People v. Jones, Docket No. 76411

• Decision Date: 04 August 1986
• Docket Number: Docket No. 76411
• Citation: 151 Mich.App. 1,390 N.W.2d 189
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sandra Lee JONES, Defendant-Appellant. 151 Mich.App. 1, 390 N.W.2d 189
• Court: Court of Appeal of Michigan — District of US

Page 189

390 N.W.2d 189

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sandra Lee JONES, Defendant-Appellant.

Docket No. 76411.

151 Mich.App. 1, 390 N.W.2d 189

Court of Appeals of Michigan.

Submitted Jan. 9, 1985.

Decided April 21, 1986.

Released for Publication Aug. 4, 1986.

[151 MICHAPP 2] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John E. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Carl Ziemba, Detroit, for defendant on appeal.

Before KELLY, P.J., and GRIBBS and M.R. KNOBLOCK ^*, JJ.

M. RICHARD KNOBLOCK, Judge.

Defendant was convicted, after a bench trial, of two counts of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). She was sentenced to concurrent prison terms of from 50 to 75 years on the second-degree murder convictions and a consecutive 2 years on the felony-firearm conviction, and she appeals.

Defendant was originally charged with two counts of first-degree murder and one count of felony-firearm, after she shot and killed her former husband, Clarence Jones, and his girlfriend, Georgia Dowell. The shootings occurred on December 22, 1982, at a Detroit bar owned by Clarence [151 MICHAPP 3] Jones. Defendant and Jones had been married for eight years and were divorced in 1980. She and Jones had a child who was in defendant's custody and apparently Jones and Dowell had expressed their intent to attempt to obtain custody of the child after they were married.

Defendant regularly visited Jones's bar. Approximately a week before the shooting, defendant told the bartender that if she could not have her former husband, no one else could. At some point on the night of the shootings, Dowell and defendant argued about Jones. Dowell reportedly told defendant that she would kill defendant if she found defendant and Jones together. Defendant then left the bar after telling the bartender to lie on the floor when she returned because she planned to kill Jones and Dowell. Defendant went home, put a shotgun in her car, returned to the bar and again warned the bartender. After approximately 15 minutes, she again exited from the bar and immediately returned with the shotgun, at which time she shot and killed both Jones and Dowell.

Defendant first claims on appeal that the trial judge erred by finding her guilty of second-degree murder rather than voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, asserting that the evidence presented at trial clearly established that the requisite provocation existed to reduce the killings to voluntary manslaughter. Defendant's claim of provocation is based on evidence that she had been drinking at the bar all day and was emotionally upset by Dowell's threats and plan to gain custody of defendant's child.

Provocation, necessary to reduce the crime of murder to manslaughter, is that which would cause one to act out of passion rather than due deliberation and reflection. People v. Townes, 391 [151 MICHAPP 4] Mich. 578, 589-590, 218 N.W.2d 136 (1974); People v. Van Wyck, 402 Mich. 266, 269, 262 N.W.2d 638 (1978). Defendant does not dispute the factual findings recited by the trial court, but contends that those findings compel a finding of guilty of voluntary manslaughter, rather than second-degree murder. We find defendant's claim to be without merit. Although the trial judge found that the defendant at the time of the killings was "emotionally upset", he made this finding in concluding that she had not deliberated or premeditated and, therefore, was not guilty of first-degree murder. He did not find that defendant's emotional "upset" reached a level of heat of passion which would mitigate her responsibility for the killings from second-degree murder to manslaughter. In our view, the evidence presented at trial supports this conclusion.

The defendant next claims on appeal that the trial court erred regarding the diminished capacity defense which she asserted at trial. Defendant filed a timely notice of diminished capacity, People v. Mangiapane Y85 Mich.App. 379, 271 N.W.2d 240 (1978), and presented expert testimony at trial. Defendant's expert witness testified that defendant had a personality disorder, was a chronic alcoholic and was chronically depressed. He opined that defendant did not have a mental illness which would support a legal insanity defense but that she was mentally impaired. On appeal, defendant asserts that the trial court erred by rejecting her diminished capacity defense because (1) the court improperly placed the burden of proof on defendant to show diminished capacity, rather than recognizing that the prosecutor had to prove normal capacity beyond a reasonable doubt; and (2) the prosecutor did not prove defendant's normal capacity beyond a reasonable doubt.

[151 MICHAPP 5] In...