People v. Dietrich

274 N.W.2d 472 | Mich. Ct. App. | 1978

87 Mich. App. 116 (1978) 274 N.W.2d 472

PEOPLE
v.
DIETRICH
PEOPLE
v.
COLE

Docket Nos. 19792, 23417.

Michigan Court of Appeals.

Decided November 27, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

Loeks, Buth, Wood & Weidaw, for defendants.

Before: DANHOF, C.J., and V.J. BRENNAN and R.H. CAMPBELL,^[*] JJ.

DANHOF, C.J.

These two felony-murder cases arose out of an armed robbery. On October 18, 1972, defendants allegedly robbed a pharmacy and during the perpetration of that robbery shot and killed the pharmacist, Dr. Werra. On October 4, 1973, after a jury trial, defendant Dietrich was found guilty of first-degree murder, MCL 750.316; MSA 28.548. Defendant Cole's trial was not held until November 18, 1974, because of difficulties in locating him and securing his presence at trial. He was also found guilty by a jury of first-degree murder. Both defendants were sentenced to life imprisonment and appeal as of right. The evidence introduced at each of the defendants' trials, if believed by the jury, clearly established each defendant's guilt beyond a reasonable doubt. The evidence indicated that on the night in question, the defendants were riding around in an automobile with two other friends when they asked to be let out. After letting the defendants out of the car, the friends drove around the block. At approximately 8:40 p.m., two persons entered the Butterworth Pharmacy. The only other people in the store at that time were the pharmacist and a stock boy, Thomas Howland, who was stocking shelves. Howland heard the front door open and someone talking to the pharmacist. He heard two loud noises which he presumed were firecrackers, so he stopped stocking the shelves and went to see what had happened. He then saw one man run past him out the door and another man, wearing a ski mask, standing near the cash register. The man with the mask told Howland to stay where he was because they had a gun. He then took some money from the cash register and ran out the door. Defendants returned to the car and Cole said, "Get out of here. I shot someone". The four people then returned to an address on Wavell where they had been staying with Susan Ellis.

Early the next morning, defendants had a conversation with Ms. Ellis in which defendant Cole explicitly admitted his participation in the robbery and defendant Dietrich implicated himself in the robbery by correcting some of Cole's misstatements concerning the events that took place during the robbery. Later that day, these individuals left in an automobile for Kentucky. On the way, Dietrich, who was riding in the back seat, tossed an article of clothing to Cole, who was in the front seat. It was of black and blue woolen material. Dietrich said he could not be identified since he was wearing a ski mask. Cole then threw the article out of the car.

These cases were consolidated on appeal because they raised one common issue and were both remanded back to the trial court for an evidentiary hearing on this issue. However, except for this one common issue, these cases raise different issues. For this reason and because defendants were tried separately, this opinion will discuss the issues raised by each defendant separately.

THE DIETRICH TRIAL

After trial, defendant's attorney learned that some of the prosecution's witnesses received monetary rewards from various organizations, such as Silent Observer and the Kent County Pharmaceutical Association (KCPA), in connection with this case. Defendant contends that the prosecutor knew or should have known of these rewards or at least of the possibility of them, because of the cooperation between the prosecutor, the police, and these organizations. The prosecutor did not disclose any information relating to these rewards either to the defendant before trial or to the jury at trial. Defendant claims that the failure to disclose this material information pertaining to the credibility of these witnesses requires reversal, see United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976), Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), People v Mata (On Remand), 80 Mich App 204; 263 NW2d 332 (1977), People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972).

