People v. Smith

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

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

FILED JUNE 20, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130353

BOBBY LYNELL SMITH,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal to consider whether Blockburger v United

States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), or People v Robideau,

419 Mich 458; 355 NW2d 592 (1984), sets forth the proper test in Michigan for

determining when multiple punishments are barred on double jeopardy grounds.

Following a jury trial, defendant was convicted of two counts of first-

degree felony murder, MCL 750.316(1)(b), with larceny as the predicate felony.

Defendant was also convicted of two counts of armed robbery, MCL 750.529, and

four counts of possession of a firearm during the commission of a felony, MCL
750.227b. Defendant appealed, asserting that his convictions for both first-degree

felony murder and armed robbery violate the Double Jeopardy Clause of the

Michigan Constitution, Const 1963, art 1, § 15. The Court of Appeals concluded

that there was no evidence that defendant had committed the separate offenses of

robbery and larceny and therefore held that defendant’s armed robbery convictions

violated double jeopardy. As a result, the Court of Appeals vacated defendant’s

two convictions and sentences for armed robbery and the accompanying

convictions for felony-firearm. Unpublished opinion per curiam, issued December

27, 2005 (Docket No. 257353). We conclude that the Court of Appeals erred in its

double jeopardy analysis by comparing the felony-murder convictions to the non-

predicate felonies of armed robbery. Because armed robbery was not the predicate

felony involved in the instant felony-murder convictions, reversal is not required

pursuant to People v Wilder, 411 Mich 328; 308 NW2d 112 (1981). We further

conclude that the language “same offense” in Const 1963, art 1, § 15 means the

same thing in the context of the “multiple punishments” strand of the Double

Jeopardy Clause as it does in the context of the “successive prosecutions” strand

addressed by the Court in People v Nutt, 469 Mich 565; 677 NW2d 1 (2004). We

therefore hold that Blockburger sets forth the proper test to determine when

multiple punishments are barred on double jeopardy grounds. Because each of the

crimes for which defendant here was convicted, first-degree felony murder and

armed robbery, has an element that the other does not, they are not the “same

2

offense” and, therefore, defendant may be punished for each. Accordingly, we

reverse the part of the judgment of the Court of Appeals that vacated the armed

robbery convictions and sentences and two of the felony-firearm convictions and

sentences, and remand this case to the trial court to reinstate defendant’s

convictions and sentences for armed robbery and the accompanying felony-

firearm convictions and sentences.

I. FACTS AND PROCEDURAL HISTORY

At approximately 10:30 a.m. on January 7, 2003, a customer entering the

City Tire store in Pontiac discovered the bodies of store employee Stephen

Putman and store owner Richard Cummings. Putman had died of a gunshot

wound to the neck and Cummings had died from two gunshot wounds to the head.

The police determined that $2,000 in cash that Cummings brought to the store

from home to use in the store’s cash register was missing, as were the store’s

proceeds from that morning. In addition, Pontiac police officers interviewed the

victims’ families and determined that both Putman’s and Cummings’s wallets

were missing and that the money Cummings carried in his front pocket was also

missing.

On January 8, 2004, the police received a call from Tywanda Smith,

defendant’s wife, who informed them that defendant confessed to her that he had

3

committed the murders.1 Smith testified that defendant told her that he first asked

“the young guy” [Putman] for the money but that “the young guy acted like he

didn’t know what [defendant] was talking about and [defendant] shot him.”

Defendant then asked the “old guy” [Cummings] where the money was, and

Cummings responded, “What do you think you are going to do? You going to rob

me?” Cummings then hit defendant on the hand with an unknown object and

defendant responded by shooting Cummings twice in the head. Defendant then

admitted that, after the shootings, he took money and a set of keys from the store,

but did not take any vehicle. Defendant also told Smith that the police had no

evidence implicating him in the murders because he threw the gun into the river.

Defendant was prosecuted for two counts of first-degree felony murder,

with larceny as the predicate felony, two counts of armed robbery, and four counts

of felony-firearm. Following a jury trial, defendant was convicted on all charges.

He appealed, contending that his convictions for two counts of felony murder and

two counts of armed robbery committed during the course of the murders

constituted a violation of the Double Jeopardy Clause of the Michigan

Constitution. The Court of Appeals undertook its analysis by noting that larceny

1
While defendant told Smith about the murders “some days” after they
occurred, she did not contact the police until she saw newspaper and television
coverage commemorating the one-year anniversary of the murders. The television
coverage included a plea for information to assist in the investigation of the
murders. Smith admitted on cross-examination that she told no one about her
knowledge of the murders until contacting the police.

4

is a lesser included offense of robbery and that there was no evidence that

defendant committed the separate offenses of robbery and larceny. Slip op at 2.

On that basis, the Court of Appeals concluded that armed robbery, not larceny,

was the predicate felony for the instant felony-murder convictions and, therefore,

that it was bound by Wilder to reverse the armed robbery convictions as well as

the accompanying felony-firearm convictions.2 Id. We granted the prosecutor’s

application for leave to appeal.3 475 Mich 864 (2006).

II. STANDARD OF REVIEW

A double jeopardy challenge presents a question of constitutional law that

this Court reviews de novo. Nutt, supra at 573.

III. ANALYSIS

Const 1963, art 1, § 15 states that “[n]o person shall be subject for the same

offense to be twice put in jeopardy.”4 The primary goal in interpreting a

constitutional provision is to determine the text’s meaning to the ratifiers, the

2
The Court of Appeals noted its agreement with Justice Corrigan’s dissent
in People v Curvan, 473 Mich 896, 903 (2005), in which she called into question
the decision in Wilder that multiple punishments for felony murder and the
predicate felony were barred on double jeopardy grounds, and stated that, absent
Wilder, it would have held that “felony-murder is a distinct category of murder
and not an enhanced form of armed robbery . . . .” Slip op at 2 n 1.
3
We denied defendant’s application for leave to appeal. 475 Mich 871
(2006).
4
The analogous provision in the federal constitution, US Const Am V,
states that “[n]o person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb . . . .”

5

people, at the time of ratification. Wayne Co v Hathcock, 471 Mich 445, 468; 684

NW2d 765 (2004). Justice Cooley described this principle of constitutional

interpretation as follows:

A constitution is made for the people and by the people. The
interpretation that should be given it is that which reasonable minds,
the great mass of the people themselves, would give it. “For as the
Constitution does not derive its force from the convention which
framed, but from the people who ratified it, the intent to be arrived at
is that of the people, and it is not to be supposed that they have
looked for any dark or abstruse meaning in the words employed, but
rather that they have accepted them in the sense most obvious to the
common understanding, and ratified the instrument in the belief that
that was the sense designed to be conveyed.” [Cooley, A Treatise on
the Constitutional Limitations (Little, Brown, & Co, 1886), p 81
(citation omitted).]

The Double Jeopardy Clause affords individuals “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.” Nutt, supra at 574.

The first two protections are generally understood as the “successive

prosecutions” strand of double jeopardy, while the third protection is commonly

understood as the “multiple punishments” strand.

A. “SAME OFFENSE” FOR SUCCESSIVE PROSECUTIONS.

Before 1973, the Court consistently construed Michigan’s Double Jeopardy

Clause in a manner consistent with the federal courts’ interpretation of the Fifth

Amendment of the United States Constitution. See, e.g., In re Ascher, 130 Mich

540, 545; 90 NW 418 (1902) (stating that “the law of jeopardy is doubtless the

6

same under both [the federal and Michigan constitutions]”);5 People v Schepps,

231 Mich 260, 267; 203 NW 882 (1925) (quoting Ascher for the proposition that

the Court is “committed” to the view of double jeopardy protections set forth by

federal courts); People v Bigge, 297 Mich 58, 64; 297 NW 70 (1941) (holding that

“[t]his State is committed to the view upon the subject of former jeopardy adopted

by the Federal courts under the Federal Constitution”).6

In People v Townsend, 214 Mich 267; 183 NW 177 (1921), the Court

addressed the issue whether a defendant’s conviction in municipal court of driving

an automobile while intoxicated served as a bar to a subsequent prosecution for

manslaughter arising out of the same drunken driving incident. We began our

analysis by noting that under the federal interpretation of the Fifth Amendment, a

defendant who commits two or more separate offenses during a single criminal

transaction may be prosecuted for each, as long as the offenses are different. Id. at

275, citing Gavieres v United States, 220 US 338; 31 S Ct 421; 55 L Ed 489

(1911). To determine whether an offense is the “same offense” for double

jeopardy purposes, the Court cited the same-elements test articulated by the

Supreme Court of Massachusetts in Morey v Commonwealth, 108 Mass 433, 434

5
Ascher interpreted the Double Jeopardy Clause of Const 1850, art 6, § 29,
which stated, “No person after acquittal upon the merits shall be tried for the same
offense.”

7

(1871). The Morey rule, which would later be adopted by the United States

Supreme Court in Blockburger, held that an offense is not the “same offense” if

each statute requires proof of an element that the other does not. The Court

concluded that the misdemeanor offense of driving an automobile while

intoxicated was not the “same offense” as involuntary manslaughter and therefore

affirmed the subsequent conviction. Townsend, supra at 281.

Thus, before 1973, the Court had construed Michigan’s Double Jeopardy

Clause in a manner consistent with the interpretation of the Fifth Amendment by

federal courts, Ascher, and held that the test for determining whether an offense is

the “same offense” for double jeopardy purposes was whether each offense

requires proof of a fact that the other does not. Townsend, supra. However, in

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

traditional understanding, and instead adopted the “same transaction” test for the

“successive prosecutions” strand of double jeopardy. Shortly thereafter, in People

v Cooper, 398 Mich 450, 461; 247 NW2d 866 (1976), the Court also abandoned

the federal approach to successive prosecutions by different sovereigns in favor of

a rule under which successive prosecutions could only proceed if “it appears from

the record that the interests of the State of Michigan and the jurisdiction which

(…continued)
6
Schepps and Bigge each interpreted the Double Jeopardy Clause of Const
1908, art 2, § 14, which stated, “No person, after acquittal upon the merits, shall
be tried for the same offense.”

8

initially prosecuted are substantially different.” Id. at 461. Finally, in Robideau,

the Court declined to adhere to the Blockburger test in the context of the “multiple

punishments” strand of double jeopardy in favor of a rule intended to ascertain

whether the Legislature intended to impose multiple punishments.

