People v. Robideau

*504Cavanagh, J.

(dissenting in People v Brown only). In these cases, we are asked to determine whether convictions of first-degree criminal sexual conduct based on sexual penetration under circumstances involving any "other felony”, pursuant to MCL 750.520b(l)(c); MSA 28.788(2)(l)(c),1 and of the "other felony” violate either the federal2 or state3 constitutional prohibitions against double jeopardy. I agree with my brother Kavanagh that such multiple convictions do abridge the state constitutional guarantee.

On the same day that it held the Double Jeopardy Clause of the Fifth Amendment applicable to the states, Benton v Maryland, 395 US 784, 793-796; 89 S Ct 2056; 23 L Ed 2d 707 (1969), the United States Supreme Court summarized the protections afforded by that clause:

"It protects against a second prosecution for the same offense after acquittal. It protects against a second *505prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

Those same protections were also known at common law. Bartkus v Illinois (On Rehearing), 359 US 121, 151-155; 79 S Ct 676; 3 L Ed 2d 684 (1959) (Black J., dissenting), reh den 360 US 907; 79 S Ct 1283; 3 L Ed 2d 1258 (1959); Ex parte Lange, 85 US (18 Wall) 163, 168-175; 21 L Ed 872 (1874).

Undoubtedly, these cases before us deal with the third protection, that against multiple punishments for the same offense.4

"Under such circumstances the Double Jeopardy Clause operates to protect the defendant from receiving double punishment for what is in reality a single criminal offense. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).

"The problem in multiple punishment cases, as in multiple prosecution cases, is to determine whether the charges at issue constitute the 'same offense’ for double jeopardy purposes.” People v Carter, 415 Mich 558, 577-578; 330 NW2d 314 (1982).

As the majority’s thorough review of federal and state case law reveals, the scope of what appears to be a seemingly clear and simple principle proscribing multiple punishments for the same offense is currently unsettled and unclear. Nevertheless, our task remains the same. We must determine *506the meaning of the constitutional prohibitions against double jeopardy; specifically, the proscription against multiple punishments for the same offense. In so doing, it serves us well to recall the following observations made over 100 years ago:

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.
"It is very clearly the spirit of the instrument [i.e., the constitution] to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.
"For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger of jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had and, on a second conviction, a second punishment inflicted?
"The argument seems to us irresistible, and we do not *507doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.” (Emphasis added.) Lange, supra, pp 168, 170, 173.

The foregoing observations have retained their vitality to this day and are true of the meaning of Const 1963, art 1, § 15.5 See, e.g., People v Wilder, 411 Mich 328, 350; 308 NW2d 112 (1981), reh den 411 Mich 1157 (1981).

In my view, the double jeopardy protection against multiple punishments for the same offense encompasses the cases now before us.6 Indeed, in situations like these and like those present in Wilder, supra, the underlying or predicate offense is always included within the greater or compound offense which relies on it for a conviction.7 To *508paraphrase Carter, supra, pp 588-589, these offenses are not factually and theoretically independent; rather, they are inseparably intertwined. Each offense necessarily supplies an indispensable element of the other. Thus, to impose punishments for both offenses amounts to constitutionally impermissible multiple punishments for the same offense.

To so hold is not a startling departure from prior law. Rather, it is not a departure at all, but is derived logically from and based on our prior decisions. See Carter, supra, pp 577-589; Wilder, supra, pp 341-352; Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 405-412; 280 NW2d 793 (1979) (Kavanagh, J., dissenting), reh den 406 Mich 1127 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979); People v Jankowski, 408 Mich 79, 85-93; 289 NW2d 674 (1980); People v Stewart (On Rehearing), 400 Mich 540, 548-549; 256 NW2d 31 (1977); People v Martin, 398 Mich 303, 307-310; 247 NW2d 303 (1976); People v Cook, 236 Mich 333, 335-338; 210 NW 296 (1926). Accordingly, since we are interpreting Const 1963, art 1, § 15, I would reaffirm the test set forth in those cases which courts in this state are to employ when determining whether two offenses are the same offense for double jeopardy purposes, i.e., if one offense is a necessarily or cognate lesser included offense of another, they are the same offense for purposes of the state constitutional prohibition against double jeopardy.8

*509I am cognizant of the oft-stated maxim that the legislative body has the exclusive power to define offenses and fix punishments. See, e.g., Wayne County Prosecutor, supra, pp 391-392; People v Wakeford, 418 Mich 95, 108, 111; 341 NW2d 68 (1983). Nevertheless, that power does not in any way exempt the legislative body from honoring the state constitutional prohibition against double jeopardy to the same extent as must the other coequal branches of government, i.e., it is bound to honor all the protections afforded by that constitutional guarantee.9 Indeed, the words contained in the constitution do not limit their application to any particular branch or branches:_

