People v. Garcia, Docket No. 98969

Decision Date18 April 1995
Docket NumberNo. 6,Docket No. 98969,6
Citation448 Mich. 442,531 N.W.2d 683
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Frank GARCIA, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Ward L. Clarkson, Pros. Atty., and Randy O. Colbry, Asst. Pros. Atty., Corunna, for the people.

Arnold D. Dunchock, Corunna (Thomas M. Donnellan, of counsel), Flint, for defendant.


RILEY, Justice (for reversal).

In this case we decide whether defendant's implicit acquittal of first-degree felony murder, by virtue of his conviction of second-degree murder, prevents retrial of the lesser-included offense of armed robbery because his guilt or innocence was necessarily determined by the implicit acquittal of first-degree murder. We conclude that defendant was not implicitly acquitted of the lesser-included offense of armed robbery and, therefore, was properly retried for that offense.


Defendant Frank Garcia and his companion Ronald Hammond were arrested in connection with a December 3, 1985, carjacking and subsequent fatal shooting of Timothy Kiley. Mr. Kiley was assaulted and shot in the head when he refused Hammond's order to get into the trunk of his car. On a theory of aiding and abetting, Garcia was charged with first-degree felony murder, using armed robbery as the underlying offense. Additionally, he was charged with an alternative count of open murder and possession of a firearm during the commission of a felony. The count of open murder was dismissed by the trial judge before jury deliberation.

The jury deliberated on the remaining two counts. On the first count, first-degree felony murder, the jury was instructed on the lesser-included offenses of second-degree murder and armed robbery. The verdict form 1 instructed the jury regarding the first count:

You may return only one verdict on this charge. Mark only one box for this count.

[ ] Not guilty of 1st degree felony murder

[ ] Guilty of 1st degree felony murder

Or Guilty of the lesser included offense of:

[ ] 2nd degree murder

[ ] Armed robbery. [Emphasis in original.]

Significantly, the jury was not afforded the opportunity to return a general verdict of "not guilty" on the entire first count. As to the second count, the jury was told that it could find defendant guilty or not guilty of felony-firearm. The jury found Garcia guilty of second-degree murder and felony-firearm, and he was sentenced to life imprisonment.

Garcia appealed, alleging, inter alia, that the verdict form did not provide the jury with the opportunity to return a general verdict of "not guilty" on count one. On the basis of that fact, the Court of Appeals reversed and held that defendant was entitled to a new trial. 2 Additionally, the Court held that because the jury had impliedly acquitted defendant of first-degree murder, he could not be recharged and convicted of the greater offense of first-degree murder.

On remand, the prosecutor filed an information charging Garcia with three counts: second-degree murder, armed robbery, and felony-firearm. Garcia moved to quash the armed robbery count on double jeopardy grounds because his implied acquittal of first-degree felony murder (through his second-degree murder conviction) also constituted an implied acquittal of the lesser-included offense of armed robbery. The motion to quash was granted. The prosecutor filed an interlocutory appeal, and the Court of Appeals reversed, holding that defendant could be retried for the offense of armed robbery. 3 Defendant did not appeal the order in this Court. 4 At his second trial, Garcia was found guilty of armed robbery and again sentenced to life imprisonment. Defendant appealed, and the Court of Appeals reversed. The Court held that because the first jury did not convict Garcia of first-degree felony murder, and the only difference between that offense and second-degree murder (of which he was convicted) is the concurrent commission of a felony, Garcia could not be retried for that offense. 5

We granted leave to appeal 6 and now would reverse the decision of the Court of Appeals. We would hold that Garcia's implicit acquittal of first-degree murder did not operate as an implied acquittal of the predicate offense of armed robbery. Defendant was therefore properly retried for the crime of armed robbery and his conviction should be upheld.


