People v. Harding

506 N.W.2d 482, 443 Mich. 693

• Court: Michigan Supreme Court
• Decided: April 7, 2006
• Docket: Docket Nos. 91097, 91177, (Calendar Nos. 6-7 April)
• Status: Published

Opinions

Brickley, J.

We granted leave to appeal in these cases to consider the double jeopardy implications of a criminal prosecution in which the defendants were tried and convicted of armed robbery, assault with intent to commit murder, and two counts of felony-firearm arising out of those felonies; and then, over four years later, after the victim died as a result of the assault, were prosecuted and convicted of felony murder and felony-firearm. For the reasons stated below, we hold that the subsequent prosecutions are not barred by the United States or Michigan Constitutions; however, we also hold that the defendants are entitled to relief from the convictions resulting from the first trial.

I

Defendants were convicted of armed robbery,¹ assault with intent to commit murder,² and two counts of possession of a firearm during the commission of a felony³ in December 1983. The robbery occurred in the City of Troy on May 5, 1983. The victim was able to produce only one dollar. He was shot once in the heart and once in the abdomen, and then thrown headfirst into a sewer to die. The victim survived.

More than four years later, after numerous surgeries, the implementation of a number of pacemakers, many tests, and medication, the victim, Mr. Jeffrey Dudley, was apparently attempting to lead a "normal” life.⁴ At a family gathering on June 28, 1987, the victim was participating in a two-on-two, half-court basketball game for between sixty and ninety minutes. During the course of the game an argument ensued and turned to fisticuffs, quickly ending when Mr. Dudley began having convulsions. He died shortly thereafter._

An autopsy revealed that the cause of death was a result of the permanent damage to Mr. Dudley’s heart caused by the gunshot wound inflicted in May 1983.⁵ Defendants Harding and Bush were then charged with statutory felony murder⁶ and another count of felony-firearm. Motions to dismiss the charges on the basis of double jeopardy were denied in the district and circuit courts.

During a joint trial with separate juries, defense counsel vehemently argued that there were intervening events that broke the chain of causation, namely, the passage of time and the failure to refrain from engaging in strenuous activity. Harding was found guilty of felony murder and not guilty of felony-firearm. Bush was found guilty of felony murder and felony-firearm.

The Court of Appeals consolidated both, appeals. It held, inter alia, that the prosecution and conviction of defendants of felony murder were not precluded by double jeopardy, but that Bush’s second conviction and sentencing for felony-firearm were. The Court further held that both defendants’ prior convictions and sentences for armed robbery and assault with intent to commit murder, in light of the felony murder conviction, were violative of the protection from double punishment and were to be vacated and set aside, and that the time served by defendants as a result of their earlier convictions was to be credited to the sentences imposed for felony murder.⁷

II

The double jeopardy provision of the Fifth Amendment of the United States Constitution states that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb . . . .” This provision is applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). The double jeopardy guarantee protects against successive prosecutions for the same offense and protects against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The protection of each interest has operated in distinct ways, and the analysis utilized in fashioning each protection has differed.

This case involves both protections. We first address the question whether it was a violation of the Fifth Amendment to prosecute these defendants for felony murder after they had been convicted of crimes involving the same conduct, and then address the question of multiple punishments.

A. SECOND PROSECUTION FOR SAME OFFENSE

1. FEDERAL CONSTITUTION

The purpose of the double jeopardy provision of the Fifth Amendment has been stated by the United States Supreme Court:

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957). See also People v Grimmett, 388 Mich 590, 597; 202 NW2d 278 (1972).]

The general rule for determining whether two offenses are materially indistinguishable so as to prevent a double punishment or successive prosecution under the United States Constitution was set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932).⁸ See Brown v Ohio, 432 US 161, 166; 97 S Ct 2221; 53 L Ed 2d 187 (1977), Garrett v United States, 471 US 773, 778-779; 105 S Ct 2407; 85 L Ed 2d 764 (1985), and United States v Dixon, 509 US —; 113 S Ct 2849; 125 L Ed 2d 556 (1993). However, the general rule of Blockburger does not operate without its exceptions, and, in fact, its application in recent years has been called into question in certain circumstances. See Brown at 166, n 6, and Whalen v United States, 445 US 684, 709; 100 S Ct 1432; 63 L Ed 2d 715 (1980) (Rehnquist, J., dissenting).

In the present case, but for the subsequent death of the victim, it would appear that we are faced with a clear double jeopardy violation;⁹ however, because of the subsequent death, the cases are easily distinguishable. Diaz v United States, 223 US 442; 32 S Ct 250; 56 L Ed 500 (1912), presented similar facts.¹⁰ The defendant, "by blows and kicks,” inflicted bodily injuries upon the victim and was charged with assault and battery, tried, and found guilty. Subsequently, the victim died, and the defendant was charged with homicide. Relying on the testimony from the assault and battery hearing, the statement of the defendant, and the autopsy report, the defendant was convicted by "the court of first instance.” The United States Supreme Court affirmed and held:

The homicide charged against the accused in the Court of First Instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. [Diaz at 448-449.]