*510"No person shall be subject for the same offense to be twice put in jeopardy.”
To hold otherwise would constitute an improper use of judicial power, creating something out of nothing, finding a limitation which has no basis in fact, law, or logic, making law by judicial ñat.
"If the Double Jeopardy Clause imposed no restrictions on a legislature’s power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result. A State would be free to create substantively identical crimes differing only in name, or to create a series of greater and lesser-included offenses, with the first crime a lesser-included offense of the second, the second a lesser-included offense of the third, and so on.
"In light of these considerations, the Double Jeopardy Clause cannot reasonably be interpreted to leave legislatures completely free to subject a defendant to the risk of multiple punishment on the basis of a single criminal transaction. In the context of multiple prosecutions, it is well established that the phrase 'the same offence’ in the Double Jeopardy Clause has independent content — that two crimes that do not satisfy the Block-burger test constitute 'the same offence’ under the Double Jeopardy Clause regardless of the legislature’s intent to treat them as separate offenses. Otherwise multiple prosecutions would be permissible whenever authorized by the legislature. The Court has long assumed that the Blockburger test is also a rule of constitutional stature in multiple punishment cases, and I would not hesitate to hold that it is. If the prohibition against being 'twice put in jeopardy’ for 'the same offence’ is to provide meaningful protection, the phrase 'the same offence’ must have content independent of state law in both multiple prosecution and multiple punishment cases. Since the Double Jeopardy Clause limits the power of all branches of government, including the legislature, there is no more reason to treat the test as simply a rule of statutory construction in multi-*511pie punishment cases than there would be in multiple prosecution cases.” Missouri v Hunter, 459 US 359; 103 S Ct 673; 74 L Ed 2d 535 (1983) (Marshall, J., dissenting). Also Wayne County Prosecutor, supra, pp 410-411 (Kavanagh, J., dissenting), pp 414-417 (Levin, J., dissenting).

Such a view does not necessarily prevent multiple punishments for multiple offenses committed in a single transaction. Cf. Wakeford, supra, fn 7. Rather, as long as single transaction multiple offenses are legally and factually distinct under the test as previously set forth, the state constitutional prohibition against double jeopardy does not operate as a bar to the imposition of multiple punishments. Only in those infrequent cases where in reality two offenses are the same offense are multiple punishments prohibited.

In any event, these cases do not involve a legislative breach of the state constitutional protection against multiple punishments for the same offense, i.e., the Legislature has not clearly and unequivocally authorized punishment for both first-degree criminal sexual conduct based on sexual penetration under circumstances involving any "other felony” and the "other felony”.10 Rather, these cases involve a judicial breach of that protection, *512i.e., imposition of a second sentence for the same offense.11

In summary, I would reaffirm the test set forth in our prior decisions which courts in this state are to employ when determining whether two offenses are the same offense for double jeopardy purposes, i.e., if one offense is a necessarily or cognate lesser included offense of another, it is the same offense for purposes of the state constitutional prohibition against double jeopardy embodied in Const 1963, art 1, § 15. When applying the test to these cases, it is clear that convictions of first-degree criminal sexual conduct based on sexual penetration under circumstances involving any "other felony”, pursuant to MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), and of the "other felony” violate the state constitutional prohibition against double jeopardy, specifically, the protection to be free from multiple punishments for the same offense. In these and similar cases, the underlying or predicate offense is always included within the greater or compound offense which relies on it for a conviction. Consequently, imposing punishments for both offenses amounts to constitutionally impermissible multiple punishment for the same offense._

*513I would affirm the decision of the Court of Appeals in Brown and its directions on remand.

Cavanagh, J., participated only in the decision of Brown.

MCL 750.520b(l); MSA 28.788(2)(1) provides as follows:

"Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

"(c) Sexual penetration occurs under circumstances involving the commission of any other felony.”

"No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” US Const, Am V (emphasis added).

The double jeopardy provision of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. See Benton v Maryland, 395 US 784, 793-796; 89 S Ct 2056; 23 L Ed 2d 707 (1969).

Const 1963, art 1, § 15 provides in pertinent part as follows:

"No person shall be subject for the same offense to be twice put in jeopardy.”

Although the right to be free from multiple punishments for the same offense might be better analyzed as a right inherent in due process, US Const, Am XIV; Const 1963, art 1, § 17, or as a portion of the right to be free from cruel or unusual punishment, US Const, Am VU3; Const 1963, art 1, § 16, or even as one of the non-enumerated individual rights, US Const, Am IX; Const 1963, art 1, §23, see, generally, Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Supreme Court Review 81, it is not necessary to alter the traditional analytic framework.

