference burger intent, or we found that prohibition against double had been vio- "[possession lated because present the heroin Id., this case was that its necessary p delivery”. 307. The rationale for looking to the facts of the if case to see facts were doing double duty People v respect with to the two statutes was Cook, supra, See, prosecution case. successive (On also, Rehearing), v Stewart 400 Mich 540; (1977), 256 NW2d 31 applied which the same analysis and reached the same result under by those considered in Martin. replaced statutes This Court compound first faced a and predicate in Wayne County Prosecutor crime situation Recorder’s Court Judge, 374; 406 Mich 280 NW2d app Michigan, dis sub nom Brintley v US 100 S Ct 63 L Ed 2d 317 There, the two defendants had been convicted of the compound crime of possession of a firearm during the commission of a and also of an underlying felony, either murder armed robbery. We applied Blockburger test to the statutes in the abstract and found the two crimes separate: were require murder does not use of a firearm and does not felony-firearm require the predicate felony murder; to be armed robbery 419 Mich Court felony- a firearm the use of require not

does to be predicate felony require does firearm recognized we importantly, More robbery. armed multiple punish- issues of time that the first determining what decided to be ment were had Legislature Because intended. was to be felony-firearm provided expressly to the consecutive from and separately punished were concerns jeopardy all double felony, County Wayne Pros- the decision Since satisfied. ecutor, legisla- look to however, have failed to we intent. tive People Jankowski, 408 Mich 79; 289 v NW2d

In arising defendant, in a transaction (1980), the station, charged with was gas of a of a out over larceny trial of single in a and convicted robbery. armed $100, building, and in a larceny Blockburger test, facts but to the applied We in the the statutes than to case rather of the Michigan constitutional As a matter of abstract. under the law, multiple found that we on the facts of because impermissible was statutes all proved facts the Court the same the case before three crimes. People Wilder, v 308 NW2d

In confronted, the United States as did we Whalen, single prosecution Supreme Court of both the was convicted where the defendant murder and compound first-degree felony crime of ap- we felony. Again, underlying predicate of the successive- taken from plied analysis a method of Harris, and cases such as Cook prosecution Because, in the case of the case. looked to the facts Court, charged predicate proof of the before felony compound proof also served as murder, that convictions we found case violated crimes on the facts of the both prohibition against jeopardy. double op the Court People Carter, We next decided 415 Mich (1982). There, NW2d the defendant was single aiding in a convicted abetting trial of both conspiracy the crime of extortion and commit no extortion. We found federal double jeopardy applying Blockburger violation after test to the statutes the abstract. Each crime required proof required by of an element not prohibi- other. also found no We violation of the against ap- tion proach double under a factual though the

even facts used establish the aiding abetting could also have established the conspiracy. Other facts also had been introduced proved conspir- into evidence which could have acy. prosecutor essence, for the reason that the over-proved case, his we no found Michigan prohibition against violation of the jeopardy.

double recognized Still, we it is the intent Legislature which should be determinative. That implicit is in realization our statement the catego- crimes involved not were of the "class or ry”. p Id., 586. experience multiple

Our latest with issues of punishment People Wakeford, came in 418 Mich 95; There, NW2d 68 we dealt not with multiple the issue under stat- two multiple punishment utes, but, instead, with under single a statute. The issue before the Court was robbery grocery whether the of two store cashiers constituted one or two robberies. Our focus was entirely on the statute and only intent. Because involved, one statute was an analysis Blockburger unnecessary. under was Our only Legisla- task was to determine act what ture had made criminal.

We concluded in Wakeford that separate robbery intended convictions each Opinion of the Court robbery being person robbed, on the the focus of person against not on the owner a and assault doing rejected property so, we taken. invalid convictions were that the defendant’s claim in used of the same evidence was some because proving Wakeford, however, does robberies. both Multiple question now before us. not answer punishment analysis only one is when statute shifting been involved has never burdened Blockburger. interpretation of review, from above when can be seen As Michigan’s involved, than one statute more analysis no more consis- has been double jeopardy analysis. do than double We tent federal that much the inconsis- come the conclusion jeopardy analysis tency results from double distinguish single-prose- clearly failure to between successive-prosecution will, cases. We cution and therefore, undertake that task.

Successive-prosecution val- involve the core cases Jeopardy Clause, common- ues the Double concepts acquit See law of autrefois convict. (On Rehearing), 359 US Bartkus v Illinois (1959) (Black, J., 79 S 3 L 2d 684 Ct Ed dissenting). prosecutions in- are Where successive protects volved, Clause the Double having "run individual’s interest twice gauntlet”, being subjected in not to "embar- the rassment, being

expense ordeal”, and in not anxiety compelled continuing live state of "to "possi- insecurity”, with enhancement bility though may he found that even innocent guilty”. 184, 187, States, United 355 US Green v 190; 78 2 L Ed S Ct 2d 199 protect interest, Su- To this the United States adopted factual-evidentiary preme Court has approach, supra, appropriate, Nielsen, and, where People op the Court estoppel approach, Swenson, a collateral v Ashe supra. approaches Both these look to the evidence produced at the first trial to if determine the same proved facts or issues will be at the second. But approaches They these are limited. allow for the possibility that a transaction could be divided into offenses, discrete with successive trials each preclude possibility, Court, offense. To that this adopted White, Justice Brennan’s trans- approach the actional as standard which the prosecution propriety judged of a second is under Michigan Constitution. Different interests are involved when the issue purely multiple punishments, one without complications prosecution. of a successive The right proceedings simply to be free from vexatious present. only is not interest of the defendant having imposed is in not more than Legislature. that intended The intent of the Legislature, therefore, is determinative. Under nei- Michigan jeopardy ther the federal nor the double provisions superlegislature, does this Court sit aas instructing Legislature on what it can make previously prior described, crimes.5 As applied decisions of this Court have a factual test single-trial multiple-punishment creating cases, arguably Legislature areas in which cannot now act. To extent those decisions inter- pret prohibition against double aas Legislature, substantive limitation on the we now disavow them. only question

