People v. Young

• Decision Date: 22 November 1983
• Docket Number: A,Docket No. 67373,No. 4,4
• Citation: 418 Mich. 1,340 N.W.2d 805
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allen YOUNG, Defendant-Appellant. pril Term 1983. Calendar
• Court: Michigan Supreme Court

Page 805

340 N.W.2d 805

418 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Allen YOUNG, Defendant-Appellant.

Docket No. 67373, April Term 1983.

Calendar No. 4.

Supreme Court of Michigan.

Argued April 7, 1983.

Decided Nov. 22, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Theodore O. Johnson, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Lansing, for plaintiff-appellee.

Ronald J. Bretz, Asst. Defender, Lansing, Kenneth Empey, Researcher, for defendant-appellant.

BRICKLEY, Justice.

On December 7, 1978, defendant was convicted by a jury of first-degree murder, as a result of a homicide committed during the perpetration of a burglary. ¹ Evidence linking defendant to the crime included inculpatory statements by the defendant made to a prosecution witness, fingerprints of the defendant obtained at the scene, and the results of blood analyses which included the defendant in the class of possible perpetrators. There were no eyewitnesses to the crime. There was, however, testimony at trial which established that the decedent was seen alive at 8 a.m. on May 16, 1978. The victim's body was discovered in his apartment at approximately 11:30 a.m. that same day. The apartment had been broken into and ransacked.

The Court of Appeals affirmed defendant's conviction, 106 Mich.App. 323, 308 N.W.2d 194 (1981). We granted leave to appeal, 414 Mich. 865 (1982).

Defendant raises three issues on appeal. First, whether burglary in the former first-degree murder statute ² referred to common-law burglary and required proof of all of the elements of the common-law offense including breaking and entering in the nighttime; second, whether the results of the blood analyses were admissible at trial without a prior showing that the technique of serological electrophoresis enjoys general scientific acceptance among impartial and disinterested experts; and, third, whether the results of blood analyses are admissible to include an accused within the class of possible perpetrators.

We answer the first question in the affirmative, and the second question in the negative. The answer to the third question must await development of a record by the trial court at the hearing which we order to determine if serological electrophoretic analysis has achieved general scientific acceptance for reliability, Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013 (1923); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955), by disinterested and impartial experts, People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); People v. Tobey, 401 Mich. 141, 257 N.W.2d 537 (1977).

We retain jurisdiction.

I

Defendant begins his argument by declaring that the Legislature has never enacted a burglary statute. It follows, defendant then argues, that the term "burglary" in the first-degree murder statute in effect when this crime was committed must refer to the common-law crime. Citing Cole v. People, 37 Mich. 544 (1877), defendant avers that the elements of this offense are the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. Since proofs at trial established that the act occurred during the daytime, defendant concludes that his first-degree murder conviction cannot stand because the people failed to establish all requisite elements of the underlying felony. Conceding that the jury was properly instructed on and necessarily found him guilty of second-degree murder, defendant asks us to reduce his conviction to that of second-degree murder and remand for resentencing.

The people respond by arguing that burglary has been codified in Michigan since 1837. In addition, it is argued, the courts have looked to statutory burglary to determine the sufficiency of allegations in informations charging burglary. The people further argue that statutory burglary contained all the elements of the common-law crime until 1964, when the Legislature deleted the nighttime element from the "burglary--breaking and entering" statute, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. This, it is alleged, impliedly changed the common-law definition of burglary for purposes of the first-degree murder statute. The people acknowledge that a 1969 amendment to the first-degree murder statute did not alter the requirement for proof of a burglary. Nevertheless, it is contended, the amendment was enacted with full knowledge of the posited 1964 change in the elements of common-law burglary, thus amounting to a form of legislative ratification of a new definition of burglary. As a result, the people claim that the failure to prove the nighttime element in the case at bar should not be fatal to this defendant's conviction of first-degree murder.

