People v. Newsome

270 N.W.2d 685, 84 Mich. App. 758, 1978 Mich. App. LEXIS 2546

• Court: Michigan Court of Appeals
• Decided: July 18, 1978
• Docket: Docket 77-2484
• Status: Published

Opinions

Per Curiam.

Defendant was convicted by a jury in Detroit Recorder’s Court of the offenses of first-degree felony murder, MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. He was subsequently sentenced to concurrent life terms and now appeals by right.

Defendant was originally charged in the present case with Leonard and Henrietta Armstrong. Both of the Armstrongs pled guilty to second-degree murder, MCL 750.317; MSA 28.549, before defendant’s trial. Henrietta testified for the prosecution. A statement made by the defendant to police after his arrest was admitted at trial.

The evidence showed that the defendants were in need of money. An agreement was reached to rob Johnnie Williams, the deceased, a resident in the same apartment building as Henrietta Armstrong. Henrietta was acquainted with the deceased and, through her efforts, Leonard and the defendant were admitted to his apartment. The robbery was completed by tying up the deceased and gagging him. Williams was stabbed with a knife and bled to death.

Defendant admitted in his statement that he participated in the robbery and shared in the proceeds. He claimed, however, that he did not participate in the killing and that it was done only to prevent the deceased from identifying Henrietta Armstrong. Henrietta testified at trial that defendant had told her after the robbery that he had done the killing.

The trial court gave CJI 16:2:03 without objection. This instruction is appropriate where the defendant is charged with either felony murder or premeditated murder. Here defendant was charged with only felony murder. The appropriate instruction would have been CJI 16:2:02. Defendant claims that to instruct on premeditated murder where defendant had not been charged with that offense denied him his right to be informed of the nature of the charges against him.¹ The people concede that it was error to instruct on premeditated murder, People v Buresh, 63 Mich App 629; 234 NW2d 736 (1975), lv den, 395 Mich 830 (1976), but argue the error does not require reversal.

We agree that the instruction did not result in a miscarriage of justice. MCL 769.26; MSA 28.1096. First, defense counsel raised no objection below when the matter could have quickly been corrected. Second, when asked for their verdict, the jury responded guilty as charged. The information had been read to the jury and charged defendant with felony murder. Third, the jury returned a verdict of guilty on the underlying felony, armed robbery. Even if the jury accepted defendant’s, statement that the murder was committed to prevent the crime from being detected, it would still be felony murder. People v Oliver, 63 Mich App 509, 523; 234 NW2d 679 (1975), lv den, 397 Mich 885 (1976). Our review leaves no doubt that the. jury found defendant guilty of felony murder.

Defendant claims it was improper to sentence him for both the felony murder and the underlying armed robbery. We agree. We therefore vacate the conviction and sentence for armed robbery, People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978). While it is not. improper to charge the defendant with both crimes, once the verdict is returned and it appears that the jury found the armed robbery to be a lesser included offense of the murder, no judgment should be entered on that count. It is the imposition of a dual punishment which causes constitutional error.

Defendant also claims that various portions of the prosecutor’s argument were prejudicial. We have examined the entire argument by both counsel in light of the claims made on appeal and conclude that no reversible error occurred.

The conviction and sentence for first-degree murder are affirmed. The conviction and sentence for armed robbery are vacated.

1 US Const, Am VI; Const 1963, art 1, § 20.