We are therefore left with the what intended cases such as determining those at end, bar. As a means Blockburger questionable we find the test have course, Legis Of there are other on constitutional limitations ability lature’s to create crimes. 419 Mich 458 Opinion op the Court Supreme the United States Court of in the

status propriety to its in case be use find the and applied questionable. to in the abstract the When merely statutory offense, it of an serves elements identify included offenses. While to true lesser it Legislature ordinarily may does that the true be multiple punishments when one crime intend Blockburger completely another, subsumed is making determi- of no aid ultimate itself is Although presumption creation of nation. may its may easier, it induce also make a court’s task questions legislative to avoid difficult court application of a in favor of the wooden intent simplistic test. Blockburger developed deal with was to

Because single act falls an identifiable situations where coverage statutes, it two is even less under the helpful compound applied to a crime. when intentionally Legislature crimes, has these normally discrete would be two converted what legislatively "act”. into one created acts Blockburger lead us test The difficulties with The to it abandoned. the conclusion that should be Supreme it Court has declared United States statutory not a a test of construction but principle Hunter, Missouri v of constitutional law. quite contrary supra. Indeed, to estab- it would be principles for the United lished of federalism impose on states the Court to States interpret they the actions must method which legislatures. We, therefore, it find of their own Blockburger reject power test, within our preferring means to use traditional instead to Legislature: sub- determine the intent of ject, language, history of the statutes. Legis- times, will difficult task.

At this be a specific rarely intentions with a lature reveals its op the Court difficulty determining statement. Yet the intent cannot be cause for fur- thering little, the use of a test which reveals if anything, about intent. general principles

Some can be stated. Statutes prohibiting conduct is violative of distinct generally can social norms as viewed permitting multiple punishments. amenable identify type Legis- A court must the of harm the prevent. lature intended to Where statutes two prohibit norm, violations of the same social albeit general manner, in a somewhat different a as principle Legislature it be that can concluded punishments. multiple example, not did intend For larceny $100, 750.356; the crimes over MCL larceny building, 28.588, MSA and in a MCL although having separate 750.360; 28.592, MSA elements, are at aimed conduct too to similar multiple punishment conclude that was intended.6 legislative A further source intent can be punishment expressly found in the amount of Legislature. by authorized Our criminal stat- upon utes often build one another. Where one incorporates statute most of the elements of a base penalty statute and then increases the as com- pared statute, to the base it is evidence that Legislature did not intend under both Legislature statutes. The taken has conduct from aggravating statute, the base decided that conduct larceny highlight problem Blockburger Our statutes a of the test applied building Larceny requires when in the abstract. a in building, required to occur larceny crime $100. in a which is not over Larceny taken, requires $100 $100 over that over be which required by larceny building. though in Even two these statutes are aimed at violations of the same social same harm— norm —the they presumptively separate Blockburger. Blockburger are under recognize always test fails to crimes does not create packages susceptible pure greater neat which are to a and analysis. lesser included oifense 419 op the Court it imposed punishment, additional

deserves convictions. imposing dual instead of accordingly, an principles intend these do not We in- of legislative Whatever sources list. exclusive If no conclusive be considered. should tent exist discerned, can be intent evidence conclusion that requires the lenity rule of intended.7 were not punishments in the the divisions United As evidenced this Court Whalen and in Court States Prosecutor, linked County legislatively Wayne subject crimes are not compound predicate doubt, penetra- sexual Without easy analysis. an circumstances, so- tion, of the involves regardless from those norms violated norms distinct cial cases, in these predicate felony, Yet, crime of compound because kidnapping. incorporates conduct sexual it predicate cannot felony, all the elements compound be concluded of first- are distinct. The focus entirely felonies conduct, however, is clearly sexual degree criminal Johnson, People v penetration. Cf. Willie on common 320; 279 The NW2d first-degree to element of the establish many ways Although penetration. criminal sexual is conduct conclusive, intent suggests that a the and first-degree that criminal sexual conduct separately were to be underlying predicate felony punished. a carries

First-degree criminal sexual conduct imprisonment. predi- maximum life penalty of carry maxi- cate crimes in the instant cases also prior principles application double It is doubtful that of these yield do of different results. We decisions this Court would law, necessarily change prior principles today to not set down these but, instead, analysis be to that can establish a coherent means of applied in all cases. People v Robideau Opinion of the Court penalties mum of life imprisonment. This very suggests that strongly Legislature intended compound crime of first-degree criminal predicate sexual conduct and the crimes of robbery kidnapping punished.8 and separately 1974 PA which created the crime of crimi- conduct, nal sexual was a radical of restructuring rape laws. Convictions were made easily more punishments obtainable and increased. Boyle, See Act, The Criminal Sexual Conduct Det Lawyer 1975). (Oct, Unlike robbery armed robbery, where robbery is subsumed armed robbery and a is greater imposed, first-degree crim- inal sexual conduct those predicate crimes which occur along with normally first-degree crim- conduct, sexual including inal armed kidnapping, punishments. equal have If predi- subsumed, cate crime is considered there is no greater punishment. To suggest Legisla- ture intended first-degree criminal sexual conduct co-equal to subsume a would be to felony attribute a purpose. total lack of It only is when a is conviction allowed both the predicate felony and of first-degree criminal sexual conduct And criminal sexual conduct under MCL 28.788(2)(l)(c) 750.520b(l)(c); third-degree aggravation MSA simply is not an felony” criminal sexual conduct. Absent an "other only element of sexual conduct under MCL 28.788(2)(lXc) 750.520b(l)(c); penetration, MSA which is not a crime 28.788(4). 750.520d; under MCL MSA analysis This is consistent with the result reached in Wilder, prohibiting first-degree felony dual convictions of murder and predicate felony. felony punishable the tory Since murder is a manda- sentence, predicate punishable life while the felonies are no years life, up more than a term Legislature may it be inferred that punish committing only intended to once defendant process both committing crimes. While someone in the life) has a real (mandatory disincentive to commit murder even convictions, assuming absent the threat person, of dual the same predicate felony up-to-life penalty, an carries maximum would have no such disincentive to commit criminal sexual conduct unless dual imposed. convictions are 458 419 Mich Court having any purpose of the crime there is that involving any

penetration under circumstances felony. other only that one conviction to conclude

If we were as the cases such from fact situations could result at defendants, the bar, be that the result would kidnap- having completed of felonies the robbery, the ping on one of then embark could possible, either no risk with heinous crimes most of a second maximum sentence. statutorily increased or a conviction lightly not attrib-

