Opinion
Docket Nos. 19184, 19185, 19186.
Decided September 20, 1977.
Appeal from Washtenaw, William F. Ager, Jr., J. Submitted March 8, 1977, at Lansing. (Docket Nos. 19184, 19185, 19186.) Decided September 20, 1977.
John Ulmer and Chester Shepard were convicted of first-degree murder. Defendants appealed. Reversed in an unpublished per curiam opinion. The prosecution moved for rehearing in the Court of Appeals and for remand to the circuit court for further proceedings. Motion for remand granted. Rehearing granted, and judgment of reversal vacated. Convictions affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, Assistant Prosecuting Attorney, Chief, Appellate Division, for the people.
Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
Before: QUINN, P.J., and BRONSON and M.J. KELLY, JJ.
AMENDED OPINION
Defendants were convicted by a jury October 16, 1974, of felony murder, MCLA 750.316; MSA 28.548. On appeal, these convictions were reversed by an unpublished per curiam opinion on the basis of improper communication by the trial judge with the jury. The trial transcript appeared to support this finding.
Thereafter, the people moved for a rehearing and for a remand to the trial court for an evidentiary hearing on what transpired between the trial judge and jury during its deliberations. By order dated May 10, 1977, we granted the remand and held in abeyance decision on the motion for rehearing.
The evidentiary hearing has been had and we have reviewed the transcript thereof. This review establishes the inadequacy and inaccuracy of the trial transcript on the question of communication between the trial judge and jury during its deliberations. Defense counsel and this Court were misled by the trial transcript. Review of the evidentiary hearing transcript also precludes a finding by this Court that there was any improper communication between the trial judge and jury during its deliberations. Rehearing is granted and our prior opinion reversing these convictions is vacated. We now consider the remaining issues raised on appeal that have been preserved for review. Of the remaining twelve issues, only five have been preserved and since no miscarriage of justice has been shown, the remaining seven issues do not require discussion.
Defendants assert that it was reversible error to deny their motion to dismiss the felony murder charge because the evidence of murder was insufficient as a matter of law to warrant submission of the case to the jury on that charge. It is defendants' position that the evidence showed no intent to murder or malice but rather an accidental shooting. They ignore the fact that the shooting which caused the death occurred during a robbery which creates a fact question on intent and malice for jury determination, People v Fountain, 71 Mich. App. 491; 248 N.W.2d 589 (1976). We do not read People v Carter, 395 Mich. 434; 236 N.W.2d 500 (1975), as holding otherwise. We read it as holding that a charge of felony murder includes lesser offenses on which a jury may return a verdict, and a trial judge must instruct the jury on those lesser offenses, and a prima facie case of felony murder is shown where a homicide attributable to a defendant is committed during the perpetration of a felony specified in the statute. Denial of defendants' motion to dismiss was not error.
Defendants claim they were denied a fair trial because of opening remarks of the prosecuting attorney and by the fact that four jurors admitted reading a newspaper article contrary to the judge's instructions. The remarks and article referred to defendant Shepard as a "hit man". An instruction would have cured any prejudice arising from the prosecuting attorney's remarks and none was requested. No showing of prejudice has been made with respect to the newspaper article. Defendants were not denied a fair trial.
Defendants requested that no instruction on lesser included offenses be given. It was not error to accede to this request.
As to the instruction on accomplice testimony, defendants requested none nor did they object to the instruction given. We find no error.
The testimony concerning a confrontation between a witness and a defendant as to the witness's accusation of defendant's guilt was not erroneously received. It had some probative value.
The record does not support a finding that defendants were denied a fair trial because of misconduct of the prosecuting attorney and a police officer nor that defendants' counsel made serious mistakes requiring a new trial.
Affirmed.