This exception to the bar against double jeopardy has been cited with approval for years in a variety of circumstances. In Brown, the Supreme Court, while interpreting the Blockburger rule and holding that the Fifth Amendment forbids successive prosecutions and cumulative punishments for greater and lesser included offenses, regardless of their sequence, stated:

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. [Brown at 169, n 7 (citing Diaz and Ashe v Swenson, 397 US 436, 453, n 7; 90 S Ct 1189; 25 L Ed 2d 469 [1970] [Brennan, J., concurring]).]

In another double jeopardy case decided the same term as Brown, the Court, while discussing the rule established in Brown, stated that it "does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun.” Jeffers v United States, 432 US 137, 151; 97 S Ct 2207; 53 L Ed 2d 168 (1977).

Similarly, in a "continuing criminal enterprise” case, where three predicate crimes are required to establish the continuing criminal enterprise, the Supreme Court held that there was no double jeopardy violation where the facts underlying a prior conviction served to prove one of the predicate crimes. Garrett, supra. The Court determined that Congress intended a continuing criminal enterprise to be a separate offense and to authorize prosecution and punishment for both the predicate crimes and the continuing criminal enterprise. In ruling on the constitutionality of the prosecution of the continuing criminal enterprise after a previous prosecution for a predicate offense, the Court compared the case with Diaz. Just as the homicide had not occurred at the time of the trial for the assault and battery, the continuing criminal enterprise had not been completed at the time of the prosecution for the predicate crime. As a result, the Court held that there was no double jeopardy violation.

Defendant Bush argues that Diaz does not apply because "the analysis in Diaz is based upon the elements of the crimes involved and not the criminal conduct upon which a prosecution would be based.”¹¹ We read this statement as distinguishing between the Blockburger "statutory elements” test and the Grady "same conduct” test, which is no longer a viable distinction.¹² Because the facts of this case fit squarely within the very exception developed in Diaz,13 we hold that the subsequent prosecution of these defendants does not violate the Fifth Amendment.

2. STATE CONSTITUTION

The double jeopardy provision of the Michigan Constitution provides that "[n]o person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15. Although People v White, 390 Mich 245; 212 NW2d 222 (1973), in which this Court seemed to give a broader interpretation of the Michigan Double Jeopardy Clause by holding that Blockburger is not the test for determining double jeopardy violations under the Michigan Constitution in the successive prosecution context and instead adopting the "same transaction” test, we nonetheless recognized the Diaz exception.

In adopting the same transaction test, we limit our holding to the facts of the present case and to similar factual situations.

We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an oifense where the state had made a diligent and good faith eifort to protect the defendant’s constitutional rights.

"For example, where a crime is not completed or not discovered, despite diligence on the part of the police, until after the commencement of a prosecution for other crimes arising from the same transaction, an exception to the 'same transaction’ rule should be made to permit a separate prosecution.” Ashe v Swenson, 397 US 436, 453, n 7; 90 S Ct 1189, 1199; 25 L Ed 2d 469, 481 (1970) (Brennan, J., concurring) [citing Diaz]. We emphasize that our primary objective in adopting the same transaction test is to insure that a criminal defendant receives meaningful protection under the double jeopardy clause. If actual situations should arise in which application of the same transaction test would not serve that objective, we will, in such case, consider the adoption of limited exceptions to the same transaction test. [White at 258, n 6.]

Therefore, it is clear the exception set forth by this Court in White duplicates the exception outlined by the United States Supreme Court in Diaz, restated in Brown and Jeffers, and applied in Garrett. Accordingly, we hold that it was not a violation of the Double Jeopardy Clause of either the United States or the Michigan Constitution to charge, try, and convict these defendants of felony murder after the prosecution for the other crimes arising out of the same conduct. Having so held, it is now necessary to analyze the constitutional implications of the penalties imposed on these defendants for the previous crimes in light of the statutory felony murder conviction.

B. MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE

The principal thrust of double jeopardy protection by the very terms of our federal and state constitutional provision is protection from repeated prosecutions for the same criminal offense arising out of the same conduct. The concept of multiple punishment in double jeopardy jurisprudence has as its purpose the avoidance of more than one punishment for the same offense arising out of a single prosecution. This occurs most often in dealing with lesser included and compound offenses. In the case before us the multiple punishment challenge is made more difficult by the fact that the punishment exacted has resulted from successive prosecutions.

In the cases in which the United States Supreme Court has addressed the issue of multiple punishments in successive prosecutions, its analysis has remained consistent with the cases involving multiple punishments in single prosecutions.

