People v. Alexander, 77-3189

• Decision Date: 20 September 1978
• Docket Number: No. 77-3189,77-3189
• Citation: 85 Mich.App. 727,272 N.W.2d 587
• Parties: In the Matter of PEOPLE v. Annette Gail ALEXANDER. WAYNE COUNTY PROSECUTOR, Plaintiff, v. RECORDER'S COURT JUDGE, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 587

272 N.W.2d 587

85 Mich.App. 727

In the Matter of PEOPLE v. Annette Gail ALEXANDER WAYNE COUNTY PROSECUTOR, Plaintiff, v. RECORDER'S COURT JUDGE, Defendant.

No. 77-3189.

Court of Appeals of Michigan.

Sept. 20, 1978.

Released for Publication Dec. 18, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., for appellant.

Alphonso R. Harper, Judicial Asst., Detroit, for Recorder's Court Judge.

Kenneth M. Mogil, Detroit, for Alexander.

Before RILEY, P. J., and T. M. BURNS and CYNAR, JJ.

RILEY, Judge.

The present matter concerns plaintiff's complaint for superintending control, seeking an order requiring a Detroit Recorder's Court Judge to impose the mandatory sentence under Michigan's felony-firearm statute. M.C.L. § 750.227b; M.S.A. § 28.424(2). The facts of the underlying case will be detailed briefly.

On July 17, 1977, Annette Gail Alexander was convicted at a jury trial of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and of possession of a firearm during the commission of a felony, contrary to the felony-firearm statute. The evidence adduced at trial showed that Ms. Alexander had shot one Losloran Whitlow to death with a shotgun. The shotgun in question, which was introduced into evidence at the trial, was both the alleged murder weapon and the firearm referred to in the felony-firearm charge. There was no evidence introduced that Ms. Alexander used or possessed any weapon other than the shotgun during the commission of the murder.

The trial judge thereafter sentenced Ms. Alexander to a prison term of 2 1/2 to 10 years on the murder conviction, but ruled that the sentence on the felony-firearm violation merged with that of the murder conviction. While the judge allowed the second conviction to stand, he held that he could not constitutionally impose the statutorily-mandated consecutive sentence provision of the felony-firearm law. ¹

The prosecution filed the complaint for superintending control in order to enforce the mandatory sentencing provision. This Court granted plaintiff's motion that defendant show cause why such an order should not issue.

As an introduction to our discussion of the significant questions of law in the present case, we must indicate our agreement with the prosecution that the trial judge was not empowered to in effect amend the sentencing provisions of the statute. The language is clear and unambiguous; the sentence is mandatory in length and in application as consecutive to a sentence imposed for the concurrent felony. While we recognize the court's obligation to protect the constitutional rights of all parties to an action, we cannot sanction the method used in the proceedings below.

We must therefore examine the constitutional issue raised on a much broader basis. In its simplest form, the question presented is whether the convictions for both second-degree murder and felony-firearm violated defendant Alexander's constitutional right not to be twice placed in jeopardy. ² Before entering into a specific discussion of the various double jeopardy considerations applicable to this issue, including Michigan law on included offenses and the effect of legislative intent on individual rights, we must first set forth some general provisions of double jeopardy law.

The language of the Michigan ³ and Federal ⁴ constitutional sections is essentially the same. It has been consistently held that the protection afforded by both clauses applies not only to bar multiple prosecutions for the "same offense" but also to forbid multiple punishment. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976). Thus it can be said that the two clauses are "substantially identical", at least in scope. People v. White, 390 Mich. 245, 252 fn. 4, 212 N.W.2d 222 (1973).

However, in application the Michigan Supreme Court has not hesitated to adopt stricter standards for double jeopardy than those used in the Federal system. In White, supra, the Court incorporated into Michigan law the "single transaction" test as delineated in Justice Brennan's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This test has not as yet been accepted by a majority of the United States Supreme Court. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (Brennan, J., concurring). In People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976), the Court held that under the Michigan constitution subsequent state and Federal prosecutions for the same act violate double jeopardy, even though Federal law would not bar the dual trials. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

Having laid the groundwork for our decision, we now turn to the specific arguments presented in this case. Our primary area of analysis concerns the concept of included offenses.

In People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), the Supreme Court discussed at length the definitions of included offenses. The Jones Court stated:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only Necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate' or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate' in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense." (Footnote omitted, emphasis in original.) 395 Mich. at 387, 236 N.W.2d at 264.

The primary distinction between the two types of included offenses, as outlined in Jones, supra, and its companion cases, ⁵ is whether the alleged included offense, in a given case, is analyzed from a factual or legal approach. For example, if the charged offense contains all of the elements of the alleged included offense, plus one or more additional elements, the lesser offense is necessarily included within the greater on a legal basis. Since it is Legally impossible to commit the greater without also having committed the lesser, the facts of the particular case are not necessary to the decision. On the other hand, if the included offense is cognate, having some of the elements of the greater but also an additional element not found in the greater, the Factual setting of the case is determinative of whether an instruction and/or conviction on that offense is proper. See People v. Jones, supra, at 390, 236 N.W.2d 461.

Our task now is to determine whether either of the charges in the present case is an included offense of the other, and, if so, what type of included offense. Applying the tests set forth above, we conclude that the murder charge was a necessarily included offense of the felony-firearm charge.

From a legal standpoint, there are no elements in the murder charge that are not also included within the felony-firearm charge. It is legally impossible to support a conviction on felony-firearm without first having proven the commission of the underlying felony. Once the felony is shown, the additional element of possession of a firearm during commission of the felony is all that remains for conviction.

An analogy to the felony-murder ⁶ underlying felony situation is inescapable. In People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 620 (1975), this Court stated:

"For if the jury's first-degree murder conviction was based on a finding that the killing took place during the perpetration of the armed robbery, then the armed robbery constitutes a necessary element of first-degree (felony) murder. As a necessary element of first-degree murder, armed robbery would then become an included offense in the greater charge. People v. Simpson, 5 Mich.App. 479, 146 N.W.2d 828 (1966)." 62 Mich.App. at 482, 233 N.W.2d at 624.

See also People v. Wilder, 82 Mich.App. 358, 266 N.W.2d 847 (1978).

What is critically important about this legal-factual distinction of included offenses is its effect on the threshold double jeopardy phrase "same offense". Where an included offense is necessarily included, it becomes legally the "same" offense as the greater for double jeopardy purposes.

"To punish defendant both for the greater offense, that is, first-degree (felony) murder, and for the included offense, which would be in this case armed robbery, would constitute double punishment in violation of the double jeopardy clauses of the United States Constitution and the Michigan Constitution." (Footnote omitted.) People v. Anderson, supra, 62 Mich.App. at 482, 233 N.W.2d at 624.

What this means is that a factual analysis of whether the same physical acts of the defendant violated both statutes is irrelevant to the ultimate disposition. Certainly different physical acts are needed to commit a murder and, as in Anderson, supra, an armed robbery. Generally the essential elements of these two offenses do not overlap. It is only when the statutorily-defined crime of felony-murder is involved that the elements of the murder charge expand to include those of the underlying felony.

Likewise, in the felony-firearm situation, it matters not whether the defendant used the firearm to commit the underlying felony, as in the case at bar, or merely possessed a weapon during the commission of a felony. In either situation, regardless of what physical acts can be attributed to the defendant, the underlying felony is a necessarily...