People v. Horton
| Decision Date | 23 July 1980 |
| Docket Number | Docket No. 45666 |
| Citation | 297 N.W.2d 857,99 Mich.App. 40 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Eddie HORTON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Gail Rodwan, Asst. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.
Before DANHOF, C. J., and CYNAR and MacKENZIE, JJ.
The defendant was tried before a jury on charges of felony murder and first-degree criminal sexual conduct, M.C.L. § 750.520b, M.S.A. § 28.788(2), arising out of the death of one Ms. Smith on October 5, 1978. Convicted of felony murder but acquitted of criminal sexual conduct, he brings this appeal as of right.
The testimony indicated that the defendant lived with the victim and a Ms. Jones and her three children in Ms. Jones' apartment. When Ms. Jones left her apartment on the afternoon of October 5, the defendant, the victim, and the Jones children were present. When she returned between 12:30 and 1:30 a. m., she found only the defendant there. Blood stained the defendant's white trousers and a sheet and pillow case on the couch Ms. Jones used for her bed. The defendant told Ms. Jones that a friend had told him that the victim and Ms. Jones' brother "must have been fighting again".
At approximately 3:00 a. m., Ms. Jones and the defendant searched an alley behind the apartment building, finding nothing. At 7:00 a. m., others found Ms. Smith's body in the alley near a shed or blockhouse in the area Ms. Jones and the defendant had searched earlier. Searching Ms. Jones' apartment, the police found a pair of tennis shoes belonging to the defendant. There were blood spots on them, with fresh paint laid over the spots.
Mr. Nash, an acquaintance of the defendant and Ms. Jones, testified that he had visited the apartment on the evening of the 5th of October and had left at 9:00 or 10:00 p. m., with the defendant, the victim, and the children there.
Another acquaintance of the defendant stated that at 11:30 p. m. she had heard screams in the alley behind the apartment building and saw a man resembling Nash struggling with a woman. Standing nearby was a second man who stood in a manner resembling the defendant and who wore a hat like the one she knew the defendant to have. An automobile she recognized as belonging to Nash was nearby, its lights on. She recognized the woman's voice as that of Ms. Smith.
A neighbor testified that at approximately 1:50 a. m., he heard a car pull into the alley and leave a few minutes later. Soon thereafter, he heard a female quarreling in the alley with a man whose voice he recognized as that of the defendant.
The body of the victim was bloody and showed signs of a beating. It was dressed only in a blouse; in the nearby blockhouse was a large quantity of blood together with slacks, underwear, and one shoe belonging to the victim. The cause of death was multiple blunt wounds to the head.
The defendant is one of that 20% of the population who are "nonsecretors", whose blood type cannot be discovered from analysis of other bodily fluids. The victim's blood type was B; that of the defendant is O. Seminal fluid found on the bloodied bed sheet in the Jones' apartment was found to be that of a nonsecretor. The blood found on the sheet, the pillow case, the defendant's trousers and shoes, on the victim's jacket, on a newspaper from the blockhouse, and on a vaginal swab taken from the victim was found to be type B. Microsperm found on the swab were apparently not tested for secretor grouping.
A Mr. Jones, a companion of the victim, testified that he had had sexual intercourse with the victim one or two days before her death. The testimony suggested that the microsperm found in the victim's body had been present for no more than 36 hours.
The defendant testified that on the evening of October 5th, he had gone drinking and gambling and, after delivering Ms. Jones' children to their grandmother's home, had become involved in a "struggle" with another gambler, suffering scratches on his knees, arms, and wrists. He stated that Ms. Smith had had a nose bleed on the night of October 5, soiling the apartment and his clothing with blood. Later in the evening, he said, he had painted the number on the apartment door, deliberately painting his shoes in the process because that was a "habit" he had in his trade as a painter.
The defendant's first claim on appeal asserts that his conviction of felony murder is inconsistent with his acquittal of first-degree criminal sexual conduct and, so, must be reversed.
As a general proposition, courts do not interfere with a jury's power to believe or disbelieve any part of the evidence presented to it. People v. Fuller, 395 Mich. 451, 236 N.W.2d 58 (1975). However, inconsistent verdicts raise a special and difficult problem for they evidence either a significant misunderstanding of the law set forth in jury instructions or an unresolved matter of fact and perhaps a lack of the unanimity required of jury verdicts. Thus, this Court has repeatedly held in criminal cases that verdicts that cannot be reconciled on any rational basis cannot stand. People v. Hager, 72 Mich.App. 664, 250 N.W.2d 754 (1976); People v. Goodchild, 68 Mich.App. 226, 242 N.W.2d 465 (1976).
We agree that a felony murder conviction based on a completed act of criminal sexual conduct cannot stand together with a verdict of not guilty of the same criminal sexual conduct charged in another count. The prosecution, however, posits a jury finding in this case that the defendant never completed the charged criminal sexual conduct and claims that this possibility is sufficient to reconcile the verdicts. The felony murder statute, M.C.L. § 750.316, M.S.A. § 28.548, provides for conviction of first-degree murder where murder arises out of an attempt to commit one of the felonies listed therein.
We find that one insurmountable obstacle stands in the way of the prosecution's reasoning. While the jury in this case was instructed that an attempt to commit the charged criminal sexual conduct could support a verdict of guilty of first-degree murder, it was never instructed in the law of attempt. If the jury indeed concluded that the defendant merely attempted to commit a sexual assault on the victim, it did so improperly, for to do so it necessarily had to generate its own definition of a criminal attempt. In keeping with the principle that criminal statutes are to be narrowly construed, the "attempt" to which the felony murder statute refers cannot consist of what any single jury may consider to be a sincere try, but must be a legally culpable attempt, defined by statute and case law. See M.C.L. § 750.92, M.S.A. § 28.287, People v. Gardner, 13 Mich.App. 16, 163 N.W.2d 668 (1968).
To allow a felony murder conviction upon a finding of an attempt to commit one of the enumerated felonies, an instruction in the nature of CJI 9:1:01 must be given. Without such an instruction, the underlying crime of attempted criminal sexual conduct is removed from the jury's consideration, see People v. Henry, 395 Mich. 367, 373, 236 N.W.2d 489 (1975), and no murder conviction may be based thereon. The conviction of first-degree felony murder must, therefore, be vacated.
The trial court gave proper instructions on the crime of second-degree murder. Thus, whatever misunderstanding afflicted the jury as to the criminal sexual conduct charges, it necessarily found the defendant guilty of this offense. On remand, judgment of guilty of second-degree murder shall be entered, and the defendant resentenced. The prosecutor has the option to retry the defendant on the first-degree murder charge, if he should determine that justice would be better served thereby. People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971). Of course, the defendant may not be retried on the charge of criminal sexual conduct in the first degree.
Throughout the preceding discussion, we have treated as proper the trial court's assumption that criminal sexual conduct in the first degree is the equivalent of rape for purposes of felony murder prosecution. As this might be the case if the prosecutor decides to retry the defendant, some comment is in order. In its charge to the jury, the trial court set out a partially reduced definition of the crime of criminal sexual conduct in the first degree:
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