*1 v WHETSTONE PEOPLE 4, 1981, Lansing. December 53409. Submitted Docket No. Decided 21, September 1982. felony- murder and was convicted J. Whetstone Brenda Court, Saginaw Freder- following jury Circuit trial in a firearm gave Borchard, underlying felony rise to the which J. The ick J. entering occupied breaking charge an felony-murder larceny. proofs at trial dwelling to commit with intent underlying felony took murder and the that established objection 1978. No place daylight hours of October that court on the basis the trial was raised before daytime dwelling intent to commit entering with in the felony- in the larceny the enumerated felonies not one of appeals. Defendant time of the crime. murder statute at the Held: permitting the use of the err in court did not 1. The trial testimony prosecution witness preliminary of the examination trial. The record at the time of not be located
who could every prosecution reasonable undertook establishes presence at the trial. of that witness to secure the effort other unrelated trial to the defendant’s 2. The references at fact in view of the not mandate reversal criminal activities do testimony objection at trial to that that there was no testimony response introduced defense to a matter came counsel. amendment, felony-murder statute 3. Prior to its 1980 dwelling those as one of
did not list charge. give to a felonies which would rise [1] [1, [2] [3] [4, [5, 40 Am Jur [6] 29 Am Jur 2] 5] 29 Am Jur 7] 5 Am Jur 5 Am Jur 81 Am Jur Witnesses § 13 Am Jur Am Jur 2d, Appeal 2d, Appeal 2d, 2d, 2d; References 2d, 2d, 2d, Evidence § Evidence Statutes 295. Burglary 22. Homicide 72.§ and Error 717. and Error §§ § §§ for Points 320 et § 2. seq. 750. § 772-775. in Headnotes Whetstone felonies, Burglary, one of the enumerated was at common law nighttime dwelling larceny. Michigan intent to commit has retained the nocturnal Accordingly, daytime breaking burglary. element of *2 entering charged by prosecution and shown would not support felony prior a conviction for murder under the statute to its amendment. aside, felony-murder 4. conviction must While be set
jury necessarily necessary support to found facts conviction second-degree for murder. vacated; felony entry Conviction for murder is remanded for resentencing. of conviction of murder and for Brennan, P.J., that, V. J. dissented. He would hold since objection upon there was no below based the fact that charged felony was not one of the enumerated felonies in the felony-murder prjudice pre- statute and there was no because shown, meditation was in fact the conviction for murder should be affirmed. op
Opinion the Court Preliminary — — 1. Witnesses Criminal Law Testi- Examination mony — Diligence. — Production of Witnesses Due preliminary testimony may examination of a witness be used only prosecution diligence at trial if the has exercised due presence trial; secure the of the witness at determination diligence due rests within the sound discretion of the trial court; reasonable, diligence requires everything due everything possible, be done. op — — — 2. Witnesses Criminal Law Production Witnesses Due Diligence. question A trial court’s determination on the of whether the prosecution diligence attempting has exercised due to secure presence of a witness at trial will not be overturned unless showing part there is a of an abuse of discretion on the of the trial court. — — 3. Criminal Law Evidence Other Crimes. may
Evidence that a criminal defendant crimes committed other where, although be admitted not admissible under the similar doctrine, acts such elicitation of evidence of other crimes is by response brought occasioned a relevant to matters out defense; complain a defendant cannot about the admission testimony instigated. which the defendant invited or — Burglary Common Law. 4. burglary is a is that the crime at common law The rule dwelling nighttime; entering house in the of a of the considered a critical element time of the offense was night burglary was the time because crime of common-law criminals; Michigan might prey to has contin- men fall honest nocturnally burglary only recognize to a refers ued to entering. breaking and committed Burglary. Felony — — 5. Homicide Murder prior felony-murder "burglary” in the as used The term that statute referred to the common- the 1980 amendment to burglary of a was a crime of which law prior nighttime; accordingly, dwelling to the 1980 in the house statute, for fel- a conviction of the amendment upon proofs ony could not be sustained 28.548). (MCL750.316; daytime MSA — — Judicial Construction. 6. Law Statutes Criminal ambiguity strictly any is are construed Criminal statutes of the accused. resolved favor Second-Degree Felony — — 7. Homicide *3 Murder Murder. felony felony upon other than for murder based A conviction felony-murder of the felonies enumerated one murder, second-degree reduced to a conviction for should be necessarily under such circumstances since the trier of fact all elements had committed found that the defendant necessary murder. to sustain a conviction for Brennan, P. Dissent V. J. J. Felony Preserving — — — Evi-
8. Homicide Murder Question — dence Premeditation. felony A for murder should not be overturned conviction appeal charged felony one of on the basis that the there statute whére felonies enumerated in the objection ground no the trial court and was no on that in showing prejudice sustain a since the evidence at trial would ñnding premeditation. Kelley, Attorney General, Louis J. Frank J. Kaczmarek, Caruso, Prosecuting Attorney, General, L. Solicitor Robert Meter, Chief M. and Patrick Prosecuting people. Attorney, Assistant for the v Whetstone Opinion Court Chard and Lynn (by Defender Appellate State Lev), B. on appeal. Stuart for defendant Brennan, P.J., V. J. and Allen and Before: Megargle,* T. C. JJ.
