People v. Allen

• Decision Date: 03 January 1980
• Docket Number: Docket No. 78-1434
• Citation: 288 N.W.2d 451,94 Mich.App. 539
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel ALLEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 451

288 N.W.2d 451

94 Mich.App. 539

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel ALLEN, Defendant-Appellant.

Docket No. 78-1434.

Court of Appeals of Michigan.

Jan. 3, 1980.

Released for Publication Feb. 28, 1980.

Alvin C. Sallen, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KAUFMAN and RILEY, JJ.

RILEY, Judge.

On June 2, 1977, defendant was charged with felony murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548, armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, contrary to M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was jury convicted on January 30, 1978, of second-degree murder, contrary to M.C.L. § 750.317; M.S.A. § 28.549, and the above latter two offenses. He was sentenced to concurrent terms of 40 to 60 years on the murder and armed robbery charges and a consecutive two year term for the felony-firearm charge. Defendant appeals as of right.

Defendant first contends that the lower court erred in refusing to instruct the jury on manslaughter as a lesser included offense of felony murder. Although manslaughter is not necessarily a lesser included offense of murder, failure to instruct on that alternative may be reversible error where the evidence presented at trial could support a guilty verdict on that charge. People v. Van Wyck, 402 Mich. 266, 268, 262 N.W.2d 638 (1978). In the instant case, there was no credible evidence to support a manslaughter verdict; hence, defendant's contention is without merit.

Defendant further suggests that there was reversible error based on the inadvertent submission to the jury of an exhibit not introduced into evidence. An improper admission mandates reversal if the error might have operated to substantially injure the defendant's case. People v. Talley, 56 Mich.App. 598, 601, 224 N.W.2d 660 (1974); People v. Page, 41 Mich.App. 99, 103, 199 N.W.2d 669 (1972). Since the substance of the objectionable police report was presented to the jury on various occasions at trial, we find no impairment of defendant's rights.

It is asserted also that reversal is required because the trial judge failed to respond to the jury's questioning as to why defendant had failed to take the stand. Viewing the judge's instructions as a whole, People v. Miller, 35 Mich.App. 627, 630, 192 N.W.2d 517 (1971), we cannot say that the jury was improperly instructed or that the court abused its discretion in choosing not to reinstruct them. See People v. Howe, 392 Mich. 670, 676, 221 N.W.2d 350 (1974); People v. Bloom, 76 Mich.App. 405, 407-409, 257 N.W.2d 105 (1977).

We find that there is no reversible error based on defendant's felony-firearm contentions. See Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979); People v. MacPherson, 323 Mich. 438, 449, 35 N.W.2d 376 (1949); People v. Cannon, 252 Mich. 182, 184, 233 N.W. 210 (1930); People v. Hodo, 51 Mich.App. 628, 636-637, 215 N.W.2d 733 (1974).

While my brother judges and I concur in the result reached on the previous issues, we part company on the final issue argued by defendant that the findings of the jury were reversibly inconsistent. In Michigan, inconsistent verdicts may not stand unless they can be explained on some rational basis. People v. Goodchild, 68 Mich.App. 226, 242 N.W.2d 465 (1976); People v. Fields, 66 Mich.App. 347, 239 N.W.2d 372 (1976); People v. Ames, 60 Mich.App. 168, 230 N.W.2d 360 (1975); People v. Johnson, 58 Mich.App. 165, 227 N.W.2d 272 (1975); People v. Phillips, 43 Mich.App. 581, 204 N.W.2d 250 (1972). As I find no reasonable way to harmonize defendant's second-degree murder and armed robbery convictions, the robbery conviction must be reversed.

Felony murder, with which defendant was originally charged, is second-degree murder plus the additional element of committing, or attempting to commit, an enumerated felony. People v. Crown, 75 Mich.App. 206, 215, 254 N.W.2d 843 (1977). Thus, if a first-degree murder verdict is to be returned, the homicide must be found to have occurred during the course of the felony. People v. Widgren, 53 Mich.App. 375, 385, 220 N.W.2d 130 (1974).

