345 N.W.2d 904 (Mich.App. 1983), 65896, People v. Owens

Docket Nº:Docket Nos. 65896, 65897.
Citation:345 N.W.2d 904, 131 Mich.App. 76
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Charles OWENS, Defendant-Appellant.
Attorney:[131 Mich.App. 80] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judith A.H. Hughes, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People. David H. Tripp, Hastings, for defendant-appellant on appeal.
Judge Panel:Before WALSH, P.J., and MAHER and ROUMELL, [*] JJ.
Case Date:November 01, 1983
Court:Court of Appeals of Michigan

Page 904

345 N.W.2d 904 (Mich.App. 1983)

131 Mich.App. 76

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Thomas Charles OWENS, Defendant-Appellant.

Docket Nos. 65896, 65897.

Court of Appeals of Michigan.

November 1, 1983

Submitted June 29, 1983.

Released for Publication March 16, 1984.

Page 905

[131 Mich.App. 80] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judith A.H. Hughes, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

David H. Tripp, Hastings, for defendant-appellant on appeal.

Before WALSH, P.J., and MAHER and ROUMELL, [*] JJ.

PER CURIAM.

Defendant appeals as of right from his convictions after a jury trial of two counts of incitement of first-degree murder, M.C.L. Sec. 750.157b; [131 Mich.App. 81] M.S.A. Sec. 28.354(2), and two counts of conspiracy to commit first-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), and his plea-based revocation

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of probation for violation of conditions, M.C.L. Sec. 771.4; M.S.A. Sec. 28.1134. Defendant was sentenced on May 14, 1982, to the mandatory term of life imprisonment without parole as to each count of incitement to murder and conspiracy to murder.

On September 22, 1981, Detective John Fiedler, posing as a "hit man", met with the defendant in the parking lot of a restaurant located in Barry County. The defendant indicated to Fiedler that he wanted Douglas O'Laughlin and Paul DeLassus, his former business partners, killed. The two men met on several other occasions. They agreed that Fiedler would receive $1,000 for each killing, one half to be paid before the killings and one half afterwards. However, no money ever changed hands. On October 21, 1981, the two men met for the last time. Defendant introduced Fiedler to Ricky Leon Jones, another of defendant's business partners. At that meeting, Jones told Fiedler that he too wanted O'Laughlin and DeLassus killed. Later that day, defendant and Jones were arrested.

On appeal, defendant raises eleven claims of error, six of which require discussion.

First, the defendant contends that the trial court erred in admitting evidence of his prior convictions for impeachment purposes. Prior to trial, the prosecutor moved for admission of evidence of defendant's earlier convictions for impeachment purposes. The trial court agreed to admit evidence of four convictions.

Evidence of a defendant's prior convictions may be admitted for impeachment purposes in accordance with MRE 609. The trial judge has discretion regarding their admission, and is required [131 Mich.App. 82] to recognize and exercise that discretion on the record. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974).

The factors the court must consider in deciding whether to admit evidence of prior convictions are:

"(1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that [there is] danger that the jury will consider the defendant a 'bad man' or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?)," People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978).

Under MRE 609, as amended, the reasons for the trial judge's decision must be articulated on the record.

In the instant case, the trial judge did not discuss the third Crawford factor. The trial judge, however, could not consider the effect on the decisional process if defendant chose not to testify. The defendant did not inform the judge that he would not be taking the stand until well after the ruling was already made and never informed the judge what the nature of his testimony would be should he take the stand. In order to preserve the issue of the trial court's failure to properly consider this factor, defendant was required to establish that he [131 Mich.App. 83] would take the stand if evidence of the convictions were not admitted and to outline the nature of his proposed testimony. People v. Casey, 120 Mich.App. 690, 695-697, 327 N.W.2d 337 (1982).