We would unthinking the callous attitude to ute such an adoption compound Legislature in its of conduct. The con- criminal sexual of unmistakably trary forth. The comes conclusion crimes of intended that the robbery or and either sexual conduct criminal kidnapping punished. separately be Ap- of Robideau, of the Court the decision In peals is affirmed.9 Ap- Bouknight, of Court the decision

peals is reversed._ error, none of we which Robideau raises four additional claims persuasive. that the trial court erred find Defendant submits sponte failing jury factual assertions which sua on the instruct required. theory his the case and that reversal constituted Absent a 1963, 516.7, request, duty. 785.1. no such GCR there is disagree physician who We also with defendant’s claim gestae Al- examined though victim after the was a res witness. crime gestae examining physician in a an res witness could case, alleged particular penetration in the criminal sexual here the that she had not been conduct count was fellatio. The victim testified harmed circumstances, ejaculate. physically In these and that the defendant did eyewit- physician be an we fail to see how the could * * * transaction ness to whose event in the continuum of a criminal some testimony developing a full disclosure of aid in [would] surrounding alleged charged offense”. facts People commission of the Hadley, App As to NW2d 32 67 Mich error, remaining court erred that the trial defendant’s claims instructing jury failing when define word "fellatio” People v under the standard of defense counsel was ineffective Garcia, find them to be we NW2d 547 Appeals. 94 Mich for the the Court of without merit App reasons stated 668-669, 671-672. People v Robideau Separate by Opinion Levin, J. Griffin,

In defendant’s convictions must be re- versed because the trial court failed to instruct the jury in accordance with the dictátes of v Barker, 411 Mich 307 NW2d 61 cause is remanded to the circuit court for further proceedings opinion. consistent with this Appeals Brown, the decision of the Court of is affirmed, the directions to the circuit court on vacated, remand are and the cause is remanded to proceedings the circuit court for further consistent opinion. with this Ryan

Williams, C.J., Boyle, JJ., and con- J. Brickley, curred with (separate opinion).

Levin, The defendants were convicted of criminal sexual conduct in the degree1 penetration first on evidence of sexual in involving circumstances the commission of another robbery in the cases of Robideau —armed Bouknight, kidnapping in the cases of Griffin and Brown. appeal

Griffin’s should not be decided at this presented by time because the issue for a directed verdict of his motion

acquittal kidnap- on the ping charge implicated People Wesley, is provides: The statute person guilty "A degree of criminal sexual conduct the first if engages he or any penetration she person sexual with another and if following circumstances exists: "(c) penetration Sexual involving occurs under circumstances any felony. commission of other "(e) weapon The actor is armed with a article used or fashioned in a reasonably manner to lead the victim to believe it to be 28.788(2). weapon.” 750.520b; MCL MSA Separate Levin, J. argued May 4, 1983, which will be at an decided early date.2

I cases, In each of these consolidated the defen- aggravated kidnap- committed an dants theft or ping violating assault, and a sexual thus two socie- tal norms.3 The Double Clause is not kidnap- violated their convictions a theft or ping offense and a criminal sexual conduct offense.

II Legislature may While the define an offense as including question offense, elements of another whether offenses are the "same” within the mean ing presents of the Double Clause an issue of constitutional construction to decided be Punishing beyond the Court.4 the offender 15-year maximum for criminal sexual conduct in degree5 the third because the sexual assault was involving in committed circumstances the commis punishing additionally sion of another felony punishes him for that him twice for the felony.6 same 2 granted 28, Leave 414 Mich 864 decided December 421 Mich 365 NW2d 692. 3 gun resulting The use of a violated third societal norm in Bouknight felony-firearm. convictions in Robideau and judicial While the effort to construe the term "same offense” has difficult, shown that the constructional issues are that does not relieve obligation the courts of the to construe the term. Courts have encoun problems defining equal protec process, tered tion of the what constitutes due laws, contract, impairment obligation unreason seizure, religion, speech, able search and establishment of freedom of takings, topics occupied to name but a few of the that have years. response judicial attention of the courts for over 200 has question, prior may

been to address difficult albeit efforts have precedents failed and the be unclear. 28.788(4). 750.520d; MCL MSA cases, In the instant the maximum sentence for CSC would be Separate Opinion by Levin, J. multiple robbery/kidnapping When CSC con- 1— final, entitled, victions become a defendant is Jeopardy Clause, virtue of the Double to have the against judgment entered him amended so that he punished twice for the same offense. The prosecutors put in the cases should now instant imposed to an election7 whether sentence for CSC reduced should be maximum sen- change tence for with no CSC the sentence predicate robbery kidnapping conviction, for the or alternatively, whether, or to eliminate the sen- predicate robbery kidnapping tence for the or change imposed conviction with no in the sentence change for CSC 1 non-predicate with no sentences for robbery kidnapping armed counts.

Robideau was sentenced to concurrent terms of years 26-1/2 to 40 for on convictions two counts of (one, robbery predicate felony) armed and 20 years 2-year to 35 for CSC 1 and a consecutive felony-firearm. term for

Bouknight was sentenced to concurrent terms of years 8 to 30 for CSC 1 and for convictions on two (one, felony) counts of armed 2-year felony-firearm. and a consecutive term for Brown was sentenced to concurrent terms of 20 (the years kidnapping predicate felony) to 40 kidnap- and two counts of CSC on the one based ping being conviction and the other on armed with a weapon._ years aggravation degree 15 but for 1 of the offense to CSC finding during

on basis of the the sexual occurred assault Brown, robbery or, kidnapping kidnapping commission of a being weapon. and on armed with a 7 prosecutor put should not be an election until after to such appeal the convictions final become because on the CSC 1 conviction might be found an defective be reversed with order for a new predicate felony trial and the conviction be affirmed. 494 419 Mich 458 Separate Levin, J.

