People v. Nutt

Michigan Supreme Court

Lansing, Michigan 48909

Chief Justice Justices

Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED APRIL 2, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 120489

MELISSA ANN NUTT,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

At issue in this case is the prohibition against

successive prosecutions found in Const 1963, art 1, § 15,

Michigan’s Double Jeopardy Clause. In particular, we are

called upon to determine the meaning of the term “same

offense” as used in art 1, § 15. Until 1973, Michigan had

defined that term to mean the “same crime” such that, where

a defendant had committed a series of crimes with different

elements, the defendant could be prosecuted serially for

each distinct crime, irrespective of whether the crimes
were committed during the course of one crime spree or

“transaction.” Thus, our Double Jeopardy Clause had, until

1973, consistently been interpreted to preclude serial

prosecutions only of crimes sharing identical elements. In

People v White, 390 Mich 245; 212 NW2d 222 (1973), this

Court abandoned the “same-elements” test in favor of a

“same transaction” test that prohibits serial prosecutions

for entirely different crimes that were committed during a

single criminal episode.

Because defendant challenges as an unconstitutional

successive prosecution under the White same transaction

test her prosecution for receiving and concealing stolen

weapons in Oakland County after being convicted of second-

degree home invasion in Lapeer County, we must determine

whether the White test is consonant with art 1, § 15. We

conclude that, by abandoning the same-elements test, the

White Court ignored the ratifiers’ common understanding of

the “same offense” term in our Constitution. Accordingly,

we overrule White, reinstate the same-elements test, and

affirm, on different grounds, the Court of Appeals’ holding

that defendant may be prosecuted in Oakland County for

receiving and concealing stolen firearms.

2

 I. FACTS1 AND PROCEDURAL HISTORY

On December 10, 1998, Darrold Smith’s home in Lapeer

County was burglarized. Four firearms and a bow and arrows

were stolen from the home. Lapeer County police officers

and those of adjacent Oakland County conducted a joint

investigation concerning three Lapeer County burglaries,

including the burglary of Smith’s home. The officers

obtained a search warrant for a cabin in Oakland County

that was occupied by defendant and John Crosley. During

the execution of the warrant on December 14, 1998, three of

Smith’s stolen firearms were found hidden underneath a

mattress inside the cabin. Smith’s bow and arrows and

property stolen from another residence were also seized

during the search.

Defendant confessed to a Lapeer County detective that

she participated as a getaway driver during three

burglaries that occurred the week of December 10, 1998,

including the burglary of the Smith residence. Defendant

admitted that three of the guns stolen from Smith were

concealed underneath a mattress in the Oakland County

cabin.

1
Trial has not yet occurred in this matter. Our
recitation of facts is drawn from the preliminary
examination transcript and other documents in the record.
3
 In January 1999, defendant was charged in Lapeer

County with three counts of second-degree home invasion and

three counts of larceny in a building. Meanwhile, on

February 16, 1999, an arrest warrant was issued in Oakland

County alleging that defendant had committed one offense of

receiving and concealing a stolen firearm.2

On February 22, 1999, defendant pleaded guilty in

Lapeer County of one charge of second-degree home invasion3

in connection with the burglary of the Smith residence and

the theft of the firearms. The remaining five charges were

dismissed pursuant to a plea agreement. Defendant was

sentenced to probation.

In July 1999, defendant was bound over for trial in

Oakland County on the charge of receiving and concealing a

stolen firearm. Defendant moved to dismiss the charge,

contending that it constituted an improper successive

prosecution in violation of the double jeopardy clauses of

the federal and state constitutions. Defendant argued that

2
MCL 750.535b.

A second count in the complaint and warrant alleged
that defendant had received stolen property in excess of
$100 in violation of MCL 750.535 on the basis of the theft
of Smith’s bow and arrows, as well as electronics and other
property stolen from another residence. This second count
was dismissed following defendant’s preliminary examination
because of the unavailability of a complaining witness.
3
MCL 750.110a(3).
4
pursuant to White, the state was required to join at one

trial all charges arising from a continuous time sequence

that demonstrated a single intent and goal. Thus,

defendant maintained, she could not be tried in Oakland

County for possession of the same firearms that she was

alleged to have stolen during the home invasion for which

she was convicted in Lapeer County.

The trial court granted defendant’s motion to dismiss.

The court cited People v Hunt (After Remand), 214 Mich App

313; 542 NW2d 609 (1995), for the proposition that where a

defendant is accused of one or more offenses not having

specific intent as an element, the test for determining

whether they constitute the same offense for the purpose of

Michigan’s Double Jeopardy Clause is whether the offenses

involve laws intended to prevent the same or similar harm

or evil. The court opined that because defendant in this

case was charged with one “general intent crime” and one

“specific intent crime,” and because those offenses were

designed to prevent similar harms, defendant could not be

tried for receiving and concealing a stolen firearm

following her conviction for home invasion.

The prosecution’s appeal from the trial court’s

dismissal yielded three separate Court of Appeals opinions,

the net result of which was to reverse the trial court’s

5

order dismissing the charge.4 In the lead opinion, Judge

Meter opined that the Oakland County prosecution did not

violate the prohibition against double jeopardy because the

home invasion charge and the receiving and concealing

charge did not arise from the “same transaction”; that is,

they did not arise out of a continuous time sequence and

did not display a common goal. Judge Meter relied on

People v Flowers, 186 Mich App 652; 465 NW2d 43 (1990), in

which the Court held that where the defendant robbed an

individual in Oakland County and absconded to Wayne County

with the victim’s vehicle, he could be prosecuted in

Oakland County for armed robbery notwithstanding his prior

Wayne County conviction for possession of the stolen

vehicle. The Flowers Court held that the two offenses on

different days were not part of the same criminal

transaction. Judge Meter stated that to the extent that

Hunt conflicted with Flowers, the latter controlled because

it was first decided. Judge Meter further concluded that

the harm or evil to be prevented by the home invasion

statute differed substantially from the harm or evil to be

prevented by the concealing stolen firearms statute: the

former was directed toward peaceful habitation, while the

4
Unpublished opinion per curiam, issued November 9,
2001 (Docket No. 225887).
6
latter was directed toward the trafficking of firearms, and

the two statutes were located in different chapters of the

Penal Code.

Judge Hoekstra issued a concurring opinion in which he

indicated his disagreement with Judge Meter’s conclusion

that the home invasion offense and the receiving and

concealing offense were not part of a continuous time

sequence. Rather, Judge Hoekstra agreed with dissenting

Judge Whitbeck’s conclusion that the “actions of stealing,

transporting, and then concealing the firearms for four

days are logically part of the same criminal episode.”

However, relying on People v Squires, 240 Mich App 454; 613

NW2d 361 (2000), Judge Hoekstra determined that the two

offenses did not “share a single intent and goal” as

required by the second part of the White same transaction

test and that defendant’s double jeopardy claim therefore

failed.