As mentioned before, on appeal this case was remanded for an evidentiary hearing on this issue. At that hearing, a witness connected with the Silent Observer Program testified that he did not contact any of the witnesses in defendant's trial either before or during trial. He testified that a reward was paid to Roger Mollema but that he was not contacted about it until November 16, 1973. Another witness testified that she received an award from a veteran's club in which the victim was a member but that she was not contacted about this until after trial. Also, she testified that prior to trial she had no expectation of receiving a reward. A police detective testified that he was aware that rewards were paid by the KCPA on March 6, 1974, but that he did not become aware of these rewards until after trial. A newspaper article, dated October 20, 1972, was introduced into evidence and it stated that a $500 reward was being offered by the KCPA for information leading to the arrest of the defendants. After the hearing, the trial judge denied defendant's motion for a new trial since he found that none of the witnesses were offered rewards until after trial. This finding will not be set aside unless it is clearly erroneous, GCR 1963, 517.1.

Defendant's argument is premised on the basis that the prosecutor has the duty to protect the interests of all citizens and to seek justice, not just convictions, Hurd v People, 25 Mich 405 (1872), People v Nettles, supra. The prosecutor is obligated to present the trier of fact not only with incriminating evidence against the defendant but also with any material evidence exculpating the defendant. This duty to disclose also extends to material impeaching information, Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959).

The general standard for materiality in this context is set out in United States v Agurs, supra, at 112-113.

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." (Footnotes omitted.)

Almost all the impeaching evidence cases cited by defendant involve a promise or expectation of leniency for an accomplice and/or addict informer, see People v Atkins, supra, People v Mata, supra, People v Nettles, supra. Defendant argues that the only difference between these addict/accomplice-informer cases and this monetary reward case is the degree and kind of benefit conferred upon the witness in exchange for the testimony. Defendant claims that this difference does not justify the prosecutor's failure to disclose and that this information should have been presented to the trier of fact to be considered together with all the other evidence.

Although defendant's arguments are not unreasonable, there are other factual differences in this case which distinguish it from cases in which testimony was given in exchange for a promise of leniency. One important distinction in this case is that there was no evidence that any of the witnesses were promised rewards, expected to receive a reward or even knew of the possibility of a reward before they testified at defendant's trial. As the Supreme Court stated in People v Atkins, supra, at 174, "The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony".

The possibility of receiving a monetary reward would influence and motivate a witness to give false testimony only if the witness was aware of the possibility of a reward. In this case, there is no evidence that any of the witnesses were aware, before trial, of the possibility of a reward. Furthermore, this is not a case in which it would be atypical for a witness to not have an expectation of consideration for his cooperation, cf. People v Atkins, supra. These witnesses are not addict informers, accomplices or co-conspirators. In United States v Washington, 550 F2d 320 (CA 5, 1977), the Court even questioned whether this type of monetary reward offer was the type of "exculpatory evidence" contemplated by Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

After a review of the record, we conclude that the trial judge's findings that the witnesses were not aware of the reward until after trial and did not testify with an expectation of consideration were not clearly erroneous. Since none of the witnesses knew of these rewards before testifying, the prosecutor was not under a duty to disclose this information concerning these future possibilities, see People v Atkins, supra, at 174. Furthermore, considering all the evidence in this case, we conclude that the omitted information, if introduced, would not have raised a reasonable doubt about the defendant's guilt that did not otherwise exist, see United States v Agurs, supra, at 112, Washington, supra, United States v Masri, 547 F2d 932 (CA 5, 1977). Therefore, any possible error was harmless.

The second issue raised by defendant concerns the admission into evidence of testimony by Ms. Ellis about a conversation which took place between Dietrich, Cole and herself on the morning after the robbery. Ms. Ellis testified that Dietrich and Cole came into her room around 9:30 a.m. and she also testified as follows:

"Q. What were you referring to?

"A. I was referring to the shooting the night before.

"Q. What, if anything, was said after you said that?

"A. Terry Cole said he was the one that shot the man.

"Q. Terry said he shot the man?

"A. Yes. He said, `I shot the man.'

"Q. All right, please continue.

"A. And I asked him, `Why?' Terry said they were just robbing him. And then he went into detail about how he went into the store and went behind the counter and the man was sitting on a chair behind the counter, or a wall — I don't remember exactly what he said, but he said the man was sitting behind a counter, I believe, and he went in and the man came after him. He said that he turned around, shot the gun, and then he turned to run. And he couldn't remember whether the gun went off or not. So he turned around, looked again when he got to the door, and the man was right there, so he shot it again. And I believe he said that he had only shot it once, and that is when Skippy said, `No, you shot him twice.'"