Griffin was sentenced to concurrent sentences of kidnapping years 15 to 25 for 1. CSC prosecutor required Thus, if the were to elect and were to elect in Robideau to eliminate the robbery sentence on the armed convic- required tion, Robideau would be to serve 26-1/2 to years non-predicate robbery 40 for the armed con- concurrently, years and, viction 20 to 35 for CSC 1 2-year felony-fire- and a consecutive sentence for Bouknight A arm. quire Bouknight similar election in would re- years 8 to serve to 30 for the non- predicate rently, and, armed conviction concur- years 2-year

8 to 30 for CSC and the felony-firearm. Brown, consecutive term for the sentence for In if the CSC conviction based on a predicate felony were reduced to the maximum required sentence for CSC Brown would still be years kidnapping to rently, and, serve 20 to 40 for concur- years 20 to 40 the CSC conviction being weapon. Griffin, based on armed with a In prosecutor put however, the would be to an elec- 25-year tion between the 15- to sentence for kid- napping and a reduction of the sentence for the sexual assault to the maximum for CSC 3 or alternatively years 15 to 25 for CSC and elimina- kidnapping tion of the sentence. practi- events, all would, the defendants as a exactly days matter, cal serve same number prison exactly and have the same number felony convictions.8

Ill years ago, People Carter, Less than two 8 That a sentence in excess of the maximum for CSC based on a predicate felony predicate felony and a sentence for the would, think, constitute double more for the same offense I apparent if the sentences were consecutive. can, course, argue One that concurrent sentences do not consti- punishment, analysis tute double adopted by but that would be a new this Court or the United States Court. 495 People Separate Opinion Levin, J. (1982), 558, 582; Court, Mich 330 NW2d 314 this multiple punishment on review of its earlier deci People Martin, 303; in v 398 Mich 247 sions NW2d (On (1976), People Rehearing), 303 v Stewart 400 (1977), People 540; 256 Mich NW2d v Jankow (1980), e Peopl ski, 79; NW2d 674 and (1981), Wilder, 328; v 411 Mich 308 NW2d 112 Michigan’s Jeopardy that stated Double Clause protection jeopardy * * * offers "broader double than do Michigan However, the federal standards. emphasis is not on the theoretical elements of upon proof involved, the crimes but rather facts adduced at trial”.9 today

The Court "disavows” its earlier decisions they depart to the extent that from the United pronouncement States Court’s latest Hunter, Missouri v 673; 459 US 103 S Ct 74 L (1983), Ed 2d 535 which is without decisional support in that Court’s earlier decisions and is solely based on dictum.10 courts, This Court’s new test launches the trial Appeals, the Court of and this Court on an elusive legisla- search for clear or conclusive evidence of finding tive intent. In such evidence in the instant majority cases, the states that the circumstance test, Applying aiding that the Court concluded that the crimes of abetting conspiracy the commission of extortion and to commit factually theoretically independent, they extortion were were neither and that inseparably merely intertwined nor alternative routes creating liability Carter, for supra, for the substantive crime. pp 588-589. 10 Wayne County Judge, Prosecutor v Recorder’s Court 406 Mich Hunter, Legislature 280 NW2d 793 as in Missouri v indisputably punishment intended consecutive and there was that, disagreement Clause, no consistent with the Double it question Wayne County could do so. The Prosecutor was not Legislature constitutionally impose duplicative whether could norm, violating question for the same societal here presented, provid but whether it had chosen constitutional means of ing separate punishment violating for a different societal norm. 419 Mich Dissenting Kavanagh, crimes of armed kidnapping carry penalties maximum of life in prison, "very strongly suggests” as does CSC separate punish- intended predicate ments for CSC 1 and those crimes. This ignores predicate might felony that the 2-, 4-, be a 15-year felony unlikely 10- or and that it is separate punishment intended in re- spect to some felonies and not others and suggests the absence of clear or conclusive evi- provide dence of intent for cumula- separate sentencing. tive (dissenting). present J. These cases Kavanagh, question protection against the multiple punishment of the extent of the Jeop-

afforded the Double ardy person Clause1 to a convicted of both a crime underlying felony among which includes an its underlying felony. elements and of the same greater I would hold that conviction of both the felony upon proof crime and of the same which greater depends guaran- crime contravenes the against being placed tee twice for the same offense.

I Each defendant in these cases was convicted of degree criminal sexual conduct in the first involv- ing felony.2 prose- the commission of another person subject "No put shall be for the same offense to be twice jeopardy.” Const art 15.§ 750.520b(l)(c); 28.788(2)(l)(c), MCL provides: MSA which person guilty "A degree of criminal sexual conduct in the first if and if engages penetration he or any person she in sexual with another following of the circumstances exists: "(c) penetration involving Sexual occurs under circumstances felony.” commission of other Dissenting Opinion Kavanagh, prove offense, must, cution to establish the sexual penetration and its occurrence under circum- involving "any the commission of stances felony”. other

Contemporaneous with his conviction of first-degree conduct, criminal sexual each defen- convicted, count, in a dant was also supplied "any felony” other which ele- greater ment of the crime of Defendants contend that convic- sexual conduct. right to tions of both crimes violate their be free jeopardy. from double at

Herbert Robideau was convicted one trial of robbery, 750.529; two counts of armed MCL MSA possession during 28.797, of a firearm the commis- 28.424(2), felony, 750.227b; sion of a MSA MCL criminal sexual conduct. One of the counts of armed also served as the felony” "other to make the criminal sexual con- first-degree. Freddy duct Lee Brown was convicted in one trial of two counts of criminal kidnapping, sexual conduct and one of MCL prosecutor 750.349; MSA 28.581. The that concedes kidnapping count "concerns the same abduc- alleged” tion as that in the count for criminal sexual In conduct. addition to his conviction of kidnapping, Randall Dale Griffin was convicted of degree. criminal sexual in conduct the first Once again, kidnapping sepa- the same of which he was rately prove felony” convicted served to the "other element of criminal sexual conduct. Bouknight Chester was convicted of two counts robbery, felony-firearm, armed one count of one count of criminal sexual conduct in the first degree. supplied One of the armed counts felony” the "other element of criminal sexual degree. conduct in the first People Appeals The Court of in the v cases 419 Mich 458 498 Kavanagh, Dissenting Opinion 798; 308 Bouknight, App 106 Mich NW2d Brown, People v (1981), 58; App 105 Mich (1981), that convictions of held NW2d and its were greater underlying felony crime The two the Double Clause. barred that the offenses were the same concluded panels for the to prosecution it was necessary because to felony prove underlying elements conduct. Both prove first-degree sexual to find a clear panels expression were unable punish, intent and thus separately Prose- Wayne County opinion our in distinguished Judge, v Recorder’s Court 374; cutor 406 Mich (1979). Another of the Court of panel NW2d Robideau, People v in 94 Mich Appeals concluded (1980), 663; 289 that the two App NW2d any proper offenses were not the same because to prove first-degree would have sufficed panel persuaded, criminal sexual conduct. The was event, in ex- clearly an intent authorize pressed multiple convic- People v unpublished opinion tions. Griffin, Appeals the Court of dismissed defendant’s claim without jeopardy double discussion.

