*1
585
v
v BUFKIN
PEOPLE
v ANDREW CARTER
PEOPLE
Oрinion of the Court
Felony
Verdicts —Decisional
Murder —Permissible
Homicide —
1.
Application.
Prospective
Rule —
murder, i.e.,
felony
prosecution for
homi-
judge in a
A trial
attempt
perpe-
perpetration,
committed
cide
offenses,
statutorily specified
must instruct the
trate one
of murder in the first
verdict shall be
that its
prospective only
guilty;
and is
this decisional rule
or not
parties,
opinion to the
date of this
on the release
effective
750.316).'
(MCLA
27,1972
November
Felony
2.
Offenses.
Homicide —
Murder —Included
Felony
in which the element of
of statute
murder is
creature
perpe-
conclusively presumed by proof
premeditation
therefore,
specific felony;
perpetrate a
tration or
manslaughter
possibly
nor
can
neither
felony
the first two
offenses of
murder since
be lesser included
(MCLA
mutually
felony murdеr are
exclusive
crimes
750.321).
750.316, 750.317,
Felony
Second-Degree Murder —Evidence
3. Homicide —
Murder —
—Sufficiency.
planned
finding
had
A
that defendant and a codefendant
[2, 40 Am Jur
[I]
[4]
[7]
[8]
[9]
[6]
[5]
[10]
[II]
What
40 Am Jur
3]
40 Am Jur
40
40
40 Am Jur
40 Am Jur
53
40
40 Am Jur
actual
spiracy,
being possession running of man in the a from the murder scene; victim was killed a. that the shot from a .22-caliber weapon, defendant a and that told witness his codefendant get money holdup; any did not in the jury the fact that the guilty second-degree of first-degree found defendant rather than reversing murder affords no basis for the conviction because permissible judge’s thе verdict one under the was a instructions correctly applicable law, i.e., of which stated one version a second-degree permissible felony murder verdict is where mur- (MCLA750.316). charged der Felony Second-Degree Compro- 4. Homicide — Murder — Murder — mise Verdict. second-degree guilty against A verdict of of murder returned charged felony defendant with a murder not does mandate the attempted felony, felony, charged, conclusion that or was jurors killing; may not involved in the have arrived at compromise verdict. Compromise 5. Criminal Law — Verdict. compromise A in a case verdict criminal is not infirm as a matter law; upset by speculation inquiry of a verdict cannot be or into how the its reached verdict. Felony Aiding Abetting Knowledge. 6. Homicide — Murder — — ' determining test for if The a defendant aided and abetted in the felоny partici- commission of a murder whether defendant pated legal attempted felony, in the sense in the not whether accomplice his would kill defendant knew beforehand that attempt. in the victim part by part, Lesinski, C. Concurrence in J. in dissent Felony Second-Degree 7. Homicide — Murder — Murder —Instruc- Jury. tions guilty second-degree of A verdict of murder returned a trial for felony felony no murder mandates the conclusion that attempted felony killing was where the involved they instructed that consider of second- was could a verdict v Bufkin manslaughter only they murder or if found that there (MCLA750.316). attempted robbery robbery no Felony Second-Degree 8. Homicide — Murder — Murder —Evidence —Sufficiency. judgment acquittal notwithstanding A a verdict of second-degree granted murder should have been to a defendant charged participating killing during of а man an attempted robbery, overwhelming where the evidence was that defendant drove the car and his shooting, codefendant did the and there was no evidence that the defendant and codefendant design hypothesized had common other than the robbery jury expressly rejected second-degree in its verdict of (MCLA 750.317). 750.316, murder Second-Degree 9. Homicide — Murder —Malice—Inferences. necеssary The malice be inferred type weapon from the used and the manner in which the committed, goes crime was but this inference no further than supply requisite intent of the actual killer and those (MCLA 750.317) engaged design in a common with him *3 Felony Aiding Abetting 10. Homicide — Murder — and —Evidence. aiding abetting A conviction of and felony the commission of a supported by murder accessory’s must be evidence of the com- action; presence, mon intent and concert of mere even with knowledge being that an offense is about be committed or is committed, enough person is not to make a an aider or abettor (MCLA 750.317). 750.316, Felony Second-Degree 11. Homicide — Murder — Murder —Evi- dence. acquittal notwithstanding A motion properly the verdict was charged killing during denied to a defendant a man an attempted robbery where the evidence was sufScient to convict second-degree murder, him judge, sponte, of the trial sua cor- rectly charged regarding second-degree murder, object charge waiving defendant failed any to the thus possible right might object appeal, he have to on absent injustice. manifest Appeal from Detroit, Recorder’s Court Joseph of Maher, E. 6, J. 1971, Submitted Division 1 October (Docket 8408.) at Detroit. Nos. Deсided No- vember 1972. Leave to appeal applied for. 43 op Opinion the Court
Andrew Bufkin and Andrew Carter were con- ap- victed of murder. Defendants peal. Affirmed. Kelley, Attorney General,
Frank J. Robert A. Derengoski, General, Solicitor William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Appellate Department, Chief, and Michael R. Prosecuting Attorney, Mueller, Assistant for the people. ap- Borden,
Burton L. for defendant Bufkin on peal. (M.