Defendant also argues that the prosecution failed to carry its burden of proving the need for the admission of this evidence. There is a split of authority in this Court as to whether the prosecution has the burden of proving that evidence of prior convictions is admissible. Compare People v. Johnson, 105 Mich.App. 332, 338,

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306 N.W.2d 501 (1981), and People v. Crawford, supra (burden on the prosecution to justify admission) with People v. Steele, 115 Mich.App. 758, 321 N.W.2d 804 (1982), and People v. Huff, 101 Mich.App. 232, 250-251, 300 N.W.2d 525 (1980), rev'd 411 Mich. 974, 308 N.W.2d 110 (1981) (burden on the defendant to justify exclusion). We believe that the burden is on the prosecution to justify the admission of evidence of prior convictions. In the instant case, the prosecutor made no effort to justify admission of evidence of defendant's prior convictions. She simply listed the convictions and left to the trial judge the decision of whether to admit evidence of those convictions. Therefore, we reverse defendant's convictions and order a new trial.

Second, defendant argues that the trial judge erred in refusing to instruct the jury regarding the lesser included offenses of incitement to commit and conspiracy to commit second-degree murder and manslaughter.

In every murder prosecution the jury must be instructed with regard to second-degree murder as well as first degree. People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975). Instructions upon the elements of both first and second-degree murder are required in prosecutions for incitement to [131 Mich.App. 84] murder as well. People v. Richendollar, 85 Mich.App. 74, 78-81, 270 N.W.2d 530 (1978), lv. den. 405 Mich. 820 (1979). Therefore, the trial court erred in failing to instruct the jury on incitement to commit second-degree murder. The Richendollar analysis does not, however, require that instructions regarding manslaughter also be given as defendant argues.

Defendant also argues that the same rule should be applied in cases of conspiracy to murder. This Court appears to be divided upon this question. Compare People v. Hence, 110 Mich.App. 154, 170-171, 312 N.W.2d 191 (1981), with People v. Perry, 115 Mich.App. 533, 536, 321 N.W.2d 719 (1982), and People v. Jackson, 114 Mich.App. 649, 664-668, 319 N.W.2d 613 (1982). We believe that the reasoning of Richendollar regarding incitement to murder is equally applicable in cases of conspiracy to murder. Thus, the trial court erred in failing to instruct the jury on conspiracy to commit second-degree murder.

Because of the above errors, the defendant's convictions for incitement to commit and conspiracy to commit first-degree murder must be reversed. 1

Third, defendant argues that the jury should have been instructed that incitement to commit first-degree murder is a specific intent crime.

A person may be convicted of incitement to commit first-degree murder, M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2), when he has engaged in conduct calculated to cause another person to commit first-degree murder. See People v. Chapman, 80 Mich.App. 583, 586, 264 N.W.2d 69 (1978). The defendant must have intended that the crime which he urged [131 Mich.App. 85] would in fact be committed. People v. Shafou, 416 Mich. 113, 122, 330 N.W.2d 647 (1982) (Opinion of Fitzgerald, C.J.). The trial judge has the duty to instruct the jury regarding all the elements of the crime and any material defenses or theories. People v. Reed, 393 Mich. 342, 349-350, 224 N.W.2d 867 (1975), cert. den., 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975). In the instant case defendant requested that the jury be instructed that incitement to commit first-degree murder was a specific intent crime. Specific intent may be defined as "the subjective desire or knowledge that the prohibited result will occur". People v. American Medical Centers of Michigan, Ltd., 118 Mich.App. 135, 153, 324 N.W.2d 782 (1982). Before a defendant may be convicted of incitement to commit first-degree murder, the jury must find that he intended that the incited crime would actually be committed. This is a specific intent. The jury, therefore, should have been instructed that incitement to

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commit first-degree murder was a specific intent crime. Defendant's convictions of incitement to commit first-degree murder should be reversed upon this ground as well.

Fourth, defendant argues that the trial court erred in denying his motion for directed verdict. He asserts that insufficient evidence of imminence of action and actual incitement was presented at trial to support his convictions for incitement to commit first-degree murder.

M.C.L. Sec. 750.157b; M.S.A. Sec. 28.354(2) provides that anyone "who incites, induces or exhorts any other person * * * to kill * * * or do any act * * * that may endanger or...

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