Opinion
Docket No. 60375.
Decided June 22, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Charles Campbell, and John C. Mouradian (of counsel), for defendant on appeal.
The defendant, Gerald Mayes, was charged with first-degree murder, MCL 750.316; MSA 28.548, conspiracy to commit murder, MCL 750.157a; MSA 28.354(1), five counts of assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was found guilty of voluntary manslaughter, MCL 750.321; MSA 28.553, conspiracy to commit felonious assault, MCL 750.157a; MSA 28.354(1), five counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felony-firearm. He was sentenced to 10 to 15 years for manslaughter, 2 years and 6 months to 4 years for conspiracy, 6 years and 6 months to 10 years for each assault count, and the mandatory 2 years for felony-firearm. The defendant appeals by leave granted, raising three issues for our consideration.
I
The defendant first argues that the trial court erroneously instructed the jury on the elements of voluntary manslaughter by omitting the intent element. When reviewing jury instructions for error, this Court reviews the instructions in their entirety, and not in misleading bits and pieces. People v Ritsema, 105 Mich. App. 602, 609; 307 N.W.2d 380 (1981). After reviewing the instructions given, we conclude that the court instructed the jury that voluntary manslaughter must be shown by an intentional killing. The court's manslaughter instruction followed the instruction for the charged crime of first-degree murder, which included an intent instruction. The court then distinguished the lesser included offense of voluntary manslaughter from murder, using the standard jury instruction, CJI 16:4:02. At no time did the court imply that one distinguishing factor was the intent element. We are confident that the jury was not misled by the instructions given. See People v Dupie, 395 Mich. 483, 489; 236 N.W.2d 494 (1975).
II
The defendant next argues that certain testimony should have been excluded as hearsay. During redirect examination of a witness, the following occurred:
"Q. Then how did you know Gerald fired five times? "A. Because when I saw his gun, he had five bullets in there. When I was running, Ren Jones was shooting.
"Q. But how — why do you say that Gerald fired five times?
"A. Because the next day my friend told me he fired, too.
"Mr. Landau: Objection, hearsay.
"Mr. LaBret: Let's find out which friend.
"Mr. Landau: I don't care what friend it was.
"Mr. LaBret: What if it was your client?
"Mr. Landau: Ask him. Fine.
"The Court: Go ahead.
"Q. (by Mr. LaBret): Which friend told you this?
"A. Ren Jones.
"Q. Did you tell the police that you saw —
"Mr. Landau: I'm going to object to that as being hearsay and the jury instructed to disregard that statement totally.
"Mr. LaBret: Well, your Honor, it goes to the conspiracy.
"Mr. Landau: I don't care what it goes to.
"Mr. LaBret: That's called the first count. It's on the information.
"The Court: There is a conspiracy.
"Mr. Landau: Your Honor, that is pure hearsay. Lorenzo Jones is not a party to this action.
"The Court: He is part of the conspiracy.
"Mr. Landau: He is not on trial here.
"The Court: I know that.
"Mr. Landau: It's pure hearsay.
"The Court: The objection is overruled.
"I will instruct the jury later on conspiracy.
"In essence, any statement made by any of the conspirators once the conspiracy is established are binding on all members of the conspiracy."
On appeal, the defendant argues that the testimony should have been excluded because the conspiracy had ended. MRE 801(d)(2)(E). At trial, however, the defendant objected to this testimony because one of the coconspirators was not a codefendant, and, therefore, his statements were not excepted from the hearsay rule. These are noticeably different grounds for objection. Although we acknowledge that the statement was not in furtherance of the conspiracy (and therefore was not excepted from the hearsay rule), People v Scotts, 80 Mich. App. 1; 263 N.W.2d 272 (1977), we will not reverse when the defendant failed to raise the proper and precise objection at trial. People v Hicks, 70 Mich. App. 430, 437; 245 N.W.2d 778 (1976); People v Cormandy, 16 Mich. App. 517, 520; 168 N.W.2d 430 (1969), lv den 382 Mich. 756 (1969).
We do not wish to imply that a coconspirator must be a codefendant to render his statements binding on other conspirators.
Given the defendant's confession in which he admitted firing the gun and the witness's description of shots sounding like those from two guns, and another witness's testimony that he saw the defendant hold and shoot a gun, the hearsay testimony was cumulative. Thus, even if reviewed on its merits, the court's evidentiary ruling resulted in harmless error. People v Jefferson, 77 Mich. App. 153, 160; 258 N.W.2d 172 (1977).
III
The final issue concerns the jury instruction on the felony-firearm charge. The court instructed the jury as follows:
"So if you find the defendant guilty of any of the offenses or included offenses, then you may consider Count VIII, felony-firearm.
"If you find the defendant not guilty of Counts I through VII, then, of course, Count VIII also fails.
"If you find the defendant committed or attempted to commit the crimes of murder or the various assaults, then you must further consider whether or not he was carrying a firearm or had one in his possession at that time." The defendant argues that this instruction was erroneous because felony-firearm is a "separate and distinct offense" from other charged felonies. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), app dis 444 U.S. 948; 62 L Ed 2d 317; 100 S Ct 418 (1979). The upshot of this argument is that compromise verdicts may be reached if a jury must convict a defendant of a felony before being able to consider the felony-firearm charge. The prosecutor calls the defendant's argument "foolish rubble and * * * not a viable issue for appellate review". The Michigan Supreme Court apparently disagrees with the prosecutor, though, because in People v Lewis, 415 Mich. 443; 330 N.W.2d 16 (1982), it decided this issue in the defendant's favor.
Although the instruction ran afoul of Lewis, reversal is not mandated. The defendant's failure to object can be excused because the posture of the law at the time of trial did not call for such objection. We feel, however, that the purpose behind Lewis is not called into question in this case. A fundamental goal of the Lewis instruction is to prevent compromise verdicts. The defendant here was convicted of seven underlying felonies; this is wholly inconsistent with a claim that the jury reached a compromise verdict so it could convict on the felony-firearm charge. Thus, while the jury instruction was technically erroneous under Lewis, no prejudice resulted to the defendant. We therefore affirm all convictions.
Affirmed.