In Nutt, the Court granted leave to appeal to determine whether White’s

interpretation of the language “same offense” in Const 1963, art 1, § 15 was

consistent with the people’s understanding when they ratified the constitution. We

undertook our analysis by noting that White’s creation of the “same transaction”

test was inconsistent with the ordinary meaning of the phrase “offense” as a

“crime” or “transgression.” Nutt, supra at 588. Moreover, and most critically, we

concluded that White’s test was inconsistent with the understanding of the term

“same offense” on the part of the ratifiers of our constitution. First, we noted that

the framers of the constitution recognized that the Court had interpreted the double

jeopardy provision of the 1908 Constitution in a manner consistent with the

federal constitution. Second, we quoted the Address to the People, 2 Official

Record, Constitutional Convention 1961, p 3364, which stated:

“[Const 1963, art 1, § 15] 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.” [Nutt, supra at 590.]

In other words, when the people ratified Const 1963, art 1, § 15, they were

advised that “(1) the double jeopardy protection conferred by our 1963

9

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

proposal was meant to bring our double jeopardy provision into conformity with

what this Court had already determined it to mean.”7 Nutt, supra at 590. In 1963,

the federal Double Jeopardy Clause permitted successive prosecutions for all

crimes committed during a single “transaction,” as long as each crime required

proof of a fact that the other did not. Blockburger, supra at 304. The Nutt Court

noted that the Blockburger test “‘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.’” Nutt, supra at 576 (citation omitted). Because the “same transaction”

test set forth in White is inconsistent with the federal approach, it is also

inconsistent with the understanding of the ratifiers and, as a result, was overruled.

Nutt, supra at 591-592.

In People v Davis, 472 Mich 156; 695 NW2d 45 (2005), the Court granted

leave to appeal to determine whether the rule announced by Cooper for

determining whether successive prosecutions by different sovereigns were barred

7
By stating that the Michigan and federal double jeopardy clauses should
be construed in a parallel fashion, “we do not mean that we are bound in our
understanding of the Michigan Constitution by any particular interpretation of the
United States Constitution.” Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d
767 (2003). We mean only that we have been persuaded in the past that
interpretations of the Double Jeopardy Clause of the Fifth Amendment have
accurately conveyed the meaning of Const 1963, art 1, § 15 as well.

10

on double jeopardy grounds was consistent with the meaning of “same offense”

set forth in the constitution. We undertook our analysis by noting Nutt’s

conclusion that the ratifiers of our constitution intended that Michigan’s Double

Jeopardy Clause be construed consistently with Michigan precedent and the Fifth

Amendment. At the time of ratification, the federal courts held that prosecution

by one sovereign does not preclude a subsequent prosecution by a different

sovereign based on the same act, where “‘by one act [the defendant] has

committed two offences, for each of which he is justly punishable.’” Bartkus v

Illinois, 359 US 121, 132; 79 S Ct 676; 3 L Ed 2d 684 (1959) (citation omitted);

see also Heath v Alabama, 474 US 82, 88; 106 S Ct 433; 88 L Ed 2d 387 (1985).

The rule set forth in Cooper was based on the Court’s detection of a trend in

federal cases that brought Bartkus into disrepute. However, we recognized in

Davis that this “trend” never came to fruition and, in fact, the United States

Supreme Court validated the Bartkus reasoning in Heath. Therefore, in accord

with the understanding that Michigan’s double jeopardy provision should “be

construed consistently with the federal double jeopardy jurisprudence that then

existed,” we overruled Cooper in Davis, supra at 168, and held that a defendant

who commits one criminal act that violates the laws of two different sovereigns

has committed two criminal acts for double jeopardy purposes.

11

 In sum, an offense does not constitute the “same offense” for purposes of

the “successive prosecutions” strand of double jeopardy if each offense requires

proof of a fact that the other does not.

12

 B. “SAME OFFENSE” FOR MULTIPLE PUNISHMENTS.

1. PRE-1963 CASELAW

At issue in this case is whether “same offense” has the same meaning in the

context of the “multiple punishments” strand of double jeopardy as it does in the

context of the “successive prosecutions” strand. Pursuant to Nutt, we first

examine Michigan caselaw addressing the “multiple punishments” strand of

double jeopardy at the time of the ratification of the 1963 Constitution. While

Michigan courts routinely applied the federal standard to the “successive

prosecutions” strand, the Court did not address the “multiple punishments” strand

until 1976. Robideau, supra at 481. Therefore, we must examine federal caselaw

to determine how the Fifth Amendment was applied in the context of multiple

punishments at the time our constitution was ratified. In Blockburger, the

defendant was convicted of selling eight grains of morphine hydrochloride outside

its original packaging8 and for engaging in that sale without a written order of the

8
The defendant was convicted under the former Harrison Narcotic Act, 26
USC 692, which stated:

It shall be unlawful for any person to purchase, sell, dispense,
or distribute any of the aforesaid drugs [opium and other narcotics]
except in the original stamped package or from the original stamped
package; and the absence of appropriate tax-paid stamps from any of
the aforesaid drugs shall be prima facie evidence of a violation of
this section by the person in whose possession same may be
found . . . .

13

purchaser as required by the statute.9 The defendant claimed that because both

convictions stemmed from a single narcotics sale, he could lawfully be punished

only once for that single act. The United States Supreme Court undertook its

analysis by noting that the language of the statute created two distinct criminal

offenses. In order to determine whether a defendant who, by a single act, commits

two distinct criminal violations may be punished for both, the United States

Supreme Court held that

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. Gavieres v. United States, 220 U.S. 338,
342 . . . . In that case this court quoted from and adopted the
language of the Supreme Court of Massachusetts in Morey v.
Commonwealth, 108 Mass. 433: “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.” Compare Albrecht v. United
States, 273 U.S. 1, 11-12[; 47 S Ct 250; 71 L Ed 505 (1927)][10] . . . .
[Blockburger, supra at 304.]

9
The defendant was convicted under the former 26 USC 696, which stated:

It shall be unlawful for any person to sell, barter, exchange, or
give away any of the drugs specified in section 691 of this title,
except in pursuance of a written order of the person to whom such
article is sold, bartered, exchanged, or given, on a form to be issued
in blank for that purpose by the Commissioner of Internal Revenue.
10
In Albrecht, the United States Supreme Court held that “[t]here is nothing
in the Constitution which prevents Congress from punishing separately each step
leading to the consummation of a transaction which it has power to prohibit and
punishing also the completed transaction.”

14

Because each of the violations of the Harrison Narcotic Act at issue contained an

element that the other did not, the United States Supreme Court held that the

defendant could be punished for each violation.

The United States Supreme Court reaffirmed the “same elements” approach

to multiple punishments in Gore v United States, 357 US 386; 78 S Ct 1280; 2 L

Ed 2d 1405 (1958). In Gore, the defendant was charged with two counts of

selling heroin “not in pursuance to a written order” of the person receiving the

drugs; two counts of dispensing drugs that were not “in the original stamped

package or from the original stamped package”; and two counts of facilitating

concealment and sale of drugs, with knowledge that the drugs had been unlawfully

imported. The defendant argued that the purpose behind each statute was to

outlaw the nonmedicinal sale of narcotics and, therefore, Congress desired to

punish only for a single offense when these multiple infractions are committed

through a single sale. The United States Supreme Court disagreed, noting that, as

in Blockburger, Congress’s decision to create three separate criminal violations,

each with elements independent of the others, demonstrated that it intended that

each violation be punishable separately. The Court went on to characterize the

defendant’s argument as a policy argument and opined that such policy matters are

better left to Congress:

In effect, we are asked to enter the domain of penology, and
more particularly that tantalizing aspect of it, the proper
apportionment of punishment. Whatever views may be entertained
regarding severity of punishment, whether one believes in its

15

 efficacy or its futility . . . these are peculiarly questions of legislative
policy. [Id. at 393.]

To summarize, at the time the 1963 Constitution was ratified, the United

States Supreme Court had interpreted the language “same offense” in the Fifth

Amendment to mean multiple punishments were authorized if “‘each statute

requires proof of an additional fact which the other does not . . . .’” Blockburger,

supra at 304 (citation omitted). While there was no Michigan caselaw construing

the language “same offense” as it applied to the “multiple punishments” strand of

double jeopardy, our courts had defined the term “same offense” for purposes of

successive prosecutions by applying the federal same-elements test.

2. POST-1963 CASELAW

The Court first addressed the “multiple punishments” strand of double

jeopardy in People v Martin, 398 Mich 303; 247 NW2d 303 (1976). In Martin,

the defendant was convicted of both possession and delivery of the same heroin.

The Court noted that while a defendant can be charged for each act that constitutes

a separate crime, “when tried for an act which includes lesser offenses, if the jury

finds guilt of the greater, the defendant may not also be convicted separately of the

lesser included offense.” Id. at 309. The Court found that possession of the

heroin was a lesser included offense of its delivery because “[p]ossession of the

heroin present in this case was that necessary to its delivery.” Id. at 307 (emphasis

in original). In other words, rather than focusing on the elements of the charged

offenses, the Court focused on the facts of the particular case. While the Court

16

cited a similar analysis by the United States Court of Appeals for the First Circuit

in O'Clair v United States, 470 F2d 1199, 1203 (CA 1, 1972), it failed even to cite

Blockburger, let alone explain why the “same elements” test did not apply.

Rather, the Court justified its approach by quoting with approval the Supreme

Judicial Court of Maine in State v Allen, 292 A2d 167, 172 (Me, 1972), which

held:

The possession of narcotic drugs is an offense distinct from
the sale thereof. But in the instant case the possession and sale
clearly constituted one single and same act. The possession, as
legally defined, is necessarily a constituent part of the sale, as legally
defined. Where the only possession of the narcotic drug is that
incident to and necessary for the sale thereof, and it does not appear
that there was possession before or after and apart from such sale,
the State cannot fragment the accused’s involvement into separate
and distinct acts or transactions to obtain multiple convictions, and
separate convictions under such circumstances will not stand.

