People v. Bigelow

• Decision Date: 02 September 1997
• Docket Number: Docket No. 188900
• Citation: 571 N.W.2d 520,225 Mich.App. 806
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jeffrey BIGELOW, Defendant-Appellant. . Released
• Court: Court of Appeal of Michigan — District of US

Page 520

571 N.W.2d 520

225 Mich.App. 806

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jeffrey BIGELOW, Defendant-Appellant.

Docket No. 188900.

Court of Appeals of Michigan.

Released Sept. 2, 1997, at 9:00 a.m.

Vacated Sept. 16, 1997.

Released for Publication Nov. 25, 1997.

Before TAYLOR, P.J., and RICHARD ALLEN GRIFFIN and SAAD, JJ.

ORDER

People v. Bigelow, Docket No. 188900. The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between this case and People v. Passeno, 195 Mich.App. 91, 95, 489 N.W.2d 152 (1992).

The Court further orders that the opinion in this case released September 2, 1997, is hereby vacated.

The appellant may file a supplemental brief within 28 days of the clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.

RICHARD ALLEN GRIFFIN, Judge.

Following a jury trial, defendant was convicted of first-degree premeditated murder, M.C.L. § 750.316(1)(a); M.S.A. § 28.548(1)(a), first-degree felony murder, M.C.L. § 750.316(1)(b); M.S.A. § 28.548(1)(b), and breaking and entering an occupied dwelling with the intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. Defendant then pleaded guilty of being an habitual offender, second offense, M.C.L. § 769.12; M.S.A. § 28.1084. He was sentenced to concurrent terms of life in prison without the possibility of parole for the murder convictions and 15 to 22 1/2 years' imprisonment for the breaking and entering conviction. Defendant appeals as of right.

We affirm defendant's convictions of first-degree premeditated murder and breaking and entering. We vacate defendant's conviction of felony murder only because we are compelled to do so pursuant to MCR 7.215(H). Were we permitted, we would follow People v. Zeitler, 183 Mich.App. 68, 454 N.W.2d 192 (1990), and hold that the appropriate remedy to protect defendant's rights against double jeopardy is to modify defendant's judgment of conviction and sentence to specify that defendant's conviction is for one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony murder.

I

On appeal, defendant argues that his convictions of first-degree premeditated murder and first-degree felony murder violate double jeopardy. We agree. Multiple murder convictions for one killing violate the constitutional guarantee against double jeopardy. People v. Zeitler, supra at 71, 454 N.W.2d 192; People v. Carl Johnson, 99 Mich.App. 547, 559, 297 N.W.2d 713 (1980); People v. Densmore, 87 Mich.App. 434, 440-441, 274 N.W.2d 811 (1978). However, to preserve defendant's rights against double jeopardy, it is not necessary to vacate the felony-murder basis of defendant's first-degree murder conviction. We do so only because we must follow People v. Passeno, 195 Mich.App. 91, 95, 489 N.W.2d 152 (1992).

By providing felony murder and premeditated murder as alternative theories of proving first-degree murder, our Legislature authorized two mental states as alternative means of proving the same crime. See People v. Embree, 68 Mich.App. 40, 44-45, 241 N.W.2d 753 (1976) (Holbrook, Jr., J., dissenting); People v. Sparks, 53 Mich.App. 452, 458, 220 N.W.2d 153 (1974). Michigan is not alone in this regard because "there is sufficiently widespread acceptance of the two mental states [premeditated murder and felony murder] as alternative means of satisfying the mens rea element of the single crime of first-degree murder...." Schad v. Arizona, 501 U.S. 624, 642, 111 S.Ct. 2491, 2502, 115 L.Ed.2d 555 (1991); accord Nesbitt v. Hopkins, 86 F.3d 118 (C.A.8, 1996); Sullivan v. Borg, 1 F.3d 926, 929 (C.A.9, 1993); Gerlaugh v. Lewis, 898 F.Supp. 1388, 1407 (D.Ariz., 1995); Doisher v. State, 632 P.2d 242, 261 (Alaska App., 1981); State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982); People v. McCormick, 881 P.2d 423, 428 (Colo.App., 1994); People v. Lowe, 660 P.2d 1261, 1270-1271 (Colo., 1983); State v. Starr, 259 Kan. 713, 719, 915 P.2d 72 (1996); State v. Blankenship, 337 N.C. 543, 563, 447 S.E.2d 727 (1994).