Both the people and the defendant rely on People v. McDonald, 409 Mich. 110, 293 N.W.2d 588 (1980). In McDonald, the defendant was convicted of first-degree murder during the perpetration or attempted perpetration of a rape. On appeal, the defendant questioned whether a felony-murder conviction could be obtained on the basis of the underlying felony of rape once the carnal knowledge statute had been repealed and replaced by the criminal sexual conduct law, criminal sexual conduct not having been added to the felony-murder statute at that time. This Court held that rape survived for purposes of prosecution under the first-degree murder statute:

"We find the Legislature intended that the repealed carnal knowledge statute define rape for purposes of the first-degree murder statute. The conduct proscribed by the former carnal knowledge statute upon which a first-degree murder conviction was based is also presently prohibited under the criminal sexual conduct act. Consequently, the Legislature did not intend to abrogate such conduct as an aggravating circumstance required for first-degree murder. Rape, as formerly defined under the carnal knowledge law, survives for purposes of prosecution under the first-degree murder statute." 409 Mich. 116, 293 N.W.2d 588.

It was concluded that the rape instructions objected to were properly given by the trial court.

Our analysis of the sexual conduct proscribed, characterized by the term rape, as it existed at the time the first-degree murder statute was last recodified in 1931 P.A. 328 revealed that the prohibited sexual conduct had been codified from the common-law crime and had remained unchanged through various statutes including the present criminal sexual conduct law. The defendant's conduct always had been punishable. We looked to the 1931 recodification of the first-degree murder statute because no express legislative action to change the sexual conduct required as an aggravating circumstance to support a first-degree murder conviction had occurred in that statute in the interim. It is important to note that McDonald does not suggest that the Legislature amended the meaning of the term rape by adopting the criminal sexual conduct law.

Restating the arguments in terms of our analysis in McDonald, defendant would have us look to the last recodification of the first-degree murder statute in 1931 to determine the Legislature's understanding of the aggravating conduct required to support a first-degree murder conviction. Defendant's argument focuses on the failure of the Legislature to expressly amend that statute as to burglary in the interim between enactment in 1931 P.A. 328 and the date of this crime. The people, in contrast, would have us view a 1969 amendment to the first-degree murder statute, which retained a requirement for burglary, in the light of a 1964 amendment to M.C.L. Sec. 750.110; M.S.A. Sec. 28.305 which deleted the "in the nighttime" requirement for a statutory violation. In short, the people would have us expand the McDonald analysis in this case to include an implied amendment of the conduct required to support a first-degree murder conviction.

In order to better understand our analysis, we first present a brief history of the statutes involved. That will be followed by a more detailed examination of the statutes which prohibited unauthorized entries.

The Revised Statutes of 1838 deemed murder committed during a burglary to be murder in the first degree. R.S.1838, pt. 4, tit. 1, ch. 3, Sec. 1. Until 1980, after the commission of the crime in this case, the term burglary appeared in the first-degree murder statute as aggravating conduct which would support a first-degree murder conviction. In 1980 P.A. 28, the Legislature deleted the reference to burglary and substituted the phrase "breaking and entering of a dwelling". ³

The Revised Statutes of 1838 also prohibited the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. R.S.1838, pt. 4, tit. 1, ch. 4, Sec. 10. ⁴ As will be discussed, this statute was treated by this Court as the statutory codification of the common-law crime of burglary. Over time, the Legislature greatly expanded the sweep of this statute by increasing the classes of enumerated structures. Nevertheless, until 1964, the conduct prohibited always included the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony. In 1964 P.A. 133, the nighttime element was removed.

In cases which construed these statutes, this Court recognized that the Legislature had created statutory burglary. In Pitcher v. People, 16 Mich. 142 (1867), Pitcher was charged with statutory burglary. He argued for a limited meaning for the words "dwelling-house". Justice Cooley, writing for the Court, noted:

"The statutory definition of burglary in a dwelling-house, is the same as that of the common law; and we must infer that the statute designs simply to provide for the punishment of the common law offense, unless we discover some reason for believing that the legislature employed the definition in some new and restricted sense. No other reason is suggested, except that the words 'dwelling-house' are used with restricted...