In Jeffers, supra, the Court faced the successive prosecutions of conspiring to distribute controlled substances and conducting a continuing criminal enterprise to violate drug laws. After a majority of the Court found that the defendant could constitutionally be tried separately by his request, it then reached the issue of multiple punishment. In so discussing, four justices adhered to the view that

[t]he critical inquiry is whether Congress intended to punish each statutory violation separately. . . . If some possibility exists that the two statutory offenses are the "same offense” for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. [Id. at 155.]

The Court continued by performing a legislative intent analysis and found that Congress did not intend to impose cumulative penalties for committing the crimes at issue. Interestingly, the opinion cited all single prosecution-multiple punishment cases for the above proposition, indicating that the two related issues are to be analyzed similarly. Compare Brown at 166-167.

The most recent decision of the United States Supreme Court applying a legislative intent analysis to a successive prosecution-multiple punishment case occurred in Garrett, supra. A majority of the Court, after holding that prosecuting a continuing criminal enterprise offense after a prior conviction for one of the predicate offenses does not violate the Double Jeopardy Clause, reconfirmed the plurality in Jeffers by relying on still other single prosecution-multiple punishment cases for the proposition that legislative intent controls the imposition of multiple penalties. Garrett at 793.¹⁴

The United States Supreme Court, as evidenced in the foregoing cases, although not abandoning the Blockburger test but veritably cutting back on its application as the rule, now views it as simply a method of determining legislative intent.

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). See also Missouri v Hunter, 459 US 359, 367; 103 S Ct 673; 74 L Ed 2d 535 (1983), and Garrett at 778-779.]

The United States Supreme Court must accept a state court’s interpretation of the intent of state legislation. See Ohio v Johnson, 467 US 493, 499; 104 S Ct 2536; 81 L Ed 2d 425 (1984).¹⁵ However, we need not interpret the statutes at issue if the Michigan Constitution provides relief to these defendants.

In People v Robideau, 419 Mich 458; 355 NW2d 592 (1984), we traced the development of this concept and the standards for determining the parameters of double jeopardy.

Different interests are involved when the issue is purely one of multiple punishments, without the complications of a successive prosecution. The right to be free from vexatious proceedings simply is not present. The only interest of the defendant is in not having more punishment imposed than that intended by the Legislature. The intent of the Legislature, therefore, is determinative. Under neither the federal nor the Michigan double jeopardy provisions does this Court sit as a superlegislature, instructing the Legislature on what it can make separate crimes. As previously described, prior decisions of this Court have applied a factual test in single-trial multiple-punishment cases, creating areas in which arguably the Legislature cannot now act. To the extent that those decisions interpret the prohibition against double jeopardy as a substantive limitation on the Legislature, we now disavow them.

We are therefore left only with the question of what the Legislature intended in cases such as those at bar. As a means of determining that end, we find the Blockburger test to have questionable status in the Supreme Court of the United States and find the propriety of its use in any case to be questionable. [.Bobideau at 485-486.]

Thus, in cases involving the double jeopardy protection against double punishment, although we have not decided a case involving both successive prosecutions and multiple punishment as in Garrett, it is clear that we have interpreted the Michigan Constitution consistently with the United States Supreme Court’s interpretation of the federal constitution — legislative intent controls. We now turn to the task of determining what the Legislature intended regarding the statutes in this case. We note, however, that the analysis is complicated by having convictions for armed robbery and assault with intent to commit murder, and it is further complicated by the felony-firearm charges accompanying each felony. We will address each crime separately.

a. ARMED ROBBERY

In Robideau, while confirming that legislative intent controls, we abandoned the Blockburger test, favoring the more traditional means of determining the intent of the Legislature. Robideau at 486. For determining legislative intent, in addition to any other indicative sources, we set forth two general principles to be considered. However, we noted that if "conclusive evidence of legislative intent [cannot] be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.” Id. at 488.

In determining legislative intent a court must identify the type of harm the Legislature was intending to prevent,¹⁶ and the amount of punishment authorized by it.¹⁷ Accordingly, in applying the foregoing to Robideau, which involved first-degree criminal sexual conduct, and the underlying felony required to establish that charge which also served as the basis for another conviction of the same felony, we held that, although the compound crime of first-degree criminal sexual conduct incorporates all the elements of the predicate felony when that is the method used to establish the charge, the focus of first-degree criminal sexual conduct is on penetration, which involves the violation of social norms distinct from the norms protected by the predicate felony.¹⁸

While discussing the severity of the punishments for the crimes at issue in Robideau, we noted that both first-degree criminal sexual conduct and the predicate felonies carry a maximum penalty of life imprisonment. Unlike traditional lesser included offenses, which subsume into the greater like robbery and armed robbery, the compound and predicate crimes in Robideau had the same penalties. We surmised that the Legislature would not have intended to have the predicate felony subsume into the compound felony because such a construction would provide no reason for having the compound felony apply in that instance. Accordingly, we held that it was not a violation of double jeopardy to convict and punish the defendants in Robideau for the compound crime of first-degree criminal sexual conduct and the underlying predicate felony used to sustain the compound crime.

