People v. Amos

• Decision Date: 28 October 1987
• Docket Number: Docket No. 87338
• Citation: 414 N.W.2d 147,163 Mich.App. 50
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tinetta Marie AMOS, Defendant-Appellant. 163 Mich.App. 50, 414 N.W.2d 147
• Court: Court of Appeal of Michigan — District of US

Page 147

414 N.W.2d 147

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tinetta Marie AMOS, Defendant-Appellant.

Docket No. 87338.

163 Mich.App. 50, 414 N.W.2d 147

Court of Appeals of Michigan.

Submitted May 5, 1987.

Decided Sept. 10, 1987.

Released for Publication Oct. 28, 1987.

[163 MICHAPP 51] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and Jon R. Sahli, Chief Asst. Prosecutor, for the People.

State Appellate Defender by P.E. Bennett, for defendant-appellant on appeal.

Before CYNAR, P.J., and SAWYER and THORBURN, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a jury conviction of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Following the conviction, defendant was sentenced to a term of from five to twenty-five years in prison. We affirm.

Defendant's conviction arose out of the November 2, 1984, stabbing death of Rubin Smith. Defendant was originally charged with open murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. The jury was unable to reach a verdict on this charge and the trial court granted defendant's motion for a directed verdict as to the first-degree murder charge reducing the charge to second-degree murder.

[163 MICHAPP 52] At the second trial, the prosecution asserted that defendant had stabbed and killed Smith with the requisite intent and without excuse or justification. The stabbing occurred outside the home of Jack Atchison. Apparently, on November 2, 1984, Atchison put on an all-day party at his home. Defendant arrived at the party in the morning with her two-year-old son, Atari, and some other friends. The victim arrived sometime that day in the late afternoon or early evening hours.

During the course of the evening, defendant was seen removing a knife from the kitchen drawer and placing it in her purse. Defendant told one of the guests that she was taking the knife for protection.

At 7:00 p.m., defendant and Smith argued about money in the living room of the Atchison household. At that point, defendant allegedly slapped Smith and he pushed her aside.

Subsequently, defendant left the Atchison home with her friend Jacqueline Maxwell. Once outside, Maxwell proceeded to walk home while defendant remained on the Atchison lawn area. Simultaneously, Maxwell saw defendant's other son, Terrance Amos, walking toward the Atchison home. Terrance testified that, when he arrived at the Atchison home, he observed his mother near Smith's car, beside a tree.

When Smith reached his car, he and defendant argued once more. Thereafter, Smith went across the street, picked up a rock and a stick, and approached the defendant. She told him to drop the rock and hand her the stick, which Smith did. Then, defendant and Smith began "tussling." Afterwards, defendant stabbed Smith and she bent over and pulled the knife from Smith's chest.

At trial, defendant's son, Terrance, testified in part as follows regarding the stabbing:

[163 MICHAPP 53] "Q. Did he [Smith] have the rock and the stick in his hands then?

"A. Yeah.

"Q. What did your mom say to him?

"A. Drop the stick.

"Q. Did she say anything else?

"A. No.

"Q. Did she say: 'Drop the stick or I'll kill you"?

"A. Yeah.

"Q. And what did Limos [Smith] do then?

"A. Dropped the stick.

"Q. What did your mom do?

"A. That's when she stabbed him.

"Q. Can you say that a little louder?

"A. Then that's when she stabbed him." (Emphasis added.)

On appeal, defendant urges this Court to recognize a parent-child testimonial privilege and hold that Terrance was barred from testifying against defendant at her trial. There was no objection by defense counsel to Terrance's testimony. Under such circumstances, this Court will not review the issue in the absence of manifest injustice. People v. Bright, 126 Mich.App. 606, 609, 337 N.W.2d 596 (1983). We conclude that defendant has not preserved the issue. However, we will address the issue in order to resolve whether a parent-child privilege exists or should exist in Michigan.

