People v. Hager

• Decision Date: 09 December 1976
• Docket Number: Docket No. 24295
• Citation: 72 Mich.App. 664,250 N.W.2d 754
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Franklin HAGER, Defendant-Appellant. 72 Mich.App. 664, 250 N.W.2d 754
• Court: Court of Appeal of Michigan — District of US

Page 754

250 N.W.2d 754

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Franklin HAGER, Defendant-Appellant.

Docket No. 24295.

72 Mich.App. 664, 250 N.W.2d 754

Court of Appeals of Michigan.

Dec. 9, 1976.

Released for Publication Feb. 28, 1977.

[72 MICHAPP 665] Kaplan, Finn & VanDusen by Michael D. Finn, Southfield, Alvin C. Sallen, Detroit, of counsel, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant was charged with kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and carnal knowledge, M.C.L.A. § 750.520; M.S.A. § 28.788. Defendant's first trial terminated as a result of a hung jury. Subsequently, on February 11, 1975, defendant was retried and convicted by a jury of assault and battery, M.C.L.A. § 750.81; M.S.A. § 28.276, and assault with intent to rape, M.C.L.A. § 750.85; M.S.A. § 28.280. On March 11, 1975, defendant was sentenced to a term in prison of 90 days on the former charge and from 5 to ten years on the latter charge.

Defendant first contends that retrial, following declaration of a mistrial by the trial judge as a result of the inability of the jury to reach a decision, is barred by the Double Jeopardy Clause of the Constitution, U.S.Const., Am. V. Michigan courts have long held that where a jury cannot [72 MICHAPP 666] agree on a verdict, the discharging of the jury and the holding of a new trial does not result in double jeopardy. People v. Gardner, 37 Mich.App. 520, 527--528, 195 N.W.2d 62 (1972), quoted approvingly in People v. Alvin Johnson, 396 Mich. 424, 431, fn. 5, 240 N.W.2d 729 (1976). A review of the transcript reveals that the defendant's contention is without merit as the trial judge was fully apprised by the jury that no reasonable probability of jury agreement existed.

Defendant next contends that where the evidence relates only to the greater offense an instruction on any lesser included offenses cannot be given. Defendant's theory of the case was consent. Consent precludes a conviction for rape but not assault with intent to commit rape nor assault and battery since the consent may be obtained after the initial assault. People v. Alcala, 63 Mich.App. 120, 234 N.W.2d 172 (1975), Rev'd other grounds 396 Mich. 99, 237 N.W.2d 475 (1976). Thus, the trial court's instruction concerning lesser included offenses of rape was proper as the jury was free to accept defendant's theory in part or In toto. We find no error. People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971), People v. Chamblis, 395 Mich. 408, 417, 236 N.W.2d 473 (1975).

Defendant's final claim of error relates to the verdict. The information contained two counts, Count I, kidnapping and Count II, carnal knowledge. The trial judge charged the jury that on Count I the verdicts that could be considered were guilty or not guilty. On Count II the court instructed the jury that verdicts on rape, assault with intent to rape, and assault and battery could be returned. The jury returned a verdict of:

'On the two lesser charges of assault and battery we [72 MICHAPP 667] find the defendant guilty and assault with intent to rape guilty.'

The verdict was accepted by the court as guilty of assault and battery under Count I and guilty of assault with intent to rape under Count II. The judge accepting the verdict was not the original trial judge and was unfamiliar with the case and the jury's instructed alternatives concerning their possible verdicts.

On appeal, defendant submits that the verdict is unsound as a matter of law and the appropriate remedy to rectify this error is reversal of the entire verdict. After giving careful consideration to this argument, we do not agree.

Michigan Courts have adopted the rule that when two counts in an information are tried together in a single trial, verdicts thereon will not be held inconsistent on appeal if they can be explained on any rational basis. People v. Fields, 66 Mich.App. 347, 239 N.W.2d 372 (1976), Lv. den. 396 Mich. 847 (1976). One alternative for our decision obviously flows from use of this principle. That is, instead of concluding solely from the charge that the assault and battery verdict was intended for Count II, like both parties herein argue, we might consider the utilization of the rule that the jury has unfettered discretion in rendering a verdict on lesser offenses, even if uncharged, if there is evidence to sustain their determination. ¹ People v. Jones, 273 Mich 430, 263 [72 MICHAPP 668] N.W. 417 (1935), People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970). We conclude, however, that the instant case does not lend itself to the employment of this rule.

There are several reasons for this. One is the peculiar facts of this case. As noted previously, the returned lesser offenses were both included in the trial judge's charge under Count II, rape. The foregoing, we think, in conjunction with the form by which the jury returned the verdict, clearly necessitates a conclusion that the jury intended to return the lesser offenses on Count II. ² However, the basic problem arose because the judge who accepted the verdict,...