Lead Opinion
In each of these consolidated cases, we
i
FACTS
Defendants Mark A. Sturgis and Charles Wesley Kester were convicted by juries in unrelated trials оf felonious assault, MCL 750.82; MSA 28.277, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon, MCL 750.227; MSA 28.424. The evidence presented at Sturgis’ trial was summarized by the Court of Appeals as follows:
The prosecution’s main witness was a security guard at a lounge. He testified that he learned that the defendant had a gun, he called the police, and then approached the defendant, who was in front of the lounge. The guard stated that he told the defendant to keep his hands where they could be seen, and that defendant then lifted his jacket and pulled out a gun. The guard then ducked behind a nearby car, the defendant ran across the street, and the guard gave chase. The guard testified that defendant turned around and fired one shot at him. Defendant, in his testimony, admitted that he was carrying a concealed gun without alicense when he went to the lounge. However, defendant stated that when the security guard approached him he told him he wasn’t going to do anything and began to pull out the gun from under his jacket only with the intention of giving the gun to the guard. Defendant also testified that he ran off when the guard ducked behind the car, admitted that he fired his gun into the air, but denied having fired at the security guard. [ 130 Mich App 54 , 59;343 NW2d 230 (1983).]
The Court of Appeals affirmed defendant Sturgis’ conviction. We granted leave to appeal.
The evidenсe presented at Kester’s trial indicated that on March 10, 1981, Kester assaulted Richard Matonican, the bartender and cook at the Steinhaus II Bar, with a gun. Matonican’s corroborated testimony indicated that he had told defendant and the group defendant accompanied that they would have to leave because they were being too loud and were breaking glasses. A tussle then ensued between Matonican and one of the men.
When Matonican turned around, he saw the defendant pointing a gun at the floor. Defendant then raised the gun in the air and waved it around stating, "Back off,” and "This is real.”
He fired the gun at the floor, pointed the gun at Matonican’s head, and asked him if he wanted to die. The defendant then left the bar by himself. Police Officer Robert Kluwe testified that when he arrived at the bar, defendant was heading toward the back door. At that point, the officer did not see defendant’s hands. He chased the defendant into the parking lot where he noticed that defendant was not holding a gun. After he told defendant to stop, defendant moved his hand to his front waist area, and swung it sideways, throwing the gun to his right. Defendant was then apprehended and
Defendant testified that he took the gun from Pattie Blackwell and fired а shot into the floor after the bartender had pushed Dennis Hyde’s hand down, breaking a glass when Dennis tried to finish his drink. Most of this testimony was corroborated by Dennis Hyde and his wife, Cynthia.
Defendant denied pointing the gun at the bartender or asking him if he wanted to die. Defendant also denied concealing the gun, testifying that as he left the bar he held the gun in front of himself. Six or seven steps outside the door, he tossed the gun away because he was on parole and did not want to get caught with it.
In an unpublished per curiam opinion, the Court of Appeals . affirmed defendant’s convictions for felonious assault and carrying a concealed weapon, but reversed and vacated the felony-firearm conviction. We granted leave to appeal.
ii
Among the protections afforded by the Fifth Amendment guarantee against double jeopardy are a protection against successive prosecutions for the "same offense,” and a separate protection against multiple punishment for the "same offense.” Ex parte Lange, 85 US (18 Wall) 163;
The second protection, that is, the protection against multiple punishment for the same offense, is designed to ensure that courts confine their sentences within the limits established by the Legislature. The scope of each protection is determined by the definition of "same offense,” a phrase which is "deceptively simple in appearance but virtually kaleidoscopic in application.” See Whalen v United States,
It is clear, however, that the term "same offense” applies to overlapping conduct that violates more than one statute, Brown v Ohio,
The constitutional protection against multiple prosecutions is a guarantee "that the State with all its resources and power [shall] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compel
By contrast, the constitutional protection against multiple punishment is a restriction on a court’s ability to impose punishment in excess of legislative intent. The Court can enforce the constitutional prohibition against multiple prosecutions through judicial interpretation of the term "same offense” as intended by the framers of the constitution. Judicial examination of the scope of double jeopardy protection against imposed multiple punishment for the "same offense” is confined to a determination of legislative intent. In the latter case, the core double jeopardy right to be free from vexatious proceedings is simply not present, People v Robideau, supra, 485. Since the power to define crime and fix punishment is wholly legislative, the clause is not a limitation on the Legislature, Whalen v United States, supra, 700, and the only interest of the defendant is in not having more punishment imposed than intended by the Legislature, People v Robideau, supra, 485. Thus, "[e]ven if the crimes are the same, ... if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end,” Ohio v Johnson,
Both the United States Supreme Court and this Court have stated that in the context of multiple punishment at a single trial, the issue whether two convictions involve the same offense for purposes of the protection against multiple punishment is solely one of legislative intent. Missouri v
In Michigan, the term "same offense” for purposes of the protection against multiple prosecutions is defined by the "same transaction test” which requires the prosecution, except in limited circumstances, to join at one trial all the charges against a defendant which grew out of a continuous time sequence and display a single intent and goal.
