People of Michigan v. Alvin Perry Jordan

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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.
PER CURIAM.
This case returns to us after remand to the trial court. Defendant was convicted by a jury
of first-degree premediated murder, MCL 750.316(1)(a), first-degree felony murder, MCL
750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. This Court affirmed defendant’s convictions, but
remanded for resentencing on defendant’s armed robbery conviction and for correcting the
judgement of sentence to reflect one conviction for first-degree murder supported by two
different theories: premeditation and felony murder.1 The trial court resentenced defendant and
corrected the judgment of sentence consistent with our prior opinion. Defendant appeals by
right, now arguing that his armed robbery conviction and sentence should be vacated on double
jeopardy grounds because it was the predicate felony to felony murder. We affirm.2
1
People v Jordan, unpublished per curiam opinion of the Court of Appeals, issued March 7,
2017 (Docket No. 328474).
2
We agree with the prosecutor that defendant’s argument is outside the scope of remand. See
People v Kincade (On Remand), 206 Mich. App. 477, 481; 522 NW2d 880 (1994). However,
because the question raised by defendant is easily answered, we will address why his argument
lacks merit.
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“The United States Constitution and the Michigan Constitution prohibit placing a
defendant twice in jeopardy for a single offense.” People v Meshell, 265 Mich. App. 616, 628;
696 NW2d 754 (2005); see also US Const, Am V; Const 1963, art 1, § 15. The prohibition
against double jeopardy provides 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 (3) it protects against multiple punishments for the same
offense.” People v Nutt, 469 Mich. 565, 574-575; 677 NW2d 1 (2004). At issue in this case is
defendant’s protection against multiple punishments. In People v Ream, 481 Mich. 223, 240; 750
NW2d 536 (2008), the Supreme Court held “that convicting and sentencing a defendant for both
first-degree felony murder and the predicate felony does not violate the ‘multiple punishments’
strand of the Double Jeopardy Clause if each offense has an element that the other does not.”
“The elements of felony murder are (1) the killing of a person, (2) with the intent to kill,
do great bodily harm, or create a high risk of death or great bodily harm with the knowledge that
death or great bodily harm was the probable result, (3) while committing, attempting to commit,
or assisting in the commission of an enumerated felony.” People v Lane, 308 Mich. App. 38, 57-
58; 862 NW2d 446 (2014). “The elements of armed robbery are: (1) an assault and (2) a
felonious taking of property from the victim’s presence or person (3) while the defendant is
armed with a weapon.” People v Smith, 478 Mich. 292, 319; 733 NW2d 351 (2007). In Smith,
478 Mich. at 292, the Supreme Court concluded that felony murder and armed robbery were not
the same offense for double jeopardy purposes because each offense contains an element that the
other does not:
First-degree felony murder contains elements not included in armed robbery—
namely a homicide and a mens rea of malice. Likewise, armed robbery contains
elements not necessarily included in first-degree felony murder—namely that the
defendant took property from a victim’s presence or person while armed with a
weapon.
Thus, under binding precedent, we must conclude that defendant’s conviction and sentence for
armed robbery does not violate his constitutional protection against multiple punishments for the
same offense.
Affirmed.
/s/ Jonathan Tukel
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
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