ord I, Michigan Supreme C0urt
e Lansing, Michigan
July 29> 2005 Clifford W. Taylor
Chief Justice
Michael F. Cavanagh
l 2 6 5 3 8 Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE ()F MICHIGAN, Sf€ph<’»_fl J - Mal'kmall
Plaintiff-Appellant, J“Stl°@$
v SC: 126538
COA: 242376
Wayne CC: Ol~OIOOSS-()l
l\/IARIO CURVAN,
Defendant-Appellee.
/
On order of the Court, leave to appeal having been granted and the Court having
considered the briefs and oral arguments of the parties, that portion of the order of
November 4, 2004 which granted leave to appeal is VACATED and leave to appeal is
DENIED, because we are no longer persuaded that the questions presented should be
reviewed by this Court.
KELLY, J., concurs and states as follows:
l agree with the decision to vacate this Court’s order granting leave. l write only
because Justice Corrigan’s dissent evokes a response. lt pictures a parade of horribles
that she envisions if People v Wz`lderl and People v Hardz`ngz are not overturned. l
believe that her concerns are unrealistic.
First, neither the Wz`lder approach nor that advocated by Justice Corrigan changes
the incentive for a defendant who kills someone during a robbery to engage in a crime
spree. The incentive is the same under either theory. lt is true that the defendant will be
imprisoned for life with no possibility of parole regardless of whether he commits
additional crimes. However, all capital crimes, once committed, arguably create the same
"incentive" for a wrongdoer to blaze a trail of terror.
Additionally, the argument that a guilty person would go free is incorrect. First,
her statement that a defendant is free from "any possibility of conviction" for the
‘4111\41@11 323 (1931).
2 443 mich 693 (1993).
underlying crime is inaccurate. A prosecutor may bring charges and a jury may convict a
defendant of the underlying crime. Any vacation of the punishment for that underlying
crime occurs only after the conviction. Second, it is most infrequent that a federal court
grants habeas corpus relief. lt is even rarer that relief is granted on a finding of
insufficient evidence of a felony murder but sufficient evidence of the underlying felony.
But if that should happen, the defendant would not then walk the streets, a free
individual, never paying the price for his crime. Rather, we can reasonably expect that
the prosecutor would act promptly to obtain reinstatement of the conviction of the felony
that served as the predicate for the felony-murder conviction. We should not expect that
the prosecutor would fail in his or her duty to act with dispatch. The action we can
anticipate from the prosecutor would prevent a defendant from walking free.
ln short, despite lustice Corrigan’s fear that a guilty individual may go free,3 it
appears that such an event would never occur.
WEAVER, J., dissents and states as follows:
l dissent from the order to vacate this Court’s previous order, which granted leave
to appeal,‘l and to deny leave to appeal in this case. l would decide this case.
ln deciding this case, l would adopt the concurrence/dissent of Justice Riley in
People v Hardz`ng, 443 Mich 693, 721-734 (1993), as the proper approach for double
jeopardy claims involving multiple punishments. Under that approach, l would conclude,
like Justice Riley, that double jeopardy principles do not prohibit sentencing defendant
for both felony murder and the underlying felony of armed robbery because the
Legislature intended to allow dual punishments for both crimes. Therefore, l would
overrule People v Wilder, 4ll l\/lich 328 (1981), and People v Harding, supra, and l
would reverse the Court of Appeals vacation of defendant’s armed robbery conviction.
CORRIGAN, J., dissents and states as follows:
l must respectfully dissent from the majority’s decision to vacate this Court’s
order granting leave to appeal and to deny leave to appeal.
3 This reasoning can be dubbed argumentum ad baculum, an appeal to force or fear. The
Latin term literally means "argument to the stick." The argument contains a fundamental
fallacy along with an implied threat.
