People v. Bush

• Decision Date: 04 February 1991
• Docket Number: Docket Nos. 108830,109727
• Citation: 187 Mich.App. 316,466 N.W.2d 736
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Columbus BUSH, a/k/a Christopher Agbalbey, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Hezikiah HARDING, Jr., Defendant-Appellant. 187 Mich.App. 316, 466 N.W.2d 736
• Court: Court of Appeal of Michigan — District of US

Page 736

466 N.W.2d 736

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Christopher Columbus BUSH, a/k/a Christopher Agbalbey,

Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Hezikiah HARDING, Jr., Defendant-Appellant.

Docket Nos. 108830, 109727.

187 Mich.App. 316, 466 N.W.2d 736

Court of Appeals of Michigan.

Submitted Oct. 4, 1990, at Lansing.

Decided Feb. 4, 1991, at 9:15 a.m.

Released for Publication March 25, 1991.

[187 MICHAPP 318] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

McCarthy & Ristich, P.C. by Michael J. McCarthy, Southfield, for defendant-appellant Bush.

Lawrence G. Kaluzny, Birmingham, for defendant-appellant Harding.

Before WAHLS, P.J., and DOCTOROFF and ALLEN, ^* JJ.

ALLEN, Judge.

In these consolidated cases involving several questions of first impression, we are asked to determine, inter alia, whether a prosecution for felony murder and possession of a weapon during the commission of a felony, where the victim died in excess of four years after a robbery and shooting, violates the constitutional guarantee against double jeopardy where defendants had been convicted of armed robbery, assault with intent to murder, and felony-firearm for their parts in the robbery and shooting. We affirm in part and reverse in part.

The testimony of the deceased victim, Jeffrey Dudley, given at the first trial and read into [187 MICHAPP 319] evidence in the instant case, established the following. At 11:30 p.m. on May 5, 1983, Jeffrey, then a nineteen-year-old college student, left his place of work at Alfred's Restaurant, at Somerset Mall in Troy. As he approached his car in the mall parking lot, three black males drove up and stopped their car in front of Jeffrey's car. Defendant Bush then got out of the vehicle and aimed a gun at Jeffrey, ordering him to get into the passenger's seat in his own car. When Jeffrey complied, Bush demanded money and jewelry. Jeffrey could produce only a dollar. Bush became upset and motioned for defendant Harding and the third black male to come over to Jeffrey's car.

After Harding and the third male approached the car, Bush handed the gun to the third male, who momentarily placed it on the car seat. At that point Jeffrey grabbed the gun and discharged it at Bush, hitting Bush in the leg. Harding immediately grabbed Jeffrey and, after hitting him in the mouth and knocking loose several teeth, threw Jeffrey into the back seat.

Harding then got into the driver's seat and the third person got into the back seat with Jeffrey. Bush climbed into the passenger seat. Harding drove the car out of Somerset Mall, heading for Detroit. As they drove, a discussion ensued about killing Jeffrey. At the entrance ramp to I-75 at Big Beaver Road, Bush turned and fired two shots into Jeffrey, one striking him in the chest and the other in the abdomen. Harding drove south on I-75 toward Detroit.

After some discussion about dumping Jeffrey into a sewer, Harding left the freeway, located a sewer, stopped the car, removed the sewer cover, and, with the help of the third male, dumped Jeffrey head first into the sewer. Jeffrey managed to climb up the iron ladder, push off the sewer [187 MICHAPP 320] cover, and crawl to a nearby house. The police arrived, finding Jeffrey lying on the porch and smelling of "sewer stench." He was taken to the hospital, where he twice underwent surgery.

Shortly thereafter, defendants Bush and Harding were arrested and charged with armed robbery, assault with intent to murder, and possession of a firearm during the commission of a felony. Tried by jury in the Oakland Circuit Court in September 1983 and found guilty as charged, Bush was sentenced to one hundred to three hundred years for the assault conviction, to life imprisonment for the armed robbery conviction, and to two years for the felony-firearm conviction. In a bench trial, in December 1983, Harding was found guilty of assault with intent to murder, armed robbery, and felony-firearm. He was sentenced to twenty to sixty years for the assault conviction, to seven to twenty years for the armed robbery conviction, and to the mandatory two years for the felony-firearm conviction. The convictions of both defendants were affirmed by this Court in separate, unpublished opinions in March 1985 and November 1986.