Kenneth R. Teschendorf
Gerald Schwartz-
counsel),
appeal.
bach, of
for defendant Carter on
J., and V. J.
Before:
C.
Brennan
JJ.
O’Hara,*
Judge
J. We
with the
concur
Chief
O’Hara,
affirming
conviction of
defendant Bufkin. As
we read
record there
adduced
together with the reasonable inferences therefrom
guilty
which would have sustained a verdict of
degree
murder in the first
as to defendant Bufkin.
That the
seсond
found him
degree2
reversing
no
affords
basis for
his
permissible
conviction. The verdict was a
one un
charge
given.
charge
der the
court
The
as
applicable
stated one version of the
that has
law
approved
Supreme
namely
Court,
been
our
*4
charge
first-degree felony
under a
murder a
degree
guilty
verdict
murder in the second
assignment
*
MCLA
MCLA
Former
750.316;
750.317;
Supreme
pursuant
MSA 28.549.
MSA 28.548.
Court
Const
Justice,
sitting
art
§
on
23 as
the Court of
amended
Appeals by
in 1968.
People v Bufkin
Opinion of the Court
However, as noted
permissible.
by the late Justice
writing
Dethmers
for a unanimous Court
in Peo-
ple v
(1963),
Dupuis,
We here hold that decisionally prosecution murder, felony is to say any homicide committed in perpetration, or the attempt perpetrate one of the statutorily specified offenses, the trial judge obliged to instruct its verdict shall be of murder in the first degree or not guilty. We do not reach this conclu- lightly. sion We have reviewed all of the case law оf our state and of many other jurisdictions. We adopt this rule murder”, because "felony called, so is a creature of statute in which the element premeditation is conclusively presumed proof of perpetration perpetrate specific such, felony. As neither second-degree murder nor manslaughter can possibly be lesser included of- fenses. These two latter crimes and felоny are mutually exclusive offenses.
However, since the trial judge in in- this case structed the according to one of permissi- two alternatives, ble we must examine the verdict of *5 43 Opinion op the Court the second as to defend- charge given.
ant Carter under that as The result part reached in this case in moves us to hold as we do as to future cases.
If upheld, defendant Carter’s conviction is to be testimony there must have been or circumstantial together permissible evidence with the inferences therefrom that Carter knew the intention of perpetrate attempt perpetrate Bufkin to or to robbery; actively he, participated Carter, and that perpetration perpetrate in the robbery.
What then was the and other evi- legal requirement dence that would meet the "рarticipation” by Carter?
Incontestably, place Carter drove the car to the killing. Incontestably, stopped of the Carter prior reaching picked car up the scene and explained Incontestably, Bufkin for no reason. along killed, after the victim was Carter drové slowly picked up again. Bufkin Witnesses province testified, and it was the accept reject testimony, that Carter knew silvеrplated that Bufkin had a .22-caliber hand- gun. gunshot The cause of death was a wound weapon. from a .22-caliber One witness testified running that he observed someone from the vicin- ity killing carrying silverplated, pearl- of handgun. handled Another witness testified that at place the time and involved she saw someone * * * "running alley out down . He stood and becked for the car to come.” A witness testified that when Bufkin re-entered the car Carter asked * * * happened him "What how come he was * * * running replied ”, and that Bufkin " * * * added.) (Emphasis he had shot the man. A " * * * witness testified that Andrew Carter told People v Bufkin Opinion of the Court Bufkin him me that Andrew told he get didn’t money holdup”.
