People v. Harding

Riley, J.

(concurring in part and dissenting in part). I concur with the findings in §§ i, ii(a), and v and join those holdings. 1 However, I write separately because I find that the Double Jeopardy Clause does not prohibit the conviction of and sentencing for both felony murder and armed robbery in the instant case.

I

The Fifth Amendment of the United States Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb . . . .” 2 Similarly, art 1, § 15 of the Michigan Constitution declares that "[n]o person shall be subject for the same offense to be twice put in jeopardy.” 3 The majority finds that these constitutional guarantees bar the conviction of defendants of both felony murder and the underlying crime of armed robbery. Ante at 714-716._

*722 A

This Court has long held that a constitution must be interpreted as understood by its ratifiers. Lockwood v Comm’r of Revenue, 357 Mich 517, 555 ; 98 NW2d 753 (1959). As Justice Cooley noted, reference to history is often necessary to ensure that the intentions of the ratifiers and framers is adhered to, especially when construing legal doctrines inherited from "the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a well-understood meaning, which the people must be supposed to have had in view of adopting them.” 1 Cooley, Constitutional Limitations (8th ed), p 132. 4 Indeed, "[w]e cannot understand these provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense.” Id. at 132. 5 Hence, this Court has long focused particular attention on the historical understanding of the prohibition of double jeopardy when construing its protections. 6

1

The doctrine of double jeopardy "is older than *723 our constitutions.” Village of Northville v Westfall, 75 Mich 603, 608 ; 42 NW 1068 (1889). In fact, the maxim that no person should be placed at jeopardy more than once for a single criminal oifense is rooted in the very origins of western civilization. 7 "By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a 'universal maxim of the common law.’ ” Bartkus v Illinois (On Rehearing), 359 US 121, 152-153 ; 79 S Ct 676 ; 3 L Ed 2d 684 (1959) (Black, J., dissenting) (citations omitted). 8

Thus, upon the settling of America, the colonists understood the prohibition of double jeopardy as a fundamental principle of law. Accordingly, the founding fathers embedded the ancient palladium in the constitution. 9 The Fifth Amendment encom *724 passed the technical concepts of the common law and was adopted by Congress. That the framers and ratifiers of the Bill of Rights intended to constitutionalize the common law’s protection against double jeopardy is unquestioned.

Because the ancient right to be free from former jeopardy included not only protection from retrial upon the same offense after an acquittal or conviction, but also prohibition of "a second punishment for the same offence,” Ex parte Lange, 85 US (18 Wall) 163, 169; 21 L Ed 872 (1873), 10 the Fifth Amendment as well "was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” Id. at 173. 11

*725 2

Upon its founding, the people of Michigan also incorporated the ancient common-law prohibition of double jeopardy into their constitution. Const 1835, art 1, § 12. 12 See also People v Harding, 53 Mich 481, 485-487 ; 19 NW 155 (1884); People v Fochtman, 226 Mich 53, 56 ; 197 NW 166 (1924). Although the language of this protection in our fundamental charters has altered with the passage of time, 13 this Court has uniformly held that the Michigan Constitution was intended by its ratifiers and framers to embody those principles derived from the English common law, and, therefore, is also consistent with the Fifth Amendment of the United States Constitution. 14 See, e.g., In re Ascher, 130 Mich 540, 545 ; 90 NW 418 (1902); People v Fochtman, supra at 56 . To clarify its meaning and to ensure its continued protection of the ancient right, the Constitutional Convention of 1961 modified the language of the Double Jeopardy Clause to conform more closely with the language of the historic English common law and the Fifth Amendment, as well as the practice of *726 this Court. 15 Hence, art 1, § 15 now declares that "[n]o person shall be subject for the same offense to be twice put in jeopardy.” In the instant case, therefore, the application of the Michigan and federal constitutions are uniform because both are based upon the ancient English common-law prohibition of double jeopardy. 16

*727 II

A

Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v Wilson, 420 US 332, 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. [Brown v Ohio, 432 US 161, 165 ; 97 S Ct 2221 ; 53 L Ed 2d 187 (1977), quoted in Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374, 391-392 ; 280 NW2d 793 (1979).]