Allen, J. a defendant be convicted of fel- May where the underlying felony, ony in before entering, occurred made an enumerated in 750.316; 28.548? This ques- 1980 under MCL MSA impression of first comes to us on the follow- tion ing facts.
Sometime between a.m. on Sunday, 15, 1978, Martin Rueger lying was found October ground Saginaw. on the at his home The car open running. door was and the motor The back the window of one of the doors open, doors were ransacked. was broken and the house was Two sets, a some portable protector, television check urn, and an clothing, purses, copper three coffee missing. An revealed autopsy electric broom were five and had Rueger had been shot times bled Testimony given by persons to death. trial neighborhood established clearly subsequent shooting hours, during occurred sometime daylight probably between 8 and 10 a.m. later, October, 1979,
One Teresa Beville year police contacted the and informed them that a woman Martin named Brenda Whetstone had shot Brenda in Rueger. Ms. Beville stated that she met the summer of that she Brenda had a *4 moving to relationship, eventually homosexual apartment together, Flint where shared an they October, 1978, Monica and that Brenda * judge, sitting assignment. Appeals by Circuit on the Court of Opinion op the Court brought apartment set, a television a to the Blair purses. cleaner, clothes, and some Ms. vacuum that on that occasion Brenda Beville further stated just explained that she believed she had shot a when she heard on televi- man and was relieved so she did not have to sion that the man was dead being worry information Ms. identified. The about gave police $5,000 earned her a re- Beville although ward, about the reward she did know meeting police. until after given police, a result of the information As charges first-degree felony felony- murder and against 5, filed defendant November firearm were 1979. Count I of the information reads as follows: Degree Felony
"Murder First — perpetration attempted feloniously, did while or Breaking Entering Occupied perpetration of a of an Dwelling Larceny, Intent to Commit kill and With 750.316, Rueger; Contrary murder one to Sec. Martin 1970, amended; CL as MSA 28.548.” charged possession II a
Count firearm while committing felony. trial, took At Teresa Beville though testified, the stand and even she knew she testify get did She in order to the reward. not need to shooting described as follows: "Well, they up she said that he drove behind them as house, leaving getting ready They were to leave. the car. And he went around to the back of him, moving, car and she said she could see like he were his mouth trying plate. the license He to remember passenger’s came around to the side of the car and she got shot him. She said she him three and she shot times out and shot him some more.” April jury,
Defendant tried and on first-degree guilty murder, MCL was found *5 551 People Whetstone v Opinion of the Court 28.548, MCL felony-firearm, 750.316; MSA 28.424(2). 16, 1980, defen- 750.227b; On June MSA prison life in to mandatory to was sentenced dant two-year mandatory to the consecutively served be appeals She felony-firearm. term for prison At oral noted below.1 raising three issues right sponte raised this Court sua appeal, on argument convicted be may whether a defendant the issue of set underlying felony murder when felony an enumerated was not in the information forth 750.316; 28.548. The Court MSA under MCL felony on the issue. submit briefs parties asked submitted. briefs have been Those (2) (3), valid, if would issues Defendant’s re- conviction and reversal of defendant’s require (1) and Defendant’s issue for a new trial. mand Court, valid, sponte by if issue raised sua only this to reduce be modified require that the conviction degree to murder second the offense resentencing for the matter be remanded Allen, 390 Mich murder. (1973). 383, We first discuss 386; 212 NW2d (2) defendant’s issues held