II The constitution shall provides person "No for the same twice subject put offense to be guarantees Const art 15. This jeopardy”. § that a person put shall not be twice jeopardy trials, offense, the same either at successive see Cox, People v 107 Mich 65 NW 283 Martin, trial, at one see 398 Mich 247 NW2d 303 placed To be placed to be in danger of conviction. Black’s Law (5th ed), p 749. two offenses Dictionary Whether are the question by compar- same is a determined Dissenting Opinion Kavanagh, ing the elements the offenses and the evidence prove used to their violation. cases,

In these defendants contend that convic- tions of criminal sexual conduct and of underlying felony jeopardy. the They constituted double argue

also has not clearly expressed an intent to authorize such mul- tiple convictions under these offenses. people, hand,

The on the other maintain that Legislature, enacting crimi- statute, nal sexual conduct did intend convictions greater underlying of both the crime and the felony. punish, separately This intent to people argue, dispositive of defendants’ dou- ble claims. people

The assert the Double prosecutors, Clause restrains courts and but does Legislature. not restrain the The reach of the guarantee constitutional is said to be co-extensive Legislature, with the intent of the because the Legislature possesses authority to define crimi- they nal Hence, conclude, offenses. whether these may simultaneously prosecuted defendants un- depends Legisla- der these statutes on whether the ture intended them to be.

Historically, jeopardy presented double itself in largely the form trials, successive because prevailing procedure Note, of the time. Jeopardy, Twice in Yale L J fn 13 early principle English The common protect against repeated prosecu- law served to acquitted tions. Once convicted, the defendant great power was freed of of the state. He could subjected again not be to it for the same offense. problem multiple prosecutions at one trial contemporary arising prolifera- is a one from the adopted legislatures. tion of criminal statutes 458 500 419 Mich by Dissenting Opinion Kavanagh, J. may statutes,

Particular conduct violate several giving prosecutors option charges.3 of several

Recognizing multiple charges simultane- prosecuted put ously may also a defendant in jeopardy offense, for the same the Court has en- meaning forced the substantive of the clause over supra, Thus, Martin, its historical form. in we held possession convictions in obtained one trial of delivery of heroin and of the same heroin contra- guarantee. vened may constitutional 'doubly "Defendant punished’ by convicting not be him of possession, necessary which in this case was a very delivery incident to the for which he was also p People Martin, convicted.” 309. See also v Stew- (On Rehearing), art 400 NW2d (1977). determining Jeop- the reach of the Double

ardy Clause, the differences between simultaneous multiple prosecutions prosecutions and successive major significance. underlying prin- are not of ciple The guarantee puniri is "nemo debet bis pro person ought pun- delicto”, uno that no to be notion, ished twice for one offense. This which can implicated be law,4 traced to Roman is in either successively context. A defendant simul- who taneously put jeopardy tried, is twice for one wrong may if the offenses of which he convicted are the same. precedent supports peo-

Neither nor reason ple’s contention that is not re- strained the Double Clause. Such problem accusations, multiple aspect "The as an assemblies, jeopardy, day, double monarchs, is more one of our own when * * * power. are in Protection of the accused became even significant severity more punishments when the number of crimes and the Sigler, History Jeopardy, were increased.” A of Double Legal Am J of His 4 Sigler, supra, p fn 3 283. Dissenting Opinion Kavanagh, reasoning requires unique circular construction government of an instrument which limits the surely all of its branches. It would render nugatory, clause for if intent is the governing principle, that would render the courts prosecutors impotent protection. to effect the importantly, people’s argu- however,

More ignores ment punishing the evil of double —that wrong. more than once for one people ignore power the historical shift from kings legislators to and the state of modern crimi- procedure. Sigler, History nal See A of Double Jeopardy, Legal 7 Am J of 283 His "Multi- ple prosecutions engender jeopardy do double con- present single prosecutions. cerns that are not * * * protection multiple punishment But from for the same offense lies at the core of the Double protection applica- Clause, and this is as single prosecutions Wayne ble to as to two.” County Judge, Prosecutor v Recorder’s Court (1979) 374, 410; NW2d 793 (Kavanagh, dissenting). J., Legislature

The is free to define offenses. The beginning point judicial resolution of whether Legislature’s two offenses are the same is the Legislative authority definition of an offense. to offenses, however, define does not mean that it may subject jeopardy a defendant to under two offenses which are the same. Nor it does mean legislative separately punish may intent legal is, turn effect, what one offense into two. Legislative disposi- informative, intent is but not question may tive, of the whether a defendant simultaneously charged with two offenses. The inquiry vital is whether the offenses are the same. Legisla- If offenses, however, as between two prosecution only them, ture intended under one of 419 Mich Kavanagh, Dissenting Opinion dispose of a double claim. But should or if the if intent is not clear punishments, a court must ex- intended identity. amine offenses although legislative power sum, In is broad square by Nei- it cannot make a circle definition. it make the same offense two different ther can Michigan Constitution. crimes under the

Ill people The contend that crimi- statute reflects a nal sexual conduct greater punish for both crime and intent underlying felony. We must decide whether conviction of the greater criminal sexual con- offense of underlying duct and conviction of the con- impermissible multiple punishment. stitute People Wilder, 328, 342; 411 Mich we reviewed convictions of first- NW2d degree perpetra- felony murder committed in the attempted perpetration tion or of a and of underlying robbery. offense two convic- together, tions and sentences could not stand we prove concluded, because "the evidence needed to first-degree felony underlying requires proof murder of they felony”, are

lesser included and so the same offense under the Double Clause.