We harmonized the result reached in Robideau with the result in People v Wilder, 411 Mich 328; 308 NW2d 112 (1981), in which we held that it was a violation of the state Double Jeopardy Clause to be convicted of felony murder based on armed robbery and also to be convicted of that same armed robbery in a single prosecution context.

This analysis is consistent with the result reached in People v Wilder, prohibiting dual convictions of first-degree felony murder and the predicate felony. Since felony murder is punishable by a mandatory life sentence, while the predicate felonies are punishable by no more than a term of years up to life, it may be inferred that the Legislature intended to punish a defendant only once for committing both crimes. While someone in the process of committing a predicate felony has a real disincentive to commit murder (mandatory life) even absent the threat of dual convictions, the same person, assuming the predicate felony carries an up-to-life maximum penalty, would have no such disincentive to commit criminal sexual conduct unless dual convictions are imposed. [Robideau at 489, n 8.]

This is the pinnacle distinction between the present case and Robideau. Robideau involved two crimes that carried the same possible sentence, which persuaded us that the Legislature intended to punish the crimes separately. For statutory felony murder, the punishment is mandatory imprisonment for life without parole. MCL 750.316; MSA 28.548. The prosecutor must still prove malice aforethought, but the statute serves to raise what would otherwise be second-degree murder to first-degree murder — for the sole purpose of increasing punishment. See People v Aaron, 409 Mich 672, 719; 229 NW2d 304 (1980). The punishment for armed robbery is life imprisonment with the possibility of parole in ten years, MCL 791.234(4); MSA 28.2304(4), or any term of years— the same as for second-degree murder. MCL 750.529; MSA 28.797.¹⁹

Because statutory felony murder based on the predicate crime of armed robbery carries with it a greater penalty than the predicate crime, we hold that the Legislature did not intend to impose punishments for both crimes, even under the facts of this case, and thus, it is a violation of the Double Jeopardy Clauses of the United States and Michigan Constitutions to sentence the defendants for both crimes.

b. ASSAULT WITH INTENT TO COMMIT MURDER

We must now address the effect of the apropos felony murder conviction on the previous assault with intent to commit murder conviction. The Court of Appeals properly labeled this an issue of first impression. It is now settled law that legislative intent determines claims of multiple punishment-double jeopardy violations in either successive or single prosecutions.

Just as Blockburger has become a "rule of statutory construction” and, in applying federal law, is implemented only to assist in determining the intent of the Legislature, our previous cases utilizing the factual lesser included offense analysis should be similarly treated.²⁰ Although those cases have been disavowed as far as stating the controlling test for double jeopardy-double punishment cases,²¹ the test is not extinct when it is helpful in discerning legislative intent. See Wilder, supra at 359 (Ryan, J., concurring).

The rationale for why the traditional lesser included offense test should not be used in the compound-predicate crime scenario is instructive:

[T]hat a predicate-based offense requires proof of a predicate offense does not mean that the two offenses are greater and lesser included offenses in the traditional sense. "[T]he concept of included offenses reflects a continuum of culpability.” Offenses lie on- the same continuum, and are therefore greater and lesser included offenses, when "the elements shared by the two offenses coincide in the harm to the societal interest to be protected.” People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975). These offenses then are tied together by logic. In contrast, predicate-based offenses and their predicates are tied together by the Legislature.

In our cases that have used the lesser included offense test, the implicit assumption has been that, for committing a single criminal act, the Legislature did not intend a person to be convicted of and punished for two or more offenses lying on a single continuum of culpability. This is because each continuum comprises those offenses that serve to vindicate the same social norm. Thus, if one commits a criminal act that violates a single social norm, conviction of and punishment for a single offense would seem to vindicate the interests infringed by that act. [Wilder at 360-361 (Ryan, J., concurring).]

In the preceding section, we discussed the structure of some of our criminal statutes, indicating that many of them have base crimes setting forth the fundamental elements for their completion, and then increase in penalty as the crime gets more complex in elements and severe in nature. For these types of crimes, the Legislature did not intend concurrent or subsequent prosecution, or multiple punishment.