In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977),

the Court addressed the similar issue whether a defendant could be punished for

the possession and sale of the same narcotic. The Court began its analysis by

acknowledging that a defendant may possess a narcotic without selling it and,

likewise, may sell a narcotic without possessing it. However, the Court again

failed to acknowledge Blockburger and instead applied the fact-based approach of

Martin, concluding that “from the evidence adduced at this trial, the illegal

possession of heroin was obviously a lesser included offense of the illegal sale of

heroin. When the jury in the case at bar found the defendant guilty of the illegal

17

sale of this heroin, they necessarily found him guilty of possession of the same

heroin.” Id. at 548 (emphasis deleted).

In Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280

NW2d 793 (1979), the Court addressed the question whether double jeopardy

forbade separate convictions and sentences for felony-firearm, MCL 750.227b,

and the underlying felony. The Court undertook this analysis by noting that the

language of MCL 750.227b, defining the offense as a “felony” and requiring that

the two-year sentence must be served “in addition to” the sentence for the

underlying felony, demonstrated “that the Legislature intended to make the

carrying of a weapon during a felony a separate crime and intended that

cumulative penalties should be imposed.” Wayne Co Prosecutor, supra at 391. In

order to determine whether such an intention was consistent with the Double

Jeopardy Clause, the Court then applied the “same elements” test from

Blockburger. The Court observed that “[i]n applying the Blockburger rule, the

United States Supreme Court has focused on the legal elements of the respective

offenses, not on the particular factual occurrence which gives rise to the charges.”

Id. at 395. Applying Blockburger, the Court then determined that the felony at

issue, second-degree murder, contained an element that felony-firearm did not,

namely a killing committed with malice, and, likewise, that felony-firearm

contained an element that second-degree murder did not, namely that the

defendant carried or possessed a firearm during the commission of any felony.

18

Therefore, the Court concluded that the imposition of multiple punishments was

not barred on double jeopardy grounds.11 Id. at 397.

However, in People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980), the

Court reverted to the fact-based approach of Martin and Stewart. In Jankowski,

the defendant was convicted of armed robbery, larceny over $100, and larceny in a

building as the result of one felonious taking. The Court began its analysis by

noting that, unlike in Wayne Co Prosecutor, there was no clear intention on the

part of the Legislature that the crimes at issue be punished separately. The Court

assessed the facts adduced at trial and determined that, because there was only one

felonious taking, the larceny convictions constituted lesser offenses to the armed

robbery conviction and therefore the larceny convictions were barred by double

jeopardy.

The Court applied the same reasoning to first-degree felony murder and the

predicate felony in Wilder. In Wilder, the defendant was convicted of both armed

robbery and first-degree felony murder for a killing committed during the

perpetration of that robbery. The Court began its analysis by noting that under the

fact-based approach set forth in Martin and Stewart, if “the proof adduced at trial

indicates that one offense is a necessarily or cognate lesser included offense of the

11
The Court distinguished Martin and Stewart on the basis that “the
Legislature has clearly expressed in the felony-firearm statute an intent to
authorize multiple convictions and cumulative punishments.” Id. at 402.

19

other, then conviction of both the offenses will be precluded.” Wilder, supra at

343-344. The Court held that because the evidence required to prove first-degree

felony murder also requires proof of the armed robbery, armed robbery is a lesser

offense of first-degree felony murder and therefore multiple punishments for each

offense were barred by double jeopardy.12 The Court went on to explain that its

approach to the “multiple punishments” strand of double jeopardy differed from

the federal approach set forth in Blockburger:

[T]he test concerning multiple punishment under our
constitution has developed into a broader protective rule than that
employed in the Federal courts. Under Federal authority, the
Supreme Court established the “required evidence” test enunciated
in Blockburger[, supra]. See also its original expression in Morey v
Commonwealth, 108 Mass 433 (1871). In Blockburger, the Court
outlined their test:

“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.” [Blockburger, supra at 304.]

This approach isolates the elements of the offense as opposed
to the actual proof of facts adduced at trial. See Harris[, supra];
United States v Kramer, 289 F2d 909, 913 (CA 2, 1961). Under this
test, convictions of two criminal offenses arising from the same act
are prohibited only when the greater offense necessarily includes all
elements of the lesser offense. Accordingly, conviction of both
offenses is precluded only where it is impossible to commit the
greater offense without first having committed the lesser offense.
From the perspective of lesser included offenses, the Supreme Court

12
The Court acknowledged that “the elements of first-degree felony murder
do not in every instance require or include the elements of armed robbery . . . .”
Id. at 345.

20

 in cases concerning double jeopardy has thus adhered to the
common-law definition of such offenses. See People v Ora Jones
[395 Mich 379, 387; 236 NW2d 461 (1975)].

The Federal test in Blockburger can thus be distinguished
from this Court’s approach in two principal ways. First, we find the
proper focus of double jeopardy inquiry in this area to be the proof
of facts adduced at trial rather than the theoretical elements of the
offense alone. Proof of facts includes the elements of the offense as
an object of proof. Yet, the actual evidence presented may also
determine the propriety of finding a double jeopardy violation in any
particular case. See [Martin, supra; Stewart, supra; Jankowski,
supra].

Second, we have held that double jeopardy claims under our
constitution may prohibit multiple convictions involving cognate as
well as necessarily included offenses. [Wilder, supra at 348 n 10.]

Finally, in Robideau, the Court addressed the issue whether double

jeopardy prohibits multiple punishments for convictions of both first-degree

criminal sexual conduct, 750.520b(1)(c) (penetration under circumstances

involving any “other felony”), and the underlying “other felony” of either armed

robbery or kidnapping used to prove the charge of first-degree criminal sexual

conduct. The Court undertook its analysis by noting that double jeopardy

protection against multiple punishments constitutes a restraint on the courts, not

the Legislature. The Court acknowledged that, where the intention of Congress is

not clear, federal courts rely on Blockburger to determine whether Congress

intended to permit multiple punishments. However, the Court rejected the

Blockburger test, noting:

When applied in the abstract to the statutory elements of an
offense, [the Blockburger test] merely serves to identify true lesser
included offenses. While it may be true that the Legislature

21

 ordinarily does not intend multiple punishments when one crime is
completely subsumed in another, Blockburger itself is of no aid in
making the ultimate determination. Although its creation of a
presumption may make a court’s task easier, it may also induce a
court to avoid difficult questions of legislative intent in favor of the
wooden application of a simplistic test. [Robideau, supra at 486.]

In place of Blockburger, the Court set forth “general principles” to be used

when assessing legislative intention. Those principles include, but are not limited

to, the following:

Statutes prohibiting conduct that is violative of distinct social
norms can generally be viewed as separate and amenable to
permitting multiple punishments. A court must identify the type of
harm the Legislature intended to prevent. Where two statutes
prohibit violations of the same social norm, albeit in a somewhat
different manner, as a general principle it can be concluded that the
Legislature did not intend multiple punishments. For example, the
crimes of larceny over $ 100, MCL 750.356; MSA 28.588, and
larceny in a building, MCL 750.360; MSA 28.592, although having
separate elements, are aimed at conduct too similar to conclude that
multiple punishment was intended.

A further source of legislative intent can be found in the
amount of punishment expressly authorized by the Legislature. Our
criminal statutes often build upon one another. Where one statute
incorporates most of the elements of a base statute and then
increases the penalty as compared to the base statute, it is evidence
that the Legislature did not intend punishment under both statutes.
The Legislature has taken conduct from the base statute, decided that
aggravating conduct deserves additional punishment, and imposed it
accordingly, instead of imposing dual convictions. [Id. at 487-488.]

The Court applied its new test by first looking to the maximum penalty

available under each statute to determine whether the Legislature intended to

permit multiple punishments. Where the Legislature designates a lower maximum

penalty for the “lesser” crime than for the “greater” crime, the Court held that it

22

can be inferred that the Legislature did not intend multiple punishments.

However, the Court held that the fact that first-degree criminal sexual conduct and

the predicate offenses of armed robbery and kidnapping all carry a maximum

penalty of life imprisonment served as evidence that the Legislature did intend

multiple punishments there. Moreover, the Court found that the “social norm” the

Legislature intended to protect by enactment of the criminal sexual conduct

statute, i.e., protecting citizens against nonconsensual sexual penetration, would be

poorly served by classifying the predicate felony as the “same offense” for double

jeopardy purposes.

If we were to conclude that only one conviction could result
from fact situations such as the cases at bar, the result would be that
the defendants, having completed the predicate felonies of
kidnapping and robbery, could then embark on one of the most
heinous crimes possible, with no risk either of a second conviction
or a statutorily increased maximum sentence. [Id. at 490.]

The Court concluded therefore that under its test, the Legislature intended that

first-degree criminal sexual conduct and the predicate felonies of armed robbery

and kidnapping be punished separately.

3. ROBIDEAU AND THE RATIFIERS’ UNDERSTANDING

Robideau’s creation of a new rule to determine whether two statutory

offenses constitute the “same offense” for double jeopardy purposes was

predicated on the Court’s conclusions in previous cases that: (1) Michigan’s

Double Jeopardy Clause afforded greater protections than the Double Jeopardy

Clause of the United States Constitution, Wilder, supra at 348 n 10; and (2) the

23

Blockburger test does not account for Michigan’s then-current recognition of

“cognate” lesser included offenses as “lesser offenses” under a fact-driven

analysis. This conclusion that the Michigan Constitution affords greater

protection than the Fifth Amendment has no basis in the language of Const 1963,

art 1, § 15, the common understanding of that language by the ratifiers, or under

Michigan caselaw as it existed at the time of ratification. Further, the concern

expressed by the Court that Blockburger does not account for cognate lesser

included offenses is no longer pertinent in light of People v Cornell, 466 Mich

335, 353; 646 NW2d 127 (2002).13 Finally, nothing in the language of the

constitution indicates that the ratifiers intended to give the term “same offense” a

different meaning in the context of the “multiple punishments” strand of double

jeopardy than it has in the context of the “successive prosecutions” strand. In the

absence of any evidence that the term “same offense” was intended by the ratifiers

to include criminal offenses that do not share the same elements, we feel

compelled to overrule Robideau and preceding decisions that are predicated on the

same error of law, and to hold instead that Blockburger sets forth the appropriate

13
In Cornell, we held that an offense is an “offense inferior to that charged
in the indictment” for purposes of MCL 768.32(1) when “‘the lesser offense can
be proved by the same facts that are used to establish the charged offense.’”
Cornell, supra at 354 (citation omitted). In other words, an offense is the “same
offense” for purposes of jury instructions if conviction of the greater offense
necessarily requires conviction of the lesser offense.

