People v. Lewis

Decision Date22 February 1983
Docket Number64586 and 65292,Docket Nos. 64487,14,Nos. 12,13,s. 12
Citation415 Mich. 443,330 N.W.2d 16
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth LEWIS, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Arnold HUNT, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gary JOHNSON, Defendant-Appellee. Calendar415 Mich. 443, 330 N.W.2d 16
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Principal Atty., Appeals, Timothy A. Baughman, Asst. Pros. Atty., Detroit, Mich., for plaintiff-appellant.

Hoffa, Chodak & Robiner by Norman R. Robiner, Detroit, for defendant-appellee in No. 65486.

Larry S. Davidow, Detroit, for defendant-appellee in No. 65292.

LEVIN, Justice.

In these cases, consolidated for argument on appeal, the defendants were charged with committing a felony 1 and with possession of a firearm during the commission of a felony. 2 In Lewis and Johnson, the jury acquitted the defendants of the underlying felony (and, in Johnson, of lesser offenses) and convicted them of felony-firearm.

The defendants seek to have their convictions of felony-firearm set aside because of the inconsistency in the verdicts, asserting that since the juries acquitted them of the underlying felonies in each case, they necessarily found that an element of the offense of felony-firearm had not been committed. We hold that the acquittals do not require that the convictions be set aside.

Hunt was convicted of attempted breaking and entering 3 and of felony-firearm. He contends that the trial judge erred in refusing a requested instruction that, should the jury acquit him of the underlying felony, it could not convict him of felony-firearm. We hold that the judge did not err in refusing to so instruct.

I

The trial judges set aside Lewis' and Johnson's felony-firearm convictions on the ground that the verdicts were inconsistent, and the Court of Appeals affirmed on the authority of its opinion in People v. Vaughn, 92 Mich.App. 742, 285 N.W.2d 444 (1979). 4

The Court of Appeals affirmed Hunt's convictions. It concluded, however, that the trial judge had erred in refusing to give the requested instruction, because the language of the statute "indicates that a defendant cannot be convicted of felony-firearm unless he is also convicted of the underlying felony"; 5 it found that the error was harmless. The Court suggested an instruction for future cases. 6 The people, although satisfied with the result, sought leave to appeal because of the suggested instruction. Given that we were granting leave to appeal in Lewis and Johnson, we granted leave to appeal in Hunt as well.

These consolidated appeals present the following issues: (1) Where a defendant charged with an underlying felony and felony-firearm is not convicted of the underlying felony or any lesser offense but is convicted of felony-firearm, may the conviction stand? (2) Must a trial judge instruct a jury that, if it acquits on the underlying felony and all lesser offenses, it must acquit on the felony-firearm charge?

We hold that the asserted inconsistencies in verdicts do not invalidate the convictions of felony-firearm. We reverse the Court of Appeals in Lewis and Johnson, reinstate the convictions of felony-firearm, and remand to the trial courts for sentencing.

We affirm the Court of Appeals in Hunt, but we disagree with its reasoning. The trial judge did not err in refusing to instruct that the jury must acquit on the felony-firearm charge if it acquits on the felony charge. We disapprove of the instructions proposed by the Court of Appeals.

II

Lewis and Johnson contend that the verdicts were inconsistent because conviction on a felony charge must precede conviction on a charge of felony-firearm. The people contend, on the authority of this Court's recent decision in People v. Vaughn, 409 Mich. 463, 295 N.W.2d 354 (1980) (reversing the Court of Appeals decision relied on by that Court in Lewis and Johnson ), that this Court permits seemingly inconsistent verdicts and that the acquittals do not require reversal of the felony-firearm convictions.

In Vaughn, a jury convicted the defendant of felonious assault, but acquitted him of felony-firearm. The people's evidence tended to show that the defendant had committed a felonious assault with a revolver; however, the defendant denied having a gun and making an assault, and the people offered no gun in evidence. The Court of Appeals reasoned that, in convicting the defendant of felonious assault, the jury must have decided "that a gun did exist" and in acquitting him of felony-firearm "must necessarily have determined the nonexistence of the gun. Thus the verdicts are inconsistent". 7 Because of the inconsistency, the Court of Appeals vacated defendant's conviction of felonious assault.