At examination October preliminary 25, 1979, had Leona Goff testified that she been with defen- county jail the same at the dormitory confided to dant and at that time defendant had At the time of Rueger. her that she shot Martin trial, prosecu- through April March 26 her subpoena find Leona Goff to tion was unable to unavailability, as a witness. Due to the witness’s 1(1) prosecution corpus delicti of Did the fail to establish the (2) prior Did the murder trial court violate the constitutional to the admission of defendant’s confession? right witnesses to confront against diligence by ruling prosecution had shown due defendant permitting producing admis witness Leona Goff and (3) testimony? preliminary Did error occur sion of her examination key prosecutor testimony as to from a witness when the elicited alleged knife attack? defendant’s heroin addiction and an Opinion of the Court from several wit- hearing testimony
and after witness, relating to find the attempts nesses preliminary trial court allowed the examination testimony jury pursuant to be read to the to MRE 804(b)(1).2 Roberts, from Ohio v
Quoting extensively
(1980),
2531;
100 S
65 L
2d
US
Ct
Ed
*6
argues
prosecution
defendant
the
failed to
diligence
keeping
exercise due
in
track of the
the
during
period
pre-
witness
five-month
between
examination
and trial. Counsel
liminary
contends
higher degree
that a
in
required
effort was
this
charge
case
the
first-degree
because
right
because defendant had a constitutional
of confrontation.
do not quarrel
We
with the ad-
Roberts,
supra,
monitions in
or
with the claim that
diligence
due
must be shown.
simply disagree
We
with the conclusion that
prosecution
failed to
diligence.
exercise due
The determination
of due
diligence rests within the sound discretion of the
People
Fournier,
v
trial court.
App
(1978).
778;
the situation
house,
thinking
and me
night
at this
dent that
before
things
done to me and was
all
she had
about
else,
somebody
I
doing, might have done to
continually
thing
bring it on out in the
to do was
decided the best
open.” (Emphasis supplied.)
prosecutor
redirect
examination
Upon
as follows:
up
by inquiring
the theme
picked
during
indicated on cross-examination
"You had
police
you called the
year period
this
of time before
information,
had done some
your
that Brenda
with
things
you?”
follow-up ques-
and a
response
question
In
to this
tion,
that defendant was on
the witness
related
defendant came to
heroin and that on one occasion
her
the witness’s home and threatened
of defendant’s
knife. It is obvious that
the evidence
the knife incident
came to
heroin addiction and
the door”.
light
"opened
because defense counsel
of admission of testi-
complain
Defendant
cannot
instigated.
defendant
invited or
Peo-
mony which
Barker,
253, 257;
v
293 NW2d
ple
App
(1980).
In
having
testimony,
addition
invited the
object
defendant
failed to
to its introduction
trial.
It
appeal
is well settled that
a claim on
which was not raised at trial cannot be considered
court,
is
appellate
injustice
unless a clear
Eroh,
App
demonstrated.
v
47 Mich
Scott,
(1973);
We to consideration of the v Whetstone op Opinion the Court issues,4 which, valid, two either of if call would for a reduction of first-degree defendant’s conviction of murder murder. On date Rueger Martin was killed and his house broken (October 15, 1978), 5, 1979, into and on November the date of the information charging defendant entering, Michigan’s felony- murder statute read: "All which perpetrated by shall be means of wait,
poison, lying wilful, or or any other kind of premeditated killing, deliberate or which shall be perpetration, attempt committed in the any perpetrate or arson, rape, robbery, any kind, burglary, larceny of extortion, kidnapping, or shall be murder of the first degree, punished solitary and shall be confinement prison 750.316; hard labor life.” state for MCL (Emphasis supplied.) MSA 28.548. 11, 1980,
On March House Bill which be- PA passed came 1980 given immediate effect. This act deleting amended the statute by above, word "burglary” re- emphasized placing "breaking it with the words dwelling”. Likewise, act amendatory deleted "rape” word replaced it with the words "criminal sexual conduct in the first or third degree”.