Additionally, where two theories represent alternative means to prove the same crime, the prosecutor may list the alternative theories to prove a single-count complaint. People v. Nicolaides, 148 Mich.App. 100, 383 N.W.2d 620 (1985). In Nicolaides, this Court held that although it is improper for the prosecutor to charge a defendant with two different subparagraphs of the same statute, M.C.L. § 257.625; M.S.A. § 9.2325, the prosecutor may charge a defendant with one count of the statute and proceed on alternative theories. In explaining its reasoning, this Court stated that

"[w]hile it is true that, as a general rule, where several cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count, if the reference is to one transaction, for which a single penalty is incurred, it is also true that where each forbidden act may be set off as a distinct offense, but several are united, the count is good in such case as for one combined act." [Id. at 102, 383 N.W.2d 620, quoting People v. Keefer, 97 Mich. 15, 17, 56 N.W. 105 (1893).]

See also People v. Willie Johnson, 406 Mich. 320, 331, 279 N.W.2d 534 (1979).

Moreover, the Zeitler remedy is in accord with Florida jurisprudence. Florida appellate courts have ordered the merger of several manslaughter convictions, each based on a different theory, into a one-count manslaughter conviction. See Thomas v. State, 380 So.2d 1299 (Fla.App., 1980); Carr v. State, 338 So.2d 267 (Fla.App., 1976).

Because we agree with the reasoning of the above authorities, we would follow Zeitler and modify defendant's judgment of conviction and sentence to specify that defendant's conviction is for one count and one sentence of first-degree murder supported by two theories. This is the more appropriate remedy because " '[c]riminal defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes.' " Blankenship, supra at 563, 447 S.E.2d 727, quoting State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555 (1989).

Finally, the interests of justice are better served by Zeitler. Once the felony-murder basis of a defendant's first-degree murder conviction is vacated, and the order has become effective, this ground to support the conviction is gone forever. If on further appeal, another court were to find insufficient evidence of premeditated murder, the first-degree murder conviction would be reversed and vacated in total because no basis would remain to support the conviction. Such a result would be unjust and absurd, particularly for a criminal such as defendant who has clearly committed felony murder.

II

Next, defendant argues that there was insufficient evidence to support his first-degree murder conviction. We disagree. In reviewing the sufficiency of the evidence in a criminal case, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992); People v. Medlyn, 215 Mich.App. 338, 340, 544 N.W.2d 759 (1996).

First, defendant claims that there was insufficient evidence to establish premeditation or deliberation. See People v. Schollaert, 194 Mich.App. 158, 170, 486 N.W.2d 312 (1992). Premeditation and deliberation require sufficient time to allow the defendant to take a second look. Id. The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing. Id. Premeditation may be established through evidence of the following factors: (1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide. Id. Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove the elements of a crime. People v. McKenzie, 206 Mich.App. 425, 428, 522 N.W.2d 661 (1994).

Moreover, one who procures, counsels, aids, or abets in the commission of an offense may be convicted and punished as if he committed the offense directly. M.C.L. § 767.39; M.S.A. § 28.979; People v. Turner, 213 Mich.App. 558, 568, 540 N.W.2d 728 (1995). "Aiding and abetting" describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of the crime. People v. Rockwell, 188 Mich.App. 405, 411-412, 470 N.W.2d 673 (1991). To establish that defendant aided and abetted a crime, the prosecutor must establish that (1) either defendant or another committed the charged crime, (2) the defendant performed acts or encouraged or assisted the principal in committing the crime, and (3) the defendant intended the commission of the crime or knew the principal intended its commission at the time he gave aid and encouragement. Turner, supra at 568, 540 N.W.2d 728; People v. Jones (On Rehearing), 201 Mich.App. 449, 451, 506 N.W.2d 542 (1993). An aider and abettor's state of mind may be inferred from all the facts and circumstances. Turner, supra at 567, 540 N.W.2d 728.

Despite defendant's claim that he did not participate in the fatal strangulation or know that his accomplice, Allen Lambert, planned to kill the ninety-seven-year-old victim, there was evidence that, after Lambert restrained the victim, he said to defendant: "Get something. She's gonna talk" and "Do her, Bob. She's gonna talk." Later, defendant talked to his own sister and told her that initially he did not think that he could participate in the killing. However, while at the scene, defendant found a letter opener, which he gave to Lambert, who proceeded to...