The Double Jeopardy Clause of the Fifth Amendment mandates that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb...." The Double Jeopardy Clause protects against three general governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 497, 104 S.Ct. 2536, 2539, 81 L.Ed.2d 425 (1984). 7 The protections apply to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In the present case, we are concerned with that part of the Double Jeopardy Clause that prohibits retrial after an acquittal. Specifically, we must determine the scope of that protection to decide whether the defendant has been "implicitly acquitted" of the lesser offense of armed robbery by his conviction of second-degree murder.


The seminal case involving retrial after an implicit acquittal is Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the jury was instructed on the offenses of first- and second-degree murder, and found the defendant guilty of second-degree murder. After a successful appeal, the defendant's conviction was reversed. On remand, the defendant was again tried for first- and second-degree murder and ultimately convicted of first-degree murder. The Court held that the defendant's retrial on the charge of first-degree murder subjected him to double jeopardy. 8

Applied to the present case, Green precludes retrial of Garcia for first-degree murder. However, Green does not specifically address the issue before this Court, i.e., whether defendant may be retried for the lesser-included offense of armed robbery after an implicit acquittal of first-degree felony murder. 9 The theory behind Green and its progeny, however, remain essential to our decision. We therefore closely examine the principles underlying Green and subsequent cases applying it, in order to determine whether it extends to prohibit Garcia's retrial on the offense of armed robbery. After careful scrutiny of Green and its progeny, we conclude that Garcia was not implicitly acquitted of armed robbery and, therefore, his double jeopardy rights were not violated when he was retried for that offense.

In support of this conclusion, we cite the precise factors that Green and several ensuing cases have required before determining whether a person was implicitly acquitted. Green held that if the jury is "given a full opportunity to return a verdict" on a greater offense and instead convicts on a lesser offense, an implicit acquittal with respect to the greater offense results. Id. at 191, 78 S.Ct. at 225. An additional Green requirement is that "no extraordinary circumstances ... prevented it from" returning a verdict on the greater offense. Id. Several cases have construed and applied this language in the context of different fact patterns--each of which aid us in applying the language enunciated in Green to the present case.

One such case was decided by this Court, People v. McMiller, 389 Mich. 425, 431, 208 N.W.2d 451 (1973). 10 In that case, we concluded that the operative inquiry to determine if a person has been implicitly acquitted is whether the factfinder was offered a choice to convict the defendant of the alleged offense. Therefore, the critical element for purposes of jeopardy is the defendant's exposure to such a choice being given to the factfinder. 11 Id. In the present case defendant was not "exposed" to the factfinder's "choice" of convicting him. Because the jury was allowed to choose only one verdict, an extraordinary circumstance envisioned by Green resulted, i.e., the jury was not afforded a full opportunity to return a verdict on the offense of armed robbery. Instead, the jury was allowed to choose only one verdict. Thus, we are persuaded that the jury was not given an appreciable choice. 12

Moreover, the Supreme Court of Georgia has determined that essential to an implicit acquittal of a greater offense is an unambiguous conviction of a lesser-included offense. Potts v. State, 258 Ga. 430, 434, 369 S.E.2d 746 (1988). We find persuasive the analysis articulated by the Potts court. Holding that the verdict for the lesser-included offense was ambiguous, 13 the court stated: "We therefore hold that a necessary premise for application of the Green- Price rule--an unambiguous conviction of the lesser-included offense--is not present." Id. at 433, 369 S.E.2d 746. Relying on Green, the court concluded that "a jury does not have a full opportunity [to convict] if the court restricts the jury's freedom to choose between the greater and lesser offenses." Id. at 434, 369 S.E.2d 746. The court was not able to determine whether the jury truly chose to convict the defendant on the lesser-included offense.

Unlike Potts, the jury clearly convicted the defendant of second-degree murder in the present case. However, for the same reason Potts required an unambiguous conviction of a lesser-included offense to impliedly acquit of the greater, we would hold that an unambiguous verdict must be rendered with regard to armed robbery in the present case. Because, in the case at bar, the jury was restricted from returning more than one verdict, as in Potts, it was not afforded a full opportunity to choose between the various offenses, and so its choice of second-degree murder...

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