" 471 Mich 914 (2004).
ln recent years, this Court has attempted to articulate coherently the meaning of
our state analogue to the federal double-jeopardy provision. For example, in Peaple v
Nutt, 469 Mich 565 (2004), we clarified that the Blockburgerj same-elements test should
be used to discern whether two offenses that have been prosecuted successively are the
same. Earlier this term, in Peaple v Davis, 472 Mich l56 (2005), we held that the
double-jeopardy prohibition does not preclude a prosecution in Michigan following a
prosecution by another state for the same criminal acts because each state derives its
authority to punish from distinct sources of power.
This case provides an opportunity to further clarify the appropriate method of
analyzing double-jeopardy claims. ln People v Wilder, 41 l Mich 328 (1981), and People
v Hardz`ng, 443 Mich 693 (1993), this Court announced that a defendant who has been
convicted of felony murder, MCL 750.3l6(l)(b), may not be separately punished for the
predicate felony underlying that murder. The rule invented in Wz`lder and Hardz`ng is
flawed. Felony murder and the underlying felony in this case, armed robbery, l\/[CL
750.529, plainly are not the "same offense." On the contrary, as lustice Riley’s partial
concurrence and partial dissent in Hardz`ng explains, the statutes prohibiting felony
murder and armed robbery protect distinct societal interests. Moreover, the structure of
our first-degree murder statute reflects that felony murder is a category of murder, and
not merely an enhanced form of armed robbery.
By refusing to decide this case, the majority essentially abandons any effort to
clarify our jurisprudence on this subject, or to correct this Court’s unwarranted conflation
of wholly separate offenses. Rather than adopt the sound analytical approach articulated
by lustice Riley in Harding, the majority avoids deciding this case despite having
received full briefing and having heard oral argument. The majority thereby leaves intact
a judicial diktat that felony murder and armed robbery are the "same offense," contrary to
the Legislature’s clearly expressed intent to create separate offenses.
The majority’s refusal to reject the fiction that plainly separate offenses are
somehow the "same" is troubling not only because that fiction fails to honor the intent of
our Legislature, but also because it may have dangerous consequences in the real world.
Suppose that a defendant pulls a gun on a clerk in a store and kills a bystander. The
defendant then takes property from the store clerk. Under Wz`lder and Hara'z`ng, the
defendant is free to take property from the clerk after killing the bystander without any
possibility of conviction and sentence for armed robbery. Until the Wz'lder/Hardz`ng rule
is corrected, any defendant in this situation will be free to commit armed robbery because
the state will be barred from imposing punishment for both felony murder and the
underlying armed robbery.
5 3106/charger v united S¢azes, 234 us 299 (1932).
l\/loreover, suppose that the defendant’s felony-murder conviction is later
overturned by a federal court on habeas corpus review because the federal court deems
the evidence of malice to be insufficient, and that, under Wz`lder and Hara'ing, the
defendant’s anned robbery conviction has already been vacated by a state appellate court.
lt is quite possible that the defendant will then be completely free of any punishment,
despite having been found guilty of armed robbery by a jury.
Justice Kelly attempts to discount the possibility of such a defendant avoiding
punishment. She asserts that "it is most infrequent that a federal court grants habeas
corpus relief," and that "[i]t is even rarer that relief is granted on a finding of insufficient
evidence of a felony murder but sufficient evidence of the underlying felony." Ante at 2.
Even accepting that Justice Kelly’s empirical pronouncements, for which she cites no
authority or evidence, are true, a' danger would still remain under our current
jurisprudence. lf even one such defendant avoids punishment for an offense of which he
has been properly adjudged guilty by a jury because of the erroneous decisions in Wilder
and Hardz`ng, the result could be devastating. Therefore, l must respectfully question
whether the majority has adequately considered the effect of Wilder and Ham'z`ng on the
public interest in protecting society from those who have been properly convicted of
crimes, as well as the public interest in deterrence of crimes.
Justice Kelly further argues that any defendant who is granted habeas corpus relief
in this situation would not be free to "walk the streets." Ante at 2. She says that "we can
reasonably expect that the prosecutor would act promptly to obtain reinstatement of the
conviction of the felony that served as the predicate for the felony-murder conviction."