With regard to multiple punishment, "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments *728 for the same offense.” Brown, supra at 165 . 17 "Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” Albernaz v United States, 450 US 333, 344 ; 101 S Ct 1137 ; 67 L Ed 2d 275 (1981).

Hence, in the instant case, "[t]he dispositive question is whether the Legislature intended that two convictions might result . . . under the circumstances presented in this case.” People v Wakeford, 418 Mich 95, 111 ; 341 NW2d 68 (1983). 18 "Thus, '[e]ven if the crimes are the same, ... if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end’ . . . .” People v Sturgis, 427 Mich 392, 400 ; 397 NW2d 783 (1986), quoting Ohio v Johnson, 467 US 493, 499, n 8 ; 104 S Ct 2536 ; 81 L Ed 2d 425 (1984). 19 Such adherence to legislative intent is necessary because "[i]n our effort to see that the rights of persons accused of crime are protected, we should not overlook the fact that the *729 people also have interests that should be safeguarded.” In re Ascher, supra at 551 . 20

B

In the instant case, the Legislature intended to punish defendant for both felony murder and armed robbery. As explained by the majority, the intent of the Michigan Legislature may be determined through traditional means, including "the subject, language, and history of the statutes.” People v Robideau, 419 Mich 458, 486 ; 355 NW2d 592 (1984). 21 Citing Robideau , 22 the majority con- *730 eludes that because the armed robbery statute permits punishment ranging from any term of years to life, while felony murder is mandatory life imprisonment, the Legislature intended punishment for felony murder subsume punishment for armed robbery. The majority, however, incorrectly dismisses the maximum punishment authorized for armed robbery: life imprisonment. 23 Utilizing its own analysis, the majority should find that the Legislature intended separate punishment for each offense at issue because each may be punished by life imprisonment. 24

*731 Moreover, this Court has also noted that when statutes are directed at "distinct social purposes” or "distinct evils” multiple punishment was intended by the Legislature. Sturgis, supra at 408, 409 . An examination of the elements of the offenses reveal that the social interests in punishing armed robbery are distinct from punishing first-degree murder. The elements of first-degree murder include: (1) malice, (2) homicide, and (3) either premeditation or a homicide accompanied by an enumerated felony. MCL 750.316; MSA 28.548. In other words, first-degree murder is common-law murder " 'plus one or more of the aggravating circumstances mentioned’ . . . .” People v Carter, 395 Mich 434, 438 ; 236 NW2d 500 (1975), quoting Perkins, Criminal Law (2d ed), p 90. Hence, the focus of the offense is murder. 25

On the other hand, the elements of armed robbery include: (1) an assault, (2) a felonious taking of property from the victim’s presence or person, and (3) a perpetrator armed with a weapon. MCL 750.529; MSA 28.797. In other words, "[r]obbery is committed only when there is larceny from the person, with the additional element of violence or intimidation.” People v Chamblis, 395 Mich 408, 425 ; 236 NW2d 473 (1975). 26 Hence, the offense "is *732 aimed at persons who violate social norms by taking property from the presence of another by force or threat of force while armed with a weapon.” People v Witt, 140 Mich App 365, 371 ; 364 NW2d 692 (1985).

. Thus, first-degree murder focuses upon homicide, armed robbery upon the violent deprivation of property. The first-degree murder statute does not punish the taking of property except when accompanied by a homicide. Nor does the armed robbery statute punish homicide. The societal interests are independent. In fact, the societal interests targeted by the felony murder provision of the first-degree murder statute generally are distinct from the underlying felonies. Felony murder is designed to punish homicide committed in the course of aggravated circumstances, while the societal interests undergirding the enumerated felonies are independent and also important to maintain. That the societal interests in prohibiting rape and kidnapping, for instance, are distinct from those prohibiting murder cannot be doubted. In a parallel fashion, the societal interests served by armed robbery and the first-degree murder statutes are distinct. 27