Similarly, in the present case, the defendants were convicted of assault with intent, to commit murder and then subsequently actual murder. The Court of Appeals held that assault with intent to commit murder is a lesser included offense of felony murder.²² Had the death of Mr. Dudley occurred before the first conviction, it is without doubt that upon the finding of guilt for felony murder, the assault with intent to commit murder would have merged into the more serious crime.²³

III

It is clear in applying the Robideau analysis that had these defendants originally been prosecuted for felony murder, they could not have been sentenced both for felony murder and armed robbery, or for felony murder and the lesser included offense of assault with intent to murder. If they had been, the remedy would have been to affirm the conviction of the higher charge and to vacate the lower conviction. People v Jankowski, 408 Mich 79, 96; 289 NW2d 674 (1980), citing People v Martin, 398 Mich 303, 313; 247 NW2d 303 (1976).²⁴

Because the appeal before us does not include the original convictions and sentences, that remedy is possibly beyond our control in this case.²⁵ See United States v Reed, 980 F2d 1568, 1581 (CA 11, 1993). On the other hand, if we were to hold that the instant sentence for felony murder could not be imposed on these defendants, it would nullify the purpose of the constitutionally acceptable Diaz exception.

We conclude that double jeopardy protection dictates that defendants not receive a form of multiple punishment that could not have been exacted had their felonious intentions been realized sooner and had they been prosecuted to the extent of their ultimate culpability in the first trial. They were not placed in jeopardy twice by the second prosecution under Diaz; rather, they were subjected to punishment for offenses arising out of a single transaction that could not have been exacted in a single proceeding. Thus we conclude that the defendants are entitled to relief from their convictions of assault with intent to murder and armed robbery.

IV

Before the Court of Appeals decision, the defendants had been convicted and sentenced for two counts of felony-firearm based on assault with intent to commit murder and armed robbery. Defendant Bush was then convicted of a third charge of felony-firearm based on the felony murder. Defendant Harding was acquitted of the subsequent felony-firearm charge. The problem is that Bush has been convicted of three counts of felony-firearm based on three separate felonies, but punishment for two of those felonies violates double jeopardy.

It has been settled by this Court that a defendant can be charged, convicted, and sentenced for felony-firearm for each felony committed in a spree of criminal activity. People v Morton, 423 Mich 650; 377 NW2d 798 (1985). The corollary is: If the substantive crime underlying a felony-firearm conviction must be vacated, then that accompanying felony-firearm conviction also must be vacated. A defendant can be convicted for only one charge of felony-firearm for each convicted felony.²⁶

Felony-firearm can only attach to individual felonies.²⁷ In view of our holding that the felony murder conviction does not amount to a double jeopardy violation, it follows that the accompanying felony-firearm conviction is valid. It also stands to reason that the prior felony-firearm convictions are no more valid than the convictions to which they are attached. Therefore, because the previous felonies may be vacated, the felony-firearm convictions accompanying those felonies may similarly be vacated; however, consistent with our analysis above, credit for time served for one of the previous felony-firearm convictions is appropriate.

V

Defendant Harding argues for the first time that he has been denied under both the state and federal constitutions due process of law, equal protection of the laws, and the right to present a defense, because more than four years had elapsed between the assault with intent to commit murder and the actual death of Mr. Dudley.

This Court has previously abrogated the common-law "year and a day” rule, which required that in order to bring murder charges against a defendant, the victim must have died within a year and a day of the assault. People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982).²⁸ In so holding we were warned of the potential for abuse of other important rights like speedy trial, cruel and unusual punishment, and double jeopardy; however, in reassuring the appellee in that case we stated:

Recognizing that such rights may be implicated in long-delayed prosecutions, we will continue to be vigilant in the enforcement of those rights where they are shown to have been abridged or denied under the facts of a particular case. [Stevenson at 393, h 3.]

As in Stevenson, we have been called upon many times to exercise our authority to modify the common law when changes in public policy or technology so dictate. See Stevenson at 390 for a list of cases.²⁹ This case continues where Stevenson left off, because now we are presented with the situation in which a victim, although injured, had resumed a somewhat "normal” life and possibly would have lived longer had he followed the instructions of his doctor.³⁰

In making the catchall constitutional pleas, Mr. Harding is basically arguing for fairness, and although those pleas are without merit,³¹ he also urges us to consider adopting a languishing factor to be part of the crime to be proven by the prosecution or as a legal question to be decided by the court.

We resisted establishing such a test in Stevenson with the foresight that the causation inquiry would continue to be the screen through which the questionable cases would be filtered out.

Of course, abolition of the rule would not relieve the prosecution of its duty to prove all of the elements of the crime, including proximate causation, beyond a reasonable doubt. A murder conviction which rests upon uncertain medical speculation as to the cause of death is not a case which has been proved beyond a reasonable doubt. Fears about murder convictions for death 5, 10, or even 20 years after the injury are therefore unfounded where proximate cause is proven beyond a reasonable doubt. If such proof is available, the conviction is justified. No repose or statute of limitations is available for murder in this state. MCL 767.24; MSA 28.964. [Stevenson at 392-393.]

