People v. Fernandez, Docket No. 76117

• Citation: 143 Mich.App. 388,372 N.W.2d 567
• Decision Date: 29 August 1985
• Docket Number: Docket No. 76117
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Rafel FERNANDEZ, Defendant-Appellant. 143 Mich.App. 388, 372 N.W.2d 567
• Court: Court of Appeal of Michigan (US)

Page 567

372 N.W.2d 567

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen Rafel FERNANDEZ, Defendant-Appellant.

Docket No. 76117.

143 Mich.App. 388, 372 N.W.2d 567

Court of Appeals of Michigan.

Submitted March 19, 1985.

Decided June 3, 1985.

Released for Publication Aug. 29, 1985.

[143 MICHAPP 389] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Pros. Atty., and Thomas M. Chambers, Asst. Pros. Atty., for the People.

R. Steven Whalen, Asst. State Appellate Defender, for defendant-appellant on appeal.

[143 MICHAPP 390] Before BEASLEY, P.J., and KELLY and WARSHAWSKY, ^* JJ.

BEASLEY, Presiding Judge.

On September 16, 1983, defendant, Stephen Rafel Fernandez, was convicted by a jury of conspiracy to commit first-degree murder, contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548 and M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and aiding and abetting assault with intent to murder, contrary to M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. On September 29, 1983, defendant was sentenced to what the sentencing judge referred to as mandatory life in prison on the conspiracy conviction and to 120 to 240 months on the assault conviction. He appeals as of right.

Defendant and complainant, Janet Fernandez, were married in 1970. They had one daughter, Brandy, who was born in 1978. Though the marriage went without undue difficulty during the first few years, the relationship ran into trouble in 1981. In December of that year, Janet Fernandez told defendant on the telephone that she wanted a divorce. According to her, defendant became very tense and threatened to kill her or throw acid in her face. On another occasion, defendant twisted his wife's arms and told her that there wasn't going to be a divorce. She moved to her mother's house and filed for divorce on January 29, 1982. Between January 22 and April, 1982, she had little contact with defendant.

In May, 1982, complainant wife met with defendant to discuss their daughter, Brandy. Defendant told his wife that he did not know what he might do if he ever caught complainant with anyone else. On June 24, 1982, still maintaining that there just could not be a divorce, defendant asked her if she still worked in the morning and then told her that [143 MICHAPP 391] he could either kill her and go to jail, or he could have it done, and all the problems would be solved.

The next morning, June 25, 1982, complainant was driving her stepfather's car to work when she heard a noise like a brick or a rock hitting the passenger side of the car. She looked back and saw a man wearing a military camouflage jacket standing on the street, near an alley, holding a handgun. Complainant went to work and called 911, the police emergency number.

On July 27, 1982, complainant left her mother's house in the morning to go to work. As she came down the steps, she noticed that one of the tires on her car was flat. When she looked up, two men wearing military jackets came running toward her. She screamed, and one of the men stabbed her with a knife. As a result of that incident, complainant had surgery and spent six days in the hospital. Subsequently, she identified Henry Reyna, Jr., as the man who had stabbed her.

Reyna was arrested on September 13, 1982, and another suspect, Migual "Pete" Figueroa, was apprehended on September 14. Migual Figueroa pled guilty to assault with intent to murder and testified for the prosecution in the within case. He testified that, after the failure of the June, 1982, attempt on complainant's life, he agreed with defendant to find a hit man to kill complainant wife, Janet Fernandez. Pursuant to that plan, he contacted Henry Reyna, who eventually agreed to do the job.

Reyna also pled guilty to assault with intent to murder and testified for the prosecution. He stated that he knew defendant and Figueroa, and that Figueroa had approached him and told him that he knew a guy that wanted somebody dead and that that person was willing to pay two grand for it. Reyna testified that Figueroa was supposed to [143 MICHAPP 392] receive $500 to serve as the go-between. Reyna contacted a man he knew, Omar, and offered him $500 to help with the job. Reyna testified that on July 27, 1982, Omar snatched complainant's purse and he (Reyna) stabbed her with a knife.

Defendant testified in his own behalf and maintained that he had never agreed with anyone, or solicited, incited or induced anyone, to kill his wife. The jury did not buy defendant's version and, as indicated, found him guilty.

