People v. Wilder

266 N.W.2d 847, 82 Mich. App. 358, 1978 Mich. App. LEXIS 2230

• Court: Michigan Court of Appeals
• Decided: April 4, 1978
• Docket: Docket 77-1305
• Status: Published

Opinions

Bashara, J.

Defendant appeals his conviction by a jury of first-degree murder¹ and armed robbery.² The prosecution sought to establish that defendant and his codefendant, Lee Chester Butts, killed the victim during the course of an armed robbery.

While instructing the jury, the trial court referred to the weapon used to kill the victim as the "murder weapon”. Defendant urges that such reference effectively negated the presumption of innocence by establishing in the minds of the jurors that a murder had been committed. However, the defense theory at trial did not refute the allegation that a murder had been committed. Rather, the defendant contended that he was not present at the scene of the crime at the time it was perpetrated. Consequently, we fail to perceive how the trial court’s choice of terms prejudiced defendant’s case.

Similarly, we find no merit in defendant’s contention that the trial court depreciated the presumption of innocence by other specified statements in the jury instructions. To the contrary, when read in their entirety, the instructions are replete with statements placing the burden of proof upon the prosection and emphasizing that defendant was not required to prove anything. This allegation of prejudice cannot be established by extracting selected statements from the context of the instructions, which must be read and assessed as a whole. See People v Frank Johnson, 58 Mich App 1; 226 NW2d 730 (1975), People v Musser, 53 Mich App 683; 219 NW2d 781 (1974), lv den, 392 Mich 798 (1974).

Defendant maintains that the trial court’s instruction on first-degree murder is reversibly erroneous. Essentially, that instruction enjoined the jury to find guilt if they concluded that the victim was "killed” by an act committed in the perpetration of the armed robbery.

This issue has resulted in diametric opinions from this Court. Compare People v Till, 80 Mich App 16; 263 NW2d 586 (1977), with People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). We subscribe to the conclusion expressed in Till and, therefore, find no reversible error in the import of the trial court’s instruction.

We also are of the opinion that the common-law felony-murder rule has been a part of Michigan’s jurisprudence since admission to statehood and from that time has governed the application of the first-degree murder statute. A rule with such historical foundation, especially in the area of criminal law, should not be modified except by legislative enactment. To do otherwise would, as long ago recognized, deviate from that "safe and necessary rule that criminal law should not be tampered with except by legislation”. In the Matter of Eugene Lamphere, 61 Mich 105, 108-109; 27 NW 882 (1886).

Another instructional error is claimed by defendant regarding the alibi defense raised at trial. He contends that the trial court’s instruction impermissibly shifted the burden of proving the alibi to defendant and failed to properly advise the jury that, even if the alibi fell short of establishing a perfect defense, it could also operate to raise a reasonable doubt as to defendant’s guilt.

An evaluation of the alibi instruction supports neither of defendant’s contentions. Throughout, the trial court emphasized that the burden of proving defendant’s guilt was upon the prosecution. Further, the trial court advised the jury that, if the evidence established the alibi, the defendant must be found not guilty. The instruction also informed the jury that if the perfect defense was not found, to convict the defendant they must, nevertheless, find from the prosecution’s evidence that the defendant was proved guilty beyond a reasonable doubt. This latter finding must necessarily encompass a conclusion beyond a reasonable doubt that the defendant was present at the scene of the crime at the time it was committed.

Our assessment of the alibi instruction discloses that all of the operative characteristics of the defense suggested by the proposed Criminal Jury Instructions were covered by the trial court. From our observations, the proposed instructions appear to succinctly and clearly state the appropriate law on the topics covered, and we would urge the trial courts to make use of them. Extensive use would provide the essential information necessary to facilitate a comprehensive analysis of their value in the criminal litigation context.

Defendant’s remaining contention, warranting brief discussion, concerns his conviction of both first-degree murder and armed robbery. Since the latter is a necessary element of the former under the prosecution’s theory of the case, the armed robbery conviction must be vacated. See People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Defendant’s other contentions do not merit discussion.

Accordingly, defendant’s conviction of first-degree murder is affirmed, and the conviction of armed robbery is vacated.

Beasley, P. J., concurred.

1 MCLA 750.316; MSA 28.548.

2 MCLA 750.529; MSA 28.797.