PEOPLE v WILLIAMS
Docket No. 246706
Court of Appeals of Michigan
Submitted January 12, 2005. Decided January 27, 2005.
265 Mich. App. 68
The Court of Appeals held:
- The defеndant failed to support his claim of prosecutorial misconduct relating to comments made by the prosecutor to the jury.
- Although double jeopardy protections are violated when a defendant is convicted of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single victim, a single conviction for murder based оn two alternative theories will be upheld. In this case, there were one conviction and one sentence supported by the two theories of premeditated murder and felony murder.
- Because the defendant was convicted and sentenced for the murder on the alternative bases of premeditation and felony murder, the conviction for larceny, the felony underlying the felony-murder theory, must be vacated consistently with People v Bigelow (Amended Opinion), 229 Mich App 218 (1998).
MCR 7.215(J)(6) binds this panel to follow Bigelow, which has not been reversed or modified by the Supreme Court.
Affirmed in part and vacated in part.
HOMICIDE — FIRST-DEGREE MURDER — DOUBLE JEOPARDY.
It is not a violation of double jeopardy protections when the finder of fact determines that alternative theories of premeditated murder and felony murder support a single conviction and sentence for first-degree murder (
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Ana Quiroz, Assistant Prosecuting Attorney, for the people.
Neil J. Leithauser for the defendant.
Before: SCHUETTE, P.J., and SAWYER and O‘CONNELL, JJ.
SAWYER, J. Defendant was convicted by a jury of first-dеgree premeditated murder,
A witness at trial testified that he was driving while defendant and the victim sat in the backseat of his car when he heard a “boom and the whole car lit up.” The driver loоked around and saw defendant shooting the victim. Defendant directed the driver to keep going. Defendant told the victim to lie down and pushed the victim‘s head into the car seat. He then shot the victim two more times. After directing the driver to an alley, defendant pulled the victim‘s body out of the car, looked through the victim‘s pockets, and took the victim‘s wallet, shoes, and marijuаna. Defendant got back in the car and told the driver to take him to a gas station. After purchasing a gas can and some gas, defendant returned to the alley, poured the gas on the victim‘s body, and lit the victim‘s body afire. Later that night, defendant told his girlfriend, another witness at trial, that he had shot the victim in the face about six times. Holding his gun in his hand, defendant demonstrated how he shot the victim. Thе driver immediately told the police about the incident and directed them to the alley where defendant dumped the victim‘s body. The police found defendant sleeping near a firearm whose slugs matched those found in the driver‘s car and whose shells matched those found in the car and the alley.
Defendant‘s first issue on appeal is whether prosecutorial misconduct deprived him of a fair trial. We disagree. Defendant did not object to the alleged in-
While the prosecutor vividly described defendant as “cold blooded” and the crime as “evil,” she did not unfairly depict the evidence of the crime or defendant‘s state of mind. A prosecutor need not limit her arguments to “the blandest possible terms.” People v Matuszak, 263 Mich App 42, 56; 687 NW2d 342 (2004). Defendant‘s argument that the prosecutor appealed to the jury‘s civic duty and emotions also fails. The prosecutor correctly defined the jury‘s role as a finder of fact. Her brief rhеtorical reference to justice was a sobering reminder that nothing the jury could do would remedy the harm done, so the reference persuasively emphasized the gravity of the crime more than it urged a result based on civic duty. While possibly objectionable, a limiting instruction certainly would have purged the statement of any potential prejudice. Ackerman, supra. Regarding imprоper sympathy, the prosecutor did not deviate from the facts, and those facts suggested a degree of malice relevantly indicative of premeditation. Finally, the prosecutor did not improperly belittle defense counsel when she referred to him as an “expert,” because the term, in context, merely drew the jury‘s attention to the fact that defense counsel acted as his own expert when he postulated that certain facts clearly demonstrated a scenario contrary to the testimony of the prosecution‘s witnesses. Therefore, defendant failed to support his claim of misconduct, and we will not reverse his conviction on that ground.
Defendant‘s second issue on appeal is whether his convictions and sentences violated principles of double
Defendant failed to object below. Therefore, we review his unpreserved claims of double jeopardy violations for plain error. Matuszak, supra at 47. While double jeopardy protections are violated when a defendant is convicted of both first-degree premeditated murder and first-degree felony murder arising out of the death of a single victim, we will uphold a single conviction for murder based on two alternative theories. People v Bigelow, 229 Mich App 218, 220-221; 581 NW2d 744 (1998). In the case at bar, the sentencing order clearly reflects that the trial court complied with Bigelow by indicating one conviction and sentence supported by the two theories of premeditated murder and felony murder.
We must, however, vacate his conviction and sentence on the underlying larceny offense. This case is presented in essentially the same procedural posture as Bigelow: the jury convicted on both the premeditation theоry and the felony-murder theory. Bigelow, supra at 221-222, clearly concluded that, in such a case, the conviction for the underlying felony must be vacated. As our dissenting colleague, who was a member of the Bigelow panel, admits, Bigelow blindly extended the double jeopardy analysis from a case involving a conviction only under a felony-murder theory to one where the jury explicitly found both the premeditation theory
But there is no authority for us to disagree with the decision of a special panel. A special panel‘s decision “is binding on all panels of the Court of Appeals unless reversed or modified by the Supreme Court.”