On appeal, defendant raises seven issues. First, he contends that the trial judge erred by refusing to give an instruction on conspiracy to commit second-degree murder. A conspiracy is a combination or agreement with others to do something unlawful. ¹ Second-degree murder is an unlawful killing and a purpose to kill without that deliberation and premeditation which characterize murder in the first degree. ² For a conspiracy conviction to lie, there must be proof of two specific intents: (1) the intent to agree (conspire) and (2) the intent to accomplish the substantive offense. ³ However, second-degree murder is not a "specific intent" crime. ⁴

In People v. Jenkins, ⁵ the Supreme Court held:

"In People v Carter, 395 Mich 434; 236 NW2d 500 (1975), we held that there are lesser included offenses to [143 MICHAPP 393] felony murder, and that every charge of first-degree murder necessarily includes the lesser offense of second-degree murder.

"The statutory difference in the penalties provided for first-degree murder and second-degree murder are great. A person convicted of first-degree murder must be sentenced to life imprisonment and is not eligible for parole. A person convicted of second-degree murder may be sentenced to life imprisonment or for any term of years up to life, but that sentence is not mandatory. A person convicted of second-degree murder may be paroled. MCLA 791.234; MSA 28.2304.

"Because of the significant differences in the penalties between first- and second-degree murder, and because every charge of first-degree murder necessarily includes the lesser offense of second-degree murder, in every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder. That was not done here. The trial court instructed the jury that they were to find the defendant either guilty or not guilty of first-degree murder. No mention was made of second-degree murder. MCLA 768.32; MSA 28.1055 states that the jury may find the accused not guilty of the offense in the degree charged, and may find the defendant guilty of a lesser degree of that offense." (Emphasis added.)

In People v. Hamp, ⁶ this Court held:

"Since prior 'planning' and 'agreement' are necessary, mandatory requisite elements of the crime of conspiracy, we find it analytically consistent to 'plan' to commit first-degree murder but logically inconsistent to 'plan' to commit second-degree murder. To prove a conspiracy to commit murder, it must be established that each of the conspirators have the intent required for murder and, to establish that intent, there must be foreknowledge of that intent. Foreknowledge and plan are compatible with the substantive crime of first-degree[143 MICHAPP 394] murder as both the crime of conspiracy and the crime of first-degree murder share elements of deliberation and premeditation. Prior planning denotes premeditation and deliberation. The elements of conspiracy, conversely, are incompatible and inconsistent with second-degree murder. One does not 'plan' to commit an 'unplanned' substantive crime. It is not 'absence' of the elements but the 'inconsistency' of the elements which lead us to conclude that one conspires to commit first-degree murder but not second-degree murder. Therefore, because of this inconsistency between the requisite elements of conspiracy and second-degree murder, we cannot conclude as a matter of law that conspiracy to commit first-degree murder includes the lesser offense of conspiracy to commit second-degree murder. Therefore, we find no error in the trial court's failure to instruct, sua sponte, as to the latter offense." (Emphasis added.)

Using similar reasoning, several panels have held that a conviction of conspiracy to commit second-degree murder cannot stand because there is no such crime. ⁷ However, in People v. Owens, ⁸ another panel of this Court expressed disagreement with that rationale, holding that:

"In every murder prosecution the jury must be instructed with regard to second-degree murder as well as first degree. People v. Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Instructions upon the elements of both first- and second-degree murder are required in prosecutions for incitement to murder as well. People v Richendollar, 85 Mich App 74, 78-81; 270 NW2d 530 (1978), lv den 405 Mich 820 (1979). Therefore, the trial court erred in failing to instruct the jury on incitement to commit second-degree murder. The Richendollar analysis does [143 MICHAPP 395] not, however, require that instructions regarding manslaughter also be given, as defendant argues.

"Defendant also argues that the same rule should be applied in cases of conspiracy to murder. This Court appears to be divided upon this question. Compare People v Hence, 110 Mich App 154, 170-171; 312 NW2d 191 (1981), with People v Perry, 115 Mich App 533, 536; 321 NW2d 719 (1982), and People v Jackson, 114 Mich App 649, 664-668; 319 NW2d 613 (1982). We believe that the reasoning of Richendollar regarding incitement to murder is equally applicable in cases of conspiracy to murder. Thus, the trial court erred in failing to instruct the jury on conspiracy to commit second-degree murder." (Emphasis added.)

Judge Walsh dissented and wrote:

"I find no error, however, in the court's refusal to...