The United States Supreme Court has "steadfastly refused” to adopt the single transaction view of the Double Jeopardy Clause, Garrett v United States, supra. Thus, under federal double jeopardy precedent, a second prosecution would violate the first prong of jeopardy protection only where it is for the "same offense.” Compare Brown v Ohio, supra,
While the same transaction test is an appropriate procedural protection against successive prosecutions, if applied to simultaneous prosecutions, it may frustrate a legislature’s legitimate right to determine that a single act or transaction violates distinctly protected social values, each of which should be separately punished. For example, although it is clear that successive prosecution of an underlying felony and a sexual offense would be precluded under People v White, in Robideau this Court determined that the distinct social harms of nonconsensual sexual penetratiоn and the underlying felony indicated a legislative intent to authorize multiple punishment in a single prosecution.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same” conduct under Blockburger [v United States,284 US 299 ;52 S Ct 180 ;76 L Ed 306 (1932)], a court’s task of statutory construction is at an end and the prosеcutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
In Wayne Co Prosecutor v Recorder's Court Judge,
In sum, where the issue is the propriety of multiple punishments in a single trial, our obligation is to determine what punishment the Legislature has authorized.
The objective is easily articulated, but more difficult to achieve. Both this Court and the United States Supreme Court have at various times employed different and seemingly inconsistent analyses to the issue. At times, a "required evidence” test has been employed. This test asks whether, in the abstract, each statute requires proof of a fact which the other does not, Blockburger, supra; Wayne Co Prosecutor, supra. In other cases, an actual evidence approach has been used. This test focuses on whether the same proofs were used at trial to make out the elements of each offense. People v Martin,
This Court has now clearly rejected the actual evidence factual double jeopardy test, and the "wooden application” of Blockburger, in favor of
We find that in the case sub judice the Legislature clearly intended to authorize punishment over and above, and in addition to, that otherwise provided, where a defendant carried a weapon in the course of a felony. We conclude that a con
The only issue before us is whether the Legislature has authorized both a concealed weapon conviction and a felony-firearm conviction growing out of the same criminal episode.
The felony-firearm statute provides:
(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 [carrying concealed weapons] or section 227a [unlawful possession of pistols by licensee], is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.
(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1). [MCL 750.227b; MSA 28.424(2).]
In People v Morton,
In Wayne Co Prosecutor v Recorder’s Court Judge, supra, 389, we noted that the language of the felony-firearm offense specifically requires a sentence "in addition” to the underlying felony and "is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes,” such as the habitual criminal statute. The language and structure of the statute thus contain no indication that the Legislature intended that a felony-firearm offense was a sentence-enhancement statute which precluded the charging and cоnviction of separate offenses.
The legislative history of the statute also reflects a commitment to reach all but the excepted felo
During the pendency of House Bill 5073, the bill which embodied the felony-firearm statute, an unsuccessful attempt was made to substitute a list of enumerated felonies to which the statute would apply. See 1975 Journal of the House 1267-1268; 1975 Journal of the House 5264. Unsuccessful attempts were also made by the Senate to limit the statute by applying the statute only to possession of a firearm during those felonies involving the "actual or threatened destruction or taking of property, or the injury or threatened injury to a person,” and by excluding negligent manslaughter and negligent homicide. 1976 Journal of the Senate 50-51. The history of the statute thus evidences no indication of lenity on the part of the Legislature in respect to weapon offenses.
Finally, the statutes clearly have distinct social purposes. The prohibition against carrying a concealed weapon was not part of the common law, but was enacted as a strict-liability offense, Torcia, Wharton’s Criminal Law (14th ed), § 23, pp 106-107, whose purpose is to discourage persons from carrying a concealed weapon. See
The Legislature has clearly expressed its judgment that carrying a firearm during any felony which may, but need not necessarily, involve the carrying of a firearm, entails a distinct social harm inimical to the public health, safety and welfare .... [Wayne Co Prosecutor v Recorder’s Court Judge, supra, 391.]
These stаtutes are directed at distinct evils and support the conclusion that the Legislature intended to permit multiple punishments for felony-firearm and concealment of a weapon even where there is only one possession of a weapon.