Similarly, the defendant does not cite, nor have we been able to discover, any state that has instituted a languishing test, which would require the determination whether a victim was languishing from a felonious injury at the time of death. However, while we do not wish to preclude such a test, even if this issue were presented, briefed, and argued in the Court of Appeals and, thus, properly before us, we think the injuries were of such a lingering nature and the testimony regarding the ongoing complications so explicitly clear that it would be nearly impossible to avoid finding that Jeffrey Dudley continued to languish from the felonious injuries until his death, and a judge or a jury would be well within its bounds to so find. See n 4.

VI

We conclude that the defendants are entitled to have their assault with intent to murder and armed robbery convictions vacated along with the corresponding felony-firearm convictions. It is further ordered that defendants are entitled to receive sentence credit toward, their statutory felony-murder punishment for the time served for the assault with intent to murder and armed robbery convictions, and defendant Bush is to receive sentence credit toward his subsequent felony-firearm conviction for time served for his previous felony-firearm convictions.³²

The Court of Appeals order vacating the convictions of assault with intent to commit murder and armed robbery is reversed; its order vacating the felony-firearm conviction arising out of the case before us also is reversed. The Court of Appeals is affirmed with respect to its holding on the statutory felony-murder conviction.

Affirmed in part and reversed in part.

Griffin and Mallett, JJ., concurred with Brickley, J.

1 MCL 750.529; MSA 28.797.

2 MCL 750.83; MSA 28.278.

3 MCL 750.227b; MSA 28.424(2).

4 On the night of the assault the surgeon on call at Detroit Receiving Hospital, Doctor Michael Kaplan, performed emergency surgery on Mr. Dudley to repair a laceration to the left ventricle of his heart, to remove a damaged portion of his left lung, and to repair a partial abrasion of his large intestine. Shortly thereafter a surgery was again performed to insert a chest tube for his lung and to remove a bullet from his abdomen.

In October 1983, Mr. Dudley collapsed in a shopping mall, which resulted in the implantation of a pacemaker. Later in October, Doctor Hahn J. Lee performed a heart catherization and determined that there was very high pressure, three or four times higher than normal, backing up in the left ventricle and that the heart muscle was so stiff it was unable to accommodate the blood required to meet the body’s demands.

In December 1984, Doctor Lee became Mr. Dudley’s treating cardiologist. At that time two stress tests were performed revealing that Mr. Dudley’s heart was as weak as that of an eighty-five-year-old man. He could not walk two street blocks at a leisurely pace without becoming dizzy and his blood pressure dropping. Doctor Lee warned Mr. Dudley not to do anything strenuous, not to get upset, and to "live like an old man.”

One year later, in December 1985, Doctor Lee conducted another stress test in which Mr. Dudley performed much worse than the first one. The doctor testified that a seventy-year-old woman with arthritis could do almost as well and that his blood pressure was “nose-diving.” At that point his pacemaker was changed to a more sophisticated model, and he was put on medication and blood thinners. A follow-up stress test was conducted in April 1986, which showed slight improvement to the level recorded during the first stress test, but far below (about twenty-five percent) what a man at his age should be able to do. Doctor Lee told Mr. Dudley that there was nothing more that could be done and that he was going to have to learn to live with his limitations, with an eye toward a heart transplant in the future.

The last stress test given by Doctor Lee was in March 1987. The doctor testified that the heart was declining from the date he met Mr. Dudley — "It was a steady downhill course.” The doctor told him that it did not look good, that a heart transplant was a possibility, and that he was to look out for himself.

Dr. Lee described Mr. Dudley as a "time bomb” with respect to any activity or emotional upset that pushes the heart beyond the tolerance limit. He testified that if Mr. Dudley had gotten used to watching out for himself and avoided strenuous exercise he would have lived longer. The chances of someone in Mr. Dudley’s situation living five years was less than fifty percent; the chances for him to live another twenty-five years was nil. Finally, the doctor testified that for Jeffrey Dudley playing basketball was tantamount to suicide.

Mr. Dudley’s mother, Gladys Dudley, testified that her son had been a very active young man. He had five jobs, went to college, and still had time for recreation and dating. After the assault, his health was extremely poor. He was unable to take walks without losing his breath, and sometimes he would have shortness of breath while just sitting still. He was very limited in his activity. The doctor had told her that he was not improving, which confirmed her own observations of her son. She testified that in 1986 her son "could tell that he wasn’t improving and he decided that whatever he did he had to live as normal a life as possible, and he wanted to get married so he became engaged and then they got married.”

Mr. Dudley’s wife, who had been dating him even before the assault, gave conflicting testimony with regard to whether he was living a "normal” life. At one point she testified that he had some limitations as far as activities went and could exercise in moderation, but later she stated that she knew nothing about warnings by his doctor that he would have to avoid some of the more strenuous activities and reduce his hours at work, and she did not notice that he had made any change in his activity.

