People v. Page

• Decision Date: 22 May 1978
• Docket Number: 77-208,Docket Nos. 30360
• Citation: 83 Mich.App. 412,268 N.W.2d 666
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Allen PAGE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest MONTGOMERY, Defendant-Appellant. 83 Mich.App. 412, 268 N.W.2d 666
• Court: Court of Appeal of Michigan — District of US

Page 666

268 N.W.2d 666

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Allen PAGE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest MONTGOMERY, Defendant-Appellant.

Docket Nos. 30360, 77-208.

83 Mich.App. 412, 268 N.W.2d 666

Court of Appeals of Michigan.

May 22, 1978.

Released for Publication Aug. 18, 1978.

[83 MICHAPP 414] Bruce E. Doll, Flint, for Page.

Mason & Mason by Michael A. Mason, Flint, for Montgomery.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Edwin R. Brown, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and J. H. GILLIS and EVERETT, ^* JJ.

J. H. GILLIS, Judge.

Defendants were each tried and convicted by a jury of two counts of felony murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548. Both were sentenced to mandatory terms of life in prison on each count. Defendants subsequently appealed to this Court citing several instances of error. This Court reversed defendants' convictions for felony murder in an unpublished per curiam opinion concluding that the trial court erred in failing to [83 MICHAPP 415] instruct the jury on the lesser included offense of second-degree murder. People v. Page, (Docket Nos. 22809, 22608, June 16, 1976).

The case was remanded to the trial court for entry of a judgment of conviction on the lesser included offense of second-degree murder and for resentencing. However, the prosecuting attorney was given the option to retry the defendants on the first-degree felony-murder charge if he was persuaded that the interests of justice would be better served by such action.

On remand, the prosecutor opted for the entry of second-degree murder convictions for both defendants. Defendants were each resentenced by the trial court to two concurrent terms of 100 to 150 years in prison. Defendants now appeal as of right from their second-degree murder convictions.

Defendants first contend that the trial court erred in entering second-degree murder convictions following the reversal of their felony-murder convictions. Defendants argue that they were denied their right to a jury trial inasmuch as defendant Montgomery had requested jury instructions on the lesser included offense of manslaughter as well as second-degree murder.

It should be noted that defendant Page did not object to the instructions given by the court at his first trial and would normally be precluded from challenging the validity of the instructions on appeal. ¹ See People v. Henry, 395 Mich. 367, 236 N.W.2d 489 (1975). However, this Court concluded [83 MICHAPP 416] in defendants' first appeal that the interests of justice require that defendant Page be allowed to raise the issue on appeal.

"However, there was no objection because the trial judge had already refused to follow an identical request by counsel for Page's codefendant. In the interests of fairness, we deem that request to be sufficient to preserve this issue for Page's benefit as well." People v. Montgomery, People v. Page, supra, 2.

Therefore, defendant Page properly raises this issue on appeal.

Defendants direct us to People v. Van Wyck, 72 Mich.App. 101, 249 N.W.2d 311 (1976), which concludes that voluntary manslaughter is a necessarily lesser included offense to the crime of murder. With murder necessarily included within the crime of felony murder, People v. Carter, 395 Mich. 434, 437, 236 N.W.2d 500 (1975), defendant Montgomery is logically correct in arguing that the denial of his request for an instruction on a necessarily lesser included offense mandates reversal and retrial. A trial court must, on request, give instructions on necessarily lesser included offenses. People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975).

However, People v. Van Wyck, supra, has been expressly overruled by the Supreme Court of this state. People v. Van Wyck, 402 Mich. 266, 262 N.W.2d 638 (1978).

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.

"As we noted in People v. Jones, supra :

" 'The common-law definition of lesser included offenses is that the lesser must be such that it is impossible[83 MICHAPP 417] to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only Necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of "cognate" or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence "cognate" in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in the higher offense.' 395 Mich. 387, 236 N.W.2d 461. * * *

"A person who kills another with malice aforethought is guilty of common-law murder.

" 'Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.' People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434 (1971).

"Provocation may mitigate the degree of the offense to manslaughter:

" 'But if the act of killing, though intentional, be committed under the influence of passion or in the heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.' Maher v. People, 10 Mich. 212, 219 (1862).

"The absence of mitigating circumstances need not be established in order to convict one of first-or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first or second-degree [83 MICHAPP 418] murder without having first committed manslaughter." People v. Van Wyck, supra, at 268-269, 262 N.W.2d at 639.

While manslaughter is not a necessarily lesser included offense within the crime of murder, it may nonetheless be an included offense of the evidence adduced at trial would support a verdict of guilty of that crime.

Therefore, in determining whether or not a trial court has erred in refusing to give a requested manslaughter instruction in a murder case, we must view the evidence presented at trial and determine if the evidence would sustain a manslaughter conviction.

In the instant matter, no evidence was produced to indicate that the killings were committed without malice aforethought. Defendants allege no mitigating circumstances but steadfastly contend that they did not participate in the killings. The record is void of any evidence which would support a reduction of the charges in the instant case from murder to manslaughter.

Accordingly, we rule that the trial court did not err in refusing to instruct the jury on the crime of manslaughter at the first trial.

The trial court obviously erred in failing to instruct the jury on the lesser included offense of second-degree murder. People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975).

However, failure to so instruct does not entitle the defendants to a new trial. Numerous Michigan Supreme Court cases have ruled that the proper procedure to follow under such circumstances is to remand the case for entry of a conviction for second-degree murder and resentencing. These cases grant the prosecutor the option to accept the [83 MICHAPP 419] reduction from first-degree murder to second-degree murder or, upon proper notice, to have a retrial on the first-degree murder charge. See People v. Dancer, 396 Mich. 802, 238 N.W.2d 29 (1976); People v. Livingston, 396 Mich. 818, 238 N.W.2d 360 (1976); People v. Bills, 396 Mich. 819, 238 N.W.2d 803 (1976); People v. Dates, 396 Mich. 820, 238 N.W.2d 360 (1976); People v. Smith, 396 Mich. 825, 238 N.W.2d 536 (1976); People v. Aaron, 396 Mich. 843, 239 N.W.2d 602 (1976); People v. Watson, 396 Mich. 870 (1976); People v. Jones, 397 Mich. 871 (1976), and People v. Crawl, 401 Mich. 1, 256 N.W.2d 86 (1977).

Hence, the trial court did not err in entering second-degree murder convictions against the defendants.

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