Since defendant must judged be by the as it existed at offense, the time of ques- tion arises whether defendant had been convicted which, offense, at the time of the not an 750.316; enumerated offense under MCL MSA issue, 28.548. Defendant’s brief this sub- mitted at this Court’s request, argues term "burglary” refers to offense the common-law (1) supra, Defendant’s issue forth as set in fn and the issue sponte by raised sua this Court.
556 546 Opinion op the Court dwelling entering breaking in the house a and of entering breaking in nighttime, and since and daytime, defen- in the case occurred the instant charged. response, wrongfully In was dant people argues that submitted brief encompasses "burglary” both crime of common-law nighttime entering and break- in the question daytime. entering ing The in the posed impression. of first is general correctly rule that states
Defendant burglary a break- the crime of law at common night- dwelling ing in the house (14th ed), p 337, § Law Criminal time. Wharton’s p Burglary, 22, 322; LaFave 2d, § 211; 13 Am Jur p Law, § 96, 713. Scott, Handbook on & Criminal a critical was considered time of the offense The night men the time honest element because Scott, might prey LaFave & to criminals. fall supra. Michigan, elsewhere, the common-law
In
as
only
burglary
to a
referred
crime of
entering
nighttime.
Peo-
Cole v
committed
reject
ple,
therefore
Unlike the Legislature Michigan’s has enacted latures, never "burglary” it a series statute; instead codified v Whetstone Opinion of the Court statutes. The 1835 laws proscribing breaking include two statutes and en- dwelling tering nighttime, essen- house tially the burglary. common-law offense part Stat, IV, 4, §§9-10. Rev tit 1, ch statr Other proscribed breakings utes at that enacted time buildings other at other times and under different part Stat, IV, 1838 Rev circumstances. tit ch describing §§ 11-13. various statutes different breakings were re-enacted with few substantive *10 changes until when the distinction between night day respect and was abolished to these present breaking PA crimes. 1964 entering 133. The and distinguish statutes also do not between night seq.; day. and MCL 750.110 et MSA 28.305 et seq.
While in other states the statutes have obliter-
day
night
ated the distinction between
and
offen-
e.g.,
supra, Michigan
ses,
Williams,
courts have
recognize
continued
the
to.
distinctions between
burglary
statutory breakings.
common-law
and the
People,
(1880),
In
305;
44
Harris v
the clearly expressed As we believe that
that intent. only burglary included offense of common-law the breakings nocturnally, and we committed those the dis- have maintained that the courts observe the common-law offense and stat- tinction between broadly breakings, utory do believe we can we including day- as the read breaking enterings amid enumerated time felonies. respect supported by is in this
Our conclusion panel of this Court. recent decision of another 681; 325 Saxton, 118 Mich NW2d case, case, in the In that as instant charged guilty found defendant underlying felony occurred murder where was one of 1974 before argued that Defendant enumerated felonies. entering could not included be "burglary” since, as in the instant within the term day- entry case, occurred case, Likewise, time. as the instant defense Despite not raised at trial. fact Court found the issue was not raised at trial this *11 holding: reversible, error above, burglary "As discussed crime distin- guishable breaking statutory from the crimes of and statute, entering. the As in used the 'burglary' term to the common-law crime referred entering dwelling required breaking which nighttime. in house the case, present entering the took "In the place daytime. there- the The underlying felony fore fails to defen- establish first-degree be af- dant’s murder conviction cannot However, judge necessarily firmed. found defendant guilty second-degree of his murder so we order convic- supra, Saxton, pp to 690-691. tion reduced that offense.” 559 v Whetstone V.J. P.J. Brennan, Dissent fully agree Judge We that Brennan premeditation. facts disclosed mony too So did the testi- disagree
in Saxton. we But must that issue can be overlooked or considered waived charged where the crime was nonexistent when was committed. offense We are directed to strictly construe criminal statutes and to resolve any ambiguity in of favor the accused. Yates v States, 298, 304-305; United 354 1064; US 77 S Ct (1957); States, L Ed 2d Bell v United 81, 83; US S Ct L Ed 905 We "burglary”, conclude that felony-murder as it was used effect in referred only to the common-law crime. case,
In this the evidence clear is of- during daylight fense was committed hours. The therefore fails to estab- underlying felony lish the and defendant’s first- degree (felony) murder conviction cannot stand. jury necessarily guilty found defendant second-degree murder, however, so we order her conviction reduced to offense. necessary modify
As it is defendant’s convic- second-degree tion murder, we need not deter- mine whether all of the elements murder were established before defendant’s confession was that, admitted into evidence. Defendant admits the time the confession was admitted into evi- second-degree dence, the elements murder had prejudice. been established. We therefore see no first-degree (felony) Defendant’s conviction for entry murder is vacated. The case is for remanded of a conviction of resen- tencing on that offense.