Although the present language of our constitutional prohibition against double jeopardy is almost identical to that found in the federal constitution (but cf. Const 1908, art 2, § 14; Const 1850, art 6, § 29; Const 1835, art 1, § 12), this Court has never stated that our current provision merely mirrors the federal protections. Rather, we have found that our constitutional prohibition against double jeopardy affords greater protection than does the Fifth Amendment as applied to the states through the Fourteenth. See, e.g., People v Wakeford, 418 Mich 95, 105-106, fn 9; 341 NW2d 68 (1983); People v Carter, 415 Mich 558, 582-584; 330 NW2d 314 (1982); People v Wilder, 411 Mich 328, 343-349; 308 NW2d 112 (1981), reh den 411 Mich 1157 (1981); People v Jankowski, 408 Mich 79, 91-92, 96; 289 NW2d 674 (1980); People v White, 390 Mich 245; 212 NW2d 222 (1973). Of course, our reliance on the state constitution has been due in part to the United States Supreme Court’s failure to clearly define the scope of the Fifth Amendment double jeopardy protections.

Since the scope of the corresponding Fifth Amendment double jeopardy protection is unclear, this discussion rests on the interpretation of Const 1963, art 1, § 15.

Whether that is "legally” or "factually” so is unimportant to our analysis. See Wilder, supra, pp 345-347. Indeed, by necessary implication, a compound offense which has as an element other enumerated offenses, e.g., felony murder, MCL 750.316; MSA 28.548, or any other offense, e.g., first-degree criminal sexual conduct, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), includes in that element, in the alternative, all of the elements of each enumerated offense or of all other offenses, i.e., the predicate offenses are "legally” or necessarily lesser included offenses. Of course, even if predicate offenses are not necessarily *508included in the compound offense, the proof needed to establish the compound offense will always require proof of a predicate offense, i.e., the predicate offenses are "factually” or cognate lesser included offenses.

Since the United States Supreme Court has not enunciated a constitutionally based test for use when analyzing Fifth Amendment double jeopardy issues, see Missouri v Hunter, 459 US 359; 103 S Ct *509673; 74 L Ed 2d 535 (1983); Albernaz v United States, 450 US 333, 340-342; 101 S Ct 1137; 67 L Ed 2d 275 (1981); Whalen v United States, 445 US 684, 691-692; 100 S Ct 1432; 63 L Ed 2d 715 (1980), we are free to adopt our own test when reviewing such claims. In addition, the federal constitution does not prevent us from creating a different test when interpreting the double jeopardy guarantee of our own constitution, nor does it prevent the state constitutional prohibition against double jeopardy from affording greater protection than does the Fifth Amendment prohibition.

Of course, theoretically, the legislative body can riever abridge the state constitutional double jeopardy protections, i.e., the mere enactment of statutes which purport to authorize violations of those protections do not in fact amount to such violations. Rather, those protections are not violated until a prosecutor institutes a subsequent prosecution for the same offense after a prior conviction or acquittal or until a court imposes a second sentence for the same offense. Hence, the following observations by the United States Supreme Court:

"[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown v Ohio, 432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Cf. Hunter, supra; Albernaz, supra, pp 334-344; Whalen, supra, pp 688-695.

Nevertheless, statutes which purport to authorize violations of any of the protections afforded by the state constitutional prohibition against double jeopardy will be construed so that such violations will not occur or will be declared unconstitutional.

The majority’s conclusion to the contrary is premised on specious reasoning. Ante, pp 490-491. The observation that armed robbery and kidnapping "normally occur along with first-degree criminal sexual conduct” is improperly speculative. Rather, it is just as likely that the predicate felony will be a breaking and entering or a larceny-related offense. However, those offenses carry maximum punishments of no more than 15 years’ imprisonment. Thus, a person can be faced with the risk that a greater punishment will be imposed solely as the result of a conviction pursuant to MCL 750.520b(l)(c); MSA 28.788(2)(l)(c). Accordingly, the majority’s reasoning, that the Legislature intended to impose double punishments because the predicate felonies are co-equal offenses, falls by its own weight. The bases advanced by the majority do not persuade me to find a clear expression of legislative intent.

"To the extent that legislative intent is not entirely free of doubt, *512the doubt must be resolved in favor of lenity. See Whalen v United States, 445 US 684, 694; 100 S Ct 1432; 63 L Ed 2d 714 (1980); . Simpson v United States, 435 US 6, 14-15; 98 S Ct 909; 55 L Ed 2d 70 (1978); United States v Bass, 404 US 336, 347; 92 S Ct 515; 30 L Ed 2d 488 (1971).” People v Wilder, 411 Mich 328, 343; 308 NW2d 112 (1981), reh den 411 Mich 1157 (1981). Also, Wilder, supra, pp 364-365 (Ryan, J., concurring); People v Carter, 415 Mich 558, 589, fn 32; 330 NW2d 314 (1982).

Although the state constitutional prohibition against double jeopardy does not prevent a prosecutor from instituting a single prosecution charging a person with both offenses or from obtaining guilty verdicts on both charges in that prosecution, a court may not impose sentences pursuant to both verdicts. However, note that the better course in such cases is for the prosecutor to charge in the alternative. See Wilder, supra, pp 352-353; Jankowski, supra, pp 92-93.