Ia'. But Justice Kelly offers no explanation for why she believes that a defendant’s
conviction and sentence for the predicate felony may be reinstated after having been
vacated under Wz`lder and Hardz'ng. She does not cite a single authority to support this
view, nor does she address whether reinstating such a conviction would itself carry
double-jeopardy implications. Justice Kelly also fails to explain whether her position is
consistent with the very cases at issue here. Under Wz`lder and Hara’z'ng, a defendant may
not be separately punished for the predicate felony underlying a felony-murder
conviction.6
6 ln addition, l must respectfully disagree with Justice Kelly’s assertion that my argument
"appeal[s] to force or fear" and "contains a fundamental fallacy along with an implied
threat." Id. n 3. ln truth, l have merely attempted to describe what l believe to be the
troubling ramifications and perverse incentives that flow from this Court’s decisions in
Wilder and Hara’z`ng. l believe that the practical, real-world implications of Wz`lder and
Hardz'ng are worth noting because they call into question the majority’s refusal to decide
this case following briefing and oral argument. Justice Kelly may not share my concerns
about Wz`lder and Harding, but our principled disagreement about the appropriate course
(continued. . .)
l. Underlying facts and procedural history
Frank Bono was discovered lying in a pool of blood inside his laundromat. A
screwdriver was impaled in his neck. The cash register was open, and the cash was gone.
Bono died from blunt force trauma to the head. Defendant admitted to the police that he
and an accomplice had gone to the laundromat with the intent to rob Bono. Defendant
acted as a lookout. The accomplice hit Bono in the head with defendant’s hammer and
then stabbed him in the neck with a screwdriver. The accomplice took some money and
gave defendant fifteen or twenty dollars.
Following a jury trial, defendant was convicted of felony murder and armed
robbery. He was sentenced to mandatory life imprisonment for the felony-murder
conviction and to a twenty- to forty-year term of imprisonment for the armed robbery
conviction.
The Court of Appeals vacated the armed robbery conviction on the ground that
defendant’s convictions and sentences for both felony murder and the predicate felony
violated the constitutional prohibition against multiple punishments for the same
offense.7 The Court of Appeals noted, however, that in Nutt, supra at 596, this Court had
overruled People v Whz`te, 390 Mich 245 (1973), and thus abandoned the "same
transaction" test used to apply the Double Jeopardy Clause in favor of the "same-
elements test" set forth in Blockburger. ln Nutt, we limited our holding to the successive-
prosecutions strand of Const 1963, art l, § 15, stating that we were not concerned with
the meaning of the term "offense" as it applies to the double-jeopardy protection against
multiple punishments. Nutt, supra at 575 n ll. ln light of this language in Nutt, the
Court of Appeals determined that it remained bound by Wz'lder to conclude that multiple
punishments for felony murder and the predicate felony of armed robbery were not
permitted.
This Court granted the prosecution’s application for leave to appeal.g
(. . .continued)
of action in this case does not turn my argument into "an implied threat" or "an appeal to
force or fear." Ia’.
7 Unpublished opinion per curiam, issued June 29, 2004 (Docket No. 2423 76).
8 471 Mich 914 (2004).
ll. Standard of review
Whether the constitutional protection against double jeopardy prohibits separate
punishments for felony murder and the predicate felony of armed robbery is a question of
law that this Court reviews de novo. Nutl, supra at 573.
lll. Analysis
The United States Constitution and the Michigan Constitution protect a person
from being twice placed in jeopardy for "the same offense." US Const, Am V; Const
1963, art l, § l5. The prohibition against double jeopardy includes three protections:
"(l) it protects against a second prosecution for the same offense after acquittal; (2) it
protects against a second prosecution for the same offense after conviction; and (3) it
protects against multiple punishments for the same offense." Nutt, supra at 574. The
first two of these protections are generally referred to as the successive-prosecutions
strand of double-jeopardy protection, while the third is known as the multiple-
punishments strand.
ln Nutt, this Court adopted the Blockburger same-elements test for determining
whether two offenses are the "same" for purposes of the successive-prosecutions strand.