At trial, defendant objected to the admission of this testimony into evidence on the basis that the references to Cole's statements were inadmissible hearsay. The prosecutor argues that these statements are admissible in Dietrich's trial as an adoptive admission, see People v Greeson, 230 Mich 124; 203 NW 141 (1925), see also MRE 801(d)(2). Defendant contends that even if these statements are considered adoptive admissions, they are inadmissible since they were adopted by defendant's silence, see People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), People v Bigge, 288 Mich 417; 285 NW 5 (1939), People v Parks, 57 Mich App 738; 226 NW2d 710 (1975).

If defendant had been silent when Cole made these statements, then this evidence would not be admissible as an adoptive admission, see Bobo, supra, Bigge, supra. However, the defendant was not silent, but rather, he corrected those statements made by Cole which he thought were incorrect. The circumstances surrounding this conversation and the defendant's statements in response to Cole's statements distinguish this case from the holding and rule announced in Bobo, supra.^[1]

Even though the introduction of this testimony does not infringe on defendant's right to remain silent, the use of adoptive admissions in criminal cases is still not favored, see People v Lowe, 71 Mich App 340; 248 NW2d 263 (1976), People v Parks, supra, see also People v Kelley, 32 Mich App 126; 188 NW2d 654 (1971). However, adoptive admissions are admissible when it clearly appears that the defendant understood and unambiguously assented to the statement made, People v Lowe, supra, Naples v United States, 120 US App DC 123; 344 F2d 508 (1964). From the circumstances surrounding this conversation, it clearly appears that defendant adopted and assented to Cole's statement. Defendant's response shows that he heard Cole's statement and had the ability to respond to it. Furthermore, the statement demonstrates that Dietrich was motivated to deny or correct those portions of Cole's statement which he thought were untrue. Also, the fact that these statements were made to a mutual acquaintance and that the conversation resulted in a decision that they would all leave the state supports the conclusion that the defendant adopted and/or acquiesced in Cole's statement. Therefore, in view of the circumstances surrounding this conversation and the indicia of reliability they provide, we do not think the trial judge erred in admitting this testimony into evidence.

The third issue raised by defendant concerns the prosecutor's attempt to introduce into evidence a statement made by defendant in which he admitted his involvement in another robbery. Evidence which shows or tends to show that the accused has committed another offense wholly independent of and unconnected with that offense for which he is on trial is generally irrelevant and inadmissible, People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). The prosecutor argues that this evidence was admissible under MCL 768.27; MSA 28.1050, to prove defendant's scheme or plan. The defendant objected to the introduction of this evidence at trial and the trial judge properly sustained his objection. The defendant did not request a special curative instruction or make a motion for a mistrial. On appeal, defendant claims that the prosecutor's interjection of this testimony into the proceeding requires reversal because the prosecutor should have anticipated this testimony in response to his questioning.

Although the prosecutor should have anticipated this testimony in response to this question, we do not think the error in this case was so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless, see People v Adan, 83 Mich App 326; 268 NW2d 397 (1978), People v Wilkins, 82 Mich App 260; 266 NW2d 781(1978), People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), since the trial judge excluded this testimony from evidence, see People v Willie Lee Lewis, 31 Mich App 433; 188 NW2d 107 (1971), People v Farley, 13 Mich App 132; 163 NW2d 692 (1968), and the prosecutor did not attempt to continue this line of questioning or mention this testimony in his closing argument. Furthermore, considering the other evidence against defendant, any error in this case was harmless beyond a reasonable doubt, see Swan, supra. This testimony was excluded from evidence by the trial judge. Also, although no curative instruction was requested or given, the jury was instructed to consider only the evidence produced in court.

