                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 20, 2018
              Plaintiff-Appellee,

v                                                                 No. 338130
                                                                  Genesee Circuit Court
JERIES YACOB QUMSYEH,                                             LC No. 16-039543-FC

              Defendant-Appellant.


Before: O’CONNELL, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

       Defendant pleaded no contest to one count of second-degree murder, MCL 750.317, but
reserved the right to appeal the issue of whether double jeopardy barred his prosecution in
Michigan. We affirm.

        Defendant killed his ex-wife in 1982 and, after he was charged with murder, fled to
Amman, Jordan. In 1983, he was allegedly convicted for her murder in Jordan and sentenced to
prison, without the knowledge or participation of United States’ authorities. He was released
from prison after serving less than eight years, and in 2011, United States’ authorities were
notified that defendant had been arrested in Canada. After defendant was extradited in 2016, he
was again charged with his ex-wife’s murder. Defendant filed a motion to dismiss the charge on
double jeopardy grounds, which was denied. During the bench trial on a charge of first-degree
premeditated murder, defendant entered a no contest plea to second-degree murder.

       On appeal, defendant argues that the Double Jeopardy Clause of the Michigan
Constitution barred his prosecution for murder because he was already convicted of murder in
Jordan and Michigan’s interest in prosecuting defendant was satisfied by that prosecution. After
de novo review of this issue of constitutional law, we disagree. See People v Ackah-Essien, 311
Mich App 13, 30; 874 NW2d 172 (2015).

       The Double Jeopardy Clause of the Michigan Constitution provides: “No person shall be
subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. As our
Supreme Court explained in People v Smith, 478 Mich 292; 733 NW2d 351 (2007):
       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

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       (3) it protects against multiple punishments for the same offense. 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. [Id. at 299 (internal quotation marks and citation
       omitted).]

        Defendant argues that at the time he killed his ex-wife, and when he was convicted in
Jordan for that offense, prevailing Michigan law barred a successive prosecution for the same
offense; thus, he should not have been charged with murder in Michigan. Defendant relies on
the case of People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), in support of his argument.
In that case, the issue was whether the defendant could be tried by the state on charges arising
from his attempted bank robbery, although he was acquitted of similar charges in federal court.
Id. at 453. Relying on the dual sovereignty doctrine, our Supreme Court explained: “[W]here an
individual’s behavior violated state and Federal laws which are framed to protect different social
interests, prosecution by one sovereign will not satisfy the needs of the other sovereign.” Id. at
459. However, the Court held, “[w]hen state and Federal interests do coincide, prosecution by
one sovereign will satisfy the need of the other.” Id. at 460. Thus, the Cooper Court held, the
Double Jeopardy Clause of the Michigan Constitution “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 460-461.

        Our Supreme Court revisited the dual sovereignty doctrine in People v Davis, 472 Mich
156; 695 NW2d 45 (2005). In that case, the issue was whether the defendant could be tried by
this state on charges arising from his theft of an automobile in Michigan, although he pleaded
guilty to a related charge in Kentucky. Id. at 158. The Court held that Michigan’s Double
Jeopardy Clause did not “bar defendant’s successive state prosecution in Michigan because the
entities seeking to prosecute defendant in this case—Kentucky and Michigan—are separate
sovereigns deriving their authority to punish from distinct sources of power.” Id. The Court
recognized that crime is “an offense against the sovereignty of the government” so when a single
act of the defendant violates the “peace and dignity” of two sovereigns by breaking the laws of
both, two distinct offenses are committed. Id. at 166, quoting Heath v Alabama, 474 US 82, 88-
89; 106 S Ct 433; 88 L Ed 2d 387 (1985). Thus, because states are separate sovereigns with
respect to both the federal government and to each other, the dual sovereignty doctrine permits
successive prosecutions. Id. at 166-167, quoting Heath, 474 US at 88-89. In so holding, the
Davis Court expressly overruled the Cooper decision’s “balancing of interests approach” to
analyzing double jeopardy challenges. Id. at 167-168.

       We first address defendant’s argument that the holding in Cooper, which was in effect
when he committed the murder and when he was prosecuted in Jordan, precluded his successive
prosecution for murder several years later in Michigan. Even if Cooper did apply, defendant’s
argument fails. First, Cooper addressed successive federal and state prosecutions, not successive
foreign and state prosecutions. Defendant failed to cite to a single case in which the dual
sovereignty doctrine did not apply to successive foreign and state prosecutions. Second, even if
the Cooper rationale applied to foreign prosecutions, defendant failed to present any argument—
much less establish—that this state’s and Jordan’s interests in prosecuting the criminal act

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“coincided” such that the prosecution in Jordan satisfied or vindicated the interests advanced by
this state’s murder legislation. See Cooper, 398 Mich at 459-460. In fact, the statute under
which defendant was prosecuted in Jordan is unknown; there is no evidence of federal or state
involvement in that prosecution; and it is clear that the interests of this state—where the murder
was actually committed—and the interests of Jordan are substantially different. See id. at 460-
461. Accordingly, even if the holding in Cooper applied, defendant’s argument is without merit;
the Double Jeopardy Clause of the Michigan Constitution did not bar the Michigan prosecution.

        Second, contrary to defendant’s argument, we conclude that our Supreme Court’s
decision in Davis, 472 Mich at 168, overruling the “balancing of interests approach” to analyzing
double jeopardy challenges, applies retroactively to defendant’s case. “Judicial decisions are
generally given complete retroactive effect unless the decisions are unexpected or indefensible.”
People v Sexton, 458 Mich 43, 63-64; 580 NW2d 404 (1998). And defendant has not established
either circumstance. Further, “a new rule for the conduct of criminal prosecutions that is
grounded in the United States Constitution applies retroactively[.]” People v Lonsby, 268 Mich
App 375, 389; 707 NW2d 610 (2005). And, as defendant notes, the underlying foundation of the
dual sovereignty doctrine is the Fifth Amendment. Thus, the dual sovereignty doctrine permitted
the successive prosecutions because Michigan and Jordan are separate sovereigns that obviously
derive their authority to punish defendant from independent and distinct sources of power. See
Davis, 472 Mich at 168; see also, e.g., United States v Studabaker, 578 F3d 423, 430 (CA 6,
2009) (A defendant convicted and incarcerated in England for the same conduct did not bar
federal prosecution.).

       We also reject defendant’s claim that retroactive application of the Davis holding violates
ex post facto principles because it “increased the consequences attendant to [defendant’s]
conduct three and a half decades earlier.” Defendant appears to claim that his prosecution would
have been barred under Cooper but, as discussed above, even the Cooper holding did not
preclude his prosecution for murder in Michigan. Accordingly, defendant’s argument is without
merit.

        In summary, the Double Jeopardy Clause of the Michigan Constitution did not bar
defendant’s prosecution for murder, although he was allegedly convicted on a related charge in
Jordan.

       Affirmed.



                                                            /s/ Peter D. O’Connell
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Deborah A. Servitto




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