People v. Emerson , 203 Mich. App. 345 ( 1994 )

203 Mich. App. 345 (1994) 512 N.W.2d 3

PEOPLE
v.
EMERSON

Docket No. 119737.

Michigan Court of Appeals.

Submitted November 3, 1993, at Detroit. Decided January 19, 1994, at 9:25 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and John P. Puleo and Thomas M. Chambers, Assistant Prosecuting Attorneys, for the people.

State Appellate Defender (by Susan Meinberg Thomas), for the defendant on appeal.

Before: CAVANAGH, P.J., and MARILYN KELLY and M.D. SCHWARTZ,^[*] JJ.

AFTER REMAND

PER CURIAM.

Defendant was convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548. The victim died of head injuries. Defendant was sentenced to life in prison. He appeals from his conviction, and we affirm.

The issues on appeal involve the corpus delicti of felony murder, the waiver of trial by jury, the denial of a challenge to a juror, and the effective assistance of counsel.

In his first issue, defendant claims that because his police statement provided the only evidence of the felony underlying the felony-murder charge, namely criminal sexual conduct, the statement should not have been admitted, under the corpus delicti rule. We reluctantly disagree.

For purposes of our discussion, we assume, without deciding, that there was insufficient evidence of criminal sexual conduct independent of defendant's statement to sustain a conviction.

Murder that is committed during the perpetration or attempted perpetration of, among other things, first- or third-degree criminal sexual conduct, is murder in the first degree, or statutory felony murder. MCL 750.316; MSA 28.548; People v Aaron, 409 Mich. 672, 717-718; 299 NW2d 304 (1980). The Court in Aaron abrogated the common-law felony-murder rule, under which even an accidental death occurring during the perpetration of a felony could support a felony-murder conviction. Id. at 733; see People v Hughey, 186 Mich. App. 585, 588; 464 NW2d 914 (1990).

The purpose of the corpus delicti rule is to guard against conviction for a crime when none was committed by requiring a showing, independent of an accused's statement, that a crime had occurred. People v Williams, 422 Mich. 381, 388; 373 NW2d 567 (1985); People v Cotton, 191 Mich. App. 377, 389; 478 NW2d 681 (1991).

In People v Allen, 390 Mich. 383; 212 NW2d 21 (1973), adopting then-Judge LEVIN's dissenting opinion in the same case, 39 Mich. App. 483; 197 NW2d 874 (1972), the Court held that the corpus delicti of felony murder may not be established without evidence independent of the accused person's confession of the essential element that distinguishes the offense of first-degree murder from second-degree murder (i.e., commission of the underlying felony). 390 Mich. 385.

In Williams, on the other hand, the Court held that the corpus delicti of first-degree premeditated murder consists of only two elements: the death of the victim and some criminal agency as the cause. 422 Mich. 392. The Court distinguished Allen, supra, but did not expressly overrule it.

This Court in Hughey, supra, concluded that Williams implicitly overruled Allen, because "the reasoning behind the Williams decision equally applies to felony-murder cases, particularly in light of the decision in Aaron, supra." Hughey, supra at 588. Therefore, according to the Hughey panel, the corpus delicti rule is satisfied in prosecutions of first-degree felony murder by showing that a death has occurred as a result of some criminal agency. Id. at 589.

We respectfully disagree with the Hughey panel's conclusions. We believe that the absence of a mens rea requirement fundamentally distinguishes felony murder from first-degree premeditated murder. See Aaron, supra at 708-709. This is so even though Aaron abrogated the common-law felony-murder rule. Furthermore, in our view, premeditated murder is a single crime, in which the element of deliberation merely serves to enhance the severity of the offense, whereas felony murder is a compound crime consisting of both a murder and a felony. An accused is just as likely to confess to a rape that did not happen as to a homicide that did not happen. See Williams, supra at 388-389. Therefore, the elements of both crimes should be established independently of a defendant's confession. We note that, in this case, defendant's statement would most likely not have been admissible to prove a charge of criminal sexual conduct. See Cotton, supra.

Therefore, we do not agree that Williams, which involved premeditated murder, should control the question of the corpus delicti of felony murder, nor do we agree that Williams overruled Allen.

We are, however, constrained by Administrative Order No. 1990-6 to follow the rule of law established by Hughey, supra, because that case was issued after November 1, 1990. 436 Mich. lxxxiv. Therefore, we reluctantly conclude that it was not necessary to establish the criminal sexual conduct independently of defendant's confession, and the police statement was properly admitted.

Defendant's second issue is whether he was denied his right to effective assistance of counsel. We conclude that counsel's performance was not deficient, nor was defendant prejudiced by it. People v Tommolino, 187 Mich. App. 14, 17; 466 NW2d 315 (1991). In particular, there was no evidence to support a defense of insanity based on the continual voluntary ingestion of mind-altering drugs. See People v Parker, 133 Mich. App. 358, 363; 349 NW2d 514 (1984). Moreover, we will not second-guess counsel's trial tactic of admitting guilt of a lesser offense. People v Walker, 167 Mich. App. 377, 382; 422 NW2d 8 (1988).

Thirdly, defendant contends that he was improperly denied his constitutional right to waive a jury trial. We disagree, because there is no such right. People v Kirby, 440 Mich. 485, 487; 487 NW2d 404 (1992).

Finally, we do not believe that the trial court abused its discretion in refusing to excuse for cause a juror who had an acquaintance whose brother-in-law was the victim's uncle. The juror assured the court that she could be impartial, and defendant failed to demonstrate bias or prejudice. People v Roupe, 150 Mich. App. 469, 474; 389 NW2d 449 (1986).

We decline to address other issues raised in defendant's brief after remand, because our order of January 28, 1991, limited the proceedings on remand to the issue raised in the motion to remand.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.