24

test to determine whether multiple punishments are barred by Const 1963, art 1, §

15.14

We conclude that in adopting Const 1963, art 1, § 15, the ratifiers of our

constitution intended that our double jeopardy provision be construed consistently

with then-existing Michigan caselaw and with the interpretation given to the Fifth

Amendment by federal courts at the time of ratification. We further conclude that

the ratifiers intended that the term “same offense” be given the same meaning in

the context of the “multiple punishments” strand of double jeopardy that it has

been given with respect to the “successive prosecutions” strand. As we noted in

Nutt, supra at 594 (citation omitted), “‘there is no authority, except Grady [v

Corbin, 495 US 508; 110 S Ct 2084; 109 L Ed 2d 548 (1990)], for the proposition

that [the Double Jeopardy Clause] has different meanings [in different contexts],’”

and that Grady has been specifically overruled by United States v Dixon, 509 US

14
In deciding whether to overrule a precedent, we consider: (1) whether the
earlier decision was wrongly decided; and (2) whether practical, real-world
dislocations would arise from overruling the decision. Robinson v Detroit, 462
Mich 439, 464-466; 613 NW2d 307 (2000). As discussed earlier in this opinion,
we believe that Robideau and preceding decisions that are predicated on the same
error of law were wrongly decided because they are inconsistent with the common
understanding of “same offense.” Moreover, we can discern no practical, real-
world dislocations or confusion that would arise from overruling Robideau. No
reasonable person, in reliance on Robideau, would commit additional felonies
during a criminal transaction in the hope that such additional criminal acts will not
be punished separately. Finally, and not insignificantly in our judgment, failing to
overrule Robideau would produce inconsistent rules regarding the meaning of the
language “same offense” in Const 1963, art 1, § 15.

25

688, 704; 113 S Ct 2849; 125 L Ed 2d 556 (1993). At the time of ratification, we

had defined the language “same offense” in the context of successive prosecutions

by applying the federal same-elements test. In interpreting “same offense” in the

context of multiple punishments, federal courts first look to determine whether the

Legislature expressed a clear intention that multiple punishments be imposed.

Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983); see

also Wayne Co Prosecutor, supra. Where the Legislature does clearly intend to

impose such multiple punishments, “‘imposition of such sentences does not

violate the Constitution,’” regardless of whether the offenses share the “same

elements.” Id. (citation and emphasis deleted). Where the Legislature has not

clearly expressed its intention to authorize multiple punishments, federal courts

apply the “same elements” test of Blockburger to determine whether multiple

punishments are permitted. Accordingly, we conclude that the “same elements”

test set forth in Blockburger best gives effect to the intentions of the ratifiers of

our constitution.

C. APPLICATION

We first conclude that the Court of Appeals erred in its double jeopardy

analysis by comparing the first-degree felony murder conviction with the non-

predicate felony of armed robbery.15 There is no Michigan authority for the

15
The Court of Appeals held that armed robbery was the “true” predicate
felony in this case because “larceny is a necessarily included lesser offense of
(continued…)

26

(…continued)
robbery, and because, factually, there was no evidence that defendant committed
separate offenses of robbery and larceny, defendant’s armed robbery convictions
violate double jeopardy protections.” Slip op at 2. Similarly, Justice Kelly argues
that the prosecutor’s failure to distinguish between the property taken during the
armed robbery and the property taken during the larceny establishes that there was
not sufficient evidence to establish that defendant committed both crimes. Post at
4-5. However, as Justice Kelly acknowledges, the prosecutor’s comments to the
jury during closing argument do not constitute evidence. People v Fields, 450
Mich 94, 116 n 26; 538 NW2d 356 (1995). Rather, to determine whether there
was sufficient evidence to sustain each of the instant convictions, this Court must
review the evidence “in a light most favorable to the prosecution . . . and
determine whether a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt[.]” People v
Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979) (citations omitted). Here,
the evidence adduced at trial demonstrates that after the murder, both victims were
missing their wallets, the store’s keys were missing, and money was missing from
the cash drawer of the store. A reasonable juror could well conclude beyond a
reasonable doubt that defendant stole the money, the keys, and the wallets.
Further, a reasonable juror could well conclude that there were two separate
takings of property in this case-- the keys and the money from the cash drawer
(which belonged to the store) and the wallets and the cash from the victims. Thus,
despite a lack of clarity by the prosecutor in his closing argument, when viewed in
a light most favorable to the prosecution, the evidence was sufficient to enable a
rational trier of fact to conclude beyond a reasonable doubt that defendant
committed the separate offenses of armed robbery and larceny.

Nor are we persuaded by Justice Cavanagh that the Court’s decision in
People v Wakeford, 418 Mich 95, 112; 341 NW2d 68 (1983), supports the Court
of Appeals conclusion that there was only one taking. In Wakeford, defendant
robbed a market at gunpoint, forcing two separate cashiers to turn over the
proceeds of their registers. Defendant claimed that his two convictions of armed
robbery violated the Double Jeopardy Clause because each occurred during the
same criminal transaction. This Court rejected that argument, noting that
defendant assaulted and robbed two separate people and, therefore, could be held
criminally liable for both. We also noted in dictum that, had this been a larceny
charge, “the theft of several items at the same time and place constitutes a single
larceny.” Id. at 112. Justice Cavanagh seizes on this dictum to support his
argument that, once the instant defendant was convicted of larceny, that conviction
encompassed all of the property stolen in this case and that “no property remained
(continued…)

27

proposition that double jeopardy forbids the imposition of multiple punishments

for felony murder and a non-predicate felony.16 Therefore, the proper offenses to

be analyzed under the Blockburger test are the felonies for which defendant was

convicted-- first-degree felony murder and armed robbery.

Defendant’s convictions of first-degree felony murder and the non-

predicate armed robbery withstand constitutional scrutiny under the same-

elements test. The elements of first-degree felony murder are: “‘(1) the killing of

a human being, (2) with the intent to kill, to do great bodily harm, or to create a

very high risk of death or great bodily harm with knowledge that death or great

bodily harm was the probable result [i.e., malice], (3) while committing,

(…continued)
that could have been separately taken as part of an armed robbery.” Post at 8. We
disagree. In Wakeford there was a single victim from whom the defendant took
multiple items. Thus, the dictum from Wakeford suggests that a defendant may
not be convicted of multiple counts of larceny for different items taken from a
single victim. However, in the instant case, there were three different victims-- the
proprietor of the store, Putman, and Cummings. It cannot be the case that once a
defendant engages in a larceny, the defendant is free to take property from anyone
else in the immediate vicinity without fear of any additional punishment.
16
Because armed robbery is not the predicate felony for the instant first-
degree felony murders, we need not address Wilder’s holding that the constitution
bars multiple punishments for first-degree felony murder and the predicate felony,
or Justice Cavanagh’s concern that Blockburger “has its limitations” in cases
involving compound offenses. Post at 2. However, we note that the Court in
Wilder based its holding on the fact that “double jeopardy claims under our
constitution may prohibit multiple convictions involving cognate as well as
necessarily included offenses.” Wilder, supra at 349 n 10. Wilder’s focus on the
“proof of facts adduced at trial,” id., seems questionable in light of the distinction
(continued…)

28

attempting to commit, or assisting in the commission of any of the felonies

specifically enumerated in [MCL 750.316(1)(b), here larceny].’” People v

Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999) (citation omitted). The

elements of armed robbery are: (1) an assault; (2) a felonious taking of property

from the victim’s presence or person; and (3) while the defendant is armed with a

weapon. Id. at 757. First-degree felony murder contains elements not included in

armed robbery-- namely a homicide and a mens rea of malice. Likewise, armed

robbery contains elements not necessarily included in first-degree felony murder--

namely that the defendant took property from a victim’s presence or person while

armed with a weapon. Accordingly, we conclude that these offenses are not the

“same offense” under either the Fifth Amendment or Const 1963, art 1, § 15 and

therefore defendant may be punished separately for each offense.

IV. RESPONSE TO JUSTICE KELLY

Justice Kelly asserts that we have “systematically and drastically altered

Michigan double jeopardy jurisprudence.” Post at 12. In fact, our goal in

interpreting provisions of our constitution is, and has always been, to give those

provisions the meaning that the ratifiers intended. When the people ratified Const

1963, art 1, § 15, they understood that the term “same offense” would be

(…continued)

between cognate lesser offenses and lesser included offenses dictated by the Court

in Cornell.

29

construed as it always had been under Michigan caselaw to that point, i.e., in a

manner consistent with the interpretation of the federal constitution. This was a

critical understanding at the time since the federal Double Jeopardy Clause had

not yet been “incorporated” and applied against the states. See Benton v

Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). Thus, the state

Double Jeopardy Clause carried far greater independent significance than it does

today, and the people took care to state their intentions about what it meant. These

intentions must serve as the touchstone in determining the meaning of Michigan’s

Double Jeopardy Clause. However, in White and its progeny, this Court

disregarded the intentions of the ratifiers and substituted its own judgments

regarding how double jeopardy principles should apply in this state.

The Court began this process of judicial amendment in White when it

abandoned the “same elements” test that had been recognized in this state for at

least 60 years, Ascher, supra at 545, in favor of the “same transaction” test

advocated by Justice Brennan in his concurring statement in Ashe v Swenson, 397

US 436, 448; 90 S Ct 1189; 25 L Ed 2d 469 (1970). While White extolled the

virtues of the “same transaction” test and noted that it had been adopted by

“many” other state courts, it failed to mention that the test had been explicitly

rejected in both Ascher and Townsend. Moreover, the Court dismissed out of

hand a statement made just one year earlier by the authoring justice in White that

the question whether the “same transaction” test should be adopted was “properly

30

a decision for the Legislature and not for this Court.” People v Grimmett, 388

Mich 590, 607; 202 NW2d 278 (1972). Thus, the Court dismissed the holdings of

Ascher, Townsend, and Grimmett, each of which was consistent with the express

intentions of the ratifiers, in order to pursue what the Court believed was the “only

meaningful approach to the constitutional protection against being placed twice in

jeopardy.” White, supra at 257-258.