It is clear from the instant record that the murder took place during the time that defendant asked for and received money, there being conflicting testimony as to whether it was His money, and thus, not robbery. See People v. Holcomb, 395 Mich. 326, 235 N.W.2d 343 (1975); People v. Hobbs, 68 Mich.App. 239, 242 N.W.2d 535 (1976). It is inescapable then, that in finding defendant not guilty of felony murder, while convicting him of second-degree murder, the jury must have also concluded that no robbery occurred at the time of the homicide. See People v. McCurtis, 84 Mich.App. 460, 269 N.W.2d 641 (1978). Therefore, I conclude that defendant's conviction for armed robbery must be vacated.

Although the issue is not raised by defendant, on the facts of this case, he has a valid double-jeopardy claim. The double-jeopardy clause ensures that defendants will not be tried twice for the same offense. North Carolina v. Pearce, 395 U.S. 711-717, 89 S.Ct. 2072-2076, 23 L.Ed.2d 656 (1969). Yet, trying defendant for both felony murder and the lesser included offense of armed robbery twice subjected him to jeopardy on the armed robbery charge.

I believe that This double-jeopardy claim would entitle defendant to reversal were it not for the inconsistent verdicts, and Not the double-jeopardy claim advocated by Judge Kaufman. If, as my brother judge contends, the jury would have had to find defendant guilty of armed robbery in order to find him guilty of murder, then the jury would have convicted defendant of first-degree murder and not second-degree murder. With all due respect, I believe Judge Kaufman's position is a circuitous route to the unavoidable conclusion that the jury's verdicts were inconsistent.

I would affirm in part and reverse in part.

KAUFMAN, Judge (concurring).

I concur with the result. I also agree with Judge Riley's treatment of all of the issues save one. With respect to this exception, then, I concur only in the result. I do not agree with the reasons espoused in support of this result. Specifically, second-degree murder and robbery armed convictions are not reversibly inconsistent. Instead, on the facts of this case, I find that simultaneous convictions thereon constitute a violation of defendant's double jeopardy rights.

Had the defendant been convicted of felony murder and the underlying felony of robbery armed, it is clear that his double-jeopardy rights would have been violated. See People v. Wilder, 82 Mich.App. 358, 266 N.W.2d 847 (1978). The fact that the jury convicted him of second-degree murder and robbery armed should not affect this determination. The testimony and evidence indicate that the victim's death occurred as a result of the robbery perpetrated by the defendant. The defendant's intent to kill, then, can only have been inferred from the commission of the robbery. Therefore, the jury necessarily had to find the defendant guilty of the robbery in order to find him guilty of second-degree murder. This situation gives rise to a type of factual double jeopardy. Defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. People v. Martin, 398 Mich. 303, 307, 247 N.W.2d 303 (1976); People v. Stewart, 400 Mich. 540, 548-549, 256 N.W.2d 31 (1977); People v. Alexander, 82 Mich.App. 621, 624, 267 N.W.2d 466 (1978).

This rationale is not undermined by the decision in People v. Hicks, 88 Mich.App. 675, 279 N.W.2d 45 (1979). In that case, the defendant was charged with felony murder and armed robbery, but convicted of Manslaughter and Armed robbery. This was deemed acceptable against a double-jeopardy challenge because the crimes upon which the defendant was convicted had different elements, different statutory purposes, and neither was a lesser included offense of the other, Hicks, supra, 678, 279 N.W.2d 45. Whereas, in the instant case, the elements of the crimes overlap factually according to the test enunciated in Stewart and Martin, supra. This factual overlap in elements suggests that the jury might have compromised with respect to the defendant's second-degree murder conviction since an imputation of the intent or malice element of robbery would have called for a felony-murder conviction.

This Stewart and Martin factual double-jeopardy test, Supra, was discussed recently in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979). In that case, the Supreme Court upheld the felony-firearm statute against a factual double-jeopardy challenge on the grounds that the Legislature clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments based on one occurrence. No such legislative intent theory would apply in the case at bar...