People v. Smith

• Decision Date: 05 August 1981
• Docket Number: Docket No. 54085
• Citation: 310 N.W.2d 425,108 Mich.App. 466
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Blondell SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 425

310 N.W.2d 425

108 Mich.App. 466

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Blondell SMITH, Defendant-Appellant.

Docket No. 54085.

Court of Appeals of Michigan.

Aug. 5, 1981.

Released for Publication Sept. 28, 1981.

Janice M. Joyce, Detroit, for People of Michigan.

Carl Ziemba, Detroit, for Blondell Smith.

Before KAUFMAN, P. J., and ALLEN and RILEY, JJ.

ALLEN, Judge.

Defendant was charged in Wayne County Circuit Court in a two-count information with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission or attempted commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was convicted by a jury on July 16, 1980, on both counts as charged. Sentenced on July 29, 1980, to a term of from one to six years on the armed robbery conviction with a consecutive two-year term imposed on the felony-firearm conviction, defendant appeals as of right, raising three issues, the third of which involves a question of first impression. ¹

We disagree with respected counsel's claim that nowhere in the charge to the jury did the trial judge define or explain the term "reasonable doubt". Admittedly, the instructions did not employ the nomenclature contained in the Standard Jury Instructions. But read as a whole, the instructions did comply with CJI 3:1:04. Furthermore, no objection to the instruction was raised during trial, and thus appellate review is precluded unless manifest injustice, which we do not find, is apparent. People v. Dixon, 84 Mich.App. 675, 685, 270 N.W.2d 488 (1978).

The trial court did not err in allowing into evidence two pages of the preliminary examination transcript and a part of a written statement given by the complainant to the police. Defendant assigns error in the admission of such exhibits on grounds that they were prior, consistent statements. We disagree. The prior statements were inconsistent in part with complainant's testimony at trial. Where a witness's testimony during trial is inconsistent with a statement made earlier by that witness, the prior statement may be admitted in rebuttal. 98 C.J.S., Witness, § 622, p. 636. Furthermore, the extent to which a preliminary examination transcript can be admitted for impeachment purposes is within the discretion of the trial court. People v. Bedford, 78 Mich.App. 696, 700-701, 260 N.W.2d 864 (1977). See also People v. Warren, 65 Mich.App. 197, 200, 237 N.W.2d 247 (1975).

We now turn to the question of first impression: did the trial court err in instructing the jury that if they found the defendant guilty of armedrobbery on count I they must find defendant guilty of possession of a firearm in the commission of a felony on count II? The trial court instructed:

"THE COURT: * * * Ladies and gentlemen, your verdict in this case could be on Count One: We find the defendant guilty, or it could be on Count One, we find the defendant not guilty; it could be we find the defendant guilty of the lesser included offense which was robbery unarmed. If you found the second, then, of course, you would find the defendant not guilty of Count Two which is the possession of a firearm in the commission of a felony. If you found that the felony was committed without a gun then, of course, Count Two, you would find the defendant not guilty.

"If you find the defendant guilty as charged, robbery armed on Count One, then you would find the defendant guilty of Count Two because you would have found in Count One that he had possessed a gun and Count Two merely indicates that. Okay."

No objection was made to this instruction.

Prior to our Supreme Court's decision on August 28, 1980, in People v. Vaughn, 409 Mich. 463, 295 N.W.2d 354 (1980), Michigan courts uniformly had followed the rule that jury verdicts must be consistent and that inconsistent verdicts must be set aside unless they can be explained on some rational basis. People v. Goodchild, 68 Mich.App. 226, 237, 242 N.W.2d 465 (1976), lv. den. 397 Mich. 830 (1976), People v. Hager, 72 Mich.App. 664, 667, 250 N.W.2d 754 (1976), People v. Lewis, 94 Mich.App. 752, 754, 290 N.W.2d 73 (1980). In Vaughn, defendant was charged in a two-count information with assault with a dangerous weapon (felonious assault) and possession of a firearm during the felonious assault (felony-firearm). The jury returned a verdict of guilty of felonious assault and not guilty of felony-firearm. On appeal, this Court, following the reasoning in Goodchild and its progeny, supra, held that the jury verdict was inconsistent and vacated the conviction of felonious assault. People v. Vaughn, 92 Mich.App. 742, 285 N.W.2d 444 (1979). The Supreme Court reversed, saying:

"Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury's capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant's release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility." (Footnotes omitted), 409 Mich. 466, 295 N.W.2d 354.

The decision in Vaughn was released approximately six weeks after the jury verdict in the instant case. There was evidence that the defendant possessed a gun during the robbery. Thus, while the jury was free to find that no gun was present, they rationally could not find a gun present for purposes of the robbery but not present for purposes of felony-firearm. Consequently, the trial court's instruction was completely in accord with Michigan law at the time the instruction was given. The question now becomes whether the rule in Vaughn should be applied retroactively.

Clearly, Vaughn did not clarify an existing rule of law. It announced a new rule, namely:...