Opinion
No. 105399.
November 8, 1996.
Leave to Appeal Denied November 8, 1996:
reported below: 213 Mich. App. 558 and
Court of Appeals No. 133563.
I concur in the statement of Justice LEVIN and would hold this case in abeyance for People v Dumas, No. 102355.
MALLETT, J.
I would hold this case in abeyance for People v Dumas, No. 102355.
I would hold this case in abeyance for People v Dumas, No. 102355, where leave to appeal has been granted to consider the judge's recurring instruction on felony murder.
This Court directed that People v Ingram, No. 104398, People v Turner, No. 104897, and People v Hall, No. 104908, where a like instruction was given, be held in abeyance for Dumas.
This case, too, should be held in abeyance for Dumas even though McDonald's lawyer did not object to the instruction. This judge has consistently refused to modify her instruction, and nothing would have been achieved by McDonald's lawyer voicing an objection as other counsel have done without success. The failure to object was harmless.
McDonald was affiliated with the "Hit Boys Only" gang that traveled to Detroit's east side, after McDonald and Harris (a defendant not before the Court) stole an automobile in an armed robbery. Harris, who was riding in the vehicle with McDonald (most of the others were in another vehicle), stole someone's jacket near City Airport. As the group returned to the west side, they saw Rauheem Wells jogging. It appears that the front vehicle, without McDonald, stopped first, with McDonald's vehicle stopping as well. Hall, Johnson, and Turner attacked the victim, with Ingram serving as a lookout. McDonald and Whitty (the prosecution's star witness, who had been in the vehicle with McDonald and Harris) arrived later and mostly just watched, although there was testimony that they were prepared to stop the victim if he tried to run away. After the robbery was complete, McDonald and Whitty turned to go back to the automobile. While doing so, they heard Ingram call out Johnson's name, who then said he would have to kill the victim, and then they heard four shots. The group traveled to Johnson's home and McDonald helped Johnson and Ingram burn the victim's school identification card.
McDonald contends that the evidence was insufficient to convict him of felony murder. His involvement with the armed robbery of the victim was minimal. It is agreed he showed up late at the scene. He was walking away at the time of the shooting.
Compounding that issue is the felony-murder instruction that allowed McDonald to be convicted without a showing of malice.