In dissenting Judge Whitbeck’s view, Hunt was directly

on point and required the conclusion that the two offenses

arose out of a continuous time sequence and shared a single

intent and goal. Judge Whitbeck noted that Squires, on

which Judge Hoekstra relied, was distinguishable because it

involved multiple punishments and not successive

prosecutions. Judge Whitbeck also suggested that the

7

prosecutor had “never articulated any manifest necessity

that would justify this separate prosecution.”5

As the three-way split among the members of the Court

of Appeals panel below and a number of conflicting previous

Court of Appeals cases in the area demonstrate,6 there

appears to be significant difficulty inherent in

application of the White rule. Accordingly, we granted

defendant’s application for leave to appeal. We also

directed the parties to address

whether People v White, 390 Mich 245 (1973), sets
forth the proper test to determine when a
prosecution for the “same offense” is barred on
double jeopardy grounds under Const 1963, art 1,
§ 15, and whether our constitution provides
greater protection than does US Const, Am V. See
United States v Dixon, 509 US 688, 696-697
(1993). [467 Mich 901 (2002).]

5
Judge Whitbeck cited our opinion in People v Herron,
464 Mich 593, 601-603; 628 NW2d 528 (2001), for the
proposition that the prosecutor was required to articulate
“manifest necessity” to bring a separate prosecution. In
Herron we addressed the propriety of a retrial following a
mistrial. Under such circumstances, either consent or
“manifest necessity” is generally a constitutional
prerequisite to retrial. We wish to clarify that the
concept of manifest necessity is not implicated in the case
before us, which does not involve a retrial following the
declaration of a mistrial, and that the “manifest
necessity” analysis was erroneously imported into this
context.
6
See n 22 and accompanying text.
8
 II. STANDARD OF REVIEW AND RULES OF CONSTITUTIONAL CONSTRUCTION

A double jeopardy challenge presents a question of

constitutional law that this Court reviews de novo. People

v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001); People v

Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).

At issue in this case is the meaning of the term “same

offense” in art 1, § 15. Our goal in construing our

Constitution is to discern the original meaning attributed

to the words of a constitutional provision by its

ratifiers. People v DeJonge (After Remand), 442 Mich 266,

274-275; 501 NW2d 127 (1993). To this end, we apply the

rule of “common understanding.” Lapeer Co Clerk v Lapeer

Circuit Court (In re Lapeer Co Clerk), 469 Mich 146, 155;

665 NW2d 452 (2003); People v Bulger, 462 Mich 495, 507;

614 NW2d 103 (2000). In applying this principle of

construction, the people are understood to have accepted

the words employed in a constitutional provision in the

sense most obvious to the common understanding and to have

“ratified the instrument in the belief that that was the

sense designed to be conveyed.” 1 Cooley, Constitutional

Limitations (6th ed), p 81. Constitutional Convention

debates and the Address to the People are certainly

relevant as aids in determining the intent of the

ratifiers. Lapeer Co Clerk, supra at 156; People v Nash,

9

418 Mich 196, 209; 341 NW2d 439 (1983) (opinion by

BRICKLEY, J.).7

III. ANALYSIS

A. INTRODUCTION

The United States and Michigan Constitutions protect a

person from being twice placed in jeopardy for the same

offense. US Const, Am V;8 Const 1963, art 1, ' 15.9 The

prohibition against double jeopardy provides three related

protections: (1) 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. People v Torres, 452

Mich 43, 64; 549 NW2d 540 (1996), quoting United States v

7
Additionally,

our task is not to impose on the constitutional
text at issue . . . the meaning we as judges
would prefer, or even the meaning the people of
Michigan today would prefer, but to search for
contextual clues about what meaning the people
who ratified the text in 1963 gave to it. [Mich
United Conservation Clubs v Secretary of State
(After Remand), 464 Mich 359, 375; 630 NW2d 297
(2001) (YOUNG, J., concurring) (emphasis in
original).]
8
“No person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb
. . . .”
9
“No person shall be subject for the same offense to
be twice put in jeopardy.”
10
Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d 232

(1975). The first two of these three protections concern

the “successive prosecutions” strand of the Double Jeopardy

Clause, which is implicated in the case before us.10 In

particular, because our Double Jeopardy Clause is

essentially identical to its federal counterpart, we must

determine whether the term “same offense” in our

Constitution was, in White, properly accorded a meaning

that is different from the construction of that term in the

federal Constitution. We conclude that, at the time of the

ratification of our 1963 Constitution, the people of this

state intended that the words “same offense” be construed

consistent with state and federal double jeopardy

jurisprudence as it then existed. Because this Court

strayed from that intent when it adopted the same

transaction test, we overrule White and its progeny and

return to the same-elements test, which had been

10
The purpose of the constitutional protection against
successive prosecutions is to prevent the state from making
repeated attempts at convicting an individual for an
alleged crime, subjecting him to “‘embarrassment, expense
and ordeal’” and compelling him “‘to live in a continuing
state of anxiety and insecurity,’” and enhancing the
“‘possibility that even though innocent he may be found
guilty.’” Herron, supra at 601, quoting Green v United
States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199
(1957); see also Torres, supra at 64.
11
consistently applied in this state until its abrogation by

this Court in 1973.11

B. FEDERAL SUCCESSIVE PROSECUTIONS PROTECTION
AND THE SAME-ELEMENTS TEST

Application of the same-elements test, commonly known

as the “Blockburger test,”12 is the well-established method

of defining the Fifth Amendment term “same offence.” The

test, which has “deep historical roots,” United States v

Dixon, 509 US 688, 704; 113 S Ct 2849; 125 L Ed 2d 556

(1993), “focuses on the statutory elements of the offense.

If 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.” Iannelli v United States, 420 US 770, 785 n 17;

95 S Ct 1284; 43 L Ed 2d 616 (1975).

The Blockburger analytical framework “reflected a

venerable understanding” of the meaning of the term “same

offence” as used in the Double Jeopardy Clause. Grady v

11
We wish to stress at the outset that we are not here
concerned with the meaning of the term “offense” as it
applies to the double jeopardy protection against multiple
punishments. See People v Colvin, 467 Mich 942 (2003)
(CORRIGAN, C.J., concurring); Herron, supra; People v
Robideau, 419 Mich 458; 355 NW2d 592 (1984). Our analysis
is limited to the successive prosecutions strand of Const
1963, art 1, § 15.
12
Blockburger v United States, 284 US 299, 304; 52 S
Ct 180; 76 L Ed 306 (1932).
12
Corbin, 495 US 508, 535; 110 S Ct 2084; 109 L Ed 2d 548

(1990) (Scalia, J., dissenting). The Clause was designed to

embody the protection of the English common-law pleas of

former jeopardy, “auterfoits acquit” (formerly acquitted)

and “auterfoits convict” (formerly convicted), which

applied only to prosecutions for the identical act and

crime. See id. at 530; Wilson, supra at 339-340; 4

Blackstone, Commentaries on the Laws of England (4th ed,

1970), pp 335-336.13 An examination of the historical

record reveals that “[t]he English practice, as understood

in 1791, did not recognize auterfoits acquit and auterfoits

convict as good pleas against successive prosecutions for

crimes whose elements were distinct, even though based on

the same act.” Grady, supra at 535.

