People v. Markham

245 N.W.2d 41, 397 Mich. 530, 1976 Mich. LEXIS 315

• Court: Michigan Supreme Court
• Decided: August 27, 1976
• Docket: Docket 57205
• Status: Published

Opinions

Per Curiam.

Defendant was convicted of kidnapping, MCLA 750.349; MSA 28.581, by a Wayne County Circuit Court jury on October 19, 1967. This conviction was affirmed by the Court of Appeals. 19 Mich App 616; 173 NW2d 307 (1969). The validity of that conviction is not before our Court. Subsequently, on March 19, 1970, defendant was convicted by a Washtenaw County Circuit Court jury of first degree murder, MCLA 750.316; MSA 28.548, for the rape-slaying of the kidnapping victim. It is the validity of this conviction which is at issue in this appeal.

Originally, by unpublished per curiam opinion (Docket No. 9933, rel’d December 3, 1973), the Court of Appeals affirmed the murder conviction. However, on November 1, 1974, defendant raised the issue of double jeopardy by filing a delayed motion for a new trial. This motion was denied by the circuit judge. The Court of Appeals granted defendant’s motion for peremptory reversal of the murder conviction on May 28, 1975, citing only People v White, 390 Mich 245; 212 NW2d 222 (1973). In lieu of granting plaintiffs application for leave to appeal, pursuant to GCR 1963, 853.2(4), this Court hereby reverses the order of the Court of Appeals and reinstates defendant’s murder conviction.

Defendant did not raise the White double jeopardy claim before or at trial. The issue of whether he thereby waived the claim is currently pending before this Court in People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975), leave granted, 395 Mich 753 (1975). Assuming for purposes of this opinion only that defendant has a viable claim, the issue is whether or not the rule of People v White, decided November 20, 1973, is retroactive. Prosecution in both cases against Markham was commenced prior to that date. This decision on retroactivity will be governed by application of Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and People v Hampton, 384 Mich 669; 187 NW2d (1971). Those cases establish a three-pronged test, namely, "(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice”. 384 Mich at 674.

The first factor promotes an inquiry into whether the purposes of the rule can be effectuated by prospective application. When the ascertainment of guilt or innocence is not at stake, prospective application is possible. 384 Mich at 677. White and the guarantee against double jeopardy are not required to ascertain guilt or innocence.

"The second and third factors can be dealt with together because the amount of past reliance will often have a profound effect upon the administration of justice.” Id.

When a decision overrules past settled law, more reliance is likely to have been placed in the old rule than in cases where the old law was unsettled or unknown. People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), was a restatement of "settled” Michigan law and White specifically overruled it. Results of prosecutorial reliance may be seen in People v Teague, 57 Mich App 347; 225 NW2d 761 (1975); People v Joines (On Remand), 55 Mich App 334; 222 NW2d 230 (1974); People v West, 54 Mich App 527; 221 NW2d 179 (1974); and People v Davenport (On Remand), 51 Mich App 484; 215 NW2d 702 (1974). We hold that the same transaction test announced in People v White shall be applicable only when the prosecution upon which a former jeopardy claim is based began after November 20, 1973, the date White was decided. Accord, State v Fair, 263 Or 383; 502 P2d 1150 (1972).

This order of the Court of Appeals is reversed and defendant’s conviction is reinstated.

Coleman, Fitzgerald, and Lindemer, JJ., concurred.