                                                                      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 MAY 31, 2006

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

 v                                                                       No. 128294

 JOEZELL WILLIAMS II,

      Defendant-Appellee.

 _______________________________

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellee,

 v                                                                       No. 128533

 JOEZELL WILLIAMS II,

      Defendant-Appellant.

 _______________________________
 BEFORE THE ENTIRE BENCH

 MEMORANDUM.

      In this case, we examine the double-jeopardy concerns1 that are involved



      1
          Const 1963, art 1, § 15.
when a defendant who has committed a felony and a concurrent, single homicide

is charged with and convicted of first-degree premeditated murder, first-degree

felony-murder, and the felony underlying the felony-murder charge. Under the

current case law, to avoid double-jeopardy implications, the defendant receives

one conviction of first-degree murder, supported by two theories, and the

conviction of the predicate felony underlying the felony murder is vacated. See

People v Wilder, 411 Mich 328; 308 NW2d 112 (1981); People v Bigelow 229

Mich App 218; 581 NW2d 744 (1998).              The defendant thus receives one

conviction and one sentence for having committed one crime.

      In this case, the trial court followed that procedure in part, and the Court of

Appeals affirmed in part and vacated in part, but invited us to consider modifying

Bigelow. 265 Mich App 68; 692 NW2d 722 (2005). We decline to do so,

affirming the judgment of the Court of Appeals, and we provide a brief analysis of

our reasoning.

      The prosecutor in this case is concerned that if the judgment vacates

defendant’s larceny conviction, in the unlikely situation that defendant’s

conviction of murder is overturned for some reason unrelated to his conviction of

larceny, defendant could “go free” even though there is no question that he was

found guilty of larceny. Although such a situation is unprecedented in Michigan

case law, we find reassurance in the federal law that these concerns are

groundless. Although the United States Supreme Court has not considered this

specific context, it came close in Rutledge v United States, 517 US 292; 116 S Ct


                                         2

1241; 134 L Ed 2d 419 (1996). We believe Rutledge presents the correct method

of handling this case.

       In Rutledge, the defendant was convicted of both conducting a continuing

criminal enterprise (CCE) and conspiracy to distribute a controlled substance and

was sentenced to two concurrent life sentences. The Court held that under the

common-elements test of Blockburger v United States, 284 US 299; 52 S Ct 180;

76 L Ed 306 (1932), the conspiracy was a lesser included offense of CCE. The

Court then found that the defendant could not receive two sentences and that the

second conviction, even without a second sentence, was presumptively

impermissible under Ball v United States, 470 US 856; 105 S Ct 1668; 84 L Ed 2d

740 (1985).2

       Next, the Court addressed the government’s concern that without a

“backup” conviction, the defendant might escape punishment altogether if he

successfully challenged the CCE conviction in a manner that did not affect his

conspiracy conviction. Rutledge at 305. The Court found “no reason why this

pair of greater and lesser offenses should present any novel problem,” and noted

that “federal appellate courts appear to have uniformly concluded that they may

direct the entry of judgment for a lesser included offense when a conviction for a



       2
        The Court did not ultimately decide whether the second conviction was
impermissible under Ball alone because the fact that each conviction carried its
own $50 “special assessment” established a second punishment, even without a
second prison term. Rutledge at 301.


                                        3

greater offense is reversed on grounds that affect only the greater offense.” Id. at

306. Justice Stevens continued, “This Court has noted the use of such a practice

with approval.” Id.

      Under this approach, if defendant’s murder conviction is reversed on

grounds only affecting the murder element, entry of a judgment of conviction of

larceny may be directed by the appellate court. Such was the practice of this Court

in, for example, People v Randolph, 466 Mich 532, 553; 648 NW2d 164 (2002),

and People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001). We continue to

support this approach and thus affirm defendant’s conviction.3

      Affirmed.

                                                Clifford W. Taylor
                                                Michael F. Cavanagh
                                                Marilyn Kelly
                                                Robert P. Young, Jr.
                                                Stephen J. Markman




      3
         In all other respects, the application for leave to appeal in Docket No.
128533 is denied.


                                         4

                        STATE OF MICHIGAN


                              SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

v                                                                    No. 128294

JOEZELL WILLIAMS II,

      Defendant-Appellee.

_______________________________
PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellee,

v                                                                    No. 128533

JOEZELL WILLIAMS II,

      Defendant-Appellant.

_______________________________

WEAVER J. (dissenting).

      I dissent from the majority’s decision to affirm the Court of Appeals

judgment that vacated defendant’s conviction of larceny from the person of

another and would affirm defendant’s convictions because I continue to adhere to

the position expressed in my dissent in People v Curvan, 473 Mich 896 (2005).

                                              Elizabeth A. Weaver
                        STATE OF MICHIGAN


                              SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

v                                                                     No. 128294

JOEZELL WILLIAMS II,

      Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellee,

v                                                                     No. 128533

JOEZELL WILLIAMS II,

      Defendant-Appellant.
_______________________________

CORRIGAN, J. (dissenting).

