Lead Opinion
Dеfendant was convicted by a jury of first-degree premeditated murder, MCL 750.316(l)(a); first-degree felony murder, MCL 750.316(l)(b); larceny from the person of another, MCL 750.357; mutilation of a dead body, MCL 750.160; felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to life in prison on alternative theories of first-degree premeditated murder and first-degree felony murder. He was sentenced as a third-offense habitual offender, MCL 769.12, to 76 to 240 months in prison for the larceny conviction, 76 to 240 months for mutilation of a dead body, 3 to 10 years for felon in possession of a firearm, and a consecutive sentenсe of 2 years for his felony-firearm conviction. Defendant appeals as of right. We affirm in part and vacate in part.
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 looked around and saw defendant shоoting 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 marijuana. Defendant got back in the car and
Defendant’s first issue on appeal is whether prosecu-torial misconduct deprived him of a fair trial. We disagree. Defendant did not object to the alleged instances of prosecutorial misconduct at trial. Therefore, we will not find error requiring reversal if the prejudicial effect of the prosecutor’s comments could have been cured by a timely instruction. People v Ackerman,
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 nеed not limit her arguments to “the blandest possible terms.” People v Matuszak,
Defendant’s second issue on appeal is whether his convictions and sentences violated principles of double
jeopardy. Defendant argues that his convictions and sentences for premeditated murder and felony murder, as well as his convictions and sentences for felony murder and the underlying felony, violated his double jeopardy protections. We disagree that defendant’s convictions and sentences for premeditated murder and felony murder as alternative theories violated double jeopardy protections. However, we vacate his conviction and sentence for the predicate felony of larceny.
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 оf 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,
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 theory 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 and the felony-murder theory to apply. We do not necessarily disagree with the dissent that he and his colleagues in Bigelow rushed to judgment on this point and that a more thoughtful analysis might lead to the conclusion that the conviction for the underlying felony need not be vacated where, as here (and in Bigelow), it can be determined with certainty that the jury accepted the premeditation theory (either in addition to or instead of the felony-murder 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.” MCR 7.215(J)(6). Perhaps the Supreme Court will and should modify Bigelow in this regard. But until it does, we must follow Bigelow and vacate the conviction and sentence for the underlying felony.
Affirmed in part and vacated in part.
Dissenting Opinion
(dissenting). I respectfully dissent.
Defendant’s convictions 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 premeditated murder does not violate the intent of thе 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,
My opinion is informed by the historical development of this area of law. In People v Sparks,
In People v Wilder,
In the meantime, courts eventually recognized the 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 oí 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 happenstance that a court accidentally vacated the superior, valid theory to placate double jeopardy. To gain a revеrsal 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 оf multiple-punishment double jeopardy. Id. at 221-222. Bigelow cited People v Gimotty,
This approach would validate the jury’s finding that defendant premeditated the murder and committed a larceny. Similarly,
The majority apparently assumes that the Legislature intended for us to trim off and discard a valid conviction and sentence whenever a formulaic application of judicial precedent makes paring the convictions easier than rooting out and applying double jeopardy’s fundamental principles. I would rather assume that the Legislature intended to punish every violation of every law assembled and enumeratеd in the criminal code, including the meager larceny conviction at issue here. Because I do not perceive any reason why the Legislature would want a sentencing judge to refrain from punishing a larceny merely because the judge has already sentenced the defendant for committing premeditated murder, I would affirm the separate convictions and the multiple punishments those convictions fairly garnered.
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 entirе case disposed of piecemeal on appeal, including its airtight conviction on the “underlying” felony of armed robbery or, perhaps, aggravated criminal sexual conduct.
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,
Notes
For those who would argue that conviction of an underlying felony is certainly superfluous to a murder conviction, I cite Wilder, in which the underlying felony was the only convictiоn left standing after the Supreme Court reversed the defendant’s felony-murder conviction. As explained in Bigelow, supra at 220 n 1, the perfunctory reversal of a valid conviction to satisfy double jeopardy requirements unnecessarily risks the irremediable disposal of the only valid conviction.
I must note that the line of reasoning adopted by the majority has the ironic effect of decreasing the amount of punishment received by the most dangerous and contemptible class of criminals imaginable — those found guilty of planning to murder their victim in the course of committing another serious crime. As individuals charged with dispensing justice, we should carefully review our actions when they lead to such anomalous results.