In Cooper, the Court continued to implement its own preferred policies in

the realm of double jeopardy. The Court began its analysis by acknowledging that

pre-1963 federal caselaw, specifically Bartkus, had held that when a defendant by

one act violates the laws of two different sovereigns, double jeopardy does not bar

the defendant’s prosecution by both. Despite acknowledging that Bartkus

remained good law, the Court hesitated to apply its rule, identifying an alleged

“trend” away from the logical underpinnings of that decision. However, it also

hesitated to adopt the defendant’s position that the dual-sovereignty doctrine

should be overruled in its entirety. Rather, the Court articulated a new “middle”

position derived from a post-1963 decision of the Pennsylvania Supreme Court.

Under this new rule, successive prosecutions by separate sovereigns were

permissible only when “the interests of the State of Michigan and the jurisdiction

which initially prosecuted are substantially different.” Cooper, supra at 461.

While the Court claimed that our constitution was the source of its authority for

this new approach, it failed to cite any Michigan caselaw, and acknowledged that

31

its holding was based, at least in part, on “‘some consideration [of] public

policy.’” Id., quoting People v Beavers, 393 Mich 554, 581; 227 NW2d 511

(1975) (Coleman, J., dissenting).

Thus, at the time People v Nutt was decided, this Court’s double jeopardy

jurisprudence had become largely unmoored from its constitutional foundation. In

White and its progeny, the Court had disregarded the ratifiers’ understanding of

the phrase “same offense,” and instead implemented a definition of the term that

was consistent with its own ideas of “public policy.” However, in Nutt, we

recognized that it was the ratifiers’ policy choices, and not those of the judiciary,

which must govern our interpretation of the constitution. When White adopted the

“same transaction” test, it acted contrary to the expressed intentions of the ratifiers

that Michigan’s Double Jeopardy Clause be interpreted in a manner consistent

with the federal constitution, in accord with our then-existing caselaw. Therefore,

in order to implement the policy determinations of the people, we overruled White

and reinstated the meaning of the phrase “same offense” as it was understood by

the ratifiers.

Likewise, in People v Davis, we recognized that the entire foundation for

Cooper’s rejection of the dual-sovereignty doctrine had been its “detection of a

trend” calling Bartkus into question. In fact, the opposite proved to be true and the

United States Supreme Court later affirmed the dual-sovereignty doctrine in

Heath. Because Cooper had been wrong about the status of federal double

32

jeopardy analysis at the time of ratification, its adoption of the Pennsylvania

standard in dual-sovereignty cases became simply untenable. Rather, the correct

standard-- that intended by the ratifiers-- is that a defendant who commits one

criminal act that violates the laws of two different sovereigns has committed two

different offenses for double jeopardy purposes. Davis, supra at 168.

Justice Kelly does not even purport to argue that Robideau can be

maintained in light of Nutt and Davis.17 Rather, Justice Kelly would apparently

overrule all of our existing double jeopardy jurisprudence and return this Court to

the days when it could safely disregard the intentions of the ratifiers, at least when

such intentions conflicted with judicial preferences and assessments of public

17
Justice Kelly “continue[s] to reject the majority’s presumption that the
voters of our state intended that Michigan’s Double Jeopardy Clause should be
interpreted exactly as the federal provision is interpreted.” Post at 16. While it is
understandable that Justice Kelly would continue to adhere to her dissenting
position in Nutt, the majority opinion in that case nonetheless remains binding
law. Yet, Justice Kelly does not even attempt to argue that Robideau, which is
being overruled here, can somehow be harmonized with Nutt. Given Justice
Kelly’s impassioned opposition to our double jeopardy jurisprudence, and her
statement that she would restore the law “as it existed before the instant majority
began mangling it,” post at 11 n 13 (emphasis added), one is naturally tempted to
re-inquire, see Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223-228
(2007) (Markman, J., concurring), whether the ongoing dispute between the
majority and Justice Kelly over overrulings of precedent truly concerns attitudes
toward stare decisis or merely attitudes toward particular previous decisions of this
Court. As the accompanying chart to my concurrence in Rowland demonstrates,
the majority in many of its overrulings of precedent also restored the law “as it
existed” before the overruled precedent. Apparently, precedents can be
disregarded only when Justice Kelly believes that the law has been “mangled,” not
when other justices believe this.

33

policy. The approach championed by Justice Kelly is simply incompatible with

the paramount duty of the judiciary to construe the people’s constitution to mean

what the ratifiers intended it to mean. Moreover, in order to maintain Robideau,

this Court would be required to hold that the term “same offense” means different

things depending on which double jeopardy protection is at issue, a proposition

that has no historical or textual basis. Nutt, supra at 594. Therefore, in order to

restore Const 1963, art 1, § 15 to the meaning the ratifiers intended, Robideau

must be overruled.

In addition to restoring the law to what the ratifiers of the constitution

manifestly intended, we believe that by its double jeopardy decisions, this Court

has also restored a more responsible criminal justice system than that urged by

Justice Kelly. In particular, this Court’s approach to double jeopardy will better

ensure that criminal perpetrators be punished for all, not merely some, of their

offenses; at the same time, it will make it more likely that policy and prosecutorial

judgments assigned by our constitution to the legislative and executive branches

are undertaken by those branches, rather than by the courts.

V. CONCLUSION

We conclude that “same offense” in Const 1963, art 1, § 15 means the same

thing in the context of the “multiple punishments” strand of double jeopardy as it

does in the context of the “successive prosecutions” strand addressed by the Court

in Nutt. The test set forth in Robideau for determining whether the Legislature

34

intended to permit multiple punishments is inconsistent with the understanding of

the ratifiers of our constitution that Michigan’s Double Jeopardy Clause be

construed consistently with the Fifth Amendment and therefore Robideau must be

overruled. We further conclude that the Blockburger same-elements test, as the

reigning test in this Court in the context of the “successive prosecutions” strand

and in the federal courts in the context of the “multiple punishments” strand in

1963, effectuates the intentions of the ratifiers. Because each of the felonies of

which defendant was convicted, first-degree felony murder and armed robbery,

has an element that the other does not, they are not the “same offense” under either

Const 1963, art 1, § 15 or US Const, Am V. Accordingly, we reverse the part of

the judgment of the Court of Appeals that vacated the armed robbery convictions

and sentences and two of the felony-firearm convictions and sentences, and

remand this case to the trial court to reinstate defendant’s convictions and

sentences for armed robbery and the accompanying felony-firearm convictions

and sentences.

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

Weaver, J. I concur in all except part IV.

Elizabeth A. Weaver

35

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130353

BOBBY LYNELL SMITH,

Defendant-Appellee.

CAVANAGH, J. (dissenting).

Today the majority adopts the “same elements” test set forth in

Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932),

to determine what comprises “multiple punishments” under Michigan’s Double

Jeopardy Clause, Const 1963, art 1, § 15. Because I believe that the Blockburger

test is not always sufficient to enforce double jeopardy protections, I must

respectfully dissent.

The Double Jeopardy Clause in both the Michigan Constitution and the

United States Constitution protects against both successive prosecutions and

multiple punishments for the “same offense.”1 In the multiple punishment

context, the Double Jeopardy Clause ensures that a defendant’s total punishment

1
Const 1963, art 1, § 15; US Const, Ams V and XIV.
will not exceed the punishment authorized by the Legislature. People v

Whiteside, 437 Mich 188, 200; 468 NW2d 504 (1991). The United States

Supreme Court has characterized the Blockburger test as a “rule of statutory

construction” that it has “relied on . . . to determine whether Congress has in a

given situation provided that two statutory offenses may be punished

cumulatively.” Whalen v United States, 445 US 684, 691; 100 S Ct 1432; 63 L

Ed 2d 715 (1980).2 But simply applying the Blockburger test does not end the

inquiry. “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.” Albernaz v United States, 450 US 333, 340; 101 S Ct 1137; 67 L Ed 2d

275 (1981). Thus, the Blockburger test is not an end in itself; it merely assists in

determining the Legislature’s intent regarding the appropriate punishment for

multiple offenses.

The use of Blockburger alone has its limitations, particularly in cases

involving a compound offense, such as felony murder. The Blockburger test

does not always recognize the relationship between a compound offense and its

predicate offenses. For example, when comparing the abstract elements of felony

2
While the legislative body has the exclusive power to define offenses and
fix punishments, there remain “constitutional limitations upon this power.”
Whalen, supra at 689 n 3.

2

murder and one of its predicate felonies, the offenses will be deemed separate

offenses under the Blockburger test. But to convict a defendant of felony

murder, the prosecution must establish that the defendant committed the

underlying felony. Accordingly, the predicate offense to a felony-murder charge

is a necessary element of felony murder, and conviction of both would violate

double jeopardy.

When applying the Blockburger test to compound offenses, it is essential to

account for the necessarily included predicate offense rather than limiting the

inquiry to the abstract elements of the compound offense. We recognized this

requirement when we held that double jeopardy analysis for compound offenses

relies “not upon the theoretical elements of the offense but upon proof of facts

actually adduced.” People v Wilder, 411 Mich 328, 346; 308 NW2d 112 (1981).

Similarly, when the United States Supreme Court applied Blockburger to the

District of Columbia felony-murder statute, it held that multiple prosecutions for

felony murder and the predicate offense of rape were barred even though the

felony murder statute does not always require proof of rape, but could also be

based on robbery, arson, or kidnapping, among other offenses. Whalen, supra at

694. The Court noted that “[i]n the present case, however, proof of rape is a

necessary element of proof of the felony murder, and we are unpersuaded that this

case should be treated differently from other cases in which one criminal offense

requires proof of every element of another offense.” Id. Accordingly, the Court

3

“concluded that, for purposes of imposing cumulative sentences under [the felony-

murder statute], Congress intended rape to be considered a lesser offense included

within the offense of a killing in the course of rape.” Id. at n 8. In sum, both

Michigan and federal courts consider a predicate offense to be necessarily

included within a compound offense, even if the abstract elements of the

compound offense do not, in every case, encompass the elements of the predicate

offense.

