People v. Allen , 94 Mich. App. 539 ( 1980 )

Riley, J.

On June 2, 1977, defendant was charged with felony murder, contrary to MCL 750.316; MSA 28.548, armed robbery, contrary to MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). Defendant was jury convicted on January 30, 1978, of second-degree murder, contrary to MCL 750.317; MSA 28.549, and the above latter two offenses. He was sentenced to concurrent terms of 40 to 60 years on the murder and armed robbery charges and a consecutive two year term for the felony-firearm charge. Defendant appeals as of right.

Defendant first contends that the lower court erred in refusing to instruct the jury on manslaughter as a lesser included offense of felony murder. Although manslaughter is not necessarily a lesser included offense of murder, failure to instruct on that alternative may be reversible error where the evidence presented at trial could support a guilty verdict on that charge. People v Van Wyck, 402 Mich 266, 268; 262 NW2d 638 (1978). In the instant case, there was no credible evidence to support a manslaughter verdict; hence, defendant’s contention is without merit.

Defendant further suggests that there was reversible error based on the inadvertent submission to the jury of an exhibit not introduced into evidence. An improper admission mandates reversal if the error might have operated to substantially injure the defendant’s case. People v Talley, 56 Mich App 598, 601; 224 NW2d 660 (1974), People v Page, 41 Mich App 99, 103; 199 NW2d 669 (1972). Since the substance of the objectionable police report was presented to the jury on various occasions at trial, we find no impairment of defendant’s rights.

It is asserted also that reversal is required because the trial judge failed to respond to the jury’s questioning as to why defendant had failed to take the stand. Viewing the judge’s instructions as a whole, People v Miller, 35 Mich App 627, 630; 192 NW2d 517 (1971), we cannot say that the jury was improperly instructed or that the court abused its discretion in choosing not to reinstruct them. See People v Howe, 392 Mich 670, 676; 221 NW2d 350 (1974), People v Bloom, 76 Mich App 405, 407-409; 257 NW2d 105 (1977).

We find that there is no reversible error based on defendant’s felony-firearm contentions. See Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), People v MacPherson, 323 Mich 438, 449; 35 NW2d 376 (1949), People v Cannon, 252 Mich 182, 184; 233 NW 210 (1930), People v Hodo, 51 Mich App 628, 636-637; 215 NW2d 733 (1974).

While my brother judges and I concur in the result reached on the previous issues, we part company on the final issue argued by defendant that the findings of the jury were reversibly inconsistent. In Michigan, inconsistent verdicts may not stand unless they can be explained on some rational basis. People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976), People v Fields, 66 Mich App 347; 239 NW2d 372 (1976), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Willie Johnson, 58 Mich App 165; 227 NW2d 272 (1975), People v Phillips, 43 Mich App 581; 204 NW2d 250 (1972). As I find no reasonable way to harmonize defendant’s second-degree murder and armed robbery convictions, the robbery conviction must be reversed.

Felony murder, with which defendant was originally charged, is second-degree murder plus the additional element of committing, or attempting to commit, an enumerated felony. People v Crown, 75 Mich App 206, 215; 254 NW2d 843 (1977). Thus, if a first-degree murder verdict is to be returned, the homicide must be found to have occurred during the course of the felony. People v Widgren, 53 Mich App 375, 385; 220 NW2d 130 (1974).

It is clear from the instant record that the murder took place during the time that defendant asked for and received money, there being conflicting testimony as to whether it was his money, and thus, not robbery. See People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975), People v Hobbs, 68 Mich App 239; 242 NW2d 535 (1976). It is inescapable then, that in finding defendant not guilty of felony murder, while convicting him of second-degree murder, the jury must have also concluded that no robbery occurred at the time of the homicide. See People v McCurtis, 84 Mich App 460; 269 NW2d 641 (1978). Therefore, I conclude that defendant’s conviction for armed robbery must be vacated.

Although the issue is not raised by defendant, on the facts of this case, he has a valid double-jeopardy claim. The double-jeopardy clause ensures that defendants will not be tried twice for the same offense. North Carolina v Pearce, 395 US 711-717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Yet, trying defendant for both felony murder and the lesser included offense of armed robbery twice subjected him to jeopardy on the armed robbery charge.

I believe that this double-jeopardy claim would entitle defendant to reversal were it not for the inconsistent verdicts, and not the double-jeopardy claim advocated by Judge Kaufman. If, as my brother judge contends, the jury would have had to find defendant guilty of armed robbery in order to find him guilty of murder, then the jury would have convicted defendant of first-degree murder and not second-degree murder. With all due respect, I believe Judge Kaufman’s position is a circuitous route to the unavoidable conclusion that the jury’s verdicts were inconsistent.

I would affirm in part and reverse in part.