Defendant also raises two issues which relate to the prosecutor's use of defendant's prior convictions to impeach his credibility. At the beginning of the trial, defendant made a motion to exclude his prior convictions from being admitted into evidence. In making this motion, defendant's attorney stated that the defendant had a prior felony conviction for breaking and entering and a misdemeanor conviction for loitering. The trial judge, in the exercise of his discretion, denied defendant's motion. On appeal, defendant contends that the trial judge erred reversibly in denying his motion because the trial judge did not have sufficient information concerning defendant's criminal record to effectively exercise his discretion, see People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). Even though the record does not show the date of defendant's convictions, the record demonstrates that the trial judge was aware of the nature and number of convictions. Defendant does not claim on appeal that the convictions were so old that their probative value was lost. In conclusion, a review of the record does not support defendant's claims but rather indicates that the judge had sufficient information to properly exercise his discretion.

In a related issue, defendant claims that reversible error occurred when the prosecutor cross-examined the defendant about his arrest for drunk and disorderly conduct. Defendant on direct examination admitted that he had been convicted of breaking and entering. On cross-examination, the prosecutor asked defendant, "You mentioned arrest and conviction in Florida. Were you ever arrested and convicted for anything else?" Defendant answered, "I was arrested in Kentucky for some drunk and disorderly conduct". Defendant did not object, at trial, to the admission of this evidence. On appeal, defendant argues that the admission of this testimony requires reversal because the offense was only a misdemeanor which did not involve crimen falsi and because the testimony referred to an arrest, not a conviction.

In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court held that it was reversible error to impeach a defendant with misdemeanor and municipal ordinance convictions, but that case was not decided until after the trial in this case. Renno, supra, does not apply retroactively to this case because Dietrich had already acknowledged his prior felony conviction on direct examination and because he did not fully preserve this issue by objecting at trial, People v Sanders, 394 Mich 439; 231 NW2d 639 (1975).

Defendant also claims that it was reversible error to admit this evidence of defendant's arrest without proof of a conviction, see People v Falkner, 389 Mich 682; 209 NW2d 193 (1973), People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973). However, if there was any error in this case, it does not require reversal. First, it should be noted that defendant's answer was not responsive to the prosecutor's question. The prosecutor asked defendant if he had ever been arrested and convicted of anything else but defendant responded that he was arrested for drunk and disorderly conduct. This unresponsive answer to a proper question does not justify reversal, see People v Tutha, 276 Mich 387; 267 NW 867 (1936), People v Petrov, 75 Mich App 532; 255 NW2d 673 (1977). Also, there is no indication that the prosecutor was deliberately attempting to interject inadmissible evidence into the trial. Defense counsel, at the beginning of trial, mentioned that defendant had two prior convictions. Defendant, on direct examination, acknowledged his conviction for breaking and entering. Since he did not mention the misdemeanor conviction, it seems very likely that the prosecutor's question was intended to elicit testimony about this other conviction. Furthermore, defendant did not object at trial to the admission of this testimony. Considering the other evidence against defendant, there is no reasonable possibility that the admission of this testimony into evidence resulted in a miscarriage of justice, MCL 769.26; MSA 28.1096.

