People v. Embree, Docket No. 21493

• Decision Date: 23 March 1976
• Docket Number: Docket No. 21493
• Citation: 241 N.W.2d 753,68 Mich.App. 40
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard David EMBREE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 753

241 N.W.2d 753

68 Mich.App. 40

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard David EMBREE, Defendant-Appellant.

Docket No. 21493.

Court of Appeals of Michigan.

March 23, 1976.

Released for Publication May 27, 1976.

D. E. HOLBROOK, Jr., Judge (dissenting).

I cannot agree with all the conclusions that the majority draws about the adequacy of the trial court's instructions on unanimity. First, in spite of defense counsel's failure to object, the issue is properly before this Court. Second, even though the issue once was decided adversely to the defendant, People v. Fullwood, 51 Mich.App. 476, 481, 215 N.W.2d 594 (1974), Lv. den., 393 Mich. 785 (1975), another panel of this Court has resolved the issue in the defendant's favor. People v. Olsson, 56 Mich.App. 500, 505--506, 224 N.W.2d 691 (1974), Lv. den., 394 Mich. 772 (1975). Finally, such an error can never be harmless. For these reasons I must register my dissent to the decision reached herein by this Court.

The right to a properly instructed jury is fundamental to the right to receive a fair trial. People v. Reed, 393 Mich. 342, 349, 224 N.W.2d 867 (1975), People v. Visel, 275 Mich. 77, 81, 265 N.W. 781 (1936). While the failure of defense counsel to object ordinarily precludes appellate review, GCR 1963, 516.2, in certain instances the instructional error may strike so deeply at this fundamental right that an appellate court should not require an objection to preserve the issue for review. People v. Townes, 391 Mich. 578, 586, 218 N.W.2d 136 (1974). This is especially true when the alleged error concerns an erroneous or misleading instruction rather than one that merely omits a pertinent point. People v. Guillett, 342 Mich. 1, 7, 69 N.W.2d 140 (1955), People v. McGuire, 39 Mich.App. 308, 316, 197 N.W.2d 469 (1972), Lv. den., 387 Mich. 810 (1972).

In order for the jury to be properly instructed, it is necessary for the trial court to inform the jury that they must unanimously agree that the prosecutor has proven All of the elements of the crime charged beyond a reasonable doubt. Constitution 1963, art. I, § 14, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), see Proposed Michigan Criminal Jury Instructions, ch. 2, Presumption of Innocence (6), p. 72, Burden of Proof (8), p. 73 (1975). Because the jury was simply instructed to return a verdict of guilty of first-degree murder, second-degree murder, not guilty by reason of insanity, or not guilty, the jury was not required to unanimously agree on all the elements of first-degree murder.

This problem arises because the first-degree murder statute, M.C.L.A. § 750.316; M.S.A. 28.548, unlike most other criminal statutes, allows the prosecutor to prove the crime through the use of alternative elements. People v. Carter, 395 Mich. 434, 437, 236 N.W.2d 500 (1975), Cf. People v. Sparks, 53 Mich.App. 452, 458, 220 N.W.2d 153 (1974), Lv. den., 393 Mich. 135, 224 N.W.2d 481 (1974). To prove the charge contained in court one of the information, the prosecutor must show beyond a reasonable doubt to the satisfaction of all twelve jurors that the defendant committed a common law murder ¹ and that the defendant acted with deliberation and premeditation. People v. Vail, 393 Mich. 460, 468, 227 N.W.2d 535 (1975). To obtain a conviction on the charge contained in count two of the information, the prosecutor must prove beyond a reasonable doubt to the satisfaction of all twelve jurors that the defendant committed a common law murder during the perpetration or attempted perpetration of one of the enumerated felonies. ² People v. Wimbush, 45 Mich.App. 42, 46, 205 N.W.2d 890 (1973), Lv. den., 390 Mich. 770 (1973).

While the two counts are not inconsistent, State v. Wright, 337 Mo. 441, 443--444, 85 S.W.2d 7, 8 (1935), I believe that the aggravating element under each of the two counts is unique. Accord, People v. Sparks, supra. For a murder to be premeditated it is necessary for the prosecution to show that the defendant had time to reflect on his actions. Perkins on Criminal Law (2d ed), p. 92. On the other hand, even an accidental killing committed by the defendant during the perpetration or attempted perpetration of one of the enumerated felonies becomes first-degree murder. Perkins on Criminal Law (2d ed.), p. 94. See People v. Carter, 387 Mich. 397, 418, 197 N.W.2d 57 (1972), Commonwealth v. Redline, 391 Pa. 486, 511, 137 A.2d 472, 500 (1958) (Cohan, J., concurring).

Because the aggravating elements for first-degree murder are different under the two counts, the prosecutor should not be able to bootstrap a general verdict conviction through the simultaneous use of both counts. People v. Olsson, supra. Contra, People v. Fullwood, supra. Such a bootstrapping operation can occur when the jurors are instructed that the prosecutor has proven first-degree murder if he has proven either count beyond a reasonable doubt. The bootstrapping occurs if some of the jurors are convinced beyond a reasonable doubt only that the murder was premeditated while other jurors believe beyond a reasonable doubt only that a murder during the course of one of the felonies has been shown. Under the instructions as given, all the jurors could then in compliance with the instructions vote to convict the defendant of first-degree murder. However, in such a case, the prosecutor has not proven his case beyond a reasonable doubt, since all the jurors have not agreed on All the necessary elements of the crime.

In discussing the harmless error rule ³ Justice M. S. Coleman recently stated:

"The rule is well settled in this State that if an erroneous instruction is given on a material matter and the error is not corrected or cured in the charge such error must be regarded as prejudicial." People v. Lenkevich, 394 Mich. 117, 123, 229 N.W.2d 298, 301 (1975), quoting People v. Kanar, 314 Mich. 242, 253, 22 N.W.2d 359 (1946).

I regard an instruction requiring the jury to unanimously agree that the prosecution has proven each element of the crime charged in either count as being necessary when a defendant is charged in one count with premeditated murder and in another...