T. C. J., concurred. Megargle, (dissenting). V. J. I P.J. Brennan, respectfully *12 119 Bhennan, J. P.J. Dissent V. finding majority’s agree with the dissent. I cannot be to must reduced that defendant’s conviction charged she was murder because underly- felony murder with the and convicted of entering occupied ing felony dwelling an of burglary. instead objection in the did not raise an defendant charging felony to information trial court murder the as under- the with during object lying felony; the not defendant did during to trial instruction the trial or the court’s jury, the issue the did not raise defendant sponte. appeal. raised the issue sua This Court preliminary fact, examina- As a tion, at matter attorney objected the infor- the defendant’s to "breaking it mation on the basis entering stated dwelling”, occupied he con- which an The information tended was a misdemeanor. "breaking and an to state then amended dwelling occupied ceny”. intent to commit a lar- not the infor- Defendant did contend a crime as defined. Since mation did state charge objection or to the defendant made no underlying conviction on basis of the charge supported which injustice to conviction, I find no would manifest defendant, error. no reversible part: 28.1016, 767.76; MCL MSA states dis- quashed, "No indictment set aside or shall be motion quash any missed or motion to for be or sustained be delay purpose of sentence for the of review re- granted, set or any nor shall conviction be aside any versed on account of defect in form or substance indictment, indictment, objection to such unless claimed, stating prior specifically the defect be made trial thereaf- commencement of the or at such time permit. ter as The court the court shall in its discretion may before, during any time after the trial amend or defect, imperfection or any in respect the indictment People Whetstone *13 561 v by Bbennan, Dissent V. J. P.J. in form or of or any omission substance variance with the evidence.” provision, Court, the upon foregoing
Based Southwick, People v 264; 272 Mich 261 NW (1935), 320 held claim of error information, raised for first appeal, time on Moreover, will not be considered. this Court has found that a defendant’s claim that the informa pursuant tion does not state a crime will not be considered where that objection Kildow, People v not raised trial court. 19 den 194; (1969), lv App NW2d (1970). Also, Walsh, People Mich 803 see 27 Mich App 100; 183 I Therefore, NW2d 360 would find that we should not review the issue of whether defendant was properly charged. Further more, I think do that we should review the issue of whether the defendant was con properly (On Remand), v Horton victed. In (1981), NW2d this Court found no reversible error where the defendant was convicted of even felony though trial court had instructed jury criminal sexual conduct rather than common-law rape as the un derlying felony. Based I upon would foregoing, find that the issue should not be reviewed this Court, or in alternative, there was no manifest injustice to the defendant since the clearly facts show that defendant mur committed first-degree der standing alone without mention of the under lying felony. She was confronted by the deceased outside of the deceased’s home. She the de shot times, ceased several got out of her car shot him several more times before she away. drove here, Everything present premeditation, mo tive, and intent.
I would affirm defendant’s conviction for murder.