American courts have long recognized and applied this

common-law understanding of the meaning of the double

jeopardy prohibition against multiple prosecutions and

punishments for the “same offence.” See, e.g.,

Commonwealth v Roby, 29 Mass 496; 12 Pick 496 (1832) (“In

considering the identity of the offence, it must appear by

the plea, that the offence charged in both cases was the

13
“That the framers and ratifiers of the Bill of
Rights intended to constitutionalize the common law’s
protection against double jeopardy is unquestioned.”
People v Harding, 443 Mich 693, 724; 506 NW2d 482 (1993)
(RILEY, J., concurring in part and dissenting in part).
13
same in law and in fact”). The Blockburger test itself

derives directly from Morey v Commonwealth, 108 Mass 433,

434 (1871), in which the court stated:

A conviction or acquittal upon one
indictment is no bar to a subsequent conviction
and sentence upon another, unless the evidence
required to support a conviction upon one of them
would have been sufficient to warrant a
conviction upon the other. The test is not
whether the defendant has already been tried for
the same act, but whether he has been put in
jeopardy for the same offense. A single act may
be an offense against two statutes; and if each
statute requires proof of an additional fact
which the other does not, an acquittal or
conviction under either statute does not exempt
the defendant from prosecution and punishment
under the other. [Emphasis supplied.]

The Morey analysis was adopted for the purpose of

successive prosecutions in Gavieres v United States, 220 US

338, 345; 31 S Ct 421; 55 L Ed 489 (1911). As later

articulated in Blockburger, supra at 304:

The applicable rule is that where the same
act or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one, is whether each provision
requires proof of a fact which the other does
not.

Although Justice William Brennan was a persistent

advocate of the same transaction test,14 the idea that

14
See, e.g., Werneth v Idaho, 449 US 1129, 1129-1130;
101 S Ct 951; 67 L Ed 2d 118 (1981) (Brennan, J.,
dissenting); Brown v Ohio, 432 US 161, 170; 97 S Ct 2221;
53 L Ed 2d 187 (1977) (Brennan, J., concurring); Ashe v
14
crimes arising from the same criminal episode constitute

the same offenses for double jeopardy purposes has been

consistently rejected by the United States Supreme Court.

Dixon, supra at 709 n 14; see also Carter v McClaughry, 183

US 367, 394-395; 22 S Ct 181; 46 L Ed 236 (1901) (“[t]he

fact that both charges related to and grew out of one

transaction made no difference” in determining whether they

were the “same offence” under the Fifth Amendment).15

Swenson, 397 US 436, 448-460; 90 S Ct 1189; 25 L Ed 2d 469
(1970) (Brennan, J., concurring). As Justice Brennan
explained:

In my view, the Double Jeopardy Clause
requires the prosecution, except in most limited
circumstances, to join at one trial all the
charges against a defendant that grow out of a
single criminal act, occurrence, episode, or
transaction. This "same transaction" test of
"same offence" not only enforces the ancient
prohibition against vexatious multiple
prosecutions embodied in the Double Jeopardy
Clause, but responds as well to the increasingly
widespread recognition that the consolidation in
one lawsuit of all issues arising out of a single
transaction or occurrence best promotes justice,
economy, and convenience. [Ashe, supra at 453-
454.]
15
Rejection of the “same transaction” framework for
defining the “same offence” was consistent with the English
common law and with application of the common law by early
American courts. See, e.g., State v Standifer, 5 Port 523,
531 (Ala, 1837) (“It is not of unfrequent occurrence, that
the same individual, at the same time, and in the same
transaction, commits two or more distinct crimes, and an
acquittal of one, will not be a bar to punishment for the
other”).
15
 Instead, the Morey/Blockburger same-elements analysis

was consistently applied by the Court, with two limited

exceptions,16 until the Court in Grady, supra, adopted a

“same-conduct” rule——a somewhat compromised version of

Justice Brennan’s “same transaction” test——as an additional

step to be performed in addressing successive prosecutions

claims. In an opinion authored by Justice William Brennan,

the Court held that “the Double Jeopardy Clause bars a

subsequent prosecution if, to establish an essential

element of an offense charged in that prosecution, the

government will prove conduct that constitutes an offense

for which the defendant has already been prosecuted.” Id.

at 510.17

16
See Grady, supra at 528-529 (Scalia, J.,
dissenting). The exceptions apply (1) where a statutory
offense expressly incorporates another statutory offense
without specifying the latter’s elements, see Harris v
Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977),
and (2) where a second prosecution would require litigation
of factual issues that were necessarily resolved in the
defendant’s favor in the first prosecution (i.e., where the
prosecution would be barred on collateral estoppel
grounds), see Ashe, supra.
17
The majority noted that Blockburger was a multiple
punishments case and that the test was formulated as a
means of determining legislative intent, while the
successive prosecutions strand of the double jeopardy
provision was intended to protect against the state making
repeated attempts to convict an individual. Grady, supra
at 517-518. To that end, the Court held that the test for
successive prosecutions should limit the prosecution’s
16
 Justice Scalia dissented, noting that the majority’s

holding was wholly without historical foundation and that

it created a procedural mandatory joinder rule:

[The Double Jeopardy Clause] guarantees only
the right not to be twice put in jeopardy for the
same offense, and has been interpreted since its
inception, as was its common-law antecedent, to
permit a prosecution based upon the same acts but
for a different crime. . . . In practice, [the
majority’s holding] will require prosecutors to
observe a rule we have explicitly rejected in
principle: that all charges arising out of a
single occurrence must be joined in a single
indictment. [Id. at 526-527 (emphasis
supplied).][18]

Looking to the text of the Double Jeopardy Clause and

its origins in the common law, Justice Scalia opined that

the Blockburger rule best gave effect to the plain language

of the Clause, “which protects individuals from being twice

ability to use defendant’s conduct against him in more than
one prosecution.
18
As noted by Justice Scalia, the policy interests
espoused by the majority might well be served by
application of the doctrine of collateral estoppel:
The collateral-estoppel effect attributed to
the Double Jeopardy Clause [in Ashe, supra] may
bar a later prosecution for a separate offense
where the Government has lost an earlier
prosecution involving the same facts. But this
does not establish that the Government “must
. . . bring its prosecutions . . . together.” It
is entirely free to bring them separately, and
can win convictions in both. [Dixon, supra at
705.]
17
put in jeopardy ‘for the same offense,’ not for the same

conduct r actions.”
o Id. at 529 (emphasis supplied).19

The Grady same-conduct test was short-lived. In

Dixon, the Court overruled Grady as wrongly decided for the

reasons expressed in Justice Scalia’s Grady dissent and

returned to the Blockburger formulation of the test for

both successive prosecutions and multiple punishments:

Unlike [the] Blockburger analysis, whose
definition of what prevents two crimes from being
the "same offence," US Const., Amdt. 5, has deep
historical roots and has been accepted in numerous
precedents of this Court, Grady lacks
constitutional roots. The "same-conduct" rule it
announced is wholly inconsistent with earlier
Supreme Court precedent and with the clear common-
law understanding of double jeopardy. [Dixon,
supra at 704.]