The Blockburger test "‘focuses on the statutory elements of the offense. lf each requires
proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a
substantial overlap in the proof offered to establish the crimes."’ Id. at 576 (citation
omitted).
While the Blockburger test now applies to successive-prosecutions claims in
Michigan, it has not been extended to multiple-punishments claims. The test articulated
in People v Robia’eau, 419 Mich 458 (1984), continues to govern a court’s analysis of
multiple-punishments claims in Michigan.g
ln Robideau, this Court reviewed several United States Supreme Court decisions
and concluded that the central question in resolving multiple-punishments claims is
whether the Legislature intended to allow multiple punishments. The Robz`deau Court
questioned the status of the Blockburger test in discerning that intent. The Court set forth
what it viewed as more traditional means of determining legislative intent, including
identifying the type of harrn the Legislature intended to prevent and the amount of
punishment authorized. "Statutes prohibiting conduct that is violative of distinct social
norms can generally be viewed as separate and amenable to permitting multiple
punishments. . . . Where two statutes prohibit violations of the same social norm, albeit
9 The parties in this case do not argue that the Robz`deau test should be repudiated
in a somewhat different manner, as a general principle it can be concluded that the
Legislature did not intend multiple punishments." Id. at 487.
The Robz`a'eau Court asserted that its mode of analysis was consistent with the
result reached in Wz`lder prohibiting dual convictions of felony murder and the predicate
felony of armed robbery, reasoning that the two offenses have different penalties. Id. at
489 n 8.
ln Hara’z`ng, the majority reaffirmed the analysis in Robz'deau and the result in
Wz`lder. The Harding majority stated that the felony-murder provision of the first-degree
murder statute "serves to raise what would otherwise be second-degree murder to first-
degree murder-for the sole purpose of increasing punishment." Harding, supra at 7ll
(opinion of Brickley, J.). Because felony murder carries a greater penalty than the
predicate felony, the Harding majority concluded that the Legislature did not intend to
impose punishments for both crimes, and that sentencing the defendants for both crimes
violated the state and federal double-jeopardy provisions
ln her opinion in Hardz`ng, Justice Riley agreed that the dispositive question is
whether the Legislature intended to allow dual punishments. She followed the Robideau
framework of assessing legislative intent through traditional means rather than through
the Blockburger test. She explained that while the United States Supreme Court has
utilized the Blockburger test to determine the intent of Congress, Michigan courts are not
bound to apply that test. "That the tests utilized by this Court and the United States
Supreme Court regarding the finding of the legislative intent of their respective
legislatures differ does not result in a clash of constitutional analysis, but simply a
recognition that separate jurisdictions may utilize independent modes of statutory
construction." Hardz'ng, supra at 729 n 2l. This conflict does not endanger double-
jeopardy protections as long as both jurisdictions recognize their duty to discern whether
the legislature intended to authorize the punishment at issue. Id.
Applying the Robz`deau analysis, Justice Riley concluded that our Legislature
intended to allow dual punishments for felony murder and armed robbery. She noted that
the maximum punishment for armed robbery is life imprisonment; thus, each offense may
be punished by life imprisonment.m Ia’. at 730. Moreover, Justice Riley explained that
distinct social harms were targeted by the two statutes. After analyzing the elements of
each offense, Justice Riley observed that the felony-murder statute protects against
homicide committed with malice, whereas the armed robbery statute punishes the taking
10 Justice Riley recognized that the mandatory punishment for felony murder was life
imprisonment without the possibility of parole, but she did not view the distinction
between the punishments for the two offenses as dispositive. Id. at 730 n 23.
of property by force. Id. at 73l.