5 There was conflicting medical testimony regarding the actual cause of death. The defense called an expert witness who testified that the seizure indicated that there was a blow to his head causing the brain to send improper signals to the heart, which in fact caused the heart to stop pumping. Defendant Harding argues that the evidence was insufficient to support the verdict, mainly because the autopsy failed to produce slides of brain tissue enabling the examiner and other doctors to definitively consider, and rule out, brain damage as the cause of death. The medical examiner testified that the cranium was opened and the brain actually examined, revealing no injury to the brain or skull. Another doctor testified that a blow severe enough to cause a convulsion would have produced obvious evidence such as a cracked skull or brain hemorrhage. The same doctor testified that, generally, a convulsion is a reaction by the brain when it is simply deprived of oxygen. We believe this question was adequately presented to the jury, and that it was properly instructed. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979); People v Petrella, 424 Mich 221, 268; 380 NW2d 11 (1985).

6 MCL 750.316; MSA 28.548. Statutory felony murder in Michigan differs from its common-law counterpart.

7 However, the Court of Appeals let stand the prior felony-firearm convictions for each defendant, holding that it was the subsequent felony-firearm conviction that violated double jeopardy.

8 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.

9 In Harris v Oklahoma, 433 US 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), the Supreme Court held that the Double Jeopardy Clause bars the prosecution for armed robbery after prosecution for felony murder where the armed robbery was the predicate crime for the felony murder. Brown held that the order of the prosecutions is irrelevant.

10 Although Diaz did not involve the federal constitutional right to be free from double jeopardy, but, rather, a statutory right under previous regulation of the Territory of the Philippines by the United States, we find it persuasive for a similar interpretation of the federal constitution.

11 This is the extent of the defendants’ argument discussing why the Diaz exception should not apply.

12 The defendants argue that the new rule set forth in Grady v Corbin, 495 US 508, 510; 110 S Ct 2084; 109 L Ed 2d 548 (1990), bars their subsequent prosecution for felony murder based on armed robbery because the state proved conduct that constituted an offense for which they had already been prosecuted. However, the defendants’ argument fails for two reasons. The test of Grady has been overruled by Dixon, supra, and even Grady recognized the exception outlined in Diaz.

13 For other cases acknowledging the Diaz exception, see Blackledge v Perry, 417 US 21, 29, n 7; 94 S Ct 2098; 40 L Ed 2d 628 (1974), Illinois v Vitale, 447 US 410, 420, n 8; 100 S Ct 2260; 65 L Ed 2d 228 (1980), and United States v Goodwin, 457 US 368, 376, n 8; 102 S Ct 2485; 73 L Ed 2d 74 (1982).

14 Although cases involving multiple punishments in single prosecutions occur more frequently, the rule that determines double jeopardy violations is the same — legislative intent controls. See the cases cited in Jeffers at 155. See also Whalen v United States, supra at 688-689, Albernaz v United States, 450 US 333, 344; 101 S Ct 1137; 67 L Ed 2d (1981), Missouri v Hunter, 459 US 359, 367-368; 103 S Ct 673; 74 L Ed 2d 535 (1983), Ohio v Johnson, 467 US 493, 499; 104 S Ct 2536; 81 L Ed 2d 425 (1984), Jones v Thomas, 491 US 376, 381; 109 S Ct 2522; 105 L Ed 2d 322 (1989), and United States v Halper, 490 US 435, 450-451; 109 S Ct 1892; 104 L Ed 2d 487 (1989).

15 In Whalen at 688, the Court refused to extend its customary deference to the local court for its interpretation of the statutes. However, in Missouri v Hunter, n 14 supra at 368, the Court stated it was "bound to accept the Missouri court’s construction of that State’s statutes,” citing O’Brien v Skinner, 414 US 524, 531; 94 S Ct 740; 38 L Ed 2d 702 (1974). See also Garner v Louisiana, 368 US 157, 169; 82 S Ct 248; 7 L Ed 2d 207 (1961), and Brown at 167.

16 Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. . . . 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, [lief, at 487.]

17 We noted that the structure of many of our criminal statutes often contain an hierarchical system in which the general elements of a particular crime are enumerated in a base section, and then the punishment increases as the crime becomes more and more severe. For crimes structured in this manner the suggestion is that the Legislature did not intend to punish more than one of them in any particular circumstance.

18 The defendants were not convicted of robbery and first-degree premeditated murder. If they had been, they would have been convicted of separate offenses with different objectives arising out of the same transaction. Rather, the jury in effect found that the defendants committed robbery and second-degree murder. If they had been convicted of robbery and premeditated murder, they could, under the tests that we laid down in Robideau and adhere to today, be punished for each offense because each carries a separate societal objective and neither aggravates the other. On the other hand, felony murder has as its objective punishment for one who commits a murder in the course of committing a felony. The societal norm could not be more clear — felony murder is second-degree murder that has been elevated to first-degree by the fact that it was committed during the commission of a felony. The felony in this case is the robbeiy and it was a sine qua non of the felony murder.

