People of Michigan v. Alvin Perry Jordan ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 5, 2019
Plaintiff-Appellee,
v No. 342634
Wayne Circuit Court
ALVIN PERRY JORDAN, LC No. 15-000968-01-FC
Defendant-Appellant.
Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.
SHAPIRO, J. (concurring).
I concur in the majority opinion because I am bound by People v Ream, 481 Mich. 223,
240; 750 NW2d 536 (2008) and People v Smith, 478 Mich. 292, 319; 733 NW2d 351 (2007). I
write separately to note my confusion about the reasoning underlying those cases. Under the
Blockburger1 test, conviction of two offenses “does not violate the ‘multiple punishments’ strand
of the Double Jeopardy Clause if each offense has an element that the other does not.” Ream,
481 Mich. at 239-240. To conclude that a conviction of first-degree felony murder and the
predicate offense does not violate double jeopardy, our Supreme Court held that felony murder’s
third element is commission of any one of the several enumerated predicate felonies. Id. at 241.
However, juries are not instructed in this manner. They are told, and properly so, to convict a
defendant of felony murder only if the elements of the specific predicate felony are all found. M
Crim JI 16.4. The jury is not given the list of predicate felonies and asked to determine whether
the defendant committed the murder while committing, attempting to commit, or assisting in the
commission of any enumerated felony. In every felony murder case, each element of the
predicate felony must be proven beyond a reasonable doubt. Thus, in each case, the elements of
the predicate felony are fully incorporated in the elements of felony murder. In my view,
conviction and sentence of felony murder and the predicate offense fails the Blockburger test and
1
Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 2d 306 (1932).
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constitutes multiple punishments in violation of the Double Jeopardy Clause. Nonetheless, in
light of binding Michigan Supreme Court precedent, I concur.
/s/ Douglas B. Shapiro
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