We have rejected the contention that we are constitutionally bound to apply the Blockburger test. We note, however, that asking the Blockburger question, "whether each provision requires proof of a fact which the other does not,” Whalen v United States, supra, 711 (Rehnquist, J., dissenting) (emphasis added in text), may be helpful in determining whether there are two offenses or only one, because this inquiry is really a "rough proxy” for analysis of the essential issue. "[B]y asking whether two separate statutes each include an element the other does not, a court is really asking whether the lеgislature manifested an intention to serve two different interests in enacting the two statutes.” Id., 714.
The conduct made punishable under the felony-firearm statute, is not the mere possession of a firearm. Rather, it is possession of the firearm during the commission of or attempt to commit a felony that triggers a felony-firearm conviction. The conduct made punishable by the concealed weapon statute is likewise not the possession of a firearm, it is the carrying of a weapon, concealed. Each statute is directed at a distinct object which the Legislature seeks to achieve through the imposition of criminal penalties. Where the act giving
To hold that a defendant could not be convicted of felony-firearm under these circumstances would be in clear contradiction of legislative intent. It would amount to saying that a defendant could avoid the clear intent of the Legislature that a person be subjected to a separate and distinct minimum penalty, if that person simply took the precaution of concealing the weapon sometime during the criminal transaction. We conclude that the history, language, and structure of the statutes indicate that felony-fireаrm and concealed weapon offenses are distinct offenses which may be separately punished in a single trial when the concealed weapon offense is not the predicate of the felony-firearm offense.
Finally, we are not presented here with a situation in which it appears that the prosecution has artificially bifurcated a single crime "into a series of temporal or spatial units,” Brown v Ohio, supra, 169, as we might be were the prosecution to have brought two concealed weapons charges, one based
We agree with the Sturgis panеl that defendants’ convictions of felony-firearm, carrying a concealed weapon, and felonious assault must be affirmed.
In People v Sturgis, the judgment of the Court of Appeals is affirmed. We reverse the Court of Appeals decision in People v Kester as to the vacation of Kester’s felony-firearm conviction and reinstate the conviction. In all other respects, the
Notes
Compare People v White,
Decisions of the United States Supreme Court illustrate that the issue whether conduсt is to be deemed a single offense for which only a single penalty can be imposed, or a series of acts which can be punished separately, is to be determined by the intent of the legislature. Compare Ebeling v Morgan,
In Brown v Ohio, supra, the Court concluded that joyriding and auto theft, as defined by the state court, constituted the same statutory offense under the Double Jeopardy Clause. The Court carefully noted, however at p 169, n 8, "We would have a different case if the Ohio Legislature had provided that joyriding is a separate offense for each day in which a motor vehicle is operated without the owner’s consent.” Thus, whether conduct violating several statutes is to be considered one unit of conviction or several discrete and separately punishable acts depends entirely on what the Legislature intended the unit of conviction to be as measured by the language and structure of the statutes, Brown, supra, and the history and purposes of the offenses, Gore v United States,
The requirement of joinder of all offenses in the same transaction appears to apply only to acts occurring in a continuous time sequence characterized by a single intent. The presence of one without the other would not require joinder. Crampton v 54-A Dist Judge,
Although multiple punishment doctrine is not a substantive limitation on the Legislature, the Eighth Amendment is a direct limitation on the power of the Legislature. See, e.g., Solem v Helm,
This Court explained in Robideau, supra, 484-485:
As a means of determining [legislative intent] we find the Blockburger test to have questionable status in the Supreme Court of the United States and find the propriety of its use in any case to be questionable. When applied in the abstract to the statutory elements of an offense, it merely serves to identify true lesser included offenses. While it may be true that the Legislature ordinarily does not intend multiple punishments when one crime is completely subsumed in another, Blockburger is of no aid in making the ultimate determination. Although its creation of a presumption may make a court’s task easier, it may also induce a court to avoid difficult questions of legislative intent in favor of the wooden application of a simplistic test.
In rejecting Blockburger, this Court seems to have anticipated a similar reaction by the United States Supreme Court where the plain intent of the Legislature is ascertainable from the face of the statute and legislative history:
The rule stated in Blockburger was applied as a rule of statutory construction to help determine legislative intent. Significantly, after setting out the rule, the Court cited a paragraph in Albrecht [v United States,273 US 1 , 11;47 S Ct 250 ;71 L Ed 505 (1927)], which included the following statement: "There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction” (emphasis added). We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislаtive history. Missouri v Hunter,459 US 359 , 368 (1983); Albernaz v United States,450 US 333 , 340 [101 S Ct 1137 ;67 L Ed 2d 275 ] (1981); Whalen v United States,445 US 684 , 691-692 (1980). Indeed, it would be difficult to contend otherwise without converting what is essentially a factual inquiry as to legislative intent into a conclusive presumption of law. [Garrett v United States, supra, 471 US —;85 L Ed 2d 771 -772.]