C. MEANING OF “SAME OFFENSE”IN MICHIGAN’S
DOUBLE JEOPARDY PROVISION

1. PRE-1963 CONSTITUTIONAL LAW

Initially, it must be noted that the Fifth Amendment

was not enforceable against this state until 1969, when the

United States Supreme Court declared that its protections

extended to the states through the Fourteenth Amendment.

Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707

19
Quoting early dictionaries, Justice Scalia further
noted that the term “offense” was commonly understood in
1791 to mean “transgression,” i.e., “the violation or
breaking of a law.” Grady, supra at 529. Thus, the Clause
did not protect against successive prosecutions for the
same conduct, but for a violation of the same law.
18
(1969). Thus, the people of Michigan were free, at the

times that our constitutions of 1835, 1850, 1908, and 1963

were ratified, to implement a double jeopardy protection

that was not coterminous with the federal Double Jeopardy

Clause. Nevertheless, in 1835 this state adopted a double

jeopardy provision that was virtually identical to the

Fifth Amendment: “No person for the same offense, shall be

twice put in jeopardy of punishment.” Const 1835, art 1, §

12.

Until White was decided in 1973, this Court defined

the scope of our Constitution’s double jeopardy protection

by reference to the scope of the protection provided by the

Fifth Amendment. See, e.g., People v Bigge, 297 Mich 58,

64; 297 NW 70 (1941) (“[t]his State is committed to the

view upon the subject of former jeopardy adopted by the

Federal courts under the Federal Constitution”); People v

Schepps, 231 Mich 260, 265; 203 NW 882 (1925) (“this court

is now committed to the views [regarding Michigan’s double

jeopardy protection] adopted by the Federal courts under

the United States Constitution”).20

20
Significantly, this Court consistently construed our
Double Jeopardy Clause in accordance with federal
jurisprudence notwithstanding that our constitutions of
1850, art 6, § 29, and 1908, art 2, § 14, appeared to
provide a narrower double jeopardy protection than the
Fifth Amendment in that the 1850 and 1908 provisions
19
 In accordance with the principle that our double

jeopardy provision was intended to embody English common-

law tenets of former jeopardy, this Court more than one

hundred years ago rejected the “same transaction” approach

and instead embraced the federal same-elements test as

supplying the functional definition of “same offense” under

our Constitution’s Double Jeopardy Clause. In People v

Parrow, 80 Mich 567; 45 NW 514 (1890), this Court held that

Const 1850, art 6, § 29 did not preclude the defendant’s

prosecution for larceny of money stolen during an alleged

burglary where the defendant had previously been acquitted

offered protection against only retrial, and then only
“after acquittal upon the merits.” This Court,
acknowledging that our constitutional double jeopardy
protection was a creature of the common law, applied the
double jeopardy clauses of the constitutions of 1850 and
1908 in the same manner as the Fifth Amendment was
traditionally understood to apply. See, e.g., In re
Ascher, 130 Mich 540, 545; 90 NW 418 (1902) (“while [the
language of Const 1850, art 6, § 29] differs from that used
in the United States Constitution, the law of jeopardy is
doubtless the same under both provisions.”); People v
Gault, 104 Mich 575, 578; 62 NW 724 (1895) (noting that
acquittal or conviction bars a prosecution for the same
offense); People v Harding, 53 Mich 481, 484-485; 19 NW 155
(1884) (rejecting the contention that Const 1850, art 6, §
29 protected against retrial only after acquittal “upon the
merits”).

The narrower language used in our constitutions of
1850 and 1908, and this Court’s steadfast adherence to
common-law double jeopardy jurisprudence in the face of
that restrictive language, are relevant to the reason that
this language was changed in our 1963 Constitution. See
the discussion at 30-32.
20

of burglary. Citing Morey, supra, the Parrow Court held

that, because the offense of burglary required proof of

elements that the offense of larceny did not, neither the

defendant’s acquittal of burglary nor the prosecution’s

failure to charge the defendant with larceny in the first

information barred the subsequent prosecution. Parrow,

supra at 569-571.

Similarly, in People v Ochotski, 115 Mich 601, 610; 73

NW 889 (1898), this Court squarely rejected the notion that

offenses arising from the “same transaction” constituted

the same offense under Const 1850, art 6, § 29. In

Ochotski, the defendant allegedly assaulted a husband and a

wife. This Court held that the defendant’s acquittal in a

prosecution for the assault upon the husband did not bar

the subsequent prosecution for the assault upon the wife:

There is a difference between one volition
and one transaction.

* * *

In the present case it was not the same
blow, even, which caused the injury to the two,
but different blows. It was the same transaction,
but not the same volition. [Ochotski, supra at
610.][21]

21
See also People v Townsend, 214 Mich 267, 275-276;
183 NW 177 (1921) (quoting Morey, supra, and holding that
“[t]he transaction charged may be the same in each case,
but if the offenses are different there is no second
jeopardy for the same offense”); People v Cook, 10 Mich
21
 Thus, at the time of the ratification of our 1963

Constitution, it had long been established that (1) our

double jeopardy provision in prior constitutions was

construed coterminously with the common law and, more

specifically, (2) the term “same offense” was defined by

application of the federal same-elements test.

It is against this historical backdrop of our double

jeopardy jurisprudence that we must determine what the

ratifiers of the 1963 Constitution intended when they

adopted art 1, § 15.

2. PEOPLE V WHITE AND PROGENY

This Court’s commitment to the same-elements test

continued after ratification of our current Constitution.

In People v Grimmett, 388 Mich 590, 607; 202 NW3d 278

(1972), this Court followed the unbroken line of precedent

rejecting the argument that serial prosecutions were not

permissible under Michigan’s double jeopardy provision

where the charges arose from the same transaction:

Defendant . . . contends that we should
prohibit multiple prosecutions arising out of the
same factual situation. Defendant properly
points out that in some cases multiple
prosecutions are prejudicial to a defendant. In
some cases multiple prosecutions may aid a

164, 167 (1862) (“[t]he question of a former acquittal as a
bar to a new indictment must always depend upon the
substantial identity of the offenses charged”).
22
 defendant. Therefore, we believe a mandatory
rule would be an unwise solution to this problem.
Moreover, we believe that the type of rule
proposed by the defendant, such as is found in
the Model Penal Code, is properly a decision for
the Legislature and not for this Court.

However, in White the majority overruled Grimmett and

adopted the same transaction test advocated unsuccessfully

by Justice William Brennan——one even more expansive than

the defunct compromise Grady test.

The defendant in White followed the victim to her home

in Inkster, forced her to get into his car, drove her to

Detroit, and, while in Detroit, raped her. The defendant

was first tried and convicted in Wayne Circuit Court on a

kidnapping charge. Subsequently, the defendant was tried

and convicted in Detroit Recorder’s Court on charges of

rape and felonious assault.

