People v. Guidry

242 N.W.2d 461, 67 Mich. App. 653, 1976 Mich. App. LEXIS 1280

• Court: Michigan Court of Appeals
• Decided: March 8, 1976
• Docket: Docket 22282
• Status: Published

Opinions

M. F. Cavanagh, J.

Defendant was charged with armed robbery, MCLA 750.529; MSA 28.797, and with assault with, intent to commit murder, MCLA 750.83; MSA 28.278. At trial the jury found defendant guilty of "assault to commit robbery while armed” on Count I and felonious assault, MCLA 750.82; MSA 28.277, on Count II. He was given concurrent sentences of 10 to 50 years in prison on Count I and 2 to 4 years on Count II.

I.

The first issue raised by defendant involves the jury’s verdict of "guilty of assault to commit robbery while armed”. After accepting the verdict and dismissing the jury, the trial court informed the defendant that he had been found guilty of the offense of "assault to commit robbery while armed”. At sentencing the court informed the defendant that he had been found guilty of assault with intent to rob while being armed, MCLA 750.89; MSA 28.284, and sentenced him accordingly.

Defendant argues that the jury’s verdict was sufficient only to convict him of simple assault. We agree. People v McNary, 43 Mich App 134; 203 NW2d 919 (1972), affirmed on substantive issue, remand for. resentencing reversed and discharge ordered, 388 Mich 799; 201 NW2d 845. See also People v Smith, 383 Mich 576; 177 NW2d 164 (1970). The jury’s verdict did not include the words "with intent”. This leaves open to question whether the jury found the element of intent necessary to convict defendant of the crime for which the court sentenced him. We cannot assume what the jury did not state or affirm. People v Smith, supra. "Defendant cannot be sentenced for a crime of which the jury did not clearly find him guilty.” People v McNary, supra, 143. The trial court did not clarify or attempt to clarify the verdict before discharging the jury, although it had the right and the duty to do so. People v McNary, supra. The verdict in question describes no crime other than simple assault. People v McNary, supra, People v Smith, supra.

The trial court’s judgment is modified accordingly.

II.

Defendant’s next claim of error is that his convictions of assault and of felonious assault constitute double punishment for one offense because both convictions arose from the same act. US Const, Am V; Const 1963, art 1, § 15.

Defendant contends that the evidence demonstrates one continuing assault. Even so, one assault may result in'two convictions, as where the offenses involve different specific intents. People v Compian, 38 Mich App 289; 196 NW2d 353 (1972), lv den 387 Mich 790 (1972). Here however the offenses do not involve specific intent, since we held that defendant’s conviction on the first count was for simple assault and not for assault with intent to commit robbery while armed. Felonious assault, of course, does not require specific intent. People v Rohr, 45 Mich App 535; 206 NW2d 788 (1973).¹

Assault is an included offense of felonious assault, felonious assault being an assault made with a dangerous weapon. People v Johnson, 42 Mich App 544; 202 NW2d 340 (1972). A lesser included offense and the greater offense are of course the "same offense” for multiple punishment purposes, since the lesser is a necessary element of the greater and each does not require proof of an additional fact which the other does not. Cf. People v Compian, supra, also Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). Thus, to convict a person of felonious assault and of simple assault for the same single act would be to punish twice for the same offense.

Accordingly, unless the conviction for simple assault in this case is based on an act different from that for which defendant was convicted of felonious assault, it must be vacated. The evidence could reasonably support either a finding of one assault or a finding of two assaults. But we have no way of knowing whether the jury believed that there were two separate assaults or only one assault. The jury was never instructed, there being no request to charge, that in order to convict of assault and felonious assault they were required to find two assaults.² Under these circumstances we think the better course is to vacate defendant’s misdemeanor conviction for simple assault.

III.

Defendant further contends that it was improper for the trial judge to have instructed the jury on the lesser included offenses of unarmed robbery and assault with intent to rob being unarmed. Defendant argues that these offenses were not factually in issue.

* This claim of error is without merit. No objection was made at trial to the instructions challenged here. In fact, defense counsel affirmatively expressed satisfaction. Furthermore, the record shows that the defendant’s own testimony put in issue whether any robbery or assault was armed or unarmed.

IV.

Defendant’s final claim of error is that the admission into evidence of a statement made by defendant to police violated his constitutional rights. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Defendant turned himself in to the police and was arrested and placed in a holding cell together with Rand, his accomplice. Rand was interviewed by the police and gave a written statement. Rand was returned to the cell and defendant brought out to be interviewed. The police read defendant his rights; defendant signed a written recognition of rights and waiver of rights. After stating that he knew the complainant Washington but had no knowledge of any robbery or assault on Washington, defendant told the police that he did not wish to make any further statements and that he did not want to say anything further until he talked to an attorney. Thereupon, defendant was returned to the holding cell with Rand. Thirty or forty minutes later, defendant summoned the officers and advised them that he had changed his mind and wanted to talk to them. He then gave an exculpatory statement concerning the incident; the statement was put in writing and signed by defendant. The written statement was introduced into evidence at trial as part of the prosecutor’s case-in-chief.

Defendant argues that, because the police did not advise the defendant of his rights at the second interview and did not secure a second waiver of rights, the statement given at the second interview was inadmissible. The argument is without merit. When the defendant indicated that he wished to remain silent and to talk with an attorney, the interview ceased. It was at defendant’s instance that the second interview took place; defendant summoned the officers and indicated that he wished to talk. Clearly defendant volunteered the exculpatory statement. Volunteered statements are not barred and their admissibility is not affected by the Miranda decision. People v Moore, 51 Mich App 48; 214 NW2d 548 (1974).

The conviction on Count I is modified and vacated. The conviction of felonious assault is affirmed.

T. M. Burns, P. J., concurred.

1 On the basis of one assault the jury could have convicted defendant of both assault with intent to rob and assault with intent to murder, since the two crimes involve different specific intents. See People v Compian, supra.

2 Even if the jury had returned convictions of assault with intent to rob being armed on Count I and felonious assault on Count II, they would still have been required to find two separate assaults. Felonious assault is an included offense of assault with intent to rob being armed.