People v. Richendollar

• Decision Date: 07 August 1978
• Docket Number: Docket No. 77-1112
• Citation: 85 Mich.App. 74,270 N.W.2d 530
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charlotte Fidler RICHENDOLLAR, Defendant-Appellant. 85 Mich.App. 74, 270 N.W.2d 530
• Court: Court of Appeal of Michigan — District of US

Page 530

270 N.W.2d 530

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charlotte Fidler RICHENDOLLAR, Defendant-Appellant.

Docket No. 77-1112.

85 Mich.App. 74, 270 N.W.2d 530

Court of Appeals of Michigan.

Aug. 7, 1978.

Rehearing Denied Sept. 11, 1978.

Released for Publication Oct. 20, 1978.

[85 MICHAPP 76] Myron E. Sanderson, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce Barton, Sp. Prosecutor, for plaintiff-appellee.

Before J. H. GILLIS, P. J., and D. E. HOLBROOK and KAUFMAN, JJ.

KAUFMAN, Judge.

Charged with conspiracy to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1); M.C.L. § 750.316; M.S.A. § 28.548, and with inciting, inducing or exhorting first-degree murder, M.C.L. § 750.157b; M.S.A. § 28.354(2), defendant was acquitted[85 MICHAPP 77] of the conspiracy charge, and convicted of the inciting, inducing or exhorting charge. Defendant was sentenced to life imprisonment and appeals as of right.

Testimony by prosecution witnesses indicated that on Thursday, August 12, 1976, Roger Hinton and two other men were picked up by defendant while hitchhiking. Defendant told the men that her fiance and his family were trying to accuse her of embezzlement. Hinton suggested, "Why don't you have him killed?" Defendant took Hinton seriously and offered him $40,000 of a life insurance policy on her fiance of which she was the beneficiary. Hinton testified that defendant told them it would be best to do it at night and with a gun. Defendant also told them that her fiance would have $500 in his possession.

On Sunday, August 15, the three men went to the house of defendant's fiance. Defendant's fiance was struck with a pipe wrench and then stabbed to death. The house was ransacked in the search for the $500 and a radio and wallet were also taken. Hinton pled guilty to first-degree murder in a separate proceeding.

On appeal, defendant raises many issues, most dealing in some way with M.C.L. § 750.157b; M.S.A. § 28.354(2), which provides as follows:

"Any person who incites, induces or exhorts any other person to unlawfully burn any property, to murder, to kill, to wound or to commit an aggravated or felonious assault on any person or to do any act which would constitute a felony or circuit court misdemeanor, that may endanger or be likely to endanger the life of any person, or who aids and abets in any such inciting, inducing or exhorting shall be punished in the same manner as if he had committed the offense, incited, induced or exhorted."

[85 MICHAPP 78] We

will chiefly focus on the question of lesser included offenses. As noted earlier, defendant was charged with inciting, inducing, or exhorting first-degree murder. Defendant's trial counsel requested that the trial court charge the jury on inciting to commit manslaughter. The trial court refused to give the requested lesser included instruction because it found that inducing, inciting, or exhorting someone to kill another person necessarily includes the intention to have that person killed, and thus only first-degree murder is involved.

Two major questions are presented: 1) Did the trial court commit reversible error by failing to give the requested instruction on manslaughter? 2) Did the trial court commit reversible error by failing to Sua sponte instruct on the lesser included offense of inciting, inducing, or exhorting second-degree murder? We will treat them in inverse order.

In People v. Jenkins, 395 Mich. 440, 442, 236 N.W.2d 503, 504 (1975), the Supreme Court held that:

"Because of the significant differences in the penalties between first- and second-degree murder, and because every charge of first-degree murder necessarily includes the lesser offense of second-degree murder, in every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury Sua sponte, and even over objection, on the lesser included offense of second-degree murder."

Viewing an admittedly different factual situation than the traditional homicide scenario, we must decide whether the holding should be applied in this case. Since both the legal and policy considerations underlying the holding in People v. Jenkins, supra, are present, we hold that the trial [85 MICHAPP 79] court committed reversible error in not instructing Sua sponte on second-degree murder.

In People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434, 438-439 (1971), Lv. den., 385 Mich. 775 (1975), Justice (then Judge) Levin succinctly defined second-degree common-law murder ¹:

"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm." (Footnotes omitted.)

To that base, we add the Supreme Court's holding in People v. Carter, 395 Mich. 434, 437-438, 236 N.W.2d 500, 502 (1975):

"Second-degree murder is always a lesser included offense of first-degree murder. First-degree murder is second-degree (common-law) murder Plus an element, Viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). Conversely, second-degree murder is first-degree murder Minus premeditation or the enumerated felony." (Emphasis in original.)

Legally, then, if a person incites, induces, or [85 MICHAPP 80] exhorts another to commit first-degree murder, necessarily that person is inciting, inducing, or exhorting second-degree murder. People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975). ²

Additionally, because a violator of M.C.L. § 750.157b; M.S.A. § 28.354(2), "shall be punished in the same manner as if he had committed the offense, incited, induced, or exhorted", judicial concerns over the severity of punishment for first-degree murder warrant that the Jenkins holding be applied to the assailed statute. ³ However, as in People v. Jenkins, supra, a new trial is not required.

This case shall be remanded for entry of a judgment of conviction of the lesser-included offense of inciting, inducing, or exhorting second-[85 MICHAPP 81] degree murder and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of inciting, inducing, or exhorting first-degree murder. People v. Jenkins, supra, People v. Herbert Ross, 73 Mich.App. 588, 252 N.W.2d 526 (1977).

As noted above, defendant's other lesser-included offense contention is that the trial court erred in not giving a requested instruction on manslaughter. The legal question subsumed in defendant's argument was recently decided by the Supreme Court. People v. Van Wyck, 402 Mich. 266, 268, 262 N.W.2d 638, 639 (1978). The Supreme Court concluded:

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime."

A review of the evidence adduced at trial supports the trial court's refusal to give the requested instruction. There was no evidence of mitigating circumstances or of criminally negligent behavior. Thus, the trial court's refusal did not constitute reversible error.

Defendant's other contentions may be answered with more brevity. The three factors considered by the Supreme Court in People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), lead to the conclusion that M.C.L. 750.157b; M.S.A. § 28.354(2) is not unconstitutional as a form of cruel and unusual punishment.

[85 MICHAPP 82] Defendant's contentions that M.C.L. § 750.157b; M.S.A. § 28.354(2) is void for vagueness and punishes constitutionally protected speech were rejected in People v. Chapman, 80 Mich.App. 583, 264 N.W.2d 69 (1978), with which we agree.

Defendant...