RILEY, J. (for reversal).
In this case we decide whether defendant's implicit acquittal of first-degree felony murder, by virtue of his conviction of second-degree murder, prevents retrial of the lesser-included offense of armed robbery because his guilt or innocence was necessarily determined by the implicit acquittal of first-degree murder. We conclude that defendant was not implicitly acquitted of the lesser-included offense of armed robbery and, therefore, was properly retried for that offense.
I
Defendant Frank Garcia and his companion Ronald Hammond were arrested in connection with a December 3, 1985, carjacking and subsequent fatal shooting of Timothy Kiley. Mr. Kiley was assaulted and shot in the head when he refused Hammond's order to get into the trunk of his car. On a theory of aiding and abetting, Garcia was charged with first-degree felony murder, using armed robbery as the underlying offense. Additionally, he was charged with an alternative count of open murder and possession of a firearm during the commission of a felony. The count of open murder was dismissed by the trial judge before jury deliberation.
The jury deliberated on the remaining two counts. On the first count, first-degree felony murder, the jury was instructed on the lesser-included offenses of second-degree murder and armed robbery. The verdict form instructed the jury regarding the first count:
The original verdict form appears in the appendix.
You may return
only one verdict on this charge. Mark
only one box for this count.
Not guilty of 1st degree felony murder
Guilty of 1st degree felony murder
Or Guilty of the lesser included offense of:
2nd degree murder
Armed robbery. [Emphasis in original.]
Significantly, the jury was not afforded the opportunity to return a general verdict of "not guilty" on the entire first count. As to the second count, the jury was told that it could find defendant guilty or not guilty of felony-firearm. The jury found Garcia guilty of second-degree murder and felony-firearm, and he was sentenced to life imprisonment.
Garcia appealed, alleging, inter alia, that the verdict form did not provide the jury with the opportunity to return a general verdict of "not guilty" on count one. On the basis of that fact, the Court of Appeals reversed and held that defendant was entitled to a new trial. Additionally, the Court held that because the jury had impliedly acquitted defendant of first-degree murder, he could not be recharged and convicted of the greater offense of first-degree murder.
Unpublished opinion per curiam, issued October 19, 1988 (Docket No. 94233).
On remand, the prosecutor filed an information charging Garcia with three counts: second-degree murder, armed robbery, and felony-firearm. Garcia moved to quash the armed robbery count on double jeopardy grounds because his implied acquittal of first-degree felony murder (through his second-degree murder conviction) also constituted an implied acquittal of the lesser-included offense of armed robbery. The motion to quash was granted. The prosecutor filed an interlocutory appeal, and the Court of Appeals reversed, holding that defendant could be retried for the offense of armed robbery. Defendant did not appeal the order in this Court. At his second trial, Garcia was found guilty of armed robbery and again sentenced to life imprisonment. Defendant appealed, and the Court of Appeals reversed. The Court held that because the first jury did not convict Garcia of first-degree felony murder, and the only difference between that offense and second-degree murder (of which he was convicted) is the concurrent commission of a felony, Garcia could not be retried for that offense.
Unpublished order, entered May 15, 1989 (Docket No. 117306).
Defendant's failure to appeal the decision in this Court should preclude him from raising the issue on his subsequent appeal. In the second appeal to the Court of Appeals, the panel held that defendant could be retried for armed robbery. Relying on that decision, the prosecutor filed a new information with armed robbery as one of the charges. After the jury convicted him of armed robbery, Garcia again appealed to the Court of Appeals. Defendant should have been foreclosed from raising that issue because it would violate the law of the case doctrine, which states:
[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same. [
CAF Investment Co v Saginaw Twp, 410 Mich. 428, 454;
302 N.W.2d 164 (1981).]
The law of the case doctrine is, therefore, similar to the doctrines of claim and issue preclusion. Locricchio v Evening News Ass'n, 438 Mich. 84, 109; 476 N.W.2d 112 (1991). However, because the issue was not sufficiently raised before this Court, we do not decide the case on the basis of the law of the case, but rather address the merits of defendant's claim.
203 Mich. App. 420; 513 N.W.2d 425 (1994).
We granted leave to appeal and now would reverse the decision of the Court of Appeals. We would hold that Garcia's implicit acquittal of first-degree murder did not operate as an implied acquittal of the predicate offense of armed robbery. Defendant was therefore properly retried for the crime of armed robbery and his conviction should be upheld.
446 Mich. 865 (1994).
II
The Double Jeopardy Clause of the Fifth Amendment mandates that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb. . . ." The Double Jeopardy Clause protects against three general governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Ohio v Johnson, 467 U.S. 493, 497; 104 S Ct 2536; 81 L Ed 2d 425 (1984). The protections apply to the states through the Due Process Clause of the Fourteenth Amendment. Benton v Maryland, 395 U.S. 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). In the present case, we are concerned with that part of the Double Jeopardy Clause that prohibits retrial after an acquittal. Specifically, we must determine the scope of that protection to decide whether the defendant has been "implicitly acquitted" of the lesser offense of armed robbery by his conviction of second-degree murder.
Citing Brown v Ohio, 432 U.S. 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977), and North Carolina v Pearce, 395 U.S. 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969). See also People v Gonzalez, 197 Mich. App. 385; 496 N.W.2d 312 (1992).
A
The seminal case involving retrial after an implicit acquittal is Green v United States, 355 U.S. 184; 78 S Ct 221; 2 L Ed 2d 199 (1957). In Green, the jury was instructed on the offenses of first- and second-degree murder, and found the defendant guilty of second-degree murder. After a successful appeal, the defendant's conviction was reversed. On remand, the defendant was again tried for first- and second-degree murder and ultimately convicted of first-degree murder. The Court held that the defendant's retrial on the charge of first-degree murder subjected him to double jeopardy.
The Court stated that "this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: `We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.'" Id. at 191.
See also Price v Georgia, 398 U.S. 323, 329; 90 S Ct 1757; 26 L Ed 2d 300 (1970), in which the Court, mindful of its decision in Green, stated, "this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge." The Court also stated that the Double Jeopardy Clause protects against "the risk that an accused for a second time will be convicted of the `same offense' for which he was initially tried." Id. at 326.
Applied to the present case, Green precludes retrial of Garcia for first-degree murder. However, Green does not specifically address the issue before this Court, i.e., whether defendant may be retried for the lesser-included offense of armed robbery after an implicit acquittal of first-degree felony murder. The theory behind Green and its progeny, however, remain essential to our decision. We therefore closely examine the principles underlying Green and subsequent cases applying it, in order to determine whether it extends to prohibit Garcia's retrial on the offense of armed robbery. After careful scrutiny of Green and its progeny, we conclude that Garcia was not implicitly acquitted of armed robbery and, therefore, his double jeopardy rights were not violated when he was retried for that offense.
Justice CAVANAGH fails to recognize this crucial fact and proceeds on the basis that Green may be read to preclude retrial of a lesser-included offense. There has, however, been no implicit acquittal of defendant on the charge of armed robbery under Green. This novel reading of Green, that a defendant may not be retried for a lesser-included offense after an implicit acquittal of the greater offense, extends that decision to bar retrial in a situation clearly not contemplated in Green.
In support of this conclusion, we cite the precise factors that Green and several ensuing cases have required before determining whether a person was implicitly acquitted. Green held that if the jury is "given a full opportunity to return a verdict" on a greater offense and instead convicts on a lesser offense, an implicit acquittal with respect to the greater offense results. Id. at 191. An additional Green requirement is that "no extraordinary circumstances . . . prevented it from" returning a verdict on the greater offense. Id. Several cases have construed and applied this language in the context of different fact patterns — each of which aid us in applying the language enunciated in Green to the present case.
One such case was decided by this Court, People v McMiller, 389 Mich. 425, 431; 208 N.W.2d 451 (1973). In that case, we concluded that the operative inquiry to determine if a person has been implicitly acquitted is whether the factfinder was offered a choice to convict the defendant of the alleged offense. Therefore, the critical element for purposes of jeopardy is the defendant's exposure to such a choice being given to the factfinder. Id.
We analyze McMiller for its application of Green while recognizing that it involved a defendant who was retried on a greater offense after pleading guilty of a lesser offense. The Court concluded that "upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction." Id. at 434. Therefore, the doctrine of implied acquittal was held to apply to a guilty plea conviction.
However, McMiller was abrogated by MCR 6.312, which states:
If a plea is withdrawn by the defendant or vacated by the trial court or an appellate court, the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered.
See Commonwealth v Tabb, 491 Pa. 372, 377; 421 A.2d 183 (1980), in which the Supreme Court of Pennsylvania held that "the sine qua non for finding implicit acquittal is failure to convict in the face of full opportunity for conviction." The court found that a plea agreement in which the defendant pleaded guilty of murder generally and a conviction of third-degree murder was entered pursuant to the plea did not preclude him from retrial on first- or second-degree murder. For support, the court cited a similar case, Commonwealth v Klobuchir, 486 Pa. 241, 252; 405 A.2d 881 (1979), in which the court held that no judge or jury was presented with a "choice" in the first prosecution and "[t]hus the linchpin necessary to sustain a theory of double jeopardy based upon successive prosecutions [was] missing."
In the present case defendant was not "exposed" to the factfinder's "choice" of convicting him. Because the jury was allowed to choose only one verdict, an extraordinary circumstance envisioned by Green resulted, i.e., the jury was not afforded a full opportunity to return a verdict on the offense of armed robbery. Instead, the jury was allowed to choose only one verdict. Thus, we are persuaded that the jury was not given an appreciable choice.
See discussion in part IV.
Moreover, the Supreme Court of Georgia has determined that essential to an implicit acquittal of a greater offense is an unambiguous conviction of a lesser-included offense. Potts v State, 258 Ga. 430, 434; 369 S.E.2d 746 (1988). We find persuasive the analysis articulated by the Potts court. Holding that the verdict for the lesser-included offense was ambiguous, the court stated: "We therefore hold that a necessary premise for application of the Green-Price rule — an unambiguous conviction of the lesser-included offense — is not present." Id. at 433. Relying on Green, the court concluded that "a jury does not have a full opportunity [to convict] if the court restricts the jury's freedom to choose between the greater and lesser offenses." Id. at 434. The court was not able to determine whether the jury truly chose to convict the defendant on the lesser-included offense.
Count three alleged that the defendant was guilty of kidnapping involving bodily injury. The court stated that count three accused the defendant of kidnapping, but did not instruct or mention bodily injury. In its verdict, the jury stated that it found the defendant guilty of kidnapping and also that the defendant was "`guilty as to Count Three. . . .'" Id. at 433. The court was unable to determine whether the jury meant to find the defendant guilty of merely kidnapping or kidnapping involving bodily injury, stating: "In light of these conflicting circumstances, we conclude that the verdict is opaque, and thus that it does not support an inference that the jury intended to find Potts guilty of either kidnapping or kidnapping with bodily injury." Id.
Unlike Potts, the jury clearly convicted the defendant of second-degree murder in the present case. However, for the same reason Potts required an unambiguous conviction of a lesser-included offense to impliedly acquit of the greater, we would hold that an unambiguous verdict must be rendered with regard to armed robbery in the present case. Because, in the case at bar, the jury was restricted from returning more than one verdict, as in Potts, it was not afforded a full opportunity to choose between the various offenses, and so its choice of second-degree murder renders its conclusion with regard to armed robbery inherently ambiguous. The jury's silence on the offense of armed robbery is of no significance because the jury was required to remain silent if it determined that defendant was guilty of second-degree murder, which it did. However, because defendant was tried on the theory of aiding and abetting, using duress as his defense, the jury may have rejected the verdict of first-degree murder in the exercise of lenity, yet not found his involvement so minimal as to justify a verdict of merely armed robbery. As a result of these possibilities, inter alia, the verdict is ambiguous and any further analysis of the verdict is mere speculation.
Moreover, Justice CAVANAGH acknowledges that the jury "did not express any specific verdict with regard to armed robbery." Post at 474.
See n 25.
Another decision that clarifies the scope of implicit acquittals is Johnson v Commonwealth, 221 Va. 736; 273 S.E.2d 784 (1981). In Johnson, the defendant was convicted of capital murder and of using a pistol in the commission of murder. He was found not guilty of robbery. The Virginia Supreme Court reversed for instructional error and remanded the case for retrial. The jury instructions in the defendant's first trial produced a dilemma analogous to that produced by the instructions in the present case. The jury was instructed that it would not be able to find the defendant guilty of both capital murder and robbery. After his conviction was reversed and before his second trial, the defendant argued that his case should be dismissed or reformed on grounds of double jeopardy. The defendant alleged that "since he was `acquitted' of robbery at the first trial he could not be tried for capital murder because the elements of an armed robbery are integral to a conviction of murder in the commission of armed robbery." Id. at 739.
In Johnson, supra at 741, the defendant also claimed that because robbery is a lesser-included offense of capital murder and "that since every element necessary to establish the corpus delicti of robbery is relevant and essential to the proof of capital murder, the reciprocal nature of the double jeopardy clause prohibit[ed] his conviction of capital murder based on robbery when the defendant had previously been acquitted of that robbery." The defendant's motion was denied and, on retrial, he was again convicted of capital murder.
In determining whether his acquittal of robbery at his first trial precluded retrial of capital murder, the court held that the "dispositive issue is whether for double jeopardy purposes there has ever been a factual acquittal of the defendant on the robbery charge." Id. The court held that it "would stultify itself to hold that the jury in this case made a factual finding that Johnson was innocent of robbery. We would have to find that it ignored the court's instruction and that its finding of not guilty under Count I was completely unrelated to the express direction it had received from the court to return such a verdict if it found defendant guilty of capital murder." Id.
The court concluded that the jury did not resolve the issue of the defendant's guilt because, in order to convict the defendant of armed robbery, it would have had to ignore the court's instructions. Similarly, in the present case, because the jury found defendant guilty of second-degree murder, it was precluded from determining defendant's guilt or innocence with regard to armed robbery. Accordingly, it is impossible to hold that the jury in this case had a full opportunity to consider defendant's guilt or innocence with regard to armed robbery.
While Green, McMiller, Potts, and Johnson are distinguishable, the theories underlying the rules enunciated in those cases provide reasonable bases for the decision in the instant case. From these cases, we glean the rule that an implicit acquittal involves the jury's clear and articulable decision of guilt with regard to a lesser offense, in the face of a full opportunity to convict. In other words, an implicit acquittal arises only where it is evident that the jury has been afforded the opportunity to fully consider and decide the defendant's guilt or innocence with regard to the lesser offense so that the jury may be presumed to have acquitted the defendant of the greater offense. In the present case, it cannot be said that the jury was given such a full opportunity because it was allowed to choose only one verdict. Therefore, the risk that Green and its progeny seek to protect was not violated in defendant's retrial because he was not implicitly acquitted of armed robbery.
Our conclusion would not violate the double jeopardy risk protected by Green. In Green, supra at 192, the Court reasoned that to allow the defendant to be retried for first-degree murder because he "waived" his defense of former jeopardy would be to leave the defendant with "no meaningful choice." If he had "waived" his rights, the Court stated, it would be "wholly fictional to say that he `chooses' to forego his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense." Id. In that situation the defendant would be taking a "desperate chance" by appealing the case. The Court stated:
The law should not, and in our judgment does not, place the defendant in such an incredible dilemma. Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy. [
Id. at 193-194.]
Garcia is not exposed to that danger in the present case.
B
Additionally, our decision that defendant's retrial does not violate the principles of Green is augmented by the fact that subsequent cases have not prohibited retrial of a defendant for a lesser-included offense after an implicit acquittal of a greater offense. In Edmonds v United States, 106 US App DC 373; 273 F.2d 108 (1959), the defendant was indicted for first-degree murder, but was convicted of second-degree murder. The conviction was reversed on appeal, and the defendant argued, under Green, that he was immune from reprosecution for any offense included in the first-degree murder count of the indictment. The court rejected the defendant's argument and concluded that Green stands for the proposition that the defendant could not be retried for first-degree murder because he was implicitly acquitted of that charge. In defining the applicability of Green, the court held, however, that Green did "not go so far as to say he [could not] be tried again for second degree murder. Indeed a contrary view may be said to be indicated." Edmonds, supra at 378.
We note that the defendant was retried for second-degree murder, of which he was convicted at his first trial.
Similarly, in United States v Gooday, 714 F.2d 80, 83 (CA 9, 1983), the court addressed the situation in which a jury acquitted a defendant of first-degree murder, but was unable to reach a verdict on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. Relying on Edmonds, the court concluded that "acquittal on the indictment's first-degree murder count does not preclude retrial on the three lesser included offenses on which the jury was instructed." The court relied on Edmonds, supra, and stated that Green gave "independent force to lesser included offenses on which a jury has been instructed under one count of the indictment." Id. at 83. In other words, under Green, a defendant may be retried for any of the lesser included offenses, but may not be retried for an offense greater than the one of which he was originally convicted. Edmonds and Gooday have not interpreted Green to prohibit retrial for a lesser included offense of the offense of which the defendant was implicitly acquitted. Accordingly, both cases support our conclusion today, that defendant may be retried for armed robbery, which is a lesser-included offense of first-degree felony murder, of which he was implicitly acquitted.
In fact it was held in United States v Scott, 437 U.S. 82, 97; 98 S Ct 2187; 57 L Ed 2d 65 (1978), that "a defendant is acquitted only when `the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.'"
C
Justice CAVANAGH contends that the collateral estoppel doctrine as enunciated in Ashe v Swenson, 397 U.S. 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970), applies so as to preclude defendant's retrial of armed robbery in the present case. In Ashe, six men were playing poker in the basement of a home when three or four men armed with a shotgun and pistols broke into the basement and robbed each of the players. The defendant was tried and found not guilty "due to insufficient evidence" of robbery of one of the victims. Several weeks later, the defendant was tried again for robbery of one of the other victims. The issue in both trials was whether the defendant was one of the robbers: "For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers." Id. at 446. The jury in the first trial concluded that the defendant was not one of the robbers. Therefore, the Court held that the federal collateral estoppel rule was embodied in the Fifth Amendment, so that defendant could not be tried for the robbery of another victim. Id. at 444-445.
The jury was instructed that "if the petitioner was one of the robbers, he was guilty under the law even if he had not personally robbed [one of the victims]." Id. at 439.
Similarly, in Turner v Arkansas, 407 U.S. 366; 92 S Ct 2096; 32 L Ed 2d 798 (1972), the defendant was acquitted of murder by a general verdict of not guilty. The defendant was subsequently charged with armed robbery. The Court concluded that the acquittal resolved issues that would preclude the defendant from being tried for armed robbery. The state argued that the jury may have concluded that the defendant robbed the victim but that others actually committed the murder. However, such a result was not possible in light of the jury instructions:
"An accessory is one who stands by, aids, abets, or assists . . . the perpetration of the crime.
* * *
"All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted or informed against, and punished as such." [
Id. at 369.]
In Turner, the Court correctly held: "The only logical conclusion is that the jury found him not present at the scene of the murder and robbery . . . ." Id.
On the basis of these decisions, Justice CAVANAGH maintains that a final verdict was rendered with regard to armed robbery, and retrial of that offense is thus barred by collateral estoppel. We do not agree. As Justice CAVANAGH concedes, in the present case the jury only spoke with regard to second-degree murder — guilty. The jury, therefore, impliedly rendered a decision with regard to first-degree felony murder — not guilty. Even if the collateral estoppel doctrine applies to a judgment of implied acquittal pursuant to Green, as Justice CAVANAGH maintains, post at 479-480, neither doctrine may be expanded to apply to the lesser-included offense of that offense which defendant was impliedly acquitted, i.e., armed robbery. To do so would be to extend the principles of Ashe, Turner, and Green far beyond recognizable boundaries. On the basis of the instructions given in the present case, the jury did not render a verdict with regard to armed robbery. Ashe and Turner involve situations in which an appellate court was able to review the instructions and unequivocally determine that the jury had rendered a decision that precluded a subsequent trial.
Justice CAVANAGH additionally maintains that because neither party objected to the instructions, the verdict was a valid and final judgment with regard to armed robbery. The fact that neither party objected is wholly irrelevant for purposes of this decision. The issue here is whether defendant was implicitly acquitted of armed robbery. The instructions render the verdict with regard to armed robbery ambiguous. It would be impossible and inappropriate to expect either counsel to predict and object to the instructions on the ground that the instructions may lead to a subsequently unexplainable verdict with regard to armed robbery.
Contrary to Justice CAVANAGH's and Chief Justice BRICKLEY's position, we cannot agree that the jury was obligated to return a verdict of first-degree felony murder if it determined that defendant was guilty of second-degree murder and guilty of armed robbery. An instruction regarding the difference between first-degree felony murder and second-degree murder does not obligate the jury to any rational verdict. People v Lewis, 415 Mich. 443; 330 N.W.2d 16 (1982).
[W]hat makes second degree murder rise to the level of, in this case, first degree felony murder is this added element necessary for first degree felony murder; that the Defendant, Mr. Garcia, was committing or attempting to commit a felony; that is, armed robbery, at the time of the act that caused the victim, Mr. Timothy Roger Kiley's death.
Further, in both Ashe and Turner, the defendants were retried after a jury returned a general verdict of acquittal. In the present case, defendant was convicted and he appealed. This case is therefore more analogous to and should be evaluated under Green and its progeny. Green's unambiguous holding dictates that defendant could not be retried for the greater offense — first-degree felony murder — after conviction of the lesser-included offense — second-degree murder. Green does not prohibit retrial of a lesser-included offense (armed robbery) of the offense for which he was implicitly acquitted (first-degree felony murder). Neither Justice CAVANAGH nor Chief Justice BRICKLEY cites a single case that prohibits retrial of a lesser-included offense after the defendant successfully appeals his conviction and is retried. Green very simply and unambiguously states that defendant may not be retried for first-degree felony murder, and defendant was not.
Moreover, we do not find Justice CAVANAGH's discussion of People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), relevant. In White, the defendant was tried and convicted of kidnapping in March, 1969, and then subsequently tried and found guilty in October, 1969, on the charges of rape and felonious assault. All three crimes arose out of the same criminal transaction. The defendant therefore appealed, alleging that his double jeopardy rights had been violated. Id. at 251-252. The Court noted:
At oral argument, the prosecutor conceded the one reason for bringing the charges was because he was unhappy with the sentence defendant received on the kidnapping conviction. He stated that he waited until after the first sentence was given in circuit court before deciding to bring to trial the pending prosecution in recorder's court. Such harassment is prohibited. [
Id. at 259-260, n 9.]
It is evident that retrial of defendant does not violate the principles enunciated in White, i.e., prevention of the prosecutor from bringing a subsequent prosecution after obtaining a conviction arising out of the same transaction. The situation in Garcia is clearly distinguishable. Defendant was tried and he then appealed that decision, and therefore may be retried for all offenses of which he was not implicitly acquitted. To apply the same-transaction test to this case, as Justice CAVANAGH proposes, so that defendant could not be retried for armed robbery because he was not formally charged with that offense, would be a misapplication of White: "strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant's constitutional rights." Id. at 258, n 6. The present case does not present a situation in which the prosecution is attempting to prosecute defendant for the first time for a new offense. Armed robbery, although not formally charged in the first trial, was a crime that the state originally sought to prosecute. After conviction, defendant appealed and may now be retried for any offense of which he was not acquitted. Defendant was only acquitted of first-degree felony murder. Green, supra.
III
Our review of case law regarding inconsistent verdicts also persuades us that double jeopardy does not bar retrial in this case. The Court of Appeals did not consider the possibility of an inconsistent verdict when it addressed the issue of double jeopardy. Instead the Court held that the jury's failure to convict of first-degree felony murder, together with its conviction of second-degree murder, necessarily established that the jury found Garcia not guilty of armed robbery.
We agree with Justice CAVANAGH that an inconsistent verdict does not necessarily exist in this case. We discuss the issue only because, in order to achieve the conclusion reached by the Court of Appeals and Justice CAVANAGH, it is necessary to conclude that the verdicts are inconsistent, i.e., defendant was impliedly not guilty of first-degree felony murder in the first trial, and any result other than a jury verdict of not guilty with regard to armed robbery would be an inconsistent verdict. We merely hold that such a conclusion is not dictated after a review of the present law of inconsistent verdicts.
The Court of Appeals relied on People v Aaron, 409 Mich. 672; 299 N.W.2d 304 (1980), and concluded:
In this case, the only difference between second-degree murder and felony murder is the concurrent commission of armed robbery to elevate second-degree to first-degree. . . . The first jury found a murder had been committed, but it did not find an armed robbery had been committed sufficient to elevate its verdict to first-degree murder. Simply put, the jury did not find an armed robbery or its verdict would have been guilty of felony murder. . . . Thus, the jury's acquittal with regard to the felony-murder charge, by implication, served to acquit the defendant of armed robbery. [
203 Mich. App. 425 -426.]
We note that Aaron held that "Michigan has no statutory felony-murder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony." The Court specifically held that in order to convict a defendant of murder, "it must be shown that he acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior [was] to cause death or great bodily harm. We further hold that the issue of malice must always be submitted to the jury." Id. at 733.
Notably, the Court's analysis of the jury's verdict was arguably impermissible. In reaching its result, it was necessary for the Court of Appeals to speculate with regard to the jury's verdict. While it is an appellate court's duty to review jury verdicts, it may not speculate regarding a jury's conclusions. People v Chamblis, 395 Mich. 408, 426; 236 N.W.2d 473 (1975), citing Dunn v United States, 284 U.S. 390, 394; 52 S Ct 189; 76 L Ed 356 (1932), which stated: "`That the verdict may have been the result of compromise, or of a mistake on the part of the jury is possible. But verdicts cannot be upset by speculation or inquiry into such matter.'" The Chamblis Court then explained, "Juries in criminal cases often find defendants not guilty or find persons who have committed the charged greater offense guilty of only a lesser offense in the face of the evidence for reasons satisfactory to them." Id.
Before People v Vaughn, 409 Mich. 463; 295 N.W.2d 354 (1980), inconsistent verdicts in this jurisdiction could not stand unless explainable on a rational basis. More recently, this Court has recognized the jury's power of leniency and allowed inconsistent verdicts to stand. Vaughn, supra; People v Lewis, 415 Mich. 443; 330 N.W.2d 16 (1982). Lewis was a consolidated case in which three defendants were charged with committing a felony and with possession of a firearm during the commission of a felony. The jury acquitted defendants Lewis and Johnson of the underlying felony and convicted them of felony-firearm. The defendants maintained that the verdicts were inconsistent and that their convictions could not stand because they had been acquitted of the underlying felonies and that therefore an element of felony-firearm was not proven.
See, e.g., earlier Court of Appeals opinions: People v Allen, 94 Mich. App. 539; 288 N.W.2d 451 (1980); People v Goodchild, 68 Mich. App. 226; 242 N.W.2d 465 (1976); People v Fields, 66 Mich. App. 347; 239 N.W.2d 372 (1976); People v Ames, 60 Mich. App. 168; 230 N.W.2d 360 (1975); People v Johnson, 58 Mich. App. 165; 227 N.W.2d 272 (1975); People v Phillips, 43 Mich. App. 581; 204 N.W.2d 250 (1972). In light of Vaughn and Lewis, Justice CAVANAGH improperly relies on Allen, which holding is inapposite.
Specifically, we note that it is legally possible for a jury to return a guilty verdict of second-degree murder and armed robbery, without convicting of first-degree murder. People v Miller, 411 Mich. 321; 307 N.W.2d 335 (1981).
In Miller, each of the three defendants was charged with one count of first-degree murder and three counts of armed robbery. Defendant Ewing was found guilty of second-degree murder and one count of armed robbery. This Court reversed the convictions for improper jury selection procedures and remanded for new trials.
The Court held that the inconsistent verdicts did not undermine the convictions of felony-firearm. Id. at 448. The Court reasoned that "[t]he inconsistency in the instant verdicts suggests that the juries either compromised or were lenient." Id. at 450. The Court correctly, and significantly to the present case, stated that if the jury was lenient, the defendant was not injured. Alternatively, if the jury compromised, so that it could not reach a unanimous verdict, the remedy was "not dismissal of the charges, but the declaration of a mistrial, and the defendant can be required to stand trial again on the charges in respect to which the jurors are unable to agree." Id. at 452. Despite these decisions, Justice CAVANAGH seems to imply that inconsistent verdicts are not possible in this jurisdiction. Post at 484, n 23. Ironically, the majority opinion in People v Goss (After Remand), 446 Mich. 587, 599; 521 N.W.2d 312 (1994), held the contrary:
See Vaughn, supra at 466, in which this Court held:
Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury's capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant's release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility.
People v Goss (After Remand), 446 Mich. 587; 521 N.W.2d 312 (1994), relied on Lewis. In Goss, the defendant was convicted of armed robbery and first-degree felony murder. The conviction of armed robbery was affirmed by this Court, but the felony-murder conviction was reversed because of error in the jury instructions. This Court remanded the case for a new trial for felony murder. The issue on appeal was whether the defendant was estopped by res judicata and collateral estoppel from relitigating armed robbery on retrial for first-degree murder. This Court held that the defendant was not estopped to relitigate his claim of armed robbery. Although Goss involved the presently irrelevant issues of res judicata and collateral estoppel, in an opinion by Justice LEVIN the Court recognized Lewis stating, "[t]he jury's decision regarding the predicate offense does not preclude it from reaching a different conclusion in the context of the compound offense." Id. at 599.
Although we do not acknowledge a jury's right to return inconsistent verdicts, the jury does have the power to do so. Therefore, in the present case, while we do not conclude that the jury had the right to return an inconsistent verdict, it may not be contested that if the jury had done so (which we must assume in order to reach the decision of the Court of Appeals), we would not be able to alter that decision. In other words, on the basis of Lewis, supra, and United States v Powell, 469 U.S. 57; 105 S Ct 471; 83 L Ed 2d 461 (1984), we would not be able to retool the jury's verdict merely because the verdicts were inconsistent.
We conclude that when an accused is charged with an offense that has as an element commission of a predicate offense the jury's consideration of the charged predicate offense and its consideration of that offense again in the context of a compound offense are separate and distinct. The jury's decision regarding the predicate offense does not preclude it from reaching a different conclusion in the context of the compound offense.
Yet, Justice CAVANAGH proposes an entirely different rule in the present case.
Moreover, it is possible for a jury to reach separate conclusions on an identical element of two different offenses. In United States v Powell, 469 U.S. 57; 105 S Ct 471; 83 L Ed 2d 461 (1984), the Court addressed the issue whether an acquittal of a predicate offense would preclude conviction of a compound offense that required proof of the predicate offense. The Court, relying on Dunn v United States, 284 U.S. 390; 52 S Ct 189; 76 L Ed 356 (1932), held that "there is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled." Id. at 69. The Court reasoned that the fact that "inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant's behest. This possibility is a premise of Dunn's alternative rationale — that such inconsistencies often are a product of jury lenity." Id. at 65.
The Court of Appeals did not consider the legal possibility of a conviction of second-degree murder and armed robbery where the jury has refused to convict of first-degree murder. Therefore, the Court of Appeals erred in concluding that the jury necessarily found or even considered defendant not guilty of armed robbery.
IV
Finally, we consider defendant's contention that Harris v Oklahoma, 433 U.S. 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977), precludes his retrial of armed robbery. Harris involved a defendant who was convicted of felony murder. The defendant was again brought to trial and convicted on a separate information charging him with robbery with firearms. The defendant moved to dismiss on the ground that the conviction violated the Double Jeopardy Clause. The Court held:
When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. "[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence." [
Id. at 682-683. Citations omitted.]
We find Harris clearly distinguishable. Harris involved a defendant who was convicted and then retried for a lesser-included offense. It did not involve an implied acquittal. Harris may only be read to prohibit retrial of a lesser included offense after conviction of the greater offense. Harris and its progeny do not even address that part of the Double Jeopardy Clause with which we are presently concerned. North Carolina v Pearce, 395 U.S. 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
The Supreme Court again visited the issue in Payne v Virginia, 468 U.S. 1062; 104 S Ct 3573; 82 L Ed 2d 801 (1984). The defendant challenged his conviction for robbery after he had been convicted of capital murder committed during the perpetration of the robbery. The Court relied on Harris and held that the Double Jeopardy Clause prohibited trial of the defendant for the lesser offense of robbery where he had been convicted of the greater crime of murder. The Court stated: "where `conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery . . ., the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.'" Payne, supra at 1062, citing Harris.
There is no other way to interpret Harris. Even Justice CAVANAGH does not dispute our analysis. Citing Harris and Payne v Virginia, 468 U.S. 1062; 104 S Ct 3573; 82 L Ed 2d 801 (1984), Justice CAVANAGH states: "[T]he instant defendant could not have received separate sentences for convictions of both first-degree felony murder and of the underlying felony, armed robbery." Post at 476. We are not presented with that factual scenario in this case. It has never been maintained that defendant could be convicted of first-degree felony murder and subsequently tried and convicted of armed robbery in violation of Harris and Payne.
Additionally, whether punishments may be considered multiple is a question of legislative intent. See People v Robideau, 419 Mich. 458, 485; 355 N.W.2d 592 (1984), holding:
Under neither the federal nor the Michigan double jeopardy provisions does this Court sit as a superlegislature, instructing the Legislature on what it can make separate crimes.
V
The essential issue is whether double jeopardy bars retrial of defendant for armed robbery where a jury convicted him of second-degree murder, thereby implicitly acquitting him of first-degree felony murder. Although a case of first impression, we are guided by the rationale of Green and its progeny. We would hold that the jury in the present case was not afforded a full opportunity to convict Garcia of armed robbery. Further, we have determined that the jury's verdict is inherently ambiguous, given the fact that it was allowed to return only one verdict. Additionally, in its attempt to analyze the jury's verdict, the Court of Appeals failed to consider that this state recognizes a jury's power to render inconsistent verdicts. Defendant therefore was properly retried for the offense of armed robbery. The decision of the Court of Appeals should be reversed.
BOYLE and MALLETT, JJ., concurred with RILEY, J.
APPENDIX
VERDICT FORM
THE PEOPLE OF THE
STATE OF MICHIGAN FILE NO. 5673 VS FRANK GARCIA ____________________/
Count I — 1st Degree Felony Murder
Possible Verdicts:
You may return
only one verdict on this charge. Mark
only one box for this count.
Not guilty of 1st degree felony murder
Guilty of 1st degree felony murder
or Guilty of the lesser included offense of:
[] 2nd degree murder
Armed robbery
Count II — Possession of firearm at time of commission or attempted commission of felony (felony murder).
Possible Verdicts:
You may return
only one verdict on this charge. Mark
only one box for this count.
[] Guilty of possession of firearm at time of commission or attempted commission of felony (felony murder).
Not guilty of possession of firearm at time of commission or attempted commission of felony (felony murder).
/s/
Glenn E. Copeland Jury foreperson