Affirmed in part and vacated in part.
SCHUETTE, P.J., concurred.
O‘CONNELL, J. (dissenting). I respectfully dissent.
Defendant‘s cоnvictions for both first-degree murder and the “underlying felony” of larceny do not violate double jeopardy principles in this case, because defendant was not convicted merely on a felony-murder theory, but also on a separate, valid theory of premeditated murder. Punishing a defendant once for larceny and once for committing a premeditatеd murder does not violate the intent of the Legislature, so double jeopardy is not offended unless defendant can demonstrate some fatal flaw in the premeditated murder theory, leaving the sentencing court to rely on the felony-murder theory alone. People v Calloway, 469 Mich 448, 450-451; 671 NW2d 733 (2003). To strike the
My opinion is informed by the historical development of this area of law. In People v Sparks, 82 Mich App 44, 53; 266 NW2d 661 (1978), we held that a defendant may not face multiple convictions or sentences based on the different varieties of murder when the defendant killed a single victim. While this made sense, it left prosecutors and courts in a quandary. If the prosecution pursued only a theory of premeditation, despite the fact that a felony-murder theory also applied, it risked the jury finding that the defendant, while certainly the killer, did not premeditate the killing. Because the reverse hypothetical situation was also true, it was hazardous to proceed on any single theory. Prosecutors wisely proceeded on both theories, usually in separate counts, despite the inevitable elimination of one of them. This left to judges the difficult question: Which valid conviction should be forever vacated to appease double jeopardy? Sparks reversed the felony-murder conviction, but only after finding that the facts adequately supported premeditation. Id. at 53. This became the trend. See People v Passeno, 195 Mich App 91, 95-96; 489 NW2d 152 (1992), overruled by People v Bigelow, 229 Mich App 218, 222; 581 NW2d 744 (1998).
In People v Wilder, 411 Mich 328, 342; 308 NW2d 112 (1981), our Supreme Court held that separate convic-
In the meantime, courts eventually recognized thе risk of simply dismissing a valid, but seemingly superfluous, murder conviction to satisfy double jeopardy mandates. The failure of the remaining conviction to withstand an appellate challenge could mean that an individual validly found guilty of the discarded variety of first-degree murder would go free. To insulate our system from such an injustice, we extinguished this possibility in the conflict-panel case оf Bigelow, supra at 222, holding that the proper procedure was to allow a prosecutor to convict a defendant of first-degree murder with alternative supporting theories. Under this approach, a defendant‘s first-degree murder conviction was undergirded by separate and independent grounds, and a defendant could not obtain reversal of the conviction on the hаppenstance that a court accidentally vacated the superior, valid theory to placate double jeopardy. To gain a reversal of the murder conviction under the new approach, the defendant needed to demonstrate that neither theory sustaining his murder conviction was valid.
Unfortunately, Bigelow also held, without the benefit of any substantive legal analysis, that the felony underlying a defendant‘s felony-murder conviction must be vacated to satisfy the requirements of multiple-punishment double jeopardy. Id. at 221-222.
This approach would validate the jury‘s finding that defendant premeditated the murder and committed a larceny. Similarly, it would not require us to choose between vacating defendant‘s valid felony-murder theory or vacating the valid conviction for the underlying felony, because it recognizes that defendant has failed to propose any substantial challenge to the validity of either verdict. The felony-murder theory stands merely as an alternative ground for affirming the first-degree murder conviction, and the theory alone does not receive a punishment (exclusive of the premeditation theory) that would require us to question whether the punishment assigned was more than the Legislature intended. Without multiple punishments stemming particularly and exclusively from defendant‘s convictions for larceny and felony murder, we do not need to vacate the felony-murder theory. Rather, we may wisely preserve it for its original purpose: to uphold defendant‘s valid conviction for first-degree murder should the premeditation theory fail. This, I think, upholds the paramount legislativе intent of having the criminal statutes enforced.
The majority‘s holding also perpetuates the existence of another senseless quandary — if the prosecution proceeds on two probably valid, but vulnerable, theories of murder, does it risk having its еntire case disposed of piecemeal on appeal, including its airtight conviction on the “underlying” felony of armed robbery or, perhaps, aggravated criminal sexual conduct.1 Absent a compelling directive from the Legislature, I would not require prosecutors and sentencing courts to jettison valid charges and convictions to protect their cases and decisions from potentially irreversible erosion.2
In sum, defendant argues, and the majority holds, that the underlying larceny conviction must be dismissed because the Legislature did not intend to punish him for both the underlying larceny and felony murder. Of course, neither defendant nor the majority explains how that lack of intent prevents us from punishing him for committing a larceny and a premeditated murder. I would hold that because defendant has been convicted under each theory, he must first demonstrate some fatal flaw in the premeditation theory before advancing his double jeopardy claim. He has not. Therefore, defendant‘s separate sentences for first-degree premeditated murder and larceny remain valid, and I would affirm in all respects.