In reversing, this Court noted that federal and many state courts do not require consistency in jury verdicts on several counts of a multi-count indictment. Additionally, this Court said that "[j]uries are not held to any rules of logic" and have the power to acquit as a matter of leniency. Merely because the jury has the power to "release a defendant from some of the consequences of his act", it does not follow that the jury intends to "ABSOLV[E] HIM FROM ALL RESPONSIBILITY". 409 mich. 466, 295 n.w.2d 354.

A

When a jury responds to a multi-count indictment, lawyers and judges are often tempted to reconcile the verdicts, to strive for some rational compatibility. But to do so imposes an artificial gloss on jury verdicts. Narrowly viewed, a jury's acquittal on one charge in a multi-count indictment signals no more than the jurors' agreement not to convict on that charge for whatever reason satisfactory to them. 8

The inconsistency in the instant verdicts suggests that the juries either compromised or were lenient. 9

If the jury was lenient, the defendant was not prejudiced by the inconsistency in the verdicts and has no cause for complaint. In that hypothesis, although 12 jurors agreed that the defendant was guilty beyond a reasonable doubt of the underlying felony, they nonetheless extended mercy, convicting him only of what they may have thought was a lesser offense instead of both. 10

The defendant may, however, have been prejudiced if the jury compromised. If it compromised, there is the risk that some of the jurors who agreed to the compromise did not believe beyond a reasonable doubt that the defendant committed a felony, but nonetheless agreed to convict the defendant of felony-firearm (although commission of a felony is an element) in exchange for the agreement of other jurors to acquit the defendant of the underlying felony. If that is what occurred, then the jury was unable to reach a unanimous verdict on both charges. The remedy, where a jury is unable to agree on a unanimous verdict, is not dismissal of the charges, but the declaration of a mistrial, and the defendant can be required to stand trial again on the charges in respect to which the jurors are unable to agree.

The defendants do not, however, seek new trials, but instead seek dismissal of the felony-firearm convictions. 11 The defendants argue that a verdict of not guilty on the felony charge represents a finding by the jury that the defendant did not commit the felony, and since he did not commit the felony he cannot be guilty of felony-firearm. But that is to look at the matter from only one side. The conviction of felony-firearm may be read as an implicit finding that the defendant did commit the felony.

Because we see no reason to regard differently for this purpose the express finding of not guilty of the underlying felony and the implicit finding of guilty of the underlying felony, the defendants are not entitled to have their convictions of felony-firearm set aside on the premise that the acquittals of the felony charges were findings that they did not commit the underlying felonies inexorably requiring that the felony-firearm convictions be set aside.

The jury, to repeat, either was lenient or compromised. If the former, the defendant has no cause for complaint. But if the jury compromised, the finding that the defendant did not commit the underlying felony was part and parcel of that jury compromise which, in convicting the defendant of felony-firearm, implicitly found that the defendant did commit the underlying felony. A compromise is indivisible. We cannot properly enforce only part of it.

B

It is contended that the language of the felony-firearm statute 12 requires that sentencing for conviction of a felony is a prerequisite for imposition of the sentence for felony-firearm with the consequence that where, as here, the people have not secured a conviction for a felony no sentence can be imposed for felony-firearm.

Although the Legislature no doubt contemplated that a person convicted of felony-firearm would also have been convicted of an underlying felony, it made commission or the attempt to commit a felony and not conviction of a felony an element of felony-firearm. See Part III.

Having in mind the legislative purpose to provide separate punishment for carrying a firearm in the commission of or attempt to commit a felony, 13 we are satisfied that it is both within the letter of the statute 14 and the spirit of the legislative purpose to construe the statute as providing for the imposition of sentence in a case where the jury convicts of felony-firearm but acquits of the underlying felony. 15 It would not be consistent with the legislative purpose in enacting the felony-firearm statute to conclude that it intended that a felony-firearm conviction be set aside and no punishment at all be imposed in a case where the jury, extending leniency or compromising, failed to convict of the underlying felony, but did convict of felony-firearm.

III

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