Thus, first-degree murder focuses upon homicide, armed robbery
upon the violent deprivation of property. The first-degree murder statute
does not punish the taking of property except when accompanied by a
homicide. Nor does the armed robbery statute punish homicide. The
societal interests are independent. ln fact, the societal interests targeted by
the felony murder provision of the first-degree murder statute generally are
distinct from the underlying felonies. Felony murder is designed to punish
homicide committed in the course of aggravated circumstances, while the
societal interests undergirding the enumerated felonies are independent and
also important to maintain. That the societal interests in prohibiting rape
and kidnapping, for instance, are distinct from those prohibiting murder
cannot be doubted. ln a parallel fashion, the societal interests served by
armed robbery and the first-degree murder statutes are distinct.
This is especially true in l\/lichigan where felony murder requires
malice. People v Aaron, 409 Mich 672, 728; 299 NWZd 304 (1980). The
societal interest in prohibiting first-degree murder is not only homicide, but
one committed with malice. Ia'. Armed robbery, of course, does not
possess such a requirement. "[T]he presence of the different intent
elements indicates that the Legislature intended to prevent distinct types of
harm, robbery and corporal harin," as well as intended to address separate
social ills. People v Smz`th, 152 l\/lich App 756, 76l; 394 NW2d 94 (l986)
(holding that multiple punishments were intended with regard to assault
with intent to do great bodily harm and assault with intent to rob and steal
while armed). See also People v Leach, ll4 Mich App 732, 735-736; 319
NW2d 652 (l982) (holding that multiple punishments were intended with
regard to armed robbery and assault with intent to commit great bodily
harm). The Legislature carefully crafted distinct offenses defending
separate societal interests that defendants violated. Punishment for each
offense was intended by the Legislature. [Hardi`ng, supra at 732-733.]
l agree with Justice Riley’s persuasive analysis of the legislative intent underlying
the first-degree murder and armed robbery statutes. The Harding majority paid
insufficient regard to the distinct societal interests protected by the respective statutes.
Justice Riley correctly articulated the manner in which the societal interests protected by
the two statutes differ.
While it is not necessary to my analysis, l note that persuasive authorities from
other jurisdictions support Justice Riley’s view. ln Todd v State, 884 P2d 668, 677-680
(Alas App, 1994), the Alaska Court of Appeals summarized the holdings of various state
courts on this subject. l\/lany state courts have concluded that their respective legislatures
intended to allow multiple punishments for felony murder and the underlying felony on
the basis of the distinct interests protected. See, e.g., Todal, supra at 685; State v
Blackburn, 694 SWZd 934, 937 (Tenn, l985); Ft`tzgerald v Comrnonwealth, 223 Va 615,
636-637 (1982); State v Greco, 2l6 Conn 282, 295-296 (1990); Talancon v State, 102
Nev 294, 300 (l986). While contrary authorities also exist, the Todal court concluded
that "the great majority" of state courts that analyzed the constitutional issue on the basis
of the intent of the state legislature had upheld separate punishments for felony murder
and the underlying felony. Toa’al, supra at 679.“
ln Greco, the Connecticut Supreme Court articulated the distinct interests
protected by the respective statutes at issue:
An obvious purpose of the felony murder statute, or any murder
statute, is to protect human life. ln contrast, "[t]he basic rationale [of the
robbery statutes] is protection against the terror of the forcible taking"[,]
while the primary rationale of the crime of burglary is "protection against
invasion of premises likely to terrorize occupants." Each of these three
statutes penalizes a different type of evil. Since the felony murder statute
and the underlying felony statutes are designed to address separate evils,
they provide clear evidence that the legislature intended multiple
punishments. [Greco, supra at 296 (citations omitted).]
Legislative intent may also be inferred from the overall statutory scheme.
Hara’ing, supra at 730 n 24 (Riley, J., concurring in part and dissenting in part), citing
People v Cantpbell, 165 Mich App l, 5 (1987). The structure of our first-degree murder
statute reflects no intent to preclude multiple punishments for felony murder and a
predicate felony. Felony murder is merely a classification of the crime of murder. lt is
not an enhanced degree of the predicate felony.