Applying the “same elements” test of Blockburger, the majority concludes

that defendant’s convictions for felony murder based on larceny and the non-

predicate offense of armed robbery survive constitutional scrutiny. Ante at 27-

28. But the majority errs in only comparing the abstract elements of felony

murder and armed robbery. Under Wilder and federal law, felony murder and its

predicate offense are the “same offense” for double jeopardy purposes because

the felony-murder conviction necessarily includes all the elements of the

predicate offense. The majority fails to account for the necessarily included

elements of the predicate offense. Here, defendant’s prosecution for felony

murder necessarily put him “in jeopardy” of a conviction of larceny as a lesser

included offense. Accordingly, the relevant comparison is between the offense of

larceny and armed robbery. It is well established that larceny is a lesser included

4

offense of armed robbery.3 People v Jankowski, 408 Mich 79, 92; 289 NW2d

674 (1980), disavowed on other grounds, People v Wakeford, 418 Mich 95, 111

(1983). As such, a defendant cannot be subjected to multiple prosecutions for

both larceny and armed robbery. “Whatever the sequence may be, the Fifth

Amendment forbids successive prosecution and cumulative punishment for a

greater and lesser included offense.” Brown v Ohio, 432 US 161, 169; 97 S Ct

2221; 53 L Ed 2d 187 (1977). Defendant’s convictions for armed robbery must

be vacated in light of his convictions for felony murder with a predicate offense

of larceny.

3
MCL 750.356(1) defines “larceny” in relevant part as follows: “A person
who commits larceny by stealing any of the following property of another person
is guilty of a crime as provided in this section: (a) Money, goods, or chattels.”

The armed robbery statute, MCL 750.529, provides in relevant part:

A person who engages in conduct proscribed under section
530 and who in the course of engaging in that conduct, possesses a
dangerous weapon or an article used or fashioned in a manner to
lead any person present to reasonably believe the article is a
dangerous weapon, or who represents orally or otherwise that he or
she is in possession of a dangerous weapon, is guilty of a felony
punishable by imprisonment for life or for any term of years.

And § 530(1) states:

A person who, in the course of committing a larceny of any
money or other property that may be the subject of larceny, uses
force or violence against any person who is present, or who assaults
or puts the person in fear, is guilty of a felony punishable by
imprisonment for not more than 15 years. [MCL 750.530 (emphasis
added).]

5

 It is also important that we keep in mind the fundamental purpose of

engaging in the Blockburger test—to discern legislative intent. If the Legislature

did not intend to impose cumulative punishments for felony murder and its

predicate offense, it would follow that it did not intend to impose multiple

punishments for felony murder and offenses that entirely encompass the predicate

offense. The legislative intent to impose only one punishment for committing

felony murder would also apply to lesser and greater included offenses of the

predicate offense. This is particularly true in the present case, which features a

noteworthy relationship between the offense of felony murder and the non-

predicate offense of armed robbery. Here, defendant could have been prosecuted

for felony murder with a predicate felony of armed robbery rather than larceny.

Had that occurred, it would have been even more apparent that a simultaneous

larceny conviction would violate double jeopardy principles because larceny is a

lesser included offense of armed robbery and there was no evidence of separate

takings. The government should not be permitted to evade the prohibition

against double jeopardy by manipulating the charges it brings against a

defendant. Such maneuvering demonstrates the very governmental overreaching

that the double jeopardy provision is intended to prevent.

In sum, comparing abstract elements does not adequately enforce the

constitutional protection against double jeopardy, particularly in cases involving

compound offenses. Comparing the elements of two offenses may indicate

6

whether the Legislature intended to impose cumulative punishments, but it does

not serve as an exclusive method for determining whether the Double Jeopardy

Clause has been violated. The majority’s application of Blockburger threatens to

undermine the protections against double jeopardy guaranteed by the Michigan

Constitution and safeguarded by Wilder.

Additionally, the majority contends that the evidence adduced at trial

could have supported a finding that two takings occurred—the store’s keys and

money in a larceny and the victims’ wallets in an armed robbery. Ante at 26 n

15. But we have not permitted the offense of larceny to be divided this way.

“[T]he theft of several items at the same time and place constitutes a single

larceny. . . . The appropriate ‘unit of prosecution’ for larceny is the taking at a

single time and place without regard to the number of items taken . . . .”

Wakeford, supra at 112.4 By contrast, “the appropriate ‘unit of prosecution’ for

4
We recognized the “single larceny” doctrine in People v Johnson, 81
Mich 573, 576-577; 45 NW 1119 (1890). In Johnson, we held that the theft of
property belonging to two different owners comprised a single larceny because the
property was taken at the same time from one granary. Id. at 577. Wakeford
discusses this doctrine in the process of discerning the Legislature’s intent
regarding multiple punishments for armed robbery. Our discussion was not
merely dictum because the defendant argued that armed robbery of multiple
victims at the same time should be treated the same as larceny; thus, we needed to
explain why the armed robbery statute did not convey the same intent regarding
multiple punishment as the larceny statute. Wakeford, supra at 111-112. Justice
Markman attempts to distinguish Wakeford by stating that “[i]n Wakeford there
was a single victim from which the defendant took multiple items,” ante at 26 n
15, but there is no indication that we would have come to a different conclusion
(continued…)

7

armed robbery is the person assaulted and robbed.” Id. When defendant was

found guilty of all the elements of larceny, that offense involved all the property

that was taken in this case.5 Consequently, after defendant was found guilty of

larceny, no property remained that could have been separately taken as part of an

armed robbery. The Court of Appeals was correct to conclude that there was no

factual basis supporting separate offenses of larceny and armed robbery.

Vacating defendant’s armed robbery convictions and related convictions

of possession of a firearm during the commission of a felony is necessary to

enforce the prohibition against double jeopardy. I would affirm the result

reached by of the Court of Appeals.

Michael F. Cavanagh

(…continued)

regarding larceny if the defendant had taken property belonging to multiple

owners rather than just from multiple cashiers.

5
Of course, having committed a larceny, a defendant is not free to take
property from other owners without fear of additional punishment. Under the
larceny statute, the value of the property taken is totaled to distinguish between
(continued…)

8

(…continued)

misdemeanor and felony larceny and to determine the level of punishment. MCL

750.356.

9

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130353

BOBBY LYNELL SMITH,

Defendant-Appellee.

KELLY, J. (dissenting).

Regrettably, the majority has again unnecessarily chipped away at the

Double Jeopardy Clause of the Michigan Constitution. Therefore, I must dissent.

The record in this case contains no evidence that defendant committed the

separate offenses of robbery and larceny. For that reason, the Court of Appeals

was correct in concluding that defendant’s convictions and sentences for both

armed robbery and felony murder, with the predicate offense being larceny,

violated Michigan’s Double Jeopardy Clause.

Additionally, the majority has unnecessarily overruled the test for the

multiple-punishment strand of double jeopardy that this Court set forth in People v

Robideau, 419 Mich 458; 355 NW2d 592 (1984). I believe that Robideau

provides the appropriate protection against multiple punishments in Michigan.
Therefore, I must also object to the majority’s decision to overrule it and to the

majority’s continuing disregard for the rule of stare decisis.

THE FACTS

On January 7, 2003, store owner Richard Cummings and employee Stephen

Putman died from gunshot wounds. During the criminal investigation, the police

discovered that $2,000 in cash was missing from the store, in addition to the

store’s cash proceeds from that morning. Also missing were the wallets of both

victims, the money Cummings carried in his front pocket, and a set of keys to the

store. Ultimately, after a jury trial, defendant was convicted of two counts of first-

degree felony murder,1 with larceny as the predicate felony; two counts of armed

robbery;2 and four counts of possession of a firearm during the commission of a

felony.3

Defendant appealed, arguing that his convictions for both felony murder

and armed robbery violated constitutional double jeopardy protections. People v

Smith, unpublished opinion per curiam of the Court of Appeals, issued December

27, 2005 (Docket No. 257353). The Court of Appeals agreed and vacated the

armed robbery convictions and the corresponding felony-firearm convictions, as

well as the sentences for those convictions. The Court specifically noted that

1
MCL 750.316(1)(b).
2
MCL 750.529.
3
MCL 750.227b.

2

“[b]ecause larceny is a necessarily included lesser offense of robbery, and

because, factually, there was no evidence that defendant committed separate

offenses of robbery and larceny, defendant’s armed robbery convictions violate

double jeopardy.” Id., slip op at 2. The prosecution sought leave to appeal in this

Court, contending that the Court of Appeals erred in its double jeopardy analysis.

INSUFFICIENT EVIDENCE

A majority of this Court concludes that the Court of Appeals erred in its

double jeopardy analysis by comparing the felony-murder conviction to the non-

predicate felony of armed robbery. According to the majority, because armed

robbery was not the predicate felony involved in the felony-murder conviction,

reversal is not required pursuant to People v Wilder, 411 Mich 328; 308 NW2d

112 (1981). I disagree with the majority’s conclusion. Rather, I believe that the

Court of Appeals correctly concluded that there was no evidence that defendant

committed the separate offenses of robbery and larceny.

In his opening statement, the prosecutor argued to the jury that defendant

took the following items: Putman’s wallet, Cummings’s cash, Cummings’s

wallet, the keys to the store, and the cash from the cash register. The prosecutor

also explained that, in order to prove felony murder, all he had to show was (1)

that defendant murdered Cummings and Putman, (2) that he did it with malice,

and (3) that he was attempting a larceny at the time he committed the murders.

3

With regard to the armed robbery, the prosecutor explained that he had to prove

that defendant committed robbery with a gun.

In his closing statement, the prosecutor summarized for the jury what he

believed the evidence showed. Specifically, with regard to the armed robbery, the

prosecutor noted (1) that defendant took the keys and (2) that money was taken

from several locations, including Cummings’s front pocket, the men’s wallets, and

the cash drawer. With regard to felony murder, the prosecutor argued that

defendant caused the deaths of Cummings and Putman. He said that, when

defendant caused their deaths, defendant had the intent either to kill the victims or

to do them great bodily harm. With regard to the predicate offense of larceny, the

prosecutor explained that, if defendant “was either stealing or attempting to steal

at the time he killed these two men, which we have shown, he is guilty as charged

of both counts of Felony Murder.”

Although a prosecutor’s comments are not evidence, they are intended to

summarize the evidence put before the jury. Clearly, the prosecutor in this case

did not distinguish between the separate acts of armed robbery and larceny.