Citing Justice Brennan’s concurring opinion in Ashe v

Swenson, 397 US 436, 448-460; 90 S Ct 1189; 25 L Ed 2d 469

(1970), the White Court adopted the Brennan test and held

that the rape and felonious assault convictions were

violative of art 1, § 15. We noted that several other

states had adopted the same transaction test, either under

their own constitutions or under statutes requiring

mandatory joinder, and that several commentators had echoed

Justice Brennan’s concern that the same transaction test

was necessary to effectuate the intent of the framers that
23
the state not be allowed to make repeated attempts to

convict a defendant. Without reference to our

Constitution, its text, or its ratification process, the

White Court opined that the same transaction test fostered

sound policy:

The use of the same transaction test in
Michigan will promote the best interests of
justice and sound judicial administration. In a
time of overcrowded criminal dockets, prosecutors
and judges should attempt to bring to trial a
defendant as expeditiously and economically as
possible. A far more basic reason for adopting
the same transaction test is to prevent
harassment of a defendant. The joining of all
charges arising out of the same criminal episode
at one trial “ * * * will enable a defendant to
consider the matter closed and save the costs of
redundant litigation.” It will also help “* * *
to equalize the adversary capabilities of grossly
unequal litigants” and prevent prosecutorial
sentence shopping. “In doing so, it recognizes
that the prohibition of double jeopardy is for
the defendant’s protection.” [White, supra at
258-259, quoting 41 Mich App 370, 378; 200 NW2d
326 (1972).]

The White Court also noted that the equivalent of the

same transaction test had long been the standard applied to

civil actions by the court rule governing joinder and by

the doctrines of collateral estoppel and res judicata.

Finally, the Court concluded that the three crimes

committed by the defendant were all part of a single

criminal transaction because they “were committed in a

continuous time sequence and display[ed] a single intent

24

and goal——sexual intercourse with the complainant.” Id. at

259.

Justice Thomas E. Brennan vigorously dissented in

White and criticized the adoption of the same transaction

test as contrary to the plain meaning of the term “offense”

as used in our Constitution. Justice Brennan further noted

that, far from being constitutionally mandated, the same

transaction test constituted nothing more than a mandatory

joinder rule. Id. at 263-265.

In Crampton v 54-A Dist Judge, 397 Mich 489, 501-502;

245 NW2d 28 (1976), this Court, recognizing the difficulty

of applying the same transaction test, introduced a

different inflection on the White “single intent and goal”

factor where some of the offenses at issue did not involve

criminal intent:

Where criminal intent is required in the
offenses involved, the criterion set forth in
White applies: “continuous time sequence and
display [of] a single intent and goal.” [390
Mich 259.]

[However], [w]here one or more of the
offenses does not involve criminal intent, the
criterion is whether the offenses are part of the
same criminal episode, and whether the offenses
involve laws intended to prevent the same or
similar harm or evil, not a substantially
different, or a very different kind of, harm or
evil.

Thus, a defendant who was convicted of both driving under

the influence of liquor (DUIL), MCL 257.625, and,
25
subsequently, failure to display a valid registration on

demand, MCL 257.223——both “non-intent” offenses——was

properly tried for both offenses because the applicable

statutes were intended to prevent different harms or evils.

Id. at 503-504.22

In recent years, this Court has looked generally to

federal double jeopardy jurisprudence in determining

whether the successive prosecutions strand of our Double

Jeopardy Clause bars a prosecution. See, e.g., Herron,

supra; People v Wilson, 454 Mich 421, 428; 563 NW2d 44

(1997) (opinion by BRICKLEY, J., noting without elaboration

that "[t]he same offense includes prosecution for a greater

crime after conviction of [a] lesser included offense”).

As Justice Boyle noted in her partially concurring and

dissenting opinion in Wilson, the approach taken by the

22
To further complicate matters, the Court of Appeals
has since put a different, and wholly unfounded, spin on
the White/Crampton test such that the cases now recite that
the Crampton “legislative intent” test applies where one of
the offenses involved is not a “specific intent crime.”
See Flowers, supra; Hunt, supra. This is certainly not an
accurate reflection of Crampton (which stated that the rule
it announced pertained to non-intent crimes), nor is it
responsive to the problem that Crampton intended to resolve
(the application of the “single intent and goal” element of
the White same transaction test to a defendant who did not
necessarily harbor any intent at all). The tripartite
split among the Court of Appeals judges in the case before
us exemplifies the difficulty that inheres in the
application of the same transaction test, particularly as
that test has been muddled by Crampton and the Court of
Appeals’ “specific intent” jurisprudence.
26
majority in that case avoided the necessity of deciding

whether, as the defendant argued, the test for successive

double jeopardy claims differed under the federal and state

constitutions, or whether the Blockburger test should apply

to a claimed violation of art 1, § 15. Id. at 444.

Because this issue is ripe for consideration in this case,

and because we conclude that White was wrongly decided, we

return to this Court’s longstanding practice——commensurate

with federal double jeopardy law——of reviewing successive

prosecutions claims under the Blockburger same-elements

test.

3. RATIFICATION OF CONST 1963, ART 1, § 15

In our 1963 Constitution the narrower language of the

1850 and 1908 double jeopardy provisions was replaced with

language similar to that of the original Constitution of

1835 and the Fifth Amendment: “No person shall be subject

for the same offense to be twice put in jeopardy.” Art 1,

§ 15.

It is immediately striking that the plain language of

the provision provides no support for the conclusion that

the term “same offense” should be interpreted by reference

to whether a crime arises out of the “same transaction” as

another. Rather, we believe that the plain and obvious

meaning of the term “offense” is “crime” or

27

“transgression.”23 As noted by Justice Scalia in Grady,

supra at 529, the Double Jeopardy Clause “protects

individuals from being twice put in jeopardy ‘for the same

offence,’ not for the same conduct or actions” (emphasis

supplied).24

The ultimate inquiry, of course, is the meaning

ascribed to the phrase “same offense” by the ratifiers of

our 1963 Constitution. Examination of the record of the

Constitutional Convention of 1961 provides the historical

context and persuasive support for our decision to return

to the original meaning given to the Fifth Amendment-based

double jeopardy language in art 1, § 15.

Constitutional Convention Committee Proposal Number 15

recommended that Const 1908, art 2, § 14 be revised to

mirror the language of the Fifth Amendment, with the

deletion of the “archaic” words “of life and limb.” 1

Official Record, Constitutional Convention 1961, pp 464-

465, 540. Delegate Stevens explained that “[t]he Supreme

Court of Michigan . . . has virtually held that [Const

23
See, for example, the American Heritage Dictionary
of the English Language, New College Ed, which defines
“offense,” in relevant part, as “[a]ny violation or
infraction of a moral or social code; a transgression or
sin[;] . . . [a] transgression of law; a crime.”
24
“Obviously, the word transaction is broader than the
word offense.” White, supra at 263 (BRENNAN, J.,
dissenting).
28
1908, art 2, § 14] means the same thing as the provision in

the federal constitution, and that is what we have put in .

