People v. Bonner, Docket No. 55061

• Decision Date: 21 July 1982
• Docket Number: Docket No. 55061
• Citation: 321 N.W.2d 835,116 Mich.App. 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William W. BONNER, Defendant-Appellant. 116 Mich.App. 41, 321 N.W.2d 835
• Court: Court of Appeal of Michigan — District of US

Page 835

321 N.W.2d 835

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William W. BONNER, Defendant-Appellant.

Docket No. 55061.

116 Mich.App. 41, 321 N.W.2d 835

Court of Appeals of Michigan.

Submitted March 8, 1982.

Decided May 4, 1982.

Rehearing Denied June 17, 1982.

Released for Publication July 21, 1982.

[116 MICHAPP 42] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. [116 MICHAPP 43] Atty., Appeals, and Michael F. Bakaian, Asst. Pros. Atty., for the People.

Kim Robert Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Before RILEY, P. J., and R. B. BURNS and EVERETT, ^* JJ.

RILEY, Presiding Judge.

A feud between two neighboring families led to a shooting incident on January 5, 1980. As a result, defendant was charged in Count I with assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, in Count II with possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and in Count III with possession of a short-barreled shotgun, M.C.L. Sec. 750.224b; M.S.A. Sec. 28.421(2). A jury found him guilty of the lesser included offense of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, as well as the offenses charged under Counts II and III. Defendant was sentenced to the mandatory two-year term required under Count II, to be followed by the concurrent terms of two months to ten years on the assault conviction and two months to five years under Count III.

Defendant below moved to quash either Count II or III arguing double-jeopardy considerations had been violated. U.S.Const., Ams. V, XIV; Mich.Const.1963, art. 1, Sec. 15. On appeal, defendant raises the double-jeopardy argument regarding Counts I and III.

In People v. Bouknight, 106 Mich.App. 798, 802, 308 N.W.2d 703 (1981), Judge Cavanagh wrote:

"The courts of this state have employed two tests in considering whether the guarantee against double jeopardy[116 MICHAPP 44] has been violated because of 'double punishment'. The first test, commonly known as the Blockburger test, concentrates on the statutory elements of each crime. If, legally, each statutory provision requires proof of a fact which the other provision does not, there is no double jeopardy. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979). The second test looks to the factual proofs involved in the particular case. People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976); People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977). Under the second test, if the facts developed during trial indicate that the violation of one provision is not severable from a violation of the second provision, then the former blends into the latter so as to constitute one single wrongful act. This second test has been modified by the Supreme Court to provide that if the Legislature has manifested an intent to make the two offenses separate and distinct and has provided separate penalties there is no violation of double jeopardy. Wayne County Prosecutor, supra."

There is no Blockburger issue in this case. Therefore, the focus is on the factual proofs. People v. Jankowski, 408 Mich. 79, 86, 289 N.W.2d 674 (1980).

On the information filed in the case at bar and, more importantly, on the trial evidence, defendant was tried on the premise that he fired a shotgun, thereby assaulting the complainant. The assault count was factually supported by proof of use of a shotgun. In order to assault the complainant in the manner alleged at trial, defendant must have possessed a shotgun. As stated in Jankowski, supra, 86, 289 N.W.2d 674:

"If, factually, the convictions * * * are based on proof of a single act, the separate crimes consist of nothing more than a greater crime and certain of its lesser [116 MICHAPP 45] included offenses. If such is the case, the multiple convictions will not be allowed to stand."

In this case, the possession count is a lesser included cognate offense of assault with intent to do great bodily harm less than murder. Therefore, defendant's conviction on both counts violates the constitutional guarantee against double jeopardy.

Defendant's trial court motion alleged that the charges in Counts II and III violated double jeopardy. The factual proofs of felony-firearm in this case necessarily proved the charge of possession of a short-barreled shotgun in this case. Since the convictions are based on proof of a single act, the multiple convictions cannot be allowed to stand. Id.

The proper remedy in this case is to vacate the conviction and sentence on the charge of possession of a short-barreled shotgun and leave intact the convictions and sentences on the assault charge and the felony-firearm charge. We thus turn to defendant's remaining allegations of error as they apply to these convictions.

During deliberations, the jury sent a written request to the judge asking (1) how many times the gun was shot, and (2) was the shotgun reloaded? The trial judge did not answer these questions. Instead, he instructed the jury to resume deliberations and try to recall testimony collectively to see if they could answer these questions. There were no objections to this instruction. On appeal, the defendant claims that the court erred by refusing a reasonable request to review the evidence and that its answer to their questions foreclosed the jury from reviewing the trial testimony in the future.

The following colloquy took place:

[116 MICHAPP 46] "The Court: If I read your note correctly, the question is, we, the jurors would like to know how many times Mr. Bonner fired his weapon?

"The Foreperson: That's correct.

"The Court: And was the gun loaded?

"The Foreperson: Reloaded.

"The Court: Reloaded?

"The Foreperson: Yes."

The trial court then instructed the jury as follows:

"The Court: I can only suggest to you at this time, ladies and gentlemen, that it has only been yesterday since you have heard the testimony. I would appreciate it if you would put your collective recollections together of what the testimony was and see if you can't figure that out for yourselves. Please do that the very best you can."

The jury did not request to have the evidence read to them. Instead, the jury sought the answer to two factual questions which it would have been improper for the court to answer.

Defendant contends that the court's instruction completely foreclosed the jury from the opportunity to review the testimony at a later point. An instruction to the jury which completely forecloses the opportunity to review trial testimony during deliberation is an abuse of discretion and is reversible error. People v. Smith, 396 Mich. 109, 110-111, 240 N.W.2d 202 (1976). We conclude that the judge never instructed the jury that they could not have the trial testimony read to them. Future review was not completely foreclosed to the jury; therefore, we find no reversible error attributable to the instruction given.

The trial court, according to defendant, reversibly[116 MICHAPP 47] erred by failing to give sua sponte a cautionary instruction to the jury regarding the prosecutor's use of prior inconsistent statements in his closing argument.

The prosecutor, in closing argument, emphasized the inconsistencies between various witnesses' trial testimony and their statements to police. The use of prior inconsistent statements of a witness is limited at trial to impeachment purposes. People v. Williams, 94 Mich.App. 406, 413, 288 N.W.2d 638 (1979). The prosecutor in this case did not use the prior inconsistent statements substantively nor did he suggest to the jury that the statements could be used in that manner.

The precise issue now raised was ruled on in People v. Mathis, 55 Mich.App. 694, 223 N.W.2d 310 (1974), remanded on other grounds, 395 Mich. 788 (1975), on remand, 75 Mich.App. 320, 255 N.W.2d 214 (1977). The Court reexamined earlier Court of Appeals cases and stated:

"Where, as in the case at bar, there is no request for a limiting instruction, where there is no demonstration or likelihood of prejudice and where neither the court nor the prosecutor has suggested to the jury that the prior inconsistent statement could be used as substantive evidence, the...