People v. Bufkin, Docket Nos. 8408

• Decision Date: 27 November 1972
• Docket Number: 8317,No. 1,Docket Nos. 8408,1
• Citation: 43 Mich.App. 585,204 N.W.2d 762
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew BUFKIN and Andrew Carter, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 762

204 N.W.2d 762

43 Mich.App. 585

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew BUFKIN and Andrew Carter, Defendants-Appellants.

Docket Nos. 8408, 8317.

Court of Appeals of Michigan, Division No. 1.

Nov. 27, 1972.

Rehearing Granted Jan. 18, 1973.

Released for Publication March 9, 1973.

Kenneth R. Teschendorf, Detroit (M. Gerald Schwartzbach, Detroit, of counsel), for Carter.

Burton L. Borden, Detroit, for Bufkin.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and O'HARA, ^* JJ.

O'HARA, JUDGE.

We concur with the Chief Judge in affirming the conviction of defendant Bufkin. As we read the record there was testimony adduced together with the reasonable inferences therefrom which would have sustained a verdict of guilty of murder in the first degree ¹ as to defendant Bufkin. That the jury found him guilty of murder in the second degree ² affords no basis for reversing his conviction. The verdict was a permissible one under the charge of the court as given. The charge stated one version of the applicable law that has been approved by our Supreme Court, namely that under a charge of first-degree felony murder a verdict of guilty of murder in the second degree is permissible. However, as noted by the late Justice Dethmers writing for a unanimous Court in People v. Dupuis, 371 Mich. 395, 124 N.W.2d 242 (1963), there is also authority for holding that in felony-murder prosecutions, the trial judge may properly instruct the jury that they should find the defendant guilty of murder in the first degree or not guilty, citing People v. Repke, 103 Mich. 459, 61 N.W. 861 (1895). This case has never been overruled. With this state of precedential authority we believe it is our proper province to choose what we consider the better rule of law and render it controlling. Our holding is of course reviewable by the Supreme Court, but if undisturbed by that Court we understand the trial bench will be bound thereby. Specifically we make clear that our opinion is to have no retrospective effect and to be effective as of the date of the release of this opinion to the parties.

We here hold decisionally that in a prosecution for felony murder, that is to say any homicide committed in the perpetration, or the attempt to perpetrate one of the statutorily specified offenses, the trial judge is obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty. We do not reach this conclusion lightly. We have reviewed all of the case law of our state and of many other jurisdictions. We adopt this rule because 'felony murder,' so called, is a creature of statute in which the element premeditation is conclusively presumed by proof of the perpetration or attempt to perpetrate a specific felony. As such, neither second-degree murder nor manslaughter can possibly be lesser included offenses. These two latter crimes and felony murder are mutually exclusive offenses.

However, since the trial judge in this case instructed the jury according to one of two permissible alternatives, we must examine the verdict of guilty of murder in the second degree as to defendant Carter under that charge as given. The result reached in this case in part moves us to hold as we do as to future cases.

If defendant Carter's conviction is to be upheld, there must have been testimony or circumstantial evidence together with the permissible inferences therefrom that Carter knew of the intention of Bufkin to perpetrate or attempt to perpetrate a robbery; and that he, Carter, actively participated in the perpetration or attempt to perpetrate a robbery.

What then was the testimony and other evidence that would meet the legal requirement of 'participation' by Carter?

Incontestably, Carter drove the car to the place of the killing. Incontestably, Carter stopped the car prior to reaching the scene and picked up Bufkin for no explained reason. Incontestably, after the victim was killed, Carter drove along slowly and picked up Bufkin again. Witnesses testified, and it was the province of the jury to accept or reject the testimony, that Carter knew that Bufkin had a .22-caliber silverplated handgun. The cause of death was a gunshot wound from a .22-caliber weapon. One witness testified that he observed someone running from the vicinity of the killing carrying a silverplated, pearl-handled handgun. Another witness testified that at the time and place involved she saw someone 'running out down the alley * * *. He stood and becked for the car to come.' A witness testified that when Bufkin re-entered the car Carter asked him 'What happened * * * how come he was running * * *', and that Bufkin replied that '* * * he had shot The man. (Emphasis Added.) A witness testified that '* * * Andrew Carter told me that Andrew Bufkin told him he didn't get any money in the holdup.'

We believe the jury would have been well within its province to find that Carter and Bufkin planned and attempted to perpetrate an armed robbery, during which attempt to deceased was killed. Thus we are convinced that the proofs would have sustained a verdict of guilty as to Carter of murder in the first degree. For whatever reason, the jury, as to defendant Carter, also returned a verdict of murder in the second degree. This, says our eminent and respected Chief Judge, mandates the following conclusion:

'Thus the inescapable conclusion of the jury's conviction of both defendants of second-degree murder is that no robbery or attempted robbery was involved in this killing.'

With this we respectfully but firmly disagree. That conclusion is no more 'inescapable' than that the jurors simply compromised their conflicting views. Hence we must determine whether a 'compromise' verdict so called is infirm as a matter of law. We hold it is not. As Mr. Justice Holmes said in the opinion of the Court in Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 191, 76 L.Ed. 356, 359 (1932):

'That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.'

It may well be that defendant Carter had no foreknowledge that defendant Bufkin would kill the victim in the robbery attempt. This is not the test. Rather, the question is did defendant Carter participate in the legal sense in the attempted robbery. We think the record amply supports the conclusion that he did. As such he was susceptible of a conviction of murder in the first degree. That the jury found him guilty of murder in the second degree under the instructions which were not erroneous when given does not invalidate the verdict.

We vote to affirm both convictions.

LESINSKI, Chief Justice (concurring in part; dissenting in part).

Defendants Andrew Carter and Andrew Bufkin, having been charged with first-degree murder resulting from an attempted robbery, M.C.L.A. § 750.316; M.S.A. § 28.548, were convicted by a jury of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. Each defendant appeals as of right.

The uncontradicted testimony at the trial indicated that Edward Koc, an insurance agent, was approached by a single armed assailant who shot and killed him. The assailant escaped in a car driven by another party who was waiting nearby. The people's theory upon which they tried the case was that the killing had resulted from an attempted robbery in which Andrew Carter had driven the car and Andrew Bufkin had done the actual shooting. The trial judge charged:

'Now, if you find that the facts as you have heard them, the testimony indicates to you that there was an attempt to commit a robbery then, I say that you are limited to first-degree murder. As to both or either of the defendants. However, if you find otherwise, then you may consider the lesser included crimes of murder in the second degree and manslaughter.'

At the conclusion of his charge, the judge reiterated this statement and in addition stated:

'Now, before the driver of the car, or alleged accessory in this case can be found guilty of murder in the first degree, you must be convinced beyond a reasonable doubt that he intended to participate in a robbery of the deceased, Edward Koc.'

When the jury returned asking that the instructions be repeated, the judge again stated:

'(I)f you find from the facts that no robbery was committed only then may you consider second-degree murder or manslaughter and not guilty. Those are the four verdicts you can arrive at, first-degree murder, second-degree murder, manslaughter and not guilty and you may find for either or both of the defendants. This is what you're limited to, is that correct?'

Thus the inescapable conclusion of the jury's conviction of both defendants of second-degree murder is that no robbery or attempted robbery was involved in this killing.

After the verdict of second-degree murder was returned, defendant Andrew Carter immediately moved for a judgment of acquittal notwithstanding the verdict alleging insufficient evidence in support of such a verdict. The trial court denied defendant's motion.

The evidence at trial overwhelmingly supports the theory that defendant Carter was driving the car and that defendant Bufkin did the shooting. Witnesses Linda...