. . .” Id. at 539. It was reported that the change was

not substantive and that the judiciary committee wished

simply to bring the text of the double jeopardy provision

“in line with the law as it now stands in the state of

Michigan” and “in line with the federal constitution.” Id.

at 542, 543. It was further noted that although the

Convention of 1908 may have intended to restrict the double

jeopardy protection to retrial following acquittal on the

merits, “the court did not in fact go along with this

[intention], and it never has.” Therefore, Delegate

Stevens explained, the committee “want[ed] to make the

constitution read the way the supreme court says it does

read.” Id. at 542, 544.25 Thus, it is clear that the

25
As noted by Delegate Stevens, it was “difficult to
understand why the supreme court has ruled that it means
what we are putting in here now.” Id. at 543. We agree
with Delegate Stevens that this Court’s pre-1963
constructions of our Double Jeopardy Clause seemed
obviously at variance with the terms of the Clause. See n
20. Our holding today is meant to bring our jurisprudence
into conformity with the intent expressed by the people in
ratifying art 1, § 15——an intent that was wholly overlooked
or ignored by this Court in White. We are nevertheless
compelled to look to the state of the law as it existed in
1963——however erroneous it may have been at the time our
Constitution was ratified——to determine what, precisely,
the people intended in adopting art 1, § 15.
Notwithstanding this Court’s apparent disregard for the
narrow language of the constitutions of 1850 and 1908, the
29
drafters understood that they were making no change to the

state of the law and that they wished merely to amend the

Double Jeopardy Clause to conform to the prior decisions of

this Court.

Of even greater significance to our analysis is the

Address to the People, 2 Official Record, Constitutional

Convention 1961, p 3355, accompanying Const 1963, art 1, §

15:26

This is a revision of Sec. 14, Article II,
of the present constitution. The new language of
the first sentence involves the substitution of
the double jeopardy provision from the U.S.
Constitution in place of the present provision
which merely prohibits “acquittal on the merits.”
This is more consistent with the actual practice
of the courts in Michigan. [2 Official Record, p
3364.]

Thus, the ratifiers were advised that (1) the double

jeopardy protection conferred by our 1963 Constitution

would parallel that of the federal Constitution, and (2)

that the proposal was meant to bring our double jeopardy

people in 1963 were free to codify that erroneous case law.
The Constitutional Convention discussions make unmistakable
the conclusion that our current Double Jeopardy Clause was
designed to conform to then-extant judicial decisions.
26
The Address to the People, widely distributed to the
public prior to the ratification vote in order to explain
the import of the sundry proposals, “is a valuable tool in
determining whether a possible ‘common understanding’
diverges from the plain meaning of the actual words of our
constitution.” Mich United Conservation Clubs, supra at
378, 379 n 11 (YOUNG, J., concurring).
30
provision into conformity with what this Court had already

determined it to mean.

4. WHITE CONFLICTS WITH ART 1, § 15, AND THUS CANNOT STAND

In 1973, this Court disregarded decades of precedent

and, without consideration of the will of the people of

this state in ratifying the Double Jeopardy Clause in our

1963 Constitution, adopted Justice William Brennan’s long-

rejected “same transaction” test. In adopting this

definition and equating the word “transaction” with the

constitutional term “offense,” the White Court accorded to

that term a meaning quite at odds with its plain meaning or

the common understanding. In the absence of any evidence

that the term “offense” was understood by the people to

comprise all criminal acts arising out of a single criminal

episode, we are compelled to overrule White.27

We conclude that in adopting art 1, § 15, the people

of this state intended that our double jeopardy provision

would be construed consistently with Michigan precedent and

the Fifth Amendment. It has long been understood that our

Double Jeopardy Clause derives from the common law and that

its meaning must be discerned by reference thereto. At the

27
The dissent notes that the same-elements test
“permits multiple prosecutions stemming from a single
incident.” Post at 5 (emphasis supplied). The dissent
conflates, as did the White Court, the terms “offense” and
“incident,” which certainly do not have identical meanings.
31
time of the ratification of art 1, § 15, in 1963, it was

established that the term “same offense” was defined by

reference to the same-elements test as set forth by the

Massachusetts Supreme Court in Morey, supra (and

subsequently adopted by the United States Supreme Court).

See People v Townsend, 214 Mich 267, 275-276; 183 NW 177

(1921); Parrow, supra. Moreover, the people were advised

in the Address to the People that the proposed double

jeopardy provision was conterminous with the Fifth

Amendment. In 1963——and thereafter, notwithstanding

Grady’s short-lived detour——the Blockburger same-elements

test provided the definition for the term “same offence” in

the Fifth Amendment. We agree with Justice Scalia that the

same-elements test best gives effect to the plain meaning

of that term. We further conclude that the same-elements

test best gives effect to the intent of the ratifiers of

the 1963 Constitution.28

28
As noted by Justice Scalia in Grady and by our own
Justice Brennan in White, principles of collateral estoppel
and properly adopted procedural joinder rules might well
compel the dismissal of charges in certain circumstances.
See, e.g., MCR 6.120. Nevertheless, collateral estoppel
and joinder are discrete, nonconstitutional concepts that
should not be conflated with the constitutional double
jeopardy protection.

This Court has appointed a committee to review the
Rules of Criminal Procedure and to determine whether any of
these rules should be revised. In light of our decision
32
 D. APPLICATION

Defendant’s Oakland County prosecution for possession

of stolen firearms, following her conviction for second-

degree home invasion in Lapeer County, withstands

constitutional scrutiny under the same-elements test.

Defendant was convicted of home invasion pursuant to MCL

750.110a(3), which provided:29

A person who breaks and enters a dwelling with
intent to commit a felony or a larceny in the
dwelling or a person who enters a dwelling without
permission with intent to commit a felony or a
larceny in the dwelling is guilty of home invasion
in the second degree.

Required for a conviction of this offense was proof that

defendant (1) entered a dwelling, either by a breaking or

without permission, (2) with the intent to commit a felony

or a larceny in the dwelling.

here today that the constitution does not require the
prosecutor to join at one trial all the charges against a
defendant arising out of the same transaction, we will be
requesting the Committee on the Rules of Criminal Procedure
to consider whether our permissive joinder rule, MCR
6.120(A), should be amended to impose mandatory joinder of
all the charges against a defendant arising out of the same
transaction and to provide this Court with its
recommendation within sixty days. In considering whether a
mandatory joinder rule should be adopted, the Committee
should consider statutory provisions concerning
prosecutorial jurisdiction, including MCL 767.45(1)(c), MCL
767.63, MCL 762.3, MCL 762.8, and MCL 762.10.
29
MCL 750.110a was subsequently amended by enactment
of 1999 PA 44, effective October 1, 1999.
33
 Defendant now stands charged with receiving and

concealing a stolen firearm in violation of MCL

750.535b(2), which provides:

A person who receives, conceals, stores,
barters, sells, disposes of, pledges, or accepts as
security for a loan a stolen firearm or stolen
ammunition, knowing that the firearm or ammunition
was stolen, is guilty of a felony, punishable by
imprisonment for not more than 10 years or by a
fine of not more than $ 5,000.00, or both.

Thus, the Oakland County Prosecutor is required to prove

that defendant (1) received, concealed, stored, bartered,

sold, disposed of, pledged, or accepted as security for a

loan (2) a stolen firearm or stolen ammunition (3) knowing

that the firearm or ammunition was stolen.

Clearly, there is no identity of elements between

these two offenses. Each offense requires proof of

elements that the other does not. Because the two offenses

are nowise the same offense under either the Fifth

Amendment or art 1, § 15, we affirm the result reached by

the Court of Appeals majority and hold that defendant is

not entitled to the dismissal of the Oakland County charge.