19 The dissent suggests that the difference in punishments between felony murder and armed robbery is a "minor distinction.” Opinion of Riley, J., post at 730, n 23. We disagree.

20 People v Martin, 398 Mich 303, 309; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540, 548; 256 NW2d 31 (1977), People v Jankowski, 408 Mich 79, 86; 289 NW2d 674 (1980), and People v Carter, 415 Mich 558, 584; 330 NW2d 314 (1982).

21 People v Wakeford, 418 Mich 95, 110-111; 341 NW2d 68 (1983).

22 We note in passing that this statement is true only if the malice aforethought to establish felony murder is “intent to kill” hot the intent to inflict great bodily harm or the intent representing a depraved heart. Therefore, the Court of Appeals holding in this regard must be limited to the facts of this particular case.

23 A defendant may be charged and tried for each act that constitutes a separate crime. However, 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. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. [People v Martin, n 20 supra at 309.]

24 The United States Supreme Court has recently faced a similar question. Jones v Thomas, n 14 supra. In that case, when it was realized that "a Missouri defendant was erroneously sentenced consecutively, the trial court vacated the shorter of the two sentences, giving credit for time already served.

The Court stated:

The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is "limited to ensuring that the total punishment did not exceed that authorized by the legislature.” The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.

[T]he state-court remedy fully vindicated respondent’s double jeopardy rights. . . . This remedy of crediting time already served against the sentence that remained in place is consistent with our approach to multiple punishments problems in other contexts. Respondent now stands convicted of felony murder alone, and his continued confinement under the single sentence imposed for that crime is not double jeopardy. [Jones, n 14 supra at 381-382. Citations omitted.]

25 The Court of Appeals vacated and set aside the prior convictions of armed robbery and assault with intent to commit murder without providing any analysis of its authority to do so. We question whether the Court of Appeals had jurisdiction to take such action regarding a case not properly before it. The correct remedy for these errors would be an order by the trial court, which rendered the punishments for the original convictions, granting relief from judgment. MCR 6.502. Of course, in the event that such an order is entered, credit must be given for time already served. Ohio v Johnson, supra at 499, citing North Carolina v Pearce, supra at 718.

26 We acknowledge that juries are permitted to be inconsistent, People v Vaughn, 409 Mich 463, 465-466; 295 NW2d 354 (1980); however, we have also held that appellate courts may not. People v Burgess, 419 Mich 305, 311; 353 NW2d 444 (1984).

27 The Court of Appeals discussed this issue in terms of "one wrongful act.” We think the use of the term "wrongful act” in this context improperly connotes the application of the "same transaction” or "same conduct” test, which does not apply here because felony-firearm attaches to individual felonies not transactions or episodes of conduct. 187 Mich App 316, 329; 466 NW2d 736 (1991).

28 The advances of modem medical science, by extending life and by providing strong evidence of the cause of death, have undermined the wisdom of the irrebuttable presumption that the death of one who expires more than a year and a day after receiving an injury was not caused by the injury. The availability of modern life-sustaining equipment and procedures, see In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), raises the specter of the choice between terminating life-support systems or allowing the defendant to escape a murder charge. The presumption was wooden and arbitrary from the beginning, since it prevented a murder conviction even in those rare cases when causation could be proved. Now, when medical causation can be proven with much greater frequency and certainty, the old rule is simply too often demonstrably wrong to be upheld. [Id. at 392.]

29 We acknowledge our plurality opinion in People v Couch, 436 Mich 414; 461 NW2d 683 (1990), questioning our authority to change the common law to expand the scope of a defendant’s criminal liability; however, in this case we are asked to create a prophylactic remedy to narrow the breadth of criminal liability, and any reservation we had in Couch certainly would not apply here.

30 See n 4.

31 The due process argument fails under the authority of Stevenson, and the equal protection argument does not pass the two-pronged test set forth in People v Ford, 417 Mich 66, 102; 331 NW2d 878 (1982). As far as the right to present a defense is concerned, we view this as a restatement of the insufficient evidence argument, which we addressed in n 5.

Defendant Harding also makes an ex post facto argument that Stevenson should not apply in his case and that he falls within the protection of the year and a day rule because Stevenson was decided only four months and two weeks before the assault in the present case, and because the decision was not even published in a bound volume until 1984, "[s]urely Defendant is only held to knowledge of the law by the date on which he would have had the opportunity to read it.” Stevenson was given prospective effect from the date the decision was issued. Never have we held, nor does Mr. Harding cite any state case that has held, that a decision was to have prospective effect from the date it was placed in a bound volume.

32 We recognize that given the fact that the defendants are serving sentences of life without parole for their felony murder convictions, sentencing credit may seem a hollow victory. Nevertheless, because of the ever-present possibility of future appeals or executive clemency, we continue our practice of stating for the record the status of individual offenses and their punishments.