Defendant also assigns as error the trial judge's failure, upon request, to instruct the jury on the lesser included offense of second-degree murder. The trial judge denied defendant's request because he did not think there was sufficient evidence to support a conviction of second-degree murder, see People v Carter, 387 Mich 397; 197 NW2d 57 (1972). At the time of trial, People v Carter, supra, was the controlling Supreme Court case on this issue but since trial, the Supreme Court has decided a number of significant cases concerning this issue, see People v Crawl, 401 Mich 1; 257 NW2d 86 (1977), People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), People v Carter, 395 Mich 434; 236 NW2d 500 (1975), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). In People v Carter, 395 Mich 434; 236 NW2d 500 (1975), the Supreme Court held that second-degree murder is a necessarily lesser included offense of felony-murder. In Ora Jones, supra, the Supreme Court held that an instruction on a necessarily lesser included offense must be given upon request. People v Lovett, 396 Mich 101; 238 NW2d 44(1976), and People v Allen, 80 Mich App 786; 265 NW2d 47(1978), apply Ora Jones, supra, retroactively. In People v Crawl, supra, the Supreme Court held that it was error to fail to give an instruction on second-degree murder in a felony-murder case when the defendant had requested one. The controlling opinion in Crawl, supra, does not expressly resolve the issue of whether People v Carter, 395 Mich 434; 236 NW2d 500 (1975), is to be retroactively applied. Crawl, supra, was one of the cases held in abeyance while People v Carter was decided, see, People v Crawl, 401 Mich at 7. Since this issue was preserved by a proper and timely request for an instruction on second-degree murder and since this judgment of conviction is pending on an appeal as of right, we conclude that the holding in People v Crawl, supra, should be extended to apply in this case. However, retrial is not required. Instead, we remand for entry of a judgment of conviction of the lesser included offense of second-degree murder and for resentencing, see People v Herbert Ross, 73 Mich App 588, 594; 252 NW2d 526 (1977), provided, however, that if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the felony-murder charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of second-degree murder and grant a new trial on the felony-murder charge, People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976).

THE COLE TRIAL

Defendant Cole also contends that it was reversible error for the prosecutor to fail to disclose the fact that certain witnesses at his trial had been paid monetary rewards. Cole's trial did not take place until November, 1974. By this time, defendant Dietrich had already been convicted by a jury and the witnesses who testified at Dietrich's trial had already received their monetary rewards. By the time of Cole's trial, the prosecutor was aware that the witnesses knew that rewards had been offered and paid and this fact distinguishes this case from Dietrich's. However, considering the other circumstances surrounding this case, we conclude that the prosecutor did not commit reversible error by not disclosing to the jury the information about these rewards.

The primary reason why reversal is not required is that there was no evidence that any of these witnesses had any expectation of another or further rewards for their testimony in this case. The rewards that had been offered were all paid out after Dietrich's trial. Presumably, the rewards were offered and paid for either the information that led to these defendants' arrests or for the testimony given at Dietrich's trial. Since all the allotted reward money had been paid out, it seems unlikely that the witnesses expected further rewards for their testimony in Cole's trial. Again, this is not a case in which it would be atypical for a witness not to expect consideration in exchange for his testimony, compare, Atkins, supra. There was no evidence that any of the earlier rewards were revocable or that the witnesses feared losing their reward money if they changed their testimony at Cole's trial. In conclusion, in the absence of any evidence to the contrary, we do not think the fact that a monetary reward was offered and paid to some witnesses at an earlier trial of one accomplice would motivate that same witness, or another witness, to give false testimony at the trial of another accomplice. Since there is no indication that these past rewards would motivate any of the witnesses to give false testimony, the prosecutor did not err reversibly by failing to disclose this information to the jury.

Defendant also raises two issues relating to the prosecutor's cross-examination of the defendant and the prosecutor's closing argument. Defendant claims that it was reversible error for the prosecutor, in his closing argument, to refer to defendant's failure to question some of the witnesses who were present at trial about some of the factual issues in this case. Defendant claims that this argument impermissibly shifts the burden of proof onto the defendant. The substantive message in the prosecutor's closing argument was that the people's case was overwhelming and that there was a lack of evidence in favor of the defendant. The statement was not directed at defendant's refusal to testify but rather to facts that could have been within the knowledge of persons other than the defendant, see People v White, 401 Mich 482; 257 NW2d 912 (1977), People v Williams, 83 Mich App 642; 269 NW2d 251 (1978), People v Rodriguez, 83 Mich App 606; 269 NW2d 199 (1978). The prosecutor's argument did not impermissibly shift the burden of proof onto the defendant. The jury was properly instructed on the burden of proof by the trial judge.

Another related issue raised by defendant concerns the prosecutor's questioning of defendant about his use of aliases. On cross-examination, the defendant admitted using aliases both before and after the robbery. Although the issue of whether a defendant's credibility can be impeached by introducing evidence of his use of aliases is an issue of first impression in Michigan, other jurisdictions have allowed the admission of this evidence for impeachment purposes, see, Bland v State, 42 Ala App 392; 166 So 2d 728 (1964), Fletcher v State, 40 Ariz 388; 12 P2d 284 (1932), Feldman v State, 194 So 2d 48 (Fla App, 1967), State v Waldron, 128 La 559; 54 So 1009 (1911), Commonwealth v Giambrone, 183 Pa Super 283; 130 A2d 254 (1957), State v Sysinger, 25 SD 110; 125 NW 879 (1910), but see People v Fleming, 166 Cal 357; 136 P 291 (1913).

We think that the witness's use of an alias is highly probative of the witness's credibility. In this case, the introduction into evidence of defendant's use of aliases was not highly inflammatory or prejudicial to the defendant, compare People v Fleming, supra. The trial judge did not err in allowing this testimony into evidence for impeachment purposes. The other allegations of prosecutorial misconduct raised by defendant do not require extended discussion or reversal. No objection was made at trial and no curative instructions were requested. Although we do not condone the prosecutor's actions, see People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), no miscarriage of justice resulted from his questions or argument and reversal is not required, see People v Walton, 76 Mich App 1; 255 NW2d 640 (1977), People v Richard Smith, 68 Mich App 138; 242 NW2d 42 (1976).

Defendant also claims that the trial judge's instructions to the jury were erroneous. Defendant requested an instruction which would have required the jury to find that he had an actual intention of killing the pharmacist in order to convict him of first-degree felony-murder. The trial judge properly denied defendant's request. Felony-murder does not require that the defendant have an actual intention to kill the victim. Malice aforethought is all that is required, see People v Haack, 396 Mich 367; 240 NW2d 704 (1976), People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), see also CJI 16:2:02.

Defendant also claims that the trial judge erred by instructing the jury to find defendant guilty of felony murder if the killing of the pharmacist occurred during the commission of the robbery. Defendant argues that this instruction took the issue of malice aforethought from the jury, see People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). Although the judge in his instructions did refer to the necessity of finding a murder, we think that the instruction when read as a whole took the essential issue of malice aforethought away from the jury. We recognize that there is a difference of opinion in this Court on this issue, compare People v Wilson, 84 Mich App 636; 270 NW2d 473 (1978), People v Hansma, 84 Mich App 138; 269 NW2d 504 (1978), People v Robert G Thompson, 81 Mich App 348; 265 NW2d 632 (1978), lv gtd, 402 Mich 938 (1978), People v Wright, 80 Mich App 172; 262 NW2d 917 (1977), lv gtd, 402 Mich 938 (1978), People v Fountain, supra, with People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), People v Till, 80 Mich App 16; 263 NW2d 586 (1977). The opinions in those cases clearly set out the issue to be resolved and the different approaches used in analyzing the issue. It is sufficient in this case to note that we agree with the reasoning and conclusion reached in Fountain, supra. Accordingly, we reverse defendant's felony-murder conviction. However, retrial on that charge is not required. Instead, we remand for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing, provided, however, that if the prosecuting attorney, in his discretion, determines that justice would be better served by retrial on the felony-murder charge, the trial court shall, upon notification by the prosecutor prior to resentencing, vacate the judgment of conviction of manslaughter and grant a new trial on the felony-murder charge, People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976). In view of the resolution of this issue, it is not necessary to consider the other instructional issues raised by defendant, see People v Hansma, supra.

Finally, defendant argues that reversal is required because the court clerk communicated with the jury during their deliberations and inquired into whether they were anywhere near reaching a verdict. At approximately 4:30 p.m., the trial judge asked the clerk to check on the jury's status for the purpose of determining whether to prepare additional arrangements in the event that deliberations carried over to the next day. The court's clerk did not ask for the numerical division among the jurors, but the foreman of the jury voluntarily told him this anyway. The jury resumed their deliberations and after approximately 1/2 hour, they returned a verdict of guilty.

In this case, it was not error for the trial judge to have the clerk inquire into whether the jury thought they might agree on a verdict before the day was over. The trial judge did not ask the jury himself. He sent the clerk. The jury had been deliberating since early morning and the hour was growing late. The trial judge expressed his concern over the status of two of the jurors who were pregnant. This minor intrusion into the privacy of the jury's deliberation is justified to permit the trial judge to make any required arrangements and to properly supervise his docket, see People v Luther, 53 Mich App 648; 219 NW2d 812 (1974). Also, there is no evidence that the clerk interjected any extraneous or prejudicial matter into his conversation with the jury foreman. The clerk did not state any opinion, give any instructions or refer to any of the evidence. He merely asked the foreman whether the jury thought they would be able to reach a verdict before the day was over.

The courts in Michigan have recognized that prejudice may result from the disclosure of the numerical division among the jurors, see People v Wilson, 390 Mich 689; 213 NW2d 193 (1973). In Wilson, supra, the Supreme Court held that it was reversible error for the court to inquire into the numerical division among the jurors. However, the facts in this case are distinguishable from Wilson, supra, since the court did not request this information but the foreman volunteered it anyway. Another factor which tends to lessen the possibility of prejudice in this case is that the foreman did not indicate which way the majority and minority were leaning. Although the trial judge did not follow the procedure recommended in People v Luther, 53 Mich App 648; 219 NW2d 812 (1974), by advising the jury to only tell him whether the majority of the jurors thought they could reach a verdict or that the majority thought they would not reach a verdict, we do not think reversal is required in this case. While the disclosure of the division among the jurors may create the possibility of prejudice, we think that, in this case, there is no reasonable possibility that the disclosure of this information to the court clerk aided in convincing even one undecided juror of defendant's guilt beyond a reasonable doubt. Accordingly, we conclude that any error in having the court clerk check on the status of the jury was harmless.

These cases are reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

R.H. CAMPBELL, J., concurred.

V.J. BRENNAN, J. (concurring in part; dissenting in part).

I concur separately as to Dietrich but respectfully dissent as to Cole.

DIETRICH

I agree that Ora Jones should be applied retroactively to reduce the defendant's conviction to second-degree murder. However, I would specifically point out that the retroactive application of Ora Jones is limited to cases like this one which were in the process of appeal on the date of the Ora Jones opinion. See my dissenting opinion in People v Thurmond, 75 Mich App 310; 254 NW2d 879 (1977).

COLE

The trial court instructed that if the killing was found to have occurred during the robbery then the defendant could be found guilty of felony-murder. The majority holds that this instruction eliminated the element of malice from the jury's consideration. The element of malice sufficient to elevate the killing to felony-murder is established by finding that the killing occurred in the perpetration of one of the enumerated felonies. People v Till, 80 Mich App 16, 28-29; 263 NW2d 586 (1977). I would hold the instruction not to be erroneous.

Since defendant Cole also properly raised the lesser included offense issue under Ora Jones, I would reduce the conviction to second-degree murder as was done with defendant Dietrich.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Another factor which distinguishes this case from People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), is the fact that defendant was not under arrest or even the "focus" of any police investigation when this conversation took place. No police officers were present when the conversation took place. The conversation occurred within 12 hours of the robbery, involved only the defendant, his alleged accomplice, and another acquaintance. The conversation ultimately resulted in a decision that they would all leave the state later that day. Considering all these circumstances and Dietrich's statement, it seems very unlikely that his initial silence was an attempt to exercise his right to remain silent. Rather, it seems more likely, as the trial judge found, that Dietrich did not respond initially to Cole's statements because Cole was still talking. For these reasons, and because Dietrich corrected Cole's misstatement, we conclude that the rule announced in People v Bobo, supra, does not apply to this testimony.