The Court of Appeals in Kester did not analyze the facts of that case, but simply stated its belief that defendant’s convictions of both carrying a concealed weapon and felony-firearm arising out of one criminal transaction were constitutionally infirm on the basis of the prior Court of Appeals decision in People v Carter,
In Carter, the defendant was convicted of carrying a concealed weapon, possession of heroin and felony-firearm arising from one criminal incident. The Court of Appeals vacated the defendant’s carrying a concealed weapon conviction "[bjecause the Legislature has not clearly authorized separate convictions for both carrying a concealed weapon and felony-firearm based on one possession of a firearm . . . .” Id., 705. The Court of Appeals reasoning in Carter appears to have been influenced by the concept of factual double jeopardy, see, e.g., People v Martin, supra; People v Stewart, supra, holding that where the facts of a transaction did "double duty” in supplying proof of elements of distinct offenses, multiple punishment was рrecluded under the Michigan Constitution’s Double Jeopardy Clause. "Factual Double Jeopardy” was rejected in the context of a single statute, multiple punishment case in People v Wakeford, supra, 108-112, where the Court concluded that a single course of conduct involving separate armed robberies of two cashiers in a grocery store permitted multiple punishment because the "unit of prosecution,”
The result in Carter may also have been affected by the Court’s adoption of the "same transaction” test for multiple prosecution in People v White, supra. But the definition of "same offense” for purposes of multiple prosecution is distinct from the definition of "same offense” for purposes of multiple punishment. As we noted in Wakeford, supra, 104, n 7: "We have never held, as a matter of state or federal constitutional law, that only one conviction may result, for example, from the rape, robbery, kidnapping, and murder of victim A, or from the murders of victims b, c and d, even if the charges must be brought in a single trial under the 'same transaction’ test. ... It would offend rationality, as well as our sense of equal justice, to require treatment of one defendant committing a single crime identically with another defendant committing four counts of the same crime [or four separate crimes within] the 'same transaction.’ ” The result in Carter is erroneous.
It has been noted that facial application of the Blockburger test is inadequate to protect against multiple prosecutions and punishments in light of the vast number and variety of state and federal criminal statutes. Thomas, supra, 36; Comment, Statutory implementation of Double Jeopardy Clauses: New life for a moribund constitutional guarantee, 65 Yale LJ 339, 349 (1956) (under the Blockburger test "there is little to prevent prosecutors from planning cases, framing indictments and selecting evidence in such a manner as to secure innumerable prosecutions of the same defendant for the same criminal activity”).
The preliminary Model Penal Code proposed that these concerns be met by adoption of the following rules:
General Provisions
Section 1.07. Method of Prosecution When Conduct Constitutes More than One Offense.
(1) Prosecution for Multiple Offenses; Limitation on Convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in Subsection (4) of this Section; or
(b) one offense consists only of a conspiracy or other form of preparation to commit the other; or
(c) inconsistent findings of fact are required to establish the commission of the offenses; or
(d) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(e) the offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
Dissenting Opinion
(dissenting). The felony-firearm section of the Penal Code provides that "[a] person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227” (emphasis supplied), is guilty of the offense, and shall be imprisoned for two years.
Although the felony-firearm section excepts carrying a concealed weapon, defendants Mark A. Sturgis and Charles W. Kester were convicted in separate trials of felonious assault,
In holding that the Legislature intended that a person could be convicted of both felony-firearm
In every case where the offense of felony-firearm is committed, the defendant will, however, have committed, while carrying or possessing a dangerous weapon, a predicate felony other than the felony of carrying a concealed weapon.
It will be a rare case indeed when a defendаnt, guilty of felony-firearm, will not also have carried the firearm "concealed on or about his person” and thus also have committed the felony of carrying a concealed weapon.
The majority’s construction deprives the statutory exception respecting the offense of carrying a concealed weapon of operational meaning except in the atypical case where the firearm was not at any time during the criminal episode concealed on or about the person of the offender, is contrary to the spirit of the statute, and serves no purpose other than to provide still another area for plea bargaining and to increase the maximum sentence that may be imposed in respect to an underlying offense from four to five years where, as in the instant cases, the maximum sentence for the predicate felony is a relatively low four years.
MCL 750.227b; MSA 28.424(2).
MCL 750.227; MSA 28.424.
MCL 750.82; MSA 28.277.
The maximum sentence that may be imposed for carrying a concealed weapon is five years. See n 2. The maximum sentence that may be imposed for felonious assault is four years. See n 3 and MCL 750.503; MSA 28.771. The sentences for both offenses run concurrently.
Concurrence Opinion
(concurring). I concur in the result reached by the majority because I agree the convictions here involved do not violate double jeopardy. I write separately only to note my continuing disagreement with the rule announced in People v Robideau,