Dеfendant was charged along with two other men, Fletcher Darnell Small and Charles Clifford Scroggins, II, with committing first-degree felony murder, MCL 750.316; MSA 28.548, breaking and entering an occupied dwelling with the intent to commit a felony, MCL 750.110; MSA 28.305, unarmеd robbery, MCL 750.530; MSA 28.798, and first-degree criminal sexual conduct, MCL 750.520b(l)(d); MSA 28.788(2)(l)(d). Defendant was tried by jury beginning on October 17, 1980, along with codefendant Small. Codefendant Scroggins was tried separately. Following trial, defendant and Small werе both found guilty of first-degree felony murder. On November 18, 1980, defendant and Small were each sentenced to life imprisonment. Defendant appeals as of right.
I
Defendant claims error due to the trial court’s decision not to grant his motion for a separate trial. The decision on whether to grant two or more defendants jointly charged for the same offense separate trials is vested by statute in thе
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discretion of the trial court. MCL 768.5; MSA 28.1028. A defendant does not have a right to a separate trial, but severance should be granted if the codefendants’ defenses are antagonistic to each other.
People v Hurst,
Since joint or separate trials is a matter of judicial discretion exercised prior to trial, the focus on appellate review is on what the trial court was made aware of by dеfense counsel before the trial began, rather than on what actually happened during trial. See
People v Kramer,
In the instant case, originally all three codefendants were scheduled to be tried together. Codefendant Scroggins was eventually tried sepаrately because he was being tried on another charge in a separate case at the time the instant trial commenced. Defendant and codefendant Small, however, were tried together. The issue of separate trials was originally brought before the trial court on October 8, 1980. Defense counsel argued that inconsistent defenses would be utilized. The trial court had previously ruled, however, that codefendant Small’s statements to police officers after his arrest were inadmissible in the prosecution’s case *490 in chief, other than Small’s fully admissible statement that, "I was just there, man”. This statement was not antagonistic to defendant. Small’s counsel told the court, "I don’t know if my client is going to take the stand or not”. Thus, the court was not left with any definite or clear showing that prejudice to the defendant would result from a joint trial. The court informed defense counsel that decisions of this Court require supporting affidavits defining the inconsistencies between defenses. After full argument and on-the-record consideration of alternatives and the inherent problem of delayed trials if a joint trial were not held, the court denied the separate-trial motion without prejudice.
Prior to trial, after сodefendant Scroggins was removed from the case, the separate-trial motion was again raised. Antagonistic defenses were again alleged; however, no specific showing of inconsistencies between the two defendants’ defenses was made. Since specific instances of prejudice and clear inconsistencies in defenses were not shown to the trial court, the court did not abuse its discretion in denying separate trials.
II
Before trial, defense counsel moved for a change of venue. This motion was denied. Defendant alleges as error the trial court’s decision not to grant a change of venue.
Statutory authority allows a trial court to change venue and direct the cause to be tried in the circuit court of another county. MCL 762.7; MSA 28.850. This decision is left to the discretion of the trial court and will not be overruled on appeal absent a clear abuse of discretion.
People v
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Prast,
Defendant argues on appeal that a number of pretrial newspaрer articles prejudiced the jury. These articles are not part of the record and can be found only as an appendix to defendant’s brief. Since the articles are outside the scоpe of the record, they are not properly subject to consideration on review. See
People v Taylor,
The gеneral rule in Michigan is that a change of venue will be granted when a community is so aroused that a fair and impartial trial cannot be had.
People v Schneider,
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The burden is on the defendant to establish an abuse оf discretion in denying a change-of-venue motion by showing that the jurors had preconceived opinions as to his guilt.
People v Marsh,
The defendant has not fulfilled his burden on appeal. Only one juror had heard of this case before trial and that juror stated she could be impartial and try the case according to the evidence. Thus, no abuse of discretion resulted in the trial court’s decision not to grant a change of venue.
Ill
Relying on two opinions of this Court, defendant argues that charging him with felony murder plus the undеrlying felonies of breaking and entering an occupied dwelling, unarmed robbery, and first-degree criminal sexual conduct violated the double jeopardy provisions of the United States and Michigan Constitutiоns.
Individuals are constitutionally protected against twice being put in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15. The scope of the law of jeopardy is the same under both the Michigan аnd the United States Constitutions.
People v Alvin Johnson,
In the instant case, defendant argues that simply charging and trying him on the charge оf felony murder and the lesser included offenses of breaking and entering an occupied dwelling, unarmed robbery, and first-degree criminal sexual conduct violates the double jeopardy proteсtion. These felonies are part of the higher charge of felony murder. See MCL 750.316; MSA 28.548. Proof of any one of these crimes is sufficient to supply the element of premeditation and raise second-degree murder to first-degree.
People v Aaron,
If a conviction is returned on a felony-murder charge, a conviction may not also be returned on the underlying felony used to raise the murder to first-degree.
People v Wilder,
As pointed out by defendant on appeal, Judge Riley of this Court expresses a view contrary to the above analysis. In
People v Allen,
"Although the issue is not raised by defendant, on the facts of this case, he has a valid double-jeopardy claim. The double-jeopardy clause ensures that defendants will not be tried twice for the same offense. North Carolina v Pearce,395 US 711 -717;89 S Ct 2072 ;23 L Ed 2d 656 (1969). Yet, trying defendant for both felоny murder and the lesser included offense of armed robbery twice subjected him to jeopardy on the armed robbery charge.”
In
People v Ferrell,
If Judge Riley had said that convictions for felony murder and armed robbery present a valid double jeopardy claim, we would agree. Double jeopardy protections are not breached, however, by charging with and trying a defendant for both felony murder and the underlying felony at the same trial. Only convictions and punishments for both offenses are precluded. See Wilder, supra, p 352.
If defendant’s claim were correct, then presumably no defendant could ever be charged, in the alternative, with a lesser included offense. What is prohibited by law is not charging a defendant in the alternative with different offenses, one of which is the principal charge and others of which *495 are lesser included offenses, but rather convicting a defendant on more than one of such charges and thus subjecting him to possible double punishment for his single action. In the case at bar, the trial court specifically instructed the jury that if they were to find defendant guilty of first-degree felony murder, they could not also find him guilty of the other three counts. The jury found defendant guilty of only first-degree felony murder. Thus, no violation of the double jeopardy guarantees has occurred.
Affirmed.