In a recent case, People v. Dixon, 161 Mich.App. 388, 411 N.W.2d 760 (1987), a panel of this Court had an opportunity to address the issue of a parent-child testimonial privilege in this state. The Dixon panel concluded that Michigan does not recognize such a privilege nor would one be adopted by this Court. The Dixon majority reasoned that the recognition of a new privilege should be left up to the Legislature. Id., at 392, 411 N.W.2d 760. We agree.

We recognize that, in the past years, this issue [163 MICHAPP 54] has been the subject of considerable scholarly attention. See Coburn, Child-Parent Communications: Spare the Privilege and Spoil the Child, 74 Dick L Rev 599 (1969); Lemons,From the Mouths of Babes: Does the Constitutional Right of Privacy Mandate a Parent-Child Privilege?, 1978 BYUL L Rev 1002 (1978); Note, Parent-Child Loyalty & Testimonial Privilege, 100 Harv L Rev 910 (1987).

The parent-child testimonial privilege is currently recognized by the federal district court of Nevada and by some New York state courts. In Nevada, the privilege was first recognized in In re Agosto, 553 F.Supp. 1298, 1325 (D Nev, 1983). That case held that the privilege includes not only confidential communications but also any testimony by a parent against a child or vice versa unless the witness waives the privilege. The privilege is less extensive in New York, prohibiting only confidential communications made by a child of any age to his parents or vice versa. See People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (1979), and In re A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (1978). Two jurisdictions have enacted some form of parent-child privilege by statute. See Idaho Code Sec. 9-203(7) and Minnesota Statutes Sec. 595.02(1)(i).

However, the majority of jurisdictions have rejected this privilege. See In re Terry W, 59 Cal.App.3d 745, 130 Cal.Rptr. 913 (1976); Marshall v. Anderson, 459 So.2d 384 (Fla.App.1984); People v. Sanders, 99 Ill.2d 262, 75 Ill.Dec. 682, 457 N.E.2d 1241 (1983); Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E.2d 1203 (1983), cert. den. 465 U.S. 1068, 104 S.Ct. 1421, 79 L.Ed.2d 746 (1984); In the Matter of Gail D, 217 N.J.Super. 226, 525 N.E.2d (1987); In re Grand Jury Subpoena, 740 F.2d 816 (CA 11, 1984); United States v. Jones, 683 F.2d 817 (CA 4, 1982); United States v. Penn, 647 F.2d 876 (CA 9, 1980); United States v. Davies, 768 F.2d 893 (CA 7, [163 MICHAPP 55] 1985), cert. den. 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985).

We are in agreement with the majority view in that we decline to adopt a parent-child testimonial privilege. Basically, there is no Michigan statute or court rule or persuasive authority from other jurisdictions which compels us to create a parent-child privilege. Since we decline to recognize the parent-child testimonial privilege, we conclude that Terrance could testify regarding the stabbing incident.

We also reject defendant's second argument wherein she claims that the trial court erred by failing to sua sponte instruct the jury on "imperfect self-defense." There was no objection by defense counsel. In the absence of an objection, alleged errors in jury instructions are deemed waived unless a miscarriage of justice results. People v. Collins, 158 Mich.App. 508, 512, 405 N.W.2d 182 (1987).

In 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), our Supreme Court stated that the instructions to the jury must include all elements of the crime charged and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them.

In People v. Cheatham, 135 Mich.App. 620, 627, 354 N.W.2d 282 (1984), this Court stated the following regarding sua sponte instruction by a trial court on a defendant's theory of the case:

"Accordingly, we do not believe that the trial court was obliged to give any sua sponte instruction setting forth either party's theory. In this regard, we choose to follow the reasoning set forth in People v Gary Wilson, 122 Mich App 1; 329 [163 MICHAPP 56] NW2d 513 (1983); People v Jansson, 116 Mich App 674; 323 NW2d 508 (1982); People v Trammell, 70 Mich App 351; 247 NW2d 311 (1976), and People v Peery, 119 Mich App 207; 326 NW2d 451 (1982). We disagree with those panels which have held that a trial court must give a full sua sponte instruction describing a defendant's theory even in the absence of a request for such an instruction, Cf., People v Gayton, 81 Mich App 390; 265 NW2d 344 (1978); People v Stanley Jones, