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Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research Training Appeals, and Ronald P. Weitzman, Assistant Prosecuting Attorney, for the people. Kenneth M. Mogill (M. Gerald Schwartzbach, of counsel), for defendant.
Judges
  • T.G. KAVANAGH, C.J.
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research Training Appeals, and Ronald P. Weitzman, Assistant Prosecuting Attorney, for the people. Kenneth M. Mogill (M. Gerald Schwartzbach, of counsel), for defendant.
Judges
  • T.G. KAVANAGH, C.J.
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Smart Summary

People v. Carter, Docket No. 54538 (Supreme Court of Michigan, Dec. 18, 1975)

Factual and Procedural Background

Andrew Carter and his codefendant Andrew Bufkin were charged with first-degree murder under the felony‑murder statute (MCLA 750.316; MSA 28.548) for the killing of Edward Koc. At trial the jury convicted both defendants of second‑degree murder (MCLA 750.317; MSA 28.549). The convictions were affirmed by the Court of Appeals (43 Mich. App. 585; 204 N.W.2d 762 (1972)), and on rehearing that court again affirmed (48 Mich. App. 290; 210 N.W.2d 390 (1973)). Carter's conviction alone is before the Supreme Court of Michigan, which affirmed.

The evidence, as described in the opinion, indicates that Koc was shot in an alleged robbery attempt. Credible testimony established that Carter and three others were driving, stopped to pick up Bufkin, and that Bufkin later ran carrying a brown paper bag and then returned to the car stating he had shot "the" man. None of the occupants called the police. The prosecution argued that Bufkin and Carter acted in concert and that the killing occurred during the attempted perpetration of an armed robbery.

Legal Issues Presented

  1. Whether the trial court erred in instructing the jury that both Bufkin and Carter could be convicted of second‑degree murder when, defendant contends, there was no credible testimony that Carter participated in the killing.
  2. Whether second‑degree murder is a lesser included offense of first‑degree felony murder (i.e., whether a jury may be instructed on second‑degree murder when the indictment charges felony murder).
  3. Whether, in prosecutions for felony murder, the jury should be limited to a verdict of first‑degree murder or not guilty (the rule adopted by the Court of Appeals panel that the Supreme Court considered and rejected).

Arguments of the Parties

Appellant's (Defendant Carter's) Arguments

  • The trial court erred by instructing the jury that both defendants could be convicted of second‑degree murder because there was no credible testimony that Carter participated in the killing.
  • If a second‑degree murder occurred, it was committed by the shooter alone; therefore, Carter could only be found guilty of first‑degree felony murder (if the jury found he was responsible) or not guilty (if the jury found he was not the shooter).

Prosecution's Contentions

  • The prosecution contended that Bufkin and Carter acted in concert and that the killing occurred during the attempted perpetration of an armed robbery, which would support a conviction of first‑degree (felony) murder for Carter.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Allen, 390 Mich. 383; 212 N.W.2d 21 (1973) Explaining the relationship between degrees of murder: first‑degree as common‑law murder plus an additional element (premeditation or an enumerated felony). Used to support the proposition that first‑degree murder is second‑degree murder plus an added element, thereby implying second‑degree is a lesser included offense.
People v. Treichel, 229 Mich. 303; 200 N.W. 950 (1924) Holds that a statutory classification of certain murders as first‑degree does not exclude lesser degrees if the evidence warrants; the jury may consider lesser included offenses. Quoted and relied upon to show historical Michigan precedent allowing lesser degrees to be submitted when evidence warrants, even where felony murder theory was tried.
Fuller v. United States, 407 F.2d 1199 (D.C. Cir. 1968) (on rehearing) Holds that a jury may be instructed on second‑degree murder as a lesser included offense even where the indictment charges only felony murder. Adopted as persuasive authority supporting the proposition that second‑degree may be a lesser included offense of felony murder.
Government of the Virgin Islands v. Carmona, 422 F.2d 95 (3d Cir. 1970) Accords with Fuller on allowing second‑degree as a lesser included offense in felony‑murder prosecutions. Cited as further federal authority in support of permitting lesser‑included instructions.
Jackson v. United States, 313 F.2d 572 (D.C. Cir. 1962) Also cited for the principle that second‑degree murder may be instructed as a lesser included offense to felony murder. Listed as additional authority consistent with the court's conclusion.
People v. Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975) Holds that a trial judge may properly instruct on lesser included offenses, even over defendant's objection, if the evidence would support conviction of the lesser charge and defendant had fair notice. Relied upon (and cited as released the same day) to support the propriety of instructing on lesser included offenses when evidence and notice requirements are met.
People v. Jenkins, 395 Mich. 440; 236 N.W.2d 503 (1975) Holds that in every first‑degree murder case the trial court is required to instruct sua sponte on the lesser included offense of second‑degree murder. Cited to state the court's rule that trial courts must instruct sua sponte on second‑degree murder in first‑degree murder prosecutions (announced the same day).
People v. Wimbush, 45 Mich. App. 42; 205 N.W.2d 890 (1973) Expresses a contrary view in the Court of Appeals that second‑degree murder is not a lesser included offense of felony murder. Noted as a contrary Court of Appeals panel decision; the Supreme Court contrasted and rejected that approach.
People v. Bufkin, 43 Mich. App. 589; 204 N.W.2d 763 (1972) The Court of Appeals had adopted the rule that felony murder preclusively presumed premeditation so that second‑degree murder and manslaughter could not be lesser included offenses. The Supreme Court disapproved the contrary rule adopted in People v. Bufkin.
People v. (Court of Appeals decisions affirming Carter): 43 Mich. App. 585; 204 N.W.2d 762 (1972) and 48 Mich. App. 290; 210 N.W.2d 390 (1973) Appellate dispositions affirming the convictions below. Referenced as the procedural history of the present case; their holdings were considered and one aspect (Bufkin) was disapproved.

Court's Reasoning and Analysis

The Court analyzed the relationship between first‑ and second‑degree murder and concluded that second‑degree murder is a lesser included offense of first‑degree (felony) murder. The Court's reasoning proceeded in these steps:

  1. Conceptual framing: The Court stated that first‑degree murder is common‑law (second‑degree) murder plus an additional element—either premeditation or the perpetration/attempted perpetration of an enumerated felony. It relied on People v. Allen for this formulation.
  2. Logical consequence: Because first‑degree murder contains an added element relative to second‑degree murder, second‑degree murder can be seen as first‑degree murder "minus" that extra element, and thus constitutes a lesser included offense.
  3. Precedential support: The Court cited Michigan precedent (People v. Treichel) and persuasive federal authority (Fuller, Carmona, Jackson) holding that lesser included offenses may be instructed upon even when the indictment charges felony murder, provided the evidence supports submission.
  4. Controlling principle on instruction: The Court emphasized that a trial judge may properly instruct on lesser included offenses, even over objection, when the evidence would support conviction of the lesser charge and the defendant has had fair notice (citing People v. Chamblis).
  5. Rejection of contrary rule: The Court rejected and disapproved the Court of Appeals' earlier rule (People v. Bufkin) that felony murder precludes any lesser included offenses because premeditation is conclusively presumed.
  6. Concert liability and the jury's role: The Court explained that the jury need not have determined which of the two men was the shooter; the jury could accept the prosecution theory that Carter and Bufkin acted in concert, and on that basis convict Carter of second‑degree murder. The Court found there was ample evidence to sustain the jury's verdict of second‑degree murder.
  7. Instructional command: The Court referenced its contemporaneous holding in People v. Jenkins that in every first‑degree murder case trial courts are required to instruct sua sponte on the lesser included offense of second‑degree murder.

Holding and Implications

Holding: The Supreme Court of Michigan affirmed Carter's conviction. Affirmed.

Implications:

  • The Court held that second‑degree murder is a lesser included offense of first‑degree murder (including felony murder). The contrary rule adopted in People v. Bufkin is expressly disapproved.
  • The decision confirms that, when the evidence would support it and the defendant has fair notice, trial judges may instruct the jury on lesser included offenses (such as second‑degree murder) even in prosecutions charging felony murder; the jury may find concert liability rather than identify the individual shooter.
  • By reference to People v. Jenkins (decided the same day), the Court indicates that trial judges are required to instruct sua sponte on the lesser included offense of second‑degree murder in every first‑degree murder case.
  • Direct effect on the parties: Carter's second‑degree murder conviction was affirmed. The opinion also alters the applicable instructional framework for future felony‑murder prosecutions in Michigan by validating submission of lesser included offenses and rejecting the narrower option structure previously adopted by one Court of Appeals panel.
  • The opinion did not characterize this outcome as setting aside the need for evidentiary support or notice; it explicitly ties permissibility of lesser included instructions to the existence of supporting evidence and fair notice (per People v. Chamblis).

Justices Williams, Levin, Coleman, and Fitzgerald concurred with Chief Justice T.G. Kavanagh. Justices Lindemer and Ryan took no part in the decision.

Show full summary ...

PEOPLE v. CARTER

T.G. KAVANAGH, C.J.

Andrew Carter and his codefendant Andrew Bufkin were charged with first-degree murder, MCLA 750.316; MSA 28.548. They were convicted of second-degree murder. MCLA 750.317; MSA 28.549. The convictions were affirmed by the Court of Appeals. 43 Mich. App. 585; 204 N.W.2d 762 (1972). On rehearing the Court of Appeals affirmed its prior decision. 48 Mich. App. 290; 210 N.W.2d 390 (1973). Carter's conviction alone is before the Court. We affirm.

The victim, Edward Koc, a neighborhood insurance man, was shot in an alleged robbery attempt. The testimony of all of the credible witnesses suggests that Carter and three others were driving to Carter's home. One of the group noticed Bufkin walking along and Carter stopped to let Bufkin enter. After a few blocks, Bufkin requested Carter to stop the car. Bufkin exited the car and ran north carrying a brown paper bag with which he had entered the car. After a brief wait, Carter drove a few blocks and again encountered the running Bufkin. Bufkin re-entered the car and stated that he had shot "the" man. None of the car's occupants called the police.