We the jury believe would have been well within province its to find that Carter and plan- *6 attempted perpetrate ned and an armed rob- bery, during the deceased was killed. Thus we аre convinced that the proofs would have sustained a verdict of guilty as to degree. Carter of murder in the first For whatever reason, Carter, as to defendant jury, also re- turned a verdict of murder degree. second This, our says respected eminent and Chief Judge, following mandates conclusion: inescapable "Thus the jury’s conclusion of the convic- tion of both defendants of murder is that robbery attempted no killing.” robbery was involved in this With this we respectfully but firmly disagree. That conclusion is no more "inescapable” than jurors simply compromised their conflict- ing views. Hence we must determine whether "compromise” verdict so called is infirm as a mat- ter of law. We hold it is not. As Mr. Justice Holmes said in the opinion of the Court in Dunn v States, 390, United 394; 284 US 191; 52 S Ct (1932): 76 L Ed "That the verdict have been the result of com-
promise, possible. part or оf a jury, mistake on the upset But verdicts by speculation cannot be inquiry into such matters.” It may well be that defendant Carter had no foreknowledge defendant Bufkin would kill the victim in the robbery attempt. This is not the Rather, test. question is did defendant Carter participate in legal attempted sense in the 43 Partial Concurrence C. J. amply
robbery. supports the record We think susceptible conclusion that he did. As such he was degree. in of a conviction of murder the first That found him of murder in the second degree under the instructions which were not given erroneous when dict. does not invalidate the ver- We vote to affirm both convictions. J.,
V. J. Brennan, concurred. (concurring part; dissenting Lesinski, part). Defendants Andrew Carter and Andrew Buf- having charged first-degree kin, resulting been attempted robbery,
from an MCLA were MSA convicted 28.548, 750.316; second-degree murder, MCLA MSA 750.317; appeals right. 28.549. Each defendant as of *7 testimony The uncontradicted at the trial indi- agent, Koc, cated that Edward an insurance was approached by single a armed assailant who shot escaped and killed him. The assailant in a car party waiting nearby. driven another who was people’s theory upon they The tried the case killing was that the had resulted from an at- tempted robbеry in which Andrew Carter had the car driven and Andrew Bufkin had done the shooting. judge charged: actual The trial "Now, if you find that the heard you facts as have them, you the indicates to that there was an then, robbery say you to commit a I that are first-degree limited to of murder. As both or either to. However, otherwise, the you defendants. if find then you may consider the lesser included crimes of murder manslaughter.” in the second and сharge, judge At the conclusion of his the reiter- ated this statement and in stated: addition v Bufkin Partial Concurrence "Now, car, alleged the driver the or before acces- be guilty in this case can found of murder in sory the degree, beyond be convinced you must first reasonable participate in that a robbery he intended doubt the deceased, Koc.” Edward asking that When the returned instruc- repeated, judgе again tions be stated: you robbery find the facts that no from "[I]f only may you committed then consider manslaughter guilty. murder or four verdicts and not Those are the at, first-degree murder, arrive you can second-degree murder, manslaughter and not you find for either both of the defendants. This to, you’re is that what limited correct?” Thus inescapable conclusion jury’s conviction of both defendants of second-degree rоbbery attempted that no robbery killing. was involved in this
After of second-degree verdict murder was returned, defendant Andrew Carter immediately moved for a judgment acquittal notwithstanding alleging verdict insufficient sup- evidence in port of such a verdict. The court trial denied defendant’s motion.