Rather, he treated the two crimes as interchangeable and failed to identify the

items stolen with the individual crimes. In fact, when restating the items that

defendant allegedly stole during the armed robbery, the prosecutor named all the

stolen items.

4

 However, if defendant stole all the items during the armed robbery, none

remained to be stolen during the larceny. In order to satisfy the predicate offense

of larceny, the prosecutor stated that he had already shown that defendant was

either stealing or attempting to steal from the two men. However, when he made

that assertion, the prosecutor was referring to the proofs he had just discussed with

regard to the armed robbery. Accordingly, the Court of Appeals correctly

concluded that there was no evidence that defendant committed both armed

robbery and larceny.

The majority notes that a reasonable juror could have concluded that there

were two separate takings: the money from the cash drawer and the wallets from

the victims. However, the prosecutor did not make this distinction. Moreover, the

facts of this case should not be read in a vacuum. In making the distinction it

does, the majority is essentially acting as a super-prosecutor and a thirteenth juror.

The Court of Appeals correctly concluded that there was insufficient

evidence of two takings, and that defendant was convicted of both felony murder

and the predicate felony. As the Court noted, it is well established that

convictions and sentences for both felony murder and the predicate felony for

felony murder violate double jeopardy. Wilder, 411 Mich at 345-347. The proper

remedy is to vacate the conviction and sentence for the underlying felony.

Accordingly, I would affirm the Court of Appeals judgment and vacate

5

defendant’s two convictions for armed robbery and the corresponding two

convictions for felony-firearm, as well as the sentences for those convictions.4

THE DOUBLE JEOPARDY ISSUE

It is unnecessary in this case for the Court to choose whether the proper test

for determining if a double jeopardy violation has occurred is set forth in

Blockburger5 or Robideau. However, the majority takes this step, and I state my

strong disagreement. Robideau should not be overruled.

The Double Jeopardy Clause of the Michigan Constitution,6 provides: “No

person shall be subject for the same offense to be twice put in jeopardy.”

Similarly, the Double Jeopardy Clause of the United States Constitution7 provides:

“No person shall be . . . subject for the same offence to be twice put in jeopardy of

life or limb . . . .”8

The Double Jeopardy Clause primarily offers three protections: it protects

against (1) a second prosecution for the same offense after acquittal, (2) a second

4
The majority notes that its approach to double jeopardy will better ensure
that criminal perpetrators be punished for all, not merely some, of their offenses.
A telling flaw that I find with the majority’s approach is that, in its zeal, it will at
times punish a defendant twice for the same offense.
5
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306
(1932).
6
Const 1963, art 1, § 15.
7
US Const, Am V.

6

prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. Robideau, 419 Mich at 468, citing North Carolina v Pearce,

395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

The first two protections are commonly referred to as the “successive

prosecution” strand, and the third protection is commonly referred to as the

“multiple punishment” strand. According to the majority, the instant case

concerns the third protection. As noted in Robideau, “[t]he Double Jeopardy

Clause prohibits a court from imposing more punishment than that intended by the

Legislature.” Robideau, 419 Mich at 469. Accordingly, “‘the question under the

Double Jeopardy Clause whether punishments are “multiple” is essentially one of

legislative intent . . . .’” Id., quoting Ohio v Johnson, 467 US 493, 499; 104 S Ct

2536; 81 L Ed 2d 425 (1984).

RECENT CHANGES IN MICHIGAN’S DOUBLE JEOPARDY JURISPRUDENCE

It should be noted that there are few areas of the law in which the current

Michigan Supreme Court majority has altered state law more than in double

jeopardy jurisprudence. Ten years after the 1963 Michigan Constitution was

ratified, this Court decided People v White, 390 Mich 245; 212 NW2d 222 (1973).

(…continued)
8
In Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969),
the United States Supreme Court held that the federal Double Jeopardy Clause
was applicable to actions by the states.

7

There, the Court held that the “same transaction” test should be used to determine

if serial prosecutions violate the state constitution’s double jeopardy provision. Id.

Thirty years later, the majority of this Court9 overruled White and instead

adopted the “same elements” test, also referred to as the Blockburger test. People

v Nutt, 469 Mich 565; 677 NW2d 1 (2004). Specifically, the majority in Nutt

concluded that, in adopting the Michigan Double Jeopardy Clause, “the people of

this state intended that our double jeopardy provision would be construed

consistently with Michigan precedent and the Fifth Amendment.” Id. at 591.

Accordingly, because federal courts used the same-elements test in interpreting the

term “same offence” under the federal constitution, this Court likewise adopted the

same-elements test. Id. at 576, 592.

The dissent in Nutt10 rejected the majority’s application of the same-

elements test and noted that it “is not as entrenched in federal jurisprudence as the

majority claims.” Id. at 597 (Cavanagh, J., dissenting). The dissent noted that 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 double

jeopardy rights. Id. at 598-599, citing Ashe v Swenson, 397 US 436, 443-444,

447; 90 S Ct 1189; 25 L Ed 2d 469 (1970), Ball v United States, 470 US 856, 105

9
Justice Young wrote the majority opinion, which was signed by then-
Chief Justice Corrigan and Justices Weaver, Taylor, and Markman.
10
Justice Cavanagh wrote the dissent and I signed it, as well.

8

S Ct 1668, 84 L Ed 2d 740 (1985), In re Nielson, 131 US 176; 9 S Ct 672, 33 L

Ed 118 (1889), Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054

(1977), and Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977).

Specifically, the dissent noted that a technical comparison of the elements

is neither constitutionally sound nor easy to apply. Nutt, 469 Mich at 600.

Essentially, the dissent opined that the same-elements test is nothing more than a

method that can be used to interpret statutes. Id. at 598, citing Albernaz v United

States, 450 US 333, 340; 101 S Ct 1137; 67 L Ed 2d 275 (1981).

In a similar vein, in 1976, this Court decided People v Cooper, 398 Mich

450; 247 NW2d 866 (1976). In Cooper, the defendant was acquitted in federal

court, then tried in state court on charges for the same criminal act. Id. at 453.

The issue was whether his right to be free from double jeopardy under either the

Michigan or United States Constitution had been violated. Id. We held that

“Const 1963, art 1, § 15 prohibits a second prosecution for an offense arising out

of the same criminal act unless it appears from the record that the interests of the

State of Michigan and the jurisdiction which initially prosecuted are substantially

different.” Id. at 461.

Again, nearly 30 years later, the same majority of the Michigan Supreme

Court that overruled White in Nutt overruled Cooper in People v Davis, 472 Mich

9

156; 695 NW2d 45 (2005).11 The majority in Davis relied on its analysis in Nutt

for this proposition: The double jeopardy provision of the Michigan Constitution

should be construed consistently with that of federal double jeopardy

jurisprudence that existed at the time the 1963 Michigan Constitution was ratified.

Id. at 168. Accordingly, applying federal double jeopardy jurisprudence, the

majority in Davis concluded that the Michigan Double Jeopardy Clause did not

bar the defendant’s successive prosecutions in Michigan and Kentucky. Id. at 158.

The reason was that the states are separate sovereigns deriving their authority to

punish from distinct sources of power. Id.

I dissented in Davis.12 My dissent reviewed this state’s common-law

history before we became a state, our constitutional history, and the language of

the Address to the People before the constitution was ratified in 1963. It rejected

the majority’s claim that the voters of our state intended that Michigan’s Double

Jeopardy Clause be interpreted exactly as the federal provision is interpreted. Id.

at 182 (Kelly, J., dissenting). I also noted that Cooper properly relied on the

11
Justice Weaver wrote the majority opinion, which was signed by Chief
Justice Taylor and Justices Corrigan, Young, and Markman.
12
Justice Cavanagh concurred with my dissent. Id. at 191 (Cavanagh, J.,
dissenting).

10

Michigan Constitution, and that the Cooper rule was necessary to protect the

individual’s and the state’s respective interests. Id. at 184.13

Finally, we come to the instant case. In 1984, this Court decided Robideau

and specifically addressed the multiple-punishment strand of Michigan’s Double

Jeopardy Clause. The Court noted that, although the United States Supreme Court

had adopted the Blockburger same-elements test, the United States Supreme

Court’s treatment of issues of multiple punishment suggested a struggle to set

forth a single standard. Robideau, 419 Mich at 479.

Turning to Michigan caselaw, Robideau concluded that Michigan’s double

jeopardy analysis had been no more consistent than federal double jeopardy

analysis. Id. at 484. In deciding the appropriate test to use in Michigan, this Court

explicitly rejected the Blockburger test. Id. at 485-486. Specifically, it stated that,

although Blockburger’s “creation of a presumption may make a court’s task easier,

it may also induce a court to avoid difficult questions of legislative intent in favor

of the wooden application of a simplistic test.” Id. at 486. Instead, this Court used

the traditional means of determining legislative intent: the subject, language, and

history of the statutes. Id. at 486.

13
The majority claims that I would overrule all of the existing double
jeopardy jurisprudence. This is inaccurate. My concern is simply with the
majority’s contributions to our double jeopardy jurisprudence. In that regard, I
have consistently dissented. As I noted in my dissents in Davis, Nutt, and in this
case, I would have upheld Michigan’s double jeopardy jurisprudence as it existed
before the instant majority began mangling it.
(continued…)

11

 Now, more than 20 years after Robideau was decided, the same majority

that overturned White and Cooper overturns Robideau. Relying once again on its

analysis in Nutt, the majority holds that Blockburger set forth the proper test to

determine when multiple punishments are barred on double jeopardy grounds.

It is beyond argument that the majority of this Court has systematically and

drastically altered Michigan double jeopardy jurisprudence. For nearly 30 years,

this Court applied White to cases involving successive prosecutions and Cooper to

cases involving two sovereigns. For more than 20 years, this Court applied

Robideau to cases involving multiple punishments. However, in rapid succession,

the majority of this Court has discarded each of these precedents and created its

own double jeopardy jurisprudence.

I dissented in Nutt and Davis because I did not agree that White and Cooper

should have been overturned. Today, I again dissent because I do not agree that

Robideau should be overturned.