First-degree involving criminal sexual conduct requires felony proof underlying another felony necessary as a element. The fact that felony leged felony suffices does not mean that al- p Wilder,

is not a lesser included offense. See challenged question "[T]he 345. is not whether the necessarily lesser offense is included definition People Dissenting Opinion Kavanagh, greater charged, within the offense also but whether, issue, on the facts of the case at it is.” People Jankowski, 79, 91; 408 Mich v NW2d (1980). presently Court,

In the cases before the defendants were convicted of criminal involving felony sexual conduct another and of the they very underlying felony. same To this extent placed offense, were twice for the same contrary 1, § 15. Const art underly-

Defendants’ convictions of the ing felonies should be vacated. Ap- Robideau,

In I would reverse the Court of peals part decision in and vacate one of the convic- robbery. tions of armed As for defendant’s other persuaded error, claims of rulings I am not to disturb the Appeals. of the Court of Appeals Brown, In the Court of found error requiring reversal one of Brown’s convictions of first-degree criminal sexual conduct. I would affirm Appeals the Court of first-degree if decision that retried for conduct, criminal sexual the defendant may separately underlying not be convicted of the felony kidnapping. appellant’s Griffin, convictions both first-

degree underly- criminal sexual conduct and of the ing kidnapping must be reversed. The asportation trial court’s instructions sufficient if it was either for the was purpose of abduc- tion or forcible sexual assault fail to conform to Barker, 307 NW2d sepa- remand, On defendant should not be rately convicted of sexual kidnapping. conduct and of holding Appeals of the Court of in Bouk- night should be it affirmed insofar as vacates one Bouknight’s robbery. convictions of armed

504 419 458 Opinion by Cavanagh, J. in

Cavanagh, (dissenting People v Brown J. cases, only). In these we are asked to determine whether convictions of sexual based on sexual penetration conduct under circum- involving any felony”, pursuant stances "other 28.788(2)(l)(c),1 750.520b(l)(c); MCL MSA and of the "other felony” violate either the federal2 or state3 prohibitions against constitutional double jeop- Kavanagh I ardy. agree my with brother multiple abridge such convictions do the state guarantee. constitutional On the same it day held the Double Jeop- ardy Clause of the Fifth applicable Amendment states, Benton v Maryland, 784, 395 US 793- 796; 89 S Ct 23 L Ed 2d 707 United States Court summarized protections afforded by that clause: protects against "It prosecution a second for the same acquittal. offense protects against after It a second 28.788(2)(1) 750.520b(l); provides MCL MSA as follows: (1) person guilty "Sec. 520b. A of criminal sexual conduct in the degree engages penetration first if he or she in sexual with another person any following and if circumstances exists: "(c) penetration involving Sexual occurs under circumstances any felony.” commission of other person capital, "No shall be held to answer to a or otherwise crime, presentment infamous unless on a or indictment of a Grand Jury, except forces, arising in cases in the land or naval or in the Militia, public danger; when in actual service in time of War or nor any person subject shall put be for the same offence to twice in be limb; compelled of life or nor shall be Criminal Case himself, against life, deprived liberty, to be a witness nor be property, taken for (emphasis process law; private property without due nor shall use, public Const, just compensation.” without US Am V added). jeopardy provision applica- The double of the Fifth Amendment is through ble to the states the Fourteenth Amendment. See Benton v Maryland, 784, 793-796; 395 US 89 S Ct L Ed 2d 707 provides pertinent part Const art § as follows: person subject put "No shall be for the same offense to be twice jeopardy.” Cavanagh, prosecution for offense the same after conviction. And it multiple against punishments protects for the same Pearce, v 711, 717; offense.” North Carolina US 395 89 (1969). 2072; Ct 23 L 2d 656 S Ed protections Those same were also known at com- (On Rehearing), mon law. v Illinois Bartkus 359 (1959) 121, 676; S 151-155; 79 Ct 3 L Ed 2d 684 US (Black dissenting), J., reh den 360 US 79 S Ct (1959); parte Lange, 1283; 3 L 1258 Ex Ed 2d (18 Wall) (1874). 163, 168-175; 21 US L Ed 872 Undoubtedly, these cases us deal before with the protection, against multiple punish- third ments for the offense.4 same

"Under such circumstances the Double operates protect receiving Clause to the defendant from punishment reality single double for what is in crimi- Jankowski, nal offense. 408 Mich (1980). NW2d cases, problem multiple "The punishment in in as cases, multiple prosecution is to determine whether the charges at issue constitute the 'same offense’ for double Carter, purposes.” People v 558, 415 Mich 577- 578; 330 NW2d 314 majority’s thorough As the review federal and scope appears reveals, state case law the what principle pro- seemingly simple be a to clear scribing multiple punishments the same offense currently is Nevertheless, unsettled and unclear. our task the remains same. We must determine 4Although right punishments multiple free from for the might right analyzed same offense process, be better as a inherent in due Const, XIV; 1963, 1, 17, portion US Am Const art or as a § right Const, punishment, to be free from cruel or unusual US Am VU3; 16, 1963, 1, Const art even as of the § one non-enumerated Const, rights, IX; 1, §23, see, individual generally, US Am art Const Drubel, Theory Westen & Toward a General of Double Jeopardy, necessary Court Review it is to alter analytic the traditional framework. 419 Cavanagh, meaning prohibitions of the constitutional specifically, proscrip- double