This is especially true in Michigan where felony murder requires malice. People v Aaron, 409 Mich 672, 728 ; 299 NW2d 304 (1980). The societal interest in prohibiting first-degree murder is not only homicide, but one committed with malice. Id. Armed robbery, of course, does not possess such a requirement. "[T]he presence of the different intent elements indicates that the Legislature intended to prevent distinct types of harm, robbery *733 and corporal harm,” as well as intended to address separate social ills. People v Smith, 152 Mich App 756, 761 ; 394 NW2d 94 (1986) (holding that multiple punishments were intended with regard to assault with intent to do great bodily harm and assault with intent to rob and steal while armed). See also People v Leach, 114 Mich App 732, 735-736 ; 319 NW2d 652 (1982) (holding that multiple punishments were intended with regard to armed robbery and assault with intent to commit great bodily harm). The Legislature carefully crafted distinct offenses defending separate societal interests that defendants violated. Punishment for each offense was intended by the Legislature. 28

Moreover, in Wakeford, supra at 105, n 7 , this Court recognized the impropriety of the majority’s conclusion:

We have never held, as a matter of state or *734 federal constitutional law, that only one conviction may result, for example, from the rape, robbery, kidnapping, and murder of victim A . . . even if the charges must be brought in a single trial under the "same transaction” test. Such a rule could be said to permit criminals to engage in an extended crime "spree,” knowing that at most only one conviction could result and that any crime other than the most serious was "free” of any possibility of conviction. It would offend rationality, as well as our sense of equal justice, to require treatment of one defendant committing a single crime identically with another defendant committing four counts of the same crime in the "same transaction.”

Indeed, the majority’s dismissal of the armed robbery conviction in the instant case presents the exact danger of which the Court forewarned in Wakeford . Accordingly, the Court of Appeals decision vacating the armed robbery conviction should be reversed. 29

Furthermore, I concur with §§ in and iv where they do not conflict with my separate opinion.

The Double Jeopardy Clause 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).

Michigan has also codified the guarantee against double jeopardy. MCL 768.33: MSA 28.1056.

See Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342 ; 389 NW2d 430 (1986); Traverse City School Dist v Attorney General, 384 Mich 390, 405 ; 185 NW2d 9 (1971); John Hancock Mutual Life Ins Co v Ford Motor Co, 322 Mich 209, 222 ; 33 NW2d 763 (1948); Pfeiffer v Detroit Bd of Ed, 118 Mich 560, 564 ; 77 NW 250 (1898); People v Blodgett, 13 Mich 127, 142 (1865) (opinion of Campbell, J.).

Without such an examination, the constitution may be "made to express purposes which were never within the minds of the people agreeing to it,” People v Harding, 53 Mich 481, 485 ; 19 NW 155 (1884), and may "make the constitutional safeguard no more than a shabby hoax, a barrier of words, easily destroyed by other words.” Lockwood, supra at 556 .

See, e.g., People v Harding, n 5 supra at 485; People v Thompson, 424 Mich 118, 125-126 ; 379 NW2d 49 (1985).

For an extensive analysis of the ancient origins of the prohibition of double jeopardy and its development over the ages, see United States v Wilson, 420 US 332, 339-340 ; 95 S Ct 1013 ; 43 L Ed 2d 232 (1975); Bartkus v Illinois (On Rehearing), 359 US 121, 151-154 ; 79 S Ct 676 ; 3 L Ed 2d 684 (1959) (Black, J., dissenting); United States v Jenkins, 490 F2d 868, 870-874 (CA 2, 1973), aff’d 420 US 358 ; 95 S Ct 1006 ; 43 L Ed 2d 250 (1975).

Underlying this prohibition against double jeopardy has been the principle that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged oifense, 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).

James Madison authored a prohibition of double jeopardy in the draft Bill of Rights he presented to the House of Representatives during its first session in 1789. Madison’s draft of the Fifth Amendment introduced to the House of Representatives on June 8, 1789, in part declared: " 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.’ 1 Annals of Congress 434.” Representative Benson, of New York, however, argued that the clause’s meaning was " 'rather doubtful.’ ” Benson stated that the clause should clearly be " 'intended to convey what was formerly the law, that no man’s life should be more than once put in jeopardy for the same offense.’ 1 Annals of Congress 753 (August 17, 1789).” The Senate concurred and altered the language to include the traditional and well-defined term of "jeopardy” to ensure the common-law protections were secure. Jenkins, supra, 490 F2d 873.

The United States Supreme Court has explained:

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence. [Ex parte Lange, supra at 168 .]