The prosecution contended that Bufkin and Carter acted in concert, that the killing occurred during the attempted perpetration of an armed robbery. Defendant alleges error in the court's instructions.

The relevant portion of the judge's instructions are as follows:

"Now, if you find that the facts as you have heard them, the testimony indicates to you that there was an attempt to commit a robbery then, I say that you are limited to first-degree murder. As to both or either of the defendants. However, if you find otherwise, then you may consider the lesser included crimes of murder in the second degree and manslaughter."

When the jury returned asking that the instructions be repeated, the judge again stated:

"[I]f you find from the facts that no robbery was committed only then may you consider second-degree murder or manslaughter and not guilty. Those are the four verdicts you can arrive at, first-degree murder, second-degree murder, manslaughter and not guilty and you may find for either or both of the defendants. This is what you're limited to, is that correct?"

Defendant contends that it was error for the trial court to instruct the jury that both Bufkin and Carter could be convicted of second-degree murder, because there was no credible testimony that Carter participated in the killing. Defendant argues that if there was a second-degree murder, it was committed by the shooter and the shooter alone, and it was up to the jury to determine which of the two defendants was the shooter. Thus, Carter could be found guilty of first-degree felony murder or not guilty.

The Court of Appeals held that because the evidence would have been sufficient to convict Carter of first-degree murder, he had no complaint about being convicted of second-degree. However, that Court also held that in future prosecutions for felony murder, the trial judge would be obliged to instruct the jury that its verdict shall be guilty of murder in the first degree or not guilty.

"We adopt this rule because `felony murder', so called, is a creature of statute in which the element of premeditation is conclusively presumed by proof of the perpetration or attempt to perpetrate a specific felony. As such, neither second-degree murder nor manslaughter can possibly be lesser included offenses. These two latter crimes and felony murder are mutually exclusive offenses." 43 Mich. App. 589; 204 N.W.2d 763.

A contrary view was expressed by another panel of the Court of Appeals in People v Wimbush, 45 Mich. App. 42, 49; 205 N.W.2d 890 (1973).

We hold that there are lesser included offenses to first-degree felony-murder. Second-degree murder is always a lesser included offense of first-degree murder. First-degree murder is second-degree (common-law) murder plus an element, viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v Allen, 390 Mich. 383; 212 N.W.2d 21 (1973). Conversely, second-degree murder is first-degree murder minus premeditation or the enumerated felony. The contrary rule of People v Bufkin is disapproved.

"Homicide is not murder of either degree, * * * unless it amounts to common-law murder. If this is all it is second-degree murder. If it is common-law murder plus one or more of the aggravating circumstances mentioned, it is murder of the first degree." Perkins on Criminal Law (2d ed), p 90.

In People v Treichel, 229 Mich. 303; 200 N.W. 950 (1924), the defendant was charged with common-law murder. The case was tried on the theory of felony murder, i.e., murder committed in the perpetration of a robbery. The trial court, over objection by the defendant, instructed the jury on first-degree murder, second-degree murder and manslaughter. Defendant was convicted of manslaughter. In affirming the conviction, this Court held:

"While the statute constitutes murder committed in the perpetration of burglary as in the first degree, it does not exclude all lesser degrees if the evidence warrants. * * * Conceding the verdict might have been for murder in the first degree, because death was occasioned by act committed in the perpetration of a burglary, was such a verdict the only one permissible? We cannot so hold. We think the evidence left the question of degree and the included crime of manslaughter to the jury and the court avoided instead of committed error in so submitting it." 229 Mich. 307-308.

In Fuller v United States, 132 US App DC 264, On Rehearing 286, 294; 407 F.2d 1199, On Rehearing 1221, 1229 (1968), the issue of whether second-degree murder was a lesser included offense of felony murder was considered and answered in the affirmative: "What is clear from our cases is that the jury may be instructed on second degree murder as a `lesser included offense' even though the indictment is solely for felony-murder". Accord, Government of the Virgin Islands v Carmona, 422 F.2d 95 (CA 3, 1970). Jackson v United States, 114 US App DC 181; 313 F.2d 572 (1962).

In People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975), released today, we held that a trial judge may properly instruct on lesser included offenses, even over objection, if the evidence adduced at trial would support conviction of the lesser charge and defendant has been afforded fair notice of the lesser included offense.

The jury need not have determined which of the two men was the "shooter". The jury was free to believe that Carter and Bufkin acted in concert. There was ample evidence to sustain this jury's verdict of second-degree murder.

In People v Jenkins, 395 Mich. 440; 236 N.W.2d 503 (1975), released today, we held that in every first-degree murder case, the trial court is required to instruct sua sponte on the lesser included offense of second-degree murder.

Affirmed.

WILLIAMS, LEVIN, COLEMAN, and FITZGERALD, JJ., concurred with T.G. KAVANAGH, C.J.

LINDEMER and RYAN, JJ., took no part in the decision of this case.

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PEOPLE v. CARTER
(Dec 18, 1975)