      I respectfully dissent from the majority’s declination to tackle the central

question presented in this case, i.e., whether double-jeopardy principles prohibit

the imposition of multiple punishments for the underlying offense of larceny from

the person of another, MCL 750.357, and first-degree murder based on alternative

theories of premeditated murder and felony murder, MCL 750.316(1). I would

hold this case in abeyance for the decision in People v Smith (Docket No. 130353),

lv gtd 475 Mich ___ (2006), in which we have granted leave to appeal to consider
the appropriate test for resolving a “multiple punishments” double-jeopardy claim

that arose from a conviction of armed robbery, MCL 750.529, and felony murder

based on a predicate felony of larceny.

      An abeyance for Smith is appropriate for the following reasons:

      First, this case and Smith are in similar postures.     In both cases, the

defendant received dual convictions for felony murder and a predicate felony or an

offense related to the predicate felony. In Smith, the defendant was convicted of

armed robbery and felony murder based on larceny. In this case, the defendant

was convicted of larceny from the person of another and first-degree murder based

on alternative theories of premeditated murder and felony murder.

      Second, both cases potentially present the question whether People v

Robideau, 419 Mich 458; 355 NW2d 592 (1984), or Blockburger v United States,

284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), sets forth the proper test to

determine whether multiple punishments are barred on double-jeopardy grounds

under Const 1963, art 1, § 15. Our grant order in Smith directed the parties to

consider “this Court’s prior precedent in ‘multiple punishment’ claims and the

common understanding of ‘same offense’ as it relates to the ‘multiple

punishments’ prong of double jeopardy. Cf. People v Nutt, 469 Mich 565 (2004).”

Smith, supra at ___.

      Thus, our resolution of the appropriate test in Smith may offer guidance in

addressing the “multiple punishments” claim in this case. If this Court decides in

Smith that the Blockburger test governs the resolution of multiple punishments


                                          2

claims, then we should consider the proper application of that test in this case.

Therefore, because an abeyance for Smith is warranted, I must respectfully dissent.

       Next, I will articulate what I believe to be the correct disposition of this

case under the currently controlling Robideau test. For the following reasons, I

believe that double jeopardy does not preclude the imposition of multiple

punishments for larceny from the person of another and first-degree murder based

on alternative theories of premeditation and felony murder.

       In People v Curvan, 473 Mich 896 (2005) (Corrigan, J., dissenting), I

agreed with Justice Riley’s dissenting view in People v Harding, 443 Mich 693;

506 NW2d 482 (1993), that felony murder and the predicate offense of armed

robbery are not the “same offense” for the purposes of the protection against

double jeopardy. Plainly, the two offenses protect against distinct societal harms.

Felony murder punishes homicide committed with malice in the course of a

felony, while armed robbery protects against the violent deprivation of property.

Id. Moreover, the structure of the first-degree murder statute reflects that felony

murder is one of three classifications of the crime of first-degree murder. The

predicate felonies are used to differentiate felony murder “from the other two

types of first-degree murder, and from second-degree murder, MCL 750.317,

rather than merely to enhance the penalty for the enumerated predicate felonies.”

Curvan, supra at 904 (Corrigan, J., dissenting).

       As in Curvan, the majority here again declines to answer a fairly

straightforward question:    Are first-degree murder supported by alternative


                                         3

theories and larceny from the person the “same offense”? Under our current test

set forth in Robideau, legislative intent is the fundamental criterion in discerning

whether multiple punishments are authorized. Although this Court held in People

v Wilder, 411 Mich 328; 308 NW2d 112 (1981), and Harding, supra, that separate

convictions and sentences for felony murder and the underlying felony are not

permitted, this Court has never addressed whether multiple punishments for an

underlying felony and first-degree murder are permitted where, as here, the

murder conviction is based on alternative theories of premeditated murder and

felony murder.1

      I would decide this case on the basis of the views I expressed in Curvan.

First-degree murder and the underlying felony of larceny from the person simply

are not the “same offense.” I can discern no indication that our Legislature ever

prohibited multiple punishments for these distinct offenses. The two offenses

protect against distinct social harms. That is particularly true where, as here, the

murder conviction is supported by an alternative theory of premeditation.         It

cannot reasonably be disputed that protecting against a premeditated homicide is a


      1
         The Court of Appeals special panel in People v Bigelow, 229 Mich App
218; 581 NW2d 744 (1998), of which I was a member, vacated the conviction for
a felony underlying a murder conviction based on alternative theories of
premeditated murder and felony murder. In his dissent in this case, Judge
O’Connell, who was a member of the Bigelow special panel, opined that he and
the other members of the Bigelow special panel had erred in holding that the
underlying felony conviction must be vacated in this situation. I share Judge
O’Connell’s view that the special panel members in Bigelow, myself included,
erred in this regard.


                                         4

social interest that is distinct from the aim of preventing the taking of property

from the person of another.

      In lieu of answering any of these questions or holding this case in abeyance,

the majority has imported a doctrine from federal case law allowing a conviction

that has been vacated to be revived in certain circumstances. Because I question

the majority’s avoidance of the double-jeopardy issues that are so clearly before

us, and because an abeyance for Smith is warranted, I respectfully dissent from the

majority’s decision.

                                                Maura D. Corrigan




                                        5