IV. RESPONSE TO THE DISSENT

We respectfully disagree with the dissent’s assertion

that our decision to overrule White is “grounded in the

improper belief that the same-elements test is the sole

test used by the United States Supreme Court to protect
34

citizens’ constitutional rights under the United States

Constitution.” Post at 2. First and foremost, the

critical inquiry in determining the meaning of our

constitutional analogue of the federal Double Jeopardy

Clause is the intent of the ratifiers in adopting our 1963

Constitution. Thus, the meaning ascribed to a federal

constitutional provision by the United States Supreme Court

is not dispositive, except to the extent that it appears——

as we have explained that it does in the case of Const

1963, art 1, § 15——that the ratifiers of our Constitution

intended that a provision be construed consistently with

the corresponding federal provision.

Moreover, the proposition advanced by the dissent——

that the term “same offence” is accorded different meanings

in different contexts——has been squarely rejected by the

United States Supreme Court in Dixon. We need not refurrow

the ground that was so thoroughly plowed by the Dixon

Court. However, we refer the reader to Dixon, supra at

704-709, where the Court emphatically held that “there is

no authority, except Grady, for the proposition that [the

Double Jeopardy Clause] has different meanings [in

different contexts],” id. at 704, and supported that

conclusion with an exhaustive review of federal case law.

Indeed, many of the very cases that our dissenting

35

colleague cites in support of his assertion that the term

“same offence” in the federal Double Jeopardy Clause is

susceptible of different meanings, see post at 3-4, were

addressed point by point by the Court and were soundly

rejected as bases for so concluding. See Dixon, supra at

705-709.30

The dissent further asserts that we have given short

shrift to the purpose of the double jeopardy provision’s

successive prosecutions strand, which is to prevent the

state from making repeated attempts to obtain a conviction

for an alleged offense. However, the instant case in fact

illustrates that this venerable purpose is in no way served

by the ill-conceived rule set forth in White. Defendant

was not subjected to repeated attempts to convict her of

“an alleged offense.” Rather, she was subjected to

30
Two of the cases cited by the dissent, Ball v United
States, 470 US 856; 105 S Ct 1668; 84 L Ed 2d 740 (1985),
and Albernaz et al v United States, 450 US 333; 101 S Ct
1137; 67 L Ed 2d 275 (1981), although not addressed by the
Dixon majority, are equally inapposite. Indeed, in both
cases, the Court reiterated that Blockburger had long
provided the controlling framework for resolving multiple
punishments claims, and in both cases the Court applied the
Blockburger test. See Ball, supra at 861; Albernaz, supra
at 337. In any event, we are simply not addressing in this
case the multiple punishments strand of the double jeopardy
protection. See n 11 supra. Moreover, it should be noted
that the Albernaz Court specifically stated that “[i]t is
well settled that a single transaction can give rise to
distinct offenses under separate statutes without violating
the Double Jeopardy Clause.” Id. at 344 n 3.
36
prosecution for two independent offenses in two separate

jurisdictions. Application of the White rule, rather than

ensuring that the state would not get more than “one bite

at the apple,” would preclude the state from ever trying

defendant for one of the charges against her. This is not

at all consistent with the purpose of the double jeopardy

protection.31

V. CONCLUSION

The White Court improperly imposed on the text of art

1, § 15 its own notions of prosecutorial policy and, in so

doing, conflated the constitutional double jeopardy

protection with a self-created procedural mandatory joinder

rule. Because it is clear that the ratifiers of our 1963

Constitution intended to continue to accord the same double

jeopardy protection under art 1, § 15 that was provided by

the Fifth Amendment, we overrule White and its progeny as

31
The dissent asserts that our holdings in Parrow,
supra, and Ochotski, supra, illustrate the evil that will
spring from abrogation of the White rule. See post at 6-7.
Although reasonable minds might differ with respect to
whether a prosecutor is morally obligated to join in a
single prosecution all offenses arising from a criminal
episode (for example, burglary and larceny [Parrow], or the
murders of two different individuals [Ochotski]), this is a
matter of policy and is simply not of constitutional
concern. As we have noted, the White Court imported into
Michigan’s double jeopardy provision a mandatory joinder
rule that finds no place in either the text of the
provision or in its jurisprudential history.
37
contrary to the will of the people of the state of

Michigan. We hold that the Blockburger same-elements test,

as the reigning test in both this Court and the federal

courts in 1963, best gives effect to the will of the people

in ratifying art 1, § 15. Because the prosecution was not

required to bring against defendant in a single trial all

charges arising from the same transaction, and because

second-degree home invasion and receiving and concealing

stolen firearms are not the same offense under either art

1, § 15 or the Fifth Amendment, we vacate the judgments of

the lower courts, affirm the result reached by the Court of

Appeals on other grounds, and remand the case to the trial

court for further proceedings.

Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman

38

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,
v No. 120489

MELISSA ANN NUTT,

Defendant-Appellant.

_______________________________

CAVANAGH, J. (dissenting).

Today’s majority overrules People v White, 390 Mich

245; 212 NW2d 222 (1973), which held that the “same

transaction” test should be used to determine if serial

prosecutions violate our Constitution’s double jeopardy

provision.1 The majority now holds that courts must use the

“same elements” test to determine when our Constitution’s

prohibition against double jeopardy is violated. As was so

eloquently stated in White, supra at 258, “It is our duty

to assure to all who come before us the rights guaranteed

under the Constitution of the United States and the

1
“No person shall be subject for the same offense to
be twice put in jeopardy.” Const 1963, art 1, § 15.
Constitution of the State of Michigan.” Because I believe

today’s majority fails to honor that duty in its decision

to overrule White, I must respectfully dissent.

This Court’s decision to overrule White is grounded in

the improper belief that the same elements test is the sole

test used by the United States Supreme Court to protect

citizens’ constitutional rights under the United States

Constitution.2 However, the same elements test, also

referred to as the Blockburger test,3 is not as entrenched

in federal jurisprudence as the majority claims. “The

Blockburger test is not the only standard for determining

whether successive prosecutions impermissibly involve the

same offense.” Brown v Ohio, 432 US 161, 166 n 6; 97 S Ct

2221; 53 L Ed 2d 187 (1977). “It has long been understood

that separate statutory crimes need not be identical—either

in constituent elements or in actual proof—in order to be

the same within the meaning of the constitutional

prohibition.” Id. at 164.

2
Federal jurisprudence is relevant to our analysis
because of the majority’s argument that the ratifers of our
Constitution wanted Michigan’s double jeopardy protection
to be parallel with that conferred by the federal
constitution.
3
Blockburger v United States, 284 US 299; 52 S Ct 180;
76 L Ed 306 (1932).