against jeopardy; for the same against multiple punishments tion doing, In so it serves us well recall offense. ago: made over 100 following years observations anything jurisprudence "If is settled there America, it England and lawfully punished for is that no man can be twice though the same offense. And application questions been nice of this there have charged rule to cases which come within act was such as to statutory the definition of more than one offense, more than one its entire and second bring jurisdiction party or to within the of doubt of court, there has never been complete protection party when a court, proposed in the same on facts, statutory the same for the same offense. [i.e., very clearly spirit "It is the of the instrument prevent punishment under to a second constitution] crime, judicial proceedings so far as the for the same gave protection. common law protection "For of what avail is the constitutional against more than if can number one trial there pronounced Why of sentences on the verdict? is it same that, having guilty, he can once been tried and found again Manifestly never not the it is be tried for that offense? danger jeopardy being of of a second time found It guilty. punishment legally is the that would follow danger guarded the second conviction which is the real if, against judgment has by the Constitution. But after conviction, been that rendered on the and the sentence criminal, judgment on the he can be executed again sentenced on to another and that conviction punish- punishment, different ment a any as much violated as if a new trial had been had a second or to endure the same time, second is the constitutional restriction spirit value? Is not its intent and its in such a case and, on conviction, a second inflicted? irresistible, argument "The seems to us and we do People 507 Cavanagh, designed as much to the Constitution was doubt that punished for being from twice prevent the criminal being (Empha- tried it.” as from twice same offense added.) 170, 168, Lange, pp 173. supra, sis have retained their foregoing observations meaning this and are true of the vitality day to e.g., People Wilder, v See, 1963, 1, 15.5 art Const § reh den 328, (1981), 350; 308 112 411 Mich NW2d (1981). Mich 1157 411 view, protection double jeopardy my for the same offense

against multiple punishments .6Indeed, cases now before us encompasses and like present like these those situations supra, Wilder, underlying or offense greater compound is included within the always on a conviction.7 To offense which relies it for 5 prohibition present language Although constitutional of our against to almost found in the double identical (but 1850, 6, 2, 1908, 14; Const art § federal constitution cf. Const art 29; 1835, 12), 1, that our art this has never stated Const Court § current § Rather, provision protections. merely we mirrors the federal against jeop prohibition double have that our found constitutional protection ardy applied greater the Fifth Amendment as affords than does See, e.g., People through v to the states the Fourteenth. 105-106, (1983); Wakeford, 95, 9; People v Mich fn 341 NW2d 68 418 Carter, Wilder, 582-584; (1982);People v 330 415 Mich NW2d 314 328, 343-349; reh 411 Mich 1157 411 Mich (1981); (1980); course, 308 NW2d 112 den 91-92, Jankowski, People v NW2d White, Of 390 Mich NW2d part has due our reliance on the state constitution been scope clearly Court’s define United States failure jeopardy protections. Fifth Amendment double scope corresponding Fifth Amendment double Since the unclear, interpreta jeopardy protection is this rests on the discussion 1963, 1, art 15. tion Const § 7 unimportant "legally” "factually” so is to our Whether that is or Indeed, Wilder, by necessary implica analysis. tion, pp supra, 345-347. See compound has element other enumerated offense which as an 28.548, offenses, murder, 750.316; e.g., felony MSA or other MCL conduct, 750.520b(l)(c); offense, e.g., sexual MCL alternative, 28.788(2)(l)(c), element, MSA the the in that in the all includes i.e., offenses, of all of each offense or other elements enumerated predicate "legally” necessarily offenses or lesser included are course, necessarily predicate not offenses. if offenses are Of even 458

508 419 Cavanagh, Carter, supra, pp 588-589, paraphrase these offen- are factually theoretically indepen- ses not rather, dent; are they inseparably intertwined. necessarily supplies indispensable Each offense an Thus, element of the impose punishments other. to for both offenses amounts im- constitutionally permissible punishments multiple the same offense. so startling departure

To hold not a from Rather, all, prior departure law. it is not a at but from is derived on logically prior and based our Carter, Wilder, supra, pp 577-589; decisions. See supra, pp Wayne County Prosecutor 341-352; v Judge, Recorder’s Court 374, 405-412; 406 Mich (1979) (Kavanagh, J., 280 NW2d 793 dissenting), den reh dis nom 406 Mich 1127 app sub Brintley Michigan, v 948; US 100 S Ct Jankowski, L Ed 2d 317 (1979); People v 408 Mich 79, 85-93; 289 (1980); People v Stewart NW2d 674 (On Rehearing), 548-549; 400 Mich 256 NW2d People Martin, (1977); v 303, 307-310; 398 Mich Cook, (1976); NW2d 236 Mich 333, 335-338; 210 NW 296 Accordingly, we 1, 15, since are interpreting Const art I § would reaffirm the test set forth in those cases which courts in this state are to when employ determining whether two offenses same are the i.e., offense for purposes, double if one jeopardy offense is necessarily cognate or lesser included another, offense of they are same offense for purposes prohibition state constitutional against double jeopardy.8 compound offense, proof included in the needed establish the compound offense, i.e., require always proof predicate will offense of a cognate "factually” the offenses. offenses are lesser included Since the United Court States has enunciated a constitutionally analyzing based test for use Fifth when Amendment issues, Hunter, double see Missouri v 459 US 103 S Ct People 509 Robideau v by Opinion Cavanagh, J. cognizant oft-stated maxim that the I am the has power the exclusive to define legislative body e.g., See, Wayne punishments. fix offenses Prosecutor, v supra, pp 391-392; County Wakeford, 95, 108, 111; 341 68 418 NW2d Nevertheless, (1983). not power any does body honoring the exempt the from way against prohibition double state constitutional must the same extent as the other jeopardy i.e., government, it is bound to coequal branches all afforded constitu- protections by honor the Indeed, guarantee.9 words contained tional application do limit their the constitution not branch or any particular branches:_ States, 333, (1983); 673; US L Ed 2d 535 Albernaz United L Ed 450 340-342; 1137; (1981); 2d 275 Whalen v United 101 S Ct 691-692; 1432; States, we 445 US 100 S Ct 63 L Ed 2d 715 reviewing adopt free to our own test when such claims. are addition, prevent creating a us from federal constitution does not guarantee interpreting jeopardy test of our different own tion when the double constitution, prohibi- prevent it nor does the state constitutional protection against jeopardy affording greater than double from prohibition. Fifth does the Amendment course, abridge theoretically, legislative body can riever Of i.e., jeopardy protections, the mere enact state constitutional double purport those ment of which to authorize violations of statutes Rather, protections do those not in fact amount to such violations. subsequent prosecutor protections a violated until a institutes are not prior acquittal prosecution or until a court Hence, for the same offense after conviction or imposes a the same offense. second sentence for following by States observations United Court: princi- jeopardy guarantee Amendment serves Fifth double "[T]he legislature pally mains free under the Double prosecutors. re- on as restraint courts and fix crimes and Clause to define may punishments; impose legislature not courts but once has acted prose- punishment offense and more than one for the same ordinarily may attempt not in more 53 L Ed cutors to secure that Ohio, S Ct than one trial.” Brown v 2d 432 US 334-344; Hunter, Albernaz, supra, supra; pp Cf. Whalen, supra, pp 688-695. Nevertheless, purport which to authorize violations of statutes prohibition against protections afforded the state constitutional violations will double will be construed so that such will occur or be declared unconstitutional. 419 Mich 458 Cavanagh, person subject "No shall be same offense to be put jeopardy.” twice To would improper hold otherwise constitute an judicial creating power, something use out of nothing, finding a limitation which has no basis in law, fact, making or logic, by judicial law ñat. "If Jeopardy imposed the Double Clause no restric- legislature’s power a to multiple tions on punishment, convictions that a State could authorize there be limit to would no the number of on obtain the basis of the act, mind, same free to create state of and A result. State would be substantively differing identical crimes name, only greater in or to create a series of and lesser- offenses, included offense with the first crime a lesser-included second, of the the second a lesser-included of- third, the fense of and so on. considerations, light "In of these Jeopardy the Double reasonably interpreted Clause cannot latures legis- to leave completely free to subject defendant to the multiple risk criminal single of on the basis of a prosecu- transaction. In the of multiple context tions, it is phrase well established the 'the same in independent offence’ the Jeopardy Double Clause has content —that two crimes that satisfy do Block- burger Double intent test constitute 'the under same offence’ Jeopardy legislature’s regardless Clause to treat them as offenses. Otherwise prosecutions multiple permissible would be whenever legislature. long authorized The Court has as- Blockburger sumed that the is test also a rule consti- cases, multiple punishment tutional stature in and I would not prohibition hesitate to hold that it is. If the against being put in jeopardy’ 'twice for 'the same provide meaningful protection, offence’ phrase 'the same offence’ independent must have content state punishment multiple prosecution law both multiple cases. Since Double Clause power government, limits the ing of all branches includ- legislature, there is no more reason treat simply test as of statutory a rule construction multi- Cavanagh, multiple be in than there would pie punishment cases Hunter, 359; Missouri v US prosecution cases.” (1983) (Marshall, J., dissent- 74 L Ed 2d 535 S Ct Prosecutor, supra, pp 410-411 Wayne County ing). Also J., J., dis- dissenting), pp 414-417 (Levin, (Kavanagh, senting). multiple prevent not necessarily a view does Such in a committed multiple offenses punishments Wakeford, fn 7. supra, Cf. single transaction. Rather, single multiple as as transaction long under factually distinct legally offenses are forth, set the state constitu- previously test as does not against double prohibition tional multiple to the imposition as bar operate where punishments. infrequent in those cases Only are the same offense reality two offenses are multiple punishments prohibited. event, legis- these do not involve a cases protection