THE ROBINSON14 FACTORS

A. WHETHER THE CASE WAS WRONGLY DECIDED

This Court laid out the factors to consider in departing from the rule of stare

decisis in the Robinson case: (1) whether the earlier decision was wrongly

decided, (2) whether the decision at issue defies “practical workability,” (3)

(…continued)

12

whether reliance interests would work an undue hardship if the authority is

overturned, and (4) whether changes in the law make the decision no longer

justified. Robinson, 462 Mich at 464.15

First, I believe Robideau was correctly decided. In Robideau, this Court

exhaustively reviewed federal caselaw concerning double jeopardy. Robideau,

419 Mich at 472-480. After concluding that federal jurisprudence offered no

concrete guidance, this Court exhaustively reviewed Michigan caselaw concerning

Michigan’s Double Jeopardy Clause. Id. at 480-484. Similarly, this Court found

that Michigan’s double jeopardy analysis had not been consistent. Id. at 484.

This Court noted that it had concluded in White that the transactional

approach was the correct standard to use with regard to successive prosecutions.

Id. at 485. However, because different interests were involved, a different

standard was needed for cases involving multiple punishments. Id. Accordingly,

after conducting an extensive caselaw analysis, this Court explicitly rejected the

Blockburger test, preferring instead traditional means of determining the intent of

the Legislature: the subject, language, and history of the statutes. Id. at 486.16

(…continued)
14
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
15
It is worth noting that the same majority that overrules Robideau today
set forth in Robinson the test for departing from the rule of stare decisis.
Notwithstanding the fact that it created this test, the majority pays little attention to
it and instead goes through the Robinson factors in a footnote.
16
Specifically, this Court set forth a nonexhaustive list of considerations:
(continued…)

13

 Robideau was based on the Michigan Constitution and Michigan caselaw.

The test in Robideau adequately safeguards a Michigan citizen’s right to be free

from multiple punishments for the same offense. As noted in Robideau, when

multiple punishments are involved, the Double Jeopardy Clause is a restraint on

the prosecution and the courts, not on the Legislature. Id. at 469. The test in

Robideau assures that the defendant does not receive more punishment than

intended by the Legislature. Accordingly, it adequately protects the double

jeopardy rights of Michigan citizens.

Moreover, the Robideau Court was free to use its own preferred methods of

ascertaining judicial intent. As noted repeatedly throughout Robideau, the

Blockburger test is simply a method for determining legislative intent. Robideau,

419 Mich at 473, 478, citing Gore v United States, 357 US 386; 78 S Ct 1280; 2 L

Ed 2d 1405 (1958) (stressing that Blockburger was decided as a matter of

legislative intent), and Albernaz, 450 US at 338 (noting that the Blockburger test

(…continued)

Statutes prohibiting conduct that is violative of distinct social
norms can generally be viewed as separate and amenable to
permitting multiple punishments. A court must identify the type of
harm the Legislature intended to prevent. Where two statutes
prohibit violations of the same social norm, albeit in a somewhat
different manner, as a general principle it can be concluded that the
Legislature did not intend multiple punishments. . . .

(continued…)

14

was merely a means to determine legislative intent and that the presumption

created by the Blockburger test could be rebutted by a clear indication of

legislative intent to the contrary).

I believe this is the proper lens through which to view Blockburger: It is

simply one of many methods by which a court can discern the Legislature’s intent.

It is not a definitive test that should, or could, be used in every case. Indeed, as

noted by this Court in Robideau, “it would be quite contrary to established

principles of federalism for the United States Supreme Court to impose on the

states the method by which they must interpret the actions of their own

legislatures.” Robideau, 419 Mich at 486. Accordingly, the Robideau Court was

within its authority to reject the Blockburger test and instead fashion a test that

properly reflected the protections of the Michigan Constitution.

The majority believes that the constitution’s ratifiers intended our double

jeopardy provision to be construed consistently with the interpretation given the

Fifth Amendment by federal courts at the time of ratification. I disagree. As I

noted in my dissent in Davis, the sole concern in revisiting the Double Jeopardy

Clause in our state constitution was to clarify that jeopardy attaches when a jury is

(…continued)
A further source of legislative intent can be found in the
amount of punishment expressly authorized by the Legislature.
[Robideau, 419 Mich at 487.]

15

sworn, as our courts had interpreted. Davis, 472 Mich at 181 (Kelly, J.,

dissenting).

In Davis, I also rejected the majority’s claim that the people of Michigan

intended to adopt the federal interpretation of the Double Jeopardy Clause. Id.

Specifically, I did not agree with the majority that the ratifiers knew how the

United States Supreme Court had interpreted the federal Double Jeopardy Clause

and that they accepted it. Id. I did not agree that the ratifiers were willing to allow

the federal government to interpret our constitution for us. Id. I continue to

believe that my analysis in Davis was correct. Therefore, I continue to reject the

majority’s presumption that the voters of our state intended that Michigan’s

Double Jeopardy Clause be interpreted exactly as the federal provision is

interpreted.

The majority overturns Robideau also in the belief that the Michigan

Constitution does not afford greater protections than does the Fifth Amendment of

the United States Constitution. As an initial matter, I would note that the

Robideau Court did not expressly base its decision on this assertion. Regardless,

this Court has, for decades, determined that our constitutional prohibition against

double jeopardy affords greater protection than does the Fifth Amendment. See,

e.g., Robideau, 419 Mich at 507 n 5 (Cavanagh, J., dissenting), citing People v

Wakeford, 418 Mich 95, 105 n 9; 341 NW2d 68 (1983), People v Carter, 415

Mich 558, 582-584; 330 NW2d 314 (1982), Wilder, 411 Mich at 343-349, People

16

v Jankowski, 408 Mich 79, 91-92, 96; 289 NW2d 674 (1980), and White.

Accordingly, for the reasons I have stated, I continue to believe Robideau was

correctly decided.

17

 B. PRACTICAL WORKABILITY PROBLEMS

The next Robinson factor to consider is whether the decision at issue defies

“practical workability.” Robinson, 462 Mich at 464. I do not believe that it does.

In interpreting statutes, courts are charged with the responsibility to determine the

Legislature’s intent in writing such statutes. In re MCI Telecom Complaint, 460

Mich 396, 411; 596 NW2d 164 (1999). Robideau set forth a nonexhaustive list

of factors a court could consider in determining legislative intent. I believe that

the test set forth in Robideau is workable. It is no more difficult to apply than any

other method that this Court uses to discern the Legislature’s intent.

The majority adopts the Blockburger test. However, as indicated by the

Robideau Court, the Blockburger test is not an easy test to apply consistently.

This Court noted that, among other difficulties that arise from the application of

the Blockburger test, it “fails to recognize that the Legislature does not always

create crimes in neat packages which are susceptible to a pure greater and lesser

included offense analysis.” Robideau, 419 Mich at 487 n 6. Moreover, the

Blockburger test “may also induce a court to avoid difficult questions of

legislative intent in favor of the wooden application of a simplistic test.” Id. at

486. The difficulty in applying Blockburger is one of the reasons, if not the main

reason, this Court specifically declined to adopt the Blockburger test.

18

 In Nutt,17 the dissent noted that the Blockburger test is an inadequate

safeguard because it leaves the constitutional guarantee at the mercy of the

Legislature’s decision to modify statutory definitions. Nutt, 469 Mich at 600,

quoting United States v Dixon, 509 US 688, 735; 113 S Ct 2849; 125 L Ed 2d 556

(1993) (White, J., dissenting). Therefore, it is the Blockburger test, not the

Robideau test, that defies practical workability.

C. HARDSHIP BECAUSE OF RELIANCE

The next Robinson factor to consider is whether, if the decision were

overturned, reliance interests would work an undue hardship. Robinson, 462 Mich

at 464. “[T]he Court must ask whether the previous decision has become so

embedded, so accepted, so fundamental, to everyone’s expectations that to change

it would produce not just readjustments, but practical real-world dislocations.” Id.

at 466. Overturning Robideau would work an undue hardship. As indicated

above, Michigan courts have followed the test for more than 20 years. It has

become a fundamental part of Michigan double jeopardy jurisprudence.

D. CHANGES IN THE LAW

The final Robinson factor is whether changes in the law make the decision

no longer justified. Id. at 464. There has been no change in Michigan’s Double

Jeopardy Clause, and the test set forth in Robideau has been applied since its

inception in 1984.

17
469 Mich at 565 (Cavanagh, J., dissenting).

19

 The majority notes that the concern expressed by this Court in Robideau

that Blockburger does not account for cognate lesser-included offenses is no

longer pertinent in light of People v Cornell, 466 Mich 335, 353; 646 NW2d 127

(2002). As an initial matter, the Robideau Court’s reasoning was much more

diverse than the majority implies. The Robideau Court did not reject the

Blockburger test solely because it did not account for cognate lesser-included

offenses. Rather, this Court noted that federal double jeopardy jurisprudence was

inconsistent and that Blockburger was difficult to apply.

Regardless, in Cornell, the same majority that overturned White, Cooper,

and now Robideau held that an offense is an “offense inferior to that charged in

the indictment” for purposes of MCL 768.32(1) when “‘the lesser offense can be

proved by the same facts that are used to establish the charged offense.’” Id. at

354-355 (citation omitted).

I dissented in Cornell and noted that, in coming to this conclusion, the

majority strayed beyond the matter at hand, which was lesser-included

misdemeanor offenses. Cornell, 466 Mich at 376 (Kelly, J., dissenting). I noted

that, whereas the majority devoted pages of discussion to cognate lesser included

offenses, its holding applied to necessarily included felony offenses. Therefore, I

disagreed with the majority’s analysis in Cornell and do not believe it affects the

instant case.

20

 Accordingly, after considering all the Robinson factors, I conclude that

Robideau should not be overturned.

CONCLUSION

There was no need, other than one springing from the majority’s desire to

rewrite Michigan double jeopardy jurisprudence, to overturn Robideau or

determine whether Robideau or Blockburger is the appropriate test to apply.

Rather, the Court of Appeals was correct. There was no evidence in this case that

defendant committed the separate offenses of robbery and larceny. His armed

robbery convictions violate double jeopardy.

Additionally, because I believe that Robideau provides the appropriate

protection against multiple punishments in Michigan, I must also dissent from the

majority’s decision to overturn that decision. Application of the Robinson factors

supports my position.

I would affirm the Court of Appeals judgment and vacate defendant’s two

convictions for armed robbery and the two corresponding convictions for felony-

firearm, as well as the sentences for those convictions.

Marilyn Kelly

21