2

 In numerous cases, the United States Supreme Court has

used other tests because it recognized that the same

elements test is not an adequate safeguard to protect a

citizen’s constitutional right against double jeopardy. In

Ashe v Swenson, 397 US 436, 443-444, 447; 90 S Ct 1189; 25

L Ed 2d 469 (1970), the United States Supreme Court held

that the double jeopardy clause includes a collateral

estoppel guarantee. In Ball v United States, 470 US 856,

857, 865, 866 (appendix); 105 S Ct 1668; 84 L Ed 2d 740

(1985), the United States Supreme Court recognized the

Blockburger test, see n 3, yet determined a defendant could

not be convicted of two offenses that stemmed from the same

conduct, even though the offenses had different elements,

because it was contrary to congressional intent. As stated

in Albernaz v United States, 450 US 333, 340; 101 S Ct

1137; 67 L Ed 2d 275 (1981), “The Blockburger test is a

‘rule of statutory construction,’ and because it serves as

a means of discerning congressional purpose the rule should

not be controlling where, for example, there is a clear

indication of contrary legislative intent.”

Further, in In re Nielsen, 131 US 176, 187; 9 S Ct

672; 33 L Ed 118 (1889), a conviction for unlawful

cohabitation precluded a subsequent charge of adultery

because the incident occurred during the same two and a

3

half year period as that for unlawful cohabitation. In

Harris v Oklahoma, 433 US 682, 682-683; 97 S Ct 2912; 53 L

Ed 2d 1054 (1977), the defendant was convicted of felony

murder after a store clerk was killed during a robbery.

After the defendant’s conviction for felony murder, the

defendant was tried and convicted of robbery with firearms.

The United States Supreme Court held that when “conviction

of a greater crime . . . cannot be had without conviction

of the lesser crime, the Double Jeopardy Clause bars

prosecution for the lesser crime after conviction of the

greater one.” Id. at 682. And in Brown, supra at 166,

double jeopardy barred a subsequent prosecution for a

greater offense even though the greater offense required

proof of an additional element.4

The majority relegates the purpose of the Double

Jeopardy Clause to a footnote, ante, p 11 n 10; however, it

4
The majority states that many of these “very cases”
were addressed “point by point” in United States v Dixon,
509 US 688; 113 S Ct 2849; 125 L Ed 2d 556 (1993). That
is correct; however, cases addressed in Dixon were also
addressed, and I believe more convincingly, in the Dixon
dissent. Further, the majority notes that certain cases I
cited addressed multiple punishment claims, and “we are
simply not addressing in this case the multiple punishments
strand of the double jeopardy protection.” Ante, p 36 n
30. While this case does not deal with a multiple
punishment claim, Blockburger itself was a multiple
punishment case and Dixon, supra at 704, stated that the
term “same offense” means the same whether dealing with
successive prosecution or multiple punishment claims.

4

is worth stating clearly that the purpose of the

constitutional protection against double jeopardy is “to

limit the state to having generally only one attempt at

obtaining a conviction. Otherwise, the state could

repeatedly prosecute persons for the same crime,

transforming the trial process itself into a punishment and

effectively punishing the accused without his having been

adjudged guilty of an offense meriting punishment.” People

v Dawson, 431 Mich 234, 250-251; 427 NW2d 886 (1988).

Likewise, the United States Supreme Court stated that

the State with all its resources and power should
not be allowed to make repeated attempts to
convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as
well as enhancing the possibility that even
though innocent he may be found guilty. [Green v
United States, 355 US 184, 187-188; 78 S Ct 221;
2 L Ed 2d 199 (1957).]
Our Double Jeopardy Clause is meant to protect our

citizens from government zeal and overreaching; yet, the

same elements test permits multiple prosecutions stemming

from a single incident. “The same-elements test is an

inadequate safeguard, for it leaves the constitutional

guarantee at the mercy of a legislature’s decision to

modify statutory definitions.” United States v Dixon, 509

US 688, 735; 113 S Ct 2849; 125 L Ed 2d 556 (1993) (White,

J., dissenting). Notably, a technical comparison of the

5

elements is neither constitutionally sound nor easy to

apply. While the same elements test appears at first

glance to be easy to apply, this Court’s recent struggle

with whether materiality is an element of perjury in People

v Lively, 468 Mich 942; 664 NW2d 223 (2003) (order granting

leave), provides proof to the contrary. “As with many

aspects of statutory construction, determination of what

elements constitute a crime often is subject to dispute.”

United States v Gaudin, 515 US 506, 525; 115 S Ct 2310; 132

L Ed 2d 444 (1995) (Rehnquist, C.J., concurring). If our

courts struggle with the basics of determining what

elements constitute a crime, it is inevitable that these

struggles will continue when courts attempt to determine

whether two crimes contain the same elements.

In contrast to the same elements test, the same

transaction test requires the government to join at one

trial all the charges against a defendant arising out of a

continuous time sequence, when the offenses shared a single

intent and goal. White, supra at 254. Although a single

transaction can give rise to distinct offenses, the charges

must be joined at one trial. However, the same transaction

test also offers flexibility for certain circumstances,

such as when facts necessary to sustain a charge have not

yet occurred or have not been discovered despite due

6

diligence. People v Harding, 443 Mich 693, 702; 506 NW2d

482 (1993).

The same transaction test best protects Michigan

citizens against government harassment and overreaching,

while the same elements test increases the potential for

government abuse. To this end, the majority has helpfully

provided cases that illustrate that the government will

expend resources and repeatedly prosecute citizens for

crimes that stem from one incident and that could have been

consolidated at one trial. In People v Parrow, 80 Mich

567, 568; 45 NW 514 (1890), the defendant was acquitted of

burglary with intent to commit the crime of larceny and

then the government chose to charge the defendant with

larceny for stealing the same money as in the alleged

burglary. And in People v Ochotski, 115 Mich 601, 602-603;

73 NW 889 (1898), the defendant was charged and convicted

of assaulting a woman after he was acquitted of assaulting

her husband during the same incident.

In this case, defendant pleaded guilty of second-

degree home invasion, MCL 750.110a(3). She was

subsequently charged with receiving and concealing stolen

firearms, MCL 750.535b. Notably, defendant was the driver

in the home invasion during which the guns were stolen.

She also admitted that the guns concealed were the ones

7

stolen during the home invasion. Defendant’s actions

represent a single intent and goal, as well as the events

being part of a continuous time sequence. Almost

universally, inherent in stealing an item is receiving it

and concealing it, if only for a brief time. Defendant’s

intent when she participated in the home invasion was to

successfully steal the guns. Defendant’s intent when she

participated in the concealing of the guns was to

successfully steal the guns. The subsequent prosecution

for receiving and concealing stolen firearms violated

defendant’s double jeopardy rights.

Government maneuvering and manipulation should not be

used to evade the protections granted our citizens by the

Double Jeopardy Clause. Protecting our citizens’

constitutional rights is a constitutional obligation, not

merely a moral one. The same transaction test best meets

our Constitution’s mandate against twice putting a person

in jeopardy for the same offense. Without double jeopardy

protections, our citizens are at risk of facing multiple

prosecutions by the government, regardless of a prior

acquittal. “Further, because the state can devote its

resources to improving the presentation of its case, the

probability of a conviction may increase with each

retrial.” Dawson, supra at 251.

8

 Accordingly, I respectfully dissent and would reverse

the decision of the Court of Appeals. After pleading

guilty of second-degree home invasion, defendant’s

subsequent prosecution for receiving and concealing stolen

firearms violated her double jeopardy rights.

Michael F. Cavanagh
Marilyn Kelly

9