The evidence at trial overwhelmingly supports theory driving defendant Carter was car and that defendant did the shooting. Whiting, Witnesses Linda Anita Edwards and Carl all Lilly testified they passengers were car driven by stopped defendant Carter which picked up Bufkin, defendant carrying who was paper bag. brown After traveling few blocks *8 along Northfield, stop Bufkin asked Carter to the car and wait for him for a Bufkin few minutes. left the car and walked south on toward Northfield Oregon. Carter passengers and his waited several return, minutes and when Bufkin did not Carter App Concurrеnce Partial impatient and started to apparently became drive reappeared Bufkin At that time and away. defend- pick to car order stopped ant Carter him up. the car carrying Bufkin entered a Defendant paper car told the entering the he bag. Upon others he witness testified that had shot a man. One defend- time that that he had Bufkin said at ant wanted that but when the to rob the deсeased deceased the trunk of his car open refused defendant J. C. had him. Clark testified shot that him he told had shot a man defendant Bufkin and of town. money get needed out trial, presented one, at only Of all the witnesses contradicted the evidence that Harvey, Monwella driving defendant Carter was Buf- defendant that she shooting. She stated saw kin did out of car driven defend- get defendant Carter Bufkin, of them only ant in which the two were Carter riding. She stated she saw defendant then Thus Carter’s in- defendant shoot deceased. predicated on solely is volvement this crime testimony of the of witness Monwella truthfulness Harvey. it held the inconsisten- normally
While presents testimony cies in the witnesses to determine credibility matter of evaluate, not rely this has stated Court "completely of a witness who testimony on the White, 31 Mich App 80 Peoрle v impeached”. (1971). Her was a witness. Harvey Monwella such testimony testimony only not contradicted if testimony, witnesses, her other material all believed, prosecution’s negated also completely Harvey’s Miss theory guilt. of Carter’s Having stated that nothing short of incredible. neverthe- she by sight, knew both defendants she prior on cross-examination less admitted *9 595 People v Bufkin Lesinski, J.C. Concurrence Partial seрarate Bufkin she had on and Carter implicating identified three other men deliberately occasions admitted she had She the murderers. as in lineups these men and in identified deliberately she was trying because police to the statements addition, In details of them. her "get even” contradicted by every were of the crime version including Kelly Carolyn Leola and witness other occupants of the car and White, not who were with either of the defendants. acquainted not were therefore, was, competent no evidence intro- There in any way would contradict at trial which duced which indicated massive amount the driver and only Carter that defendant shooting. Bufkin did the actual that defendant prove must people proceeding In a criminal charged by the crime direct element of every rеasonable beyond evidence circumstantial (1966). 444 To People Spann, v App 3 Mich doubt. there degree, in the second constitute murder kill, killing purpose an unlawful and must be act, but without preceding accompanying distin premeditation the deliberation Gillespie, degree. murder in the first 3 guishes (2d Ed), Law & Procedure Michigan Criminal. McKeller, People v Homicide, 1639, 30 1973. In p § (1971), the malice 135 we stated that App Mich be infer necessary manner used and the type weapon red from the However, this the crime was committed. in which requi supply than to goes no further inference engaged those of the actual killer and site intent him. stated design with As we in a common 699, 702 Cunningham, App. People v 20 Mich criminal (1969), reverse duty "It is the of courts to an infer upon an inference upon convictions based ence”. App 43 Mich 585
596 Partial Cоncurrence People Casper, Mich v (1970), In 5 this Burrel, v quoted Court (1931), as follows:
" knowledge even with presence, 'Mere an of- being committed, or is fense is not principal approval, consent.’ to be committed about *10 person enough an aider make a or abettor to or a degree nor second is mere mental sufficient, passive acquiescence nor ” Walker, (1972), 40 Mich 142 In People v App we support a in order to conviction stated that for aiding abetting there must be evidence of and concert of action. common intent competent presented There no evidence at indicate that défendant Carter trial which would there shooting. Nor was evidence did would indicate that Carter had produced which design with defendant other any common robbery hypothesized than second-degree in verdict of expressly rejected its prosecutor murder. himself stated his As brief, robbery attempted "If there was no rob- could be convicted”. bery, only then shooter granted the trial court should have Accordingly, acquittal notwith- defendant Carter’s motion standing the verdict. Bufkin, he had had his
As to also defendant acquittal notwithstand- judgment motion for a court. Our trial ing verdict denied there review of the record indicates extensive second- to convict him of was sufficient evidence charge on the request Where no to degree murder. exists to has been but evidence lesser offense made offense, the trial lesser support a conviction of the lesser of- sponte, sua on the instruct judge may, (1970). Miller, v 161 People fense. People v Bufkin Concurrence Partial Thus, correctly the triаl judge charged the jury as regard to defendant Bufkin. Nor defendant did Bufkin object to the given. instruction as This Court has repeatedly held that a failure defendant’s make timely objection instruction any possible waives right might he have to on object appeal absent Terrell, v manifest injustice. 38 Mich App (1972). A careful examination of the record indicates injustice no such resulted to Andrew given Bufkin from the instructions jury. to the Bufkin, As to defendant Andrew I would affirm however, with the I majority; would reverse as to defendant Andrew Carter and order his discharge.