See also notes and comments, Twice in Jeopardy, 75 Yale LJ 262, 266, n 13 (1965) ("preventing multiple punishment for the same offense was foremost in the minds of the framers of the double jeopardy clause”). Contra Whalen v United States, 445 US 684, 702 ; 100 S Ct 1432 ; 63 L Ed 2d 715 (1980) (Rehnquist, J.) ("if the only question confronting this Court is whether Congress intended to authorize cumulative punishments for rape and for felony murder based upon rape, this Court need decide no constitutional question whatsoever”).

Indeed, Madison’s original draft of the Double Jeopardy Clause explicitly prohibited multiple punishment, but was altered to ensure that the common law meaning of the doctrine was placed into the constitution. See n 9. Congressman Benson remarked that the Fifth Amendment was intended " 'to prevent more than one punishment.’ ” Yale L J, n 10 supra at 266, n 12, quoting 1 Annals of Congress 433 (June 8, 1789).

No person for the same offence, shall be twice put in jeopardy ....

The constitution of 1835 declared that "[n]o person, for the same offence, shall be twice put in jeopardy.” The constitutions of 1850 and 1908, however, proclaimed that "[n]o person after acquittal upon the merits shall be tried for the same offense.” Const 1850, art 6, § 29; Const 1908, art 2, § 14. For an explanation of these changes, see n 10.

However, the Michigan provision enlarges the protections of the criminal defendant. At common law, a defendant could be acquitted on the merits, but be subject to a second trial if for any reason, the original complaint was not insufficient to support a judgment. Harding, supra at 486 . Determining that such a result was unjust, Michigan adopted a constitutional provision that prohibited such a retrial; hence the alteration of the constitutional language in 1850. Id. See n 11. No other expansion of the common law, however, was intended by the Michigan Constitution. Id. at 486-487 .

The address to the people explained that "[t]he new language . . . involves the substitution of the double jeopardy provision from the U. S. Constitution in place of the present provision which merely prohibits 'acquittal on the merits.’ This is more consistent with the actual practice of the courts in Michigan.” 2 Official Record, Constitutional Convention 1961, p 3364.

That the framers of the constitution intended no substantive alteration in its protection against double jeopardy was consistently reaffirmed at the convention. See, Delegate Judge Pugsley, 1 Official Record, Constitutional Convention 1961, p 541 ("this amendment which has been offered here to the original language of the section has been made to comply with the rulings which have been made by our supreme court on the matter of jeopardy”); Delegate Danhof, 1 Official Record, Constitutional Convention 1961, p 542 (that language alteration “would be changing nothing substantive in the law because the words 'trial upon the merits’ have not, by court interpretation, meant the completion to acquittal”).

For a thorough examination of the purpose behind this technical alteration of the Double Jeopardy Clause, see Thompson , n 6 supra.

Although this Court has stated that the protections afforded by the state and federal prohibitions against double jeopardy are identical, see, e.g., People v Schepps, 231 Mich 260, 265 ; 203 NW 882 (1925); People v Powers, 272 Mich 303, 307 ; 261 NW 543 (1935), the Court did not intend and could not deprive the state constitution of independent vitality. This is true simply from the structure of our constitutional system. Our state constitution continues to possess vitality independent of the federal constitution. For instance, if the United States Supreme Court disavowed incorporation of the Fifth Amendment’s Double Jeopardy Clause by reversing Benton, supra, the protection of the Michigan provision would necessarily still possess force. Similarly, if the’United States Supreme Court were to falter and deviate from the ancient common-law understanding of the prohibition of double jeopardy (for instance, by permitting retrials for the same offense after acquittal), this Court would not be empowered to impose that novel interpretation upon our constitution. On the other hand, when the United States Supreme Court does adhere to the original common-law understanding of the prohibition against double jeopardy, this Court must adhere to that understanding — not simply because the United States Supreme Court so holds, but because our constitution is founded on the same principles as the Fifth Amendment. In other words, the starting point for Michigan constitutional jurisprudence is the original understanding of the document’s ratifiers and *727 framers, supplemented by history, not the decisions of federal courts regarding analogous provisions. Often parallel constitutional provisions will be interpreted in the same manner, but only because both provisions were enacted with the same protections intended.