Meanwhile, Jeffrey went on with his life. He married, had a child, and became steadily employed. On June 28, 1987, during a backyard family picnic at Jeffrey's home in Detroit, Jeffrey, his brother, David, and his two brothers-in-law, Jason and Monte Gracey, played basketball. At some point in the game David Dudley and Monte Gracey began to argue. The argument escalated into a physical confrontation, and Jeffrey joined in the fray by striking Monte Gracey. The fight stopped when Jeffrey began having convulsions. Attempts to assist him were unsuccessful, and Jeffrey died shortly thereafter.

An autopsy disclosed the cause of death to be a [187 MICHAPP 321] consequence of the permanent damage to Jeffrey's heart caused by the 1983 gunshot wound. Defendants were then charged with felony murder.

At defendants' trials on the charge of felony murder, Dr. Kaplan, the surgeon on call who had attended Jeffrey on the night he was shot, testified that Jeffrey was close to death, that the heart was lacerated, that there was bleeding in the heart sac and chest cavity, and that an immediate operation was necessary.

Also introduced at defendants' trials was the testimony of two medical examiners, Drs. Kanluen and Petinga. Both testified that, on the basis of the autopsy and the medical records from the May 1983 shooting, the gunshot wound to the heart was the cause of death and that the victim's acute heart attack was a consequence of the permanent damage to the heart and a scar in the heart which was due to the 1983 gunshot wound. A defense expert witness, Dr. Ezra Shaya, testified that Jeffrey died because of damage to the brain caused by blows to the head during the 1987 fight.

On appeal both defendants argue that trial on the charge of felony murder violated the constitutional guarantee to be free from double jeopardy. Additionally, defendant Bush argues that the trial court erred in sentencing him to a two-year mandatory term for the felony-firearm conviction because he had already been sentenced for a prior conviction of felony-firearm arising out of the same criminal transaction. Defendant Harding additionally argues that his conviction of felony murder was against the great weight of the evidence and that the trial court erred in allowing the prosecutor to endorse and call as a witness a doctor who was appointed to help the defense prepare for trial. For purposes of our opinion, the several [187 MICHAPP 322] issues raised have been reformulated into four issues.

I Where defendants have been previously convicted of assault with intent to murder, does a subsequent conviction of felony murder, after the victim dies, violate the constitutional guarantee against double jeopardy?

Defendants first argue that their felony murder convictions must be reversed because the charges arose out of the same transaction as that which led to earlier convictions of assault with intent to murder and armed robbery.

Both the federal and state constitutions prohibit placing a person twice in jeopardy for the same offense. U.S. Const. Am. V; Const. 1963, art. 1, Sec. 15. The Michigan Double Jeopardy Clause is substantially identical to the Double Jeopardy Clause of the Fifth Amendment. People v. White, 390 Mich. 245, 252, n. 4, 212 N.W.2d 222 (1973).

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Supreme Court established the general rule that the Double Jeopardy Clause prohibits a state or the federal government from trying a defendant for a greater offense after it has convicted him of a lesser offense. The Court reached this conclusion after applying the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of the fact which the other does not.

[187 MICHAPP 323] The Brown Court then noted, however, that "[a]n exception may exist as to where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered by the exercise of due diligence." 432 U.S. at 169, n. 7, 97 S.Ct. at 2227, n. 7.

One of the cases on which Brown relied for this exception to the general rule of double jeopardy is Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In Diaz, the Supreme Court held that a charge of homicide made after the death of the person assaulted is not the same as a charge of an assault before the death of that person. The Court stated:

The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. 223 U.S. at 448-449, 32 S.Ct. at 251.

See also Ashe v. Swenson, 397 U.S. 436, 453, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring).

Michigan case law follows the...