Foreign authorities support this structural analysis. The Virginia Supreme Court
explained in Fz`tzgeralcl that its legislature had enacted the felony-murder statute in an
effort to classify the types of murder. "The overriding purpose of the murder statutes
being gradation, we can divine no legislative intent to eliminate punishment for other
offenses included in the murder statutes solely for the purpose of categorizing the
murder." Fitzgerala’, supra at 636. Similarly, the Connecticut Supreme Court explained
in Greco, supra at 294-297, that the felony-murder statute set forth a method of
n The T odd court did not state that the majority of states permitted dual punishments for
felony murder and the predicate felony, but only that the majority of states that analyzed
the constitutional issue on the basis of legislative intent had concluded that multiple
punishments for the two offenses were allowed.
10
committing murder, and that the statute did not represent merely an increased penalty
provision for the underlying felonies.
The structure of our first-degree murder statute supports the same conc1usion.
MCL 750.316 sets forth three categories of first-degree murder: (1) "[m]urder
perpetrated by means of poison, lying in wait, or any other willful, deliberate, and
premeditated killing"; (2) "[m]urder committed in the perpetration of, or attempt to
perpetrate," any of several enumerated predicate felonies; and (3) murder of a peace
officer or corrections officer. The structure of this statutory scheme reflects that felony
murder is one of three classifications of first-degree murder. The predicate felonies are
used to differentiate the crime from the other two types of first-degree murder, and from
second-degree murder, l\/ICL 750.317, rather than merely to enhance the penalty for the
enumerated predicate felonies.
For these reasons, l would overrule Wila’er and Harding and adopt Justice Ri1ey’s
opinion in Harding. Rather than decide this case, the majority vacates our order granting
leave to appeal and denies leave to appeal. By its refusal to decide this case, the majority
leaves intact perverse incentives spawned by Wila’er and Harding. Justice Riley’s
opinion in Harding, supra at 733-734, discussed the danger posed by the majority’s
holding in Hardz`ng. She quoted the following language from People v Wakeforci, 418
Mich 95, 105 n 7 (l983):
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 . . . even if the charges must
be brought in a single trial under the "same transaction" test [i.e., the test
adopted in White, which this Court overruled in Nutt]. Such a rule could be
said to permit criminals to engage in an extended crime "spree," knowing
that at most only one conviction could result and that any crime other than
the most serious was "free" of any possibility of conviction. lt 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 in the "same
transaction."
Justice Riley explained in Hara'ing, supra at 734, that "the majority’s dismissal of the
armed robbery conviction in the instant case presents the exact danger of which the Court
forewarned in Wakefor ."
Similarly, l question whether the majority here, by refusing to decide this case, has
adequately considered the dangerous implications of the Wilder and Haraling decisions.
As discussed above, a defendant who kills a bystander while robbing a store will face no
risk of an additional conviction by going through with the robbery after committing the
ll
murder. ln effect, the defendant gets a "free" armed robbery under Wilder and Harding.
l\/loreover, a defendant in this situation may well face no punishment whatsoever if
his felony-murder conviction is overturned on federal habeas review, because his
conviction for the predicate offense will have been vacated under Wilaler and Hardz'ng.
This result is troubling because, despite having been adjudged guilty by a jury of armed
robbery, the defendant would quite possibly face no punishment for that offense. These
troubling ramifications of the Wilaler and Hara’ing decisions therefore warrant this
Court’s attention.
lV. Conclusion
On the basis of Justice Riley’s opinion in Harding, l would hold that sentencing a
defendant for both felony murder and the predicate felony of armed robbery does not
violate the multiple-punishments strand of the constitutional protection against double
jeopardy. l would therefore overrule Wz`la’er and Harcling to the extent that they are
inconsistent with this holding. Accordingly, this Court should reverse the judgment of
the Court of Appeals and reinstate defendant’s conviction and sentence for armed
robbery.
t0726
l, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
M 27 ,2005
0 d Clerk