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People v. Whetstone
Citations: 346 N.W.2d 845; 131 Mich. App. 669Docket: Docket 53409
Court: Michigan Court of Appeals; February 6, 1984; Michigan; State Appellate Court
Defendant Whetstone was convicted of first-degree felony murder and possession of a firearm during the commission of a felony, receiving consecutive sentences of life imprisonment and two years, respectively. The Michigan Court of Appeals, in a 2-1 decision, reversed the murder conviction due to the nature of the underlying felony. The court found that breaking and entering an occupied dwelling, which occurred during daylight hours, did not qualify under the felony-murder statute as it only encompassed common-law burglary, a crime defined as occurring at night. This distinction was raised by the court during oral arguments. The prosecution's rehearing motion argued that the legislature did not intend to exclude daytime burglaries, that the defendant was charged with attempted larceny, and that she waived any errors regarding her conviction. However, the court was unconvinced, referencing the precedent set in People v Saxton, which similarly addressed the applicability of the felony-murder statute to daytime breaking and entering. The court reiterated that criminal statutes must be strictly construed, resolving ambiguities in favor of lenity, and concluded that since the felony occurred in the daytime, it could not sustain a felony murder conviction. The prosecution argues that attempted larceny and larceny are lesser included offenses of breaking and entering with intent to commit larceny, justifying the defendant's conviction. On October 15, 1978, the relevant statute defined first-degree murder as including killings occurring during the commission or attempted commission of various felonies, including larceny. However, case law indicates that larceny in a building is not necessarily a lesser included offense of breaking and entering with intent to commit larceny. The Supreme Court has characterized larceny as a cognate lesser offense, but conflicting opinions exist regarding this classification. Importantly, the jury was not instructed that attempted larceny or larceny could support a felony murder charge, meaning the jury could not base a guilty verdict on these offenses. Furthermore, the jury was not instructed on the elements of assault with intent to do great bodily harm less than murder, effectively excluding these lesser offenses from consideration. The absence of such instructions means the jury improperly assumed the role of the trial judge. Therefore, the felony murder conviction cannot stand, as it relies on an underlying crime that was not presented to the jury. The court must vacate the first-degree felony murder conviction. The prosecution's claim that the defendant waived the error regarding premeditation and deliberation is rejected. Although trial testimony indicated some evidence of premeditation, the defendant was not charged with first-degree murder on those grounds and thus had no opportunity to defend against such a charge. The court emphasizes that the defendant lacked notice of a premeditation charge, invalidating any conviction based on that theory. Furthermore, the court states that failure by the defendant to raise the issue at trial should not prevent its consideration on appeal. Citing precedent from Saxton, the court affirms that errors identified warrant reversal despite similar circumstances. The prosecution's request to retry the defendant for first-degree murder is denied, as the evidence presented was insufficient for conviction, invoking the Double Jeopardy Clause to bar retrial. The court’s reversal of the defendant's conviction for first-degree felony murder is affirmed, with Judge Megargle concurring and Judge Brennan dissenting based on previously stated reasons. The decision is also supported by a recent Supreme Court opinion clarifying the prosecution's burden in proving elements of first-degree murder when aggravated by burglary.