lative breach of the state constitutional offense, multiple for the same against punishments i.e., unequivo- clearly has not both punishment authorized cally penetra- criminal conduct based on sexual sexual involving under "other any tion circumstances Rather, "other these felony” felony”.10 the protection, cases involve of that judicial a breach majority’s premised specious contrary conclusion to is on Ante, pp reasoning. that 490-491. The observation armed along kidnapping "normally sexual occur with Rather, improperly speculative. just likely it is that conduct” predicate felony as breaking entering larceny-related or a will be a However, punishments carry noof offense. more than the those offenses maximum Thus, years’ person imprisonment. a can be faced with greater imposed solely risk that a as will 750.520b(l)(c); pursuant MSA result of a conviction to MCL 28.788(2)(l)(c). reasoning, Legisla Accordingly, majority’s punishments impose ture intended to double because the offenses, co-equal by weight. are falls own The bases felonies its persuade expres majority find do not me to a clear advanced legislative sion of intent. doubt, entirely "To the extent intent is not free 419 Mich ' Cavanagh, imposition

i.e., of a second sentence for the same offense. summary, I would reaffirm the test set forth prior in our decisions which courts in this state employ determining are to when whether two jeopardy offenses are the same offense for double purposes, i.e., necessarily if one offense is a or cognate lesser another, included offense of it is the purposes same offense for of the state constitu- prohibition against tional double embod- 1963, applying ied Const § art 15. When cases, test to these it is clear that convictions of first-degree criminal sexual conduct based on sex- penetration involving ual under circumstances felony”, pursuant 750.520b(l)(c); "other to MCL 28.788(2)(l)(c), felony” MSA and of the "other vio- prohibition against late the state constitutional jeopardy, specifically, protection double to be multiple punishments free from for the same of- fense. In predicate underlying cases, these and similar or always

offense is included within the greater compound offense which relies on it for Consequently, imposing punishments a conviction. constitutionally for both offenses amounts to im- permissible multiple punishment for the same offense._ the doubt lenity. must be resolved in favor of See Whalen v United States, 684, 694; 1432; 445 US (1980); 100 S Ct 63 L Ed 2d 714 Simpson States, 6, 14-15; v 909; United 435 US

. 98 S Ct 55 L Ed 2d 70 (1978); Bass, 336, 347; 515; United States v 404 US 92 S Ct 30 L Ed 2d (1971).” People Wilder, 488 (1981), v 411 Mich 308 NW2d 112 (1981). Also, Wilder, reh den 411 supra, pp Mich 1157 364-365 (Ryan, J., concurring); People Carter, 558, 589, 415 Mich fn NW2d 314 11Although prohibition against the state jeop constitutional double ardy prevent prosecutor does not instituting single a prosecu from charging person tion obtaining guilty with both offenses or from charges verdicts on prosecution, both may impose in that a court pursuant However, sentences course in See to both verdicts. note that the better prosecutor charge such cases is for the in the alternative. Wilder, supra, pp 352-353; Jankowski, supra, pp 92-93. Robideau Cavanagh, the Court the decision affirm I would on remand. Appeals its directions Brown and only participated the decision J., Cavanagh, Brown.

Case Details

Case Name: People v. Robideau

Court Name: Michigan Supreme Court

Date Published: Sep 18, 1984

Citation: 355 N.W.2d 592

Docket Number: Docket Nos. 64548, 64549, 66010, 67114, 67760. (Calendar Nos. 4-7)

Court Abbreviation: Mich.