Thus, although not directly at issue, this Court’s prior holding in People v White, 390 Mich 245; 212 NW2d 222 (1973), should be reexamined. In White, this Court adopted the transactional approach posited by Justice Brennan in his concurring opinion in Ashe v Swenson, 397 US 436, 448 ; 90 S Ct 1189 ; 25 L Ed 2d 469 (1970), to determine whether a second prosecution violates the Michigan Constitution’s prohibition against double jeopardy. Yet, the original understanding of the doctrine of double jeopardy rejects this interpretation. United States v Dixon, 509 US —; 113 S Ct 2849, 2860 ; 125 L Ed 2d 556 (1993) (holding that the same conduct test "is wholly inconsistent with . . . the clear common-law understanding of double jeopardy,” and accepting as dispositive Justice Scalia’s dissenting opinion in Grady v Corbin, 495 US 508 ; 110 S Ct 2084 ; 109 L Ed 2d 548 [1990]); id. at 529-536 (Scalia, J.) (finding that the English common law and early American jurisprudence reject any transactional or same conduct test, and accepting Blockburger v United States, 284 US 299, 304; 52 S Ct 180 ; 76 L Ed 306 [1932], as the correct analysis).

Furthermore, multiple punishment may violate the doctrine of separation of powers by exceeding judicial authority to impose punishment, Whalen, supra at 689, n 4 , or due process because a court may not deprive person of liberty "except to the extent authorized by state law.” Id. Contra, id. at 701-703 (Rehnquist, J.) (finding that a court only exceeds its statutory authority, not the constitution, by imposing multiple punishment).

[D]efendant’s claim of factual double jeopardy depends not upon whether most or all of the same evidence was utilized to convict of both [offenses], but whether the legislative intent or statutory purpose was that two convictions should result. To the extent certain language in [previous cases] suggests that the critical test is whether the defendant committed "one single wrongful act,” we specifically disavow that test. It is up to the Legislature, not this Court, to determine what constitutes a single offense. The so-called "factual double jeopardy” doctrine simply asks whether the Legislature authorized multiple punishment under the circumstances. [Id. at 110-111.]

See also People v Robideau, 419 Mich 458, 486 ; 355 NW2d 592 (1984).

Moreover, "the core double jeopardy right to be free from vexatious proceedings is simply not present . . . .” Sturgis, supra at 400 .

Although the United States Supreme Court utilizes the test articulated in Blockburger , n 16 supra at 304, to determine the legislative intent of Congress, Dixon , n 16 supra, this Court has rejected that method of statutory interpretation for more traditional methods when interpreting Michigan legislation. Sturgis, supra at 404-405 ("[t]his’ Court has now clearly rejected . . . the 'wooden application’ of Blockburger , in favor of the more flexible, and traditional means of determining the intent of the Legislature”); People v Whiteside, 437 Mich 188, 200 ; 468 NW2d 504 (1991). That the tests utilized by this Court and the United States Supreme Court regarding the finding of the legislative intent of their respective legislatures differ does not result in a clash of constitutional analysis, but simply a recognition that separate jurisdictions may utilize independent modes of statutory construction. Adherence to the ancient common-law concept of double jeopardy is not endangered by such conflicts, as long as both jurisdictions recognize that, in the multiple punishment context, their duty is simply to discern whether the Legislature intended the punishment at issue.

In Robideau , the Court held that when a defendant is convicted of both armed robbery and felony murder arising from the same series of events, the robbery conviction must be vacated. Noting that the felony murder conviction was punishable by a mandatory life sentence, while the predicate crime was only punishable by a term of years to life, the Court inferred "that the Legislature intended to punish a defendant only once for committing both crimes.” Robideau, supra at 489, n 8 .

On the other hand, the Court ruled that equal punishments intend multiple punishment:

[Fjirst-degree criminal sexual conduct and those predicate crimes which normally occur along with first-degree criminal *730 sexual conduct, including armed robbery and kidnapping, have equal punishments. If the predicate crime is considered subsumed, there is no greater punishment. To suggest that the Legislature intended first-degree criminal sexual conduct to subsume a co-equal felony would be to attribute to the Legislature a total lack of purpose. [Robideau, supra at 489 .]

