People v. Anderson

• Decision Date: 21 July 1975
• Docket Number: Docket No. 18988
• Citation: 233 N.W.2d 620,62 Mich.App. 475
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee ANDERSON, Defendant-Appellant. 62 Mich.App. 475, 233 N.W.2d 620
• Court: Court of Appeal of Michigan — District of US

Page 620

233 N.W.2d 620

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee ANDERSON, Defendant-Appellant.

Docket No. 18988.

62 Mich.App. 475, 233 N.W.2d 620

Court of Appeals of Michigan.

July 21, 1975.

Released for Publication Oct. 21, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

[62 MICHAPP 477] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.

D. E. HOLBROOK, Judge.

From a careful reading of the record and trial transcript in this criminal case the following pertinent facts are present. At approximately 9:30 in the evening of March 7, 1973, Mrs. Margaret Lyon was returning to her home in Marine City from her business in Algonac. As she ascended the steps to her home, key in hand, she was apprehended by an individual bearing a gun who demanded entrance into her home. Having gained access to the home, this individual bound Mrs. Lyon hand and foot, and then embarked on a thorough search of the premises. This search lasted approximately an hour and a half. Near the end of that time, Mrs. Lyon was able to work herself free from her bonds. Observing that the individual was in another room and out of visual contact with her, Mrs. Lyon made a dash for freedom. She ran out the door and to the neighbors' house. She awoke her neighbors, Mr. and Mrs. Hallock, and upon entering their home telephoned the police. When the police did not respond immediately, she telephoned them again requesting aid. Immediately after the second telephone[62 MICHAPP 478] call, Mrs. Lyon and the Hallocks heard someone shouting from just outside the Hallock home, 'I know Margaret is in there, send her out, I know she's in there.' Immediately after this, Mrs. Lyon and the Hallocks observed an individual, later identified by Mrs. Lyon as the same individual who had accosted her on her front steps, approaching the Hallock residence. This individual mounted the stairs to the Hallock residence, then, using this hand smashed through the glass on the only door that was closed and unfastened the lock from the inside. Mrs. Lyon and the Hallocks attempted to flee out another door. At this moment a police car containing two officers from the Marine City Police Department arrived on the scene. Mrs. Lyon was shot and wounded in the leg as she attempted to flee from the individual who had broken into the house and pursued her out the other door. Then one of the Marine City police officers was shot twice by that same individual as the police officer attempted to approach the Hallock home. Mr. Hallock was shot in the back and killed by the individual as he attempted to flee from the Hallock home. Meanwhile, the individual had tried to take Mrs. Hallock hostage, but she had somehow escaped. Finally, the second Marine City police officer was shot once in the head and once in the abdomen by this same individual, who then escaped from the immediate scene in the Marine City Police Department vehicle that the two officers had arrived in.

These facts led to the apprehension of Arthur Lee Anderson, defendant-appellant, herein. Anderson was charged with first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and three counts of assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § [62 MICHAPP 479] 28.278. On September 7, 1973, Anderson was found guilty of all five counts by a jury in Port Huron, Michigan. On October 4, 1973, Anderson was sentenced to 25 to 50 years imprisonment on the armed robbery charge, and life imprisonment on all four other charges.

Defendant's sole defense at trial was one of alibi.

Defendant first claims that it was reversible error to allow amendment of the information so as to include language specifically alleging felony murder. Defendant essentially bases this claim upon two theories: (1) that premeditated murder and felony murder are distinct offenses with different elements; and (2) that defendant's conviction for felony murder is a nullity because that crime was not returned by the examining magistrate and therefore the circuit court had no jurisdiction to try it.

M.C.L.A. § 767.76; M.S.A. § 28.1016, provides that the court may at any time before, during or after the trial amend the information to cure any defect in either form or substance. The statute then goes on to provide that if the amendment is of substance, the accused shall on his motion be entitled to a discharge of the jury unless 'it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial'.

We hold that it clearly appears from the whole proceedings that the defendant here has not been misled or prejudiced by the variance in respect to which the amendment was made. In this case the amendment to the information was made on the first day of trial before any proofs had been entered. The original information had charged defendant[62 MICHAPP 480] with first-degree murder, citing the first-degree murder statute, M.C.L.A. § 750.316; M.S.A. § 28.548. Within that statute, first-degree murder is defined as either deliberate and premeditated killing or that killing which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary. Further, M.C.L.A. § 767.57; M.S.A. § 28.997, provides: 'In pleading a statute or a right derived therefrom it is sufficient to refer to the statute by its title, or in any other manner which identifies the statute and the court must thereupon take judicial notice thereof.' In People v. Turner, 26 Mich.App. 632, 637, 182 N.W.2d 781, 783 (1970), this Court held that an original information which charged that defendants 'feloniously, wilfully and of their malice aforethought, did kill and murder one Jacob Kogan', could be amended to add the phrase, 'while in the perpetration or attempted perpetration of a robbery'. Defendant had contended that the amended information was prejudicial and that it added a charge of felony murder. We said at 26 Mich.App. 637, 182 N.W.2d 783--784: 'Turner's contention is without merit. Both informations cited the first-degree murder statute. M.C.L.A. § 750.316 (M.S.A. § 28.548). Such a reference by section numbers is expressly authorized by M.C.L.A. § 767.57 (M.S.A. § 28.997).'

This case differs from Turner, supra, only in that the original information here included statutory wording of premeditation. This was not important in light of the fact that the statute was specifically cited. Moreover, there can be no claim of surprise or prejudice by the defendant because the information, the arraignment, the preliminary examination and a pretrial order all pointed to one conclusion: the prosecution intended to proceed on a theory that the killing had taken place [62 MICHAPP 481] during the perpetration of a burglary and/or the robbery of Mrs. Lyon.

The examining magistrate specifically found that the charge contained in Count 1 of the information had been committed and that there was probable cause to believe defendant had committed the crime. The charge in Count 1 of the information was first-degree murder, and reference was made to the statute as described above. Therefore, the circuit court had jurisdiction to try defendant on the charges contained in Count 1 of the information, that is, first-degree murder, as described in the statute.

Defendant next argues that although the jury found him guilty of armed robbery, there is a possibility that the first-degree murder conviction was based on a finding by the jury that the killing in question has taken place during a burglary. Defendant argues that such a finding would be invalid as he was never bound over on a charge of burglary. This argument must also fail, since we have just held that defendant was validly bound over on the charge of first-degree murder which, by reference to the statute, implicitly included a charge of felony murder; and a charge of felony murder explicitly encompasses a killing during the perpetration of a burglary. Therefore, whichever of the alternate grounds, that is, robbery or burglary, the murder conviction was based upon, it was a valid conviction since there was sufficient evidence of either theory upon which the jury could base the conviction. ¹

[62 MICHAPP 482] Defendant's next contention is that he was placed in double jeopardy by being convicted of and sentenced for both first-degree murder during the perpetration of a robbery and for the underlying robbery. It is certainly not clear that defendant's first-degree murder conviction was based upon his robbery conviction. Indeed, defendant has just argued the...