While the punishment for felony murder is life imprisonment without the possibility of parole, MCL 750.316; MSA 28.548, and the life term for armed robbery is with the possibility of parole, MCL 791.234; MSA 28.2304, the suggestion that this minor distinction clearly reveals a legislative intent to subsume the punishment for armed robbery into the punishment for felony murder is doubtful because a felon convicted of armed robbery could very well serve a full life sentence. This is especially true when the societal interests of each offense are disparate.

Furthermore, "[l]egislative intent may also be gleaned from the overall statutory scheme.” People v Campbell, 165 Mich App 1, 5 ; 418 NW2d 404 (1987).

The language of statutes sometimes indicates a legislative intent to create a series of offenses prohibiting different phases of conduct, with a separate penalty for each. On the other hand, the legislative intent may sometimes appear from language creating a hierarchy of offenses, depending on the presence or observance of certain aggravating factors. The former structure is indicative of legislative intent to create separate offenses, separately punishable. The latter structure may indicate an intention to permit only a single appropriate offense and conviction. [Sturgis, supra at 407 .]

However, as noted by Justice Ryan, the offense of felony is not placed neatly in either category because it does not " 'reflect[ ] a continuum of culpability,’ ” which is "tied together by logic.” People v *731 Wilder, 411 Mich 328, 360 ; 308 NW2d 112 (1981). Instead, predicate offenses in the felony murder context "are tied together by the Legislature.” Id. The unique structure of the felony murder statute, therefore, only ambiguously reflects the intent of the Legislature with regard to the multiple punishment issue.

In a charge of felony murder, it is the murder which is the harm which is being punished. [People v Aaron, 409 Mich 672, 728 ; 299 NW2d 304 (1980).]

See also People v Jankowski, 408 Mich 79, 87 ; 289 NW2d 674 (1980), quoting People v Kelley, 21 Mich App 612, 619 ; 176 NW2d 435 (1970) ("[r]obbery has long been defined in this jurisdiction to be nothing more than a 'larceny committed by assault or putting in fear’ ”); Wakeford, supra at 126-129 (opinion of Levin, J.); Campbell , n 24 supra at 6. But see Wakeford, supra at 111 ("[t]he primary purpose of the statute [armed robbery] is the protection of persons”).

The statute proscribing the underlying felony — robbery, for example — is designed to protect a wholly different societal interest from the felony murder statute, which is intended to protect against homicide. [United States v Greene, 160 US App DC 21, 44; 489 F2d 1145 (1973) (Bazelon, C.J., dissenting).]

"[T]t strains credulity to hold that the underlying felony merges into the felony murder.” United States v Greene, n 27 supra at 44 (Bazelon, C.J., dissenting). Cf. Sturgis, supra at 409 (different social policies furthered by the felony-firearm statute and the concealed weapon statute mandate multiple punishments); People v Guiles, 199 Mich App 54, 59-60 ; 500 NW2d 757 (1993) (punishment for both felony-firearm and intentionally discharging a firearm at a dwelling or occupied structure was intended); People v Vandelinder, 192 Mich App 447, 453 ; 481 NW2d 787 (1992) (multiple punishments for solicitation to commit three different felonies within one criminal scheme were intended); People v Kaczorowski, 190 Mich App 165, 170-172 ; 475 NW2d 861 (1991) (multiple punishments for both forgery and uttering and publishing were intended); People v Crawford, 187 Mich App 344, 349 ; 467 NW2d 818 (1991) (although offenses of operating a vehicle while under the influence of an intoxicating liquor and felonious driving as a result of the same incident are directed at the same harm, the Legislature intended multiple punishments); People v Burgess, 153 Mich App 715, 731-735 ; 396 NW2d 814 (1986) (multiple punishments for first-degree murder, conspiracy to commit the murder, and inciting, inducing, or exhorting another to commit the murder intended); Witt, supra at 371 (armed robbery and vault robbery serve different societal interests, hence multiple punishments are valid); People v Cousins, 139 Mich App 583, 596 ; 363 NW2d 285 (1984) (multiple punishments for both assault with intent to murder and escape from jail were intended).

Because the legislative intent is sufficiently clear, the rule of lenity is not implicated.

Because a defendant may be convicted for felony-firearm for each felony committed in a spree of criminal activity, People v Morton, 423 Mich 650 ; 377 NW2d 798 (1985), defendant Bush may be convicted of two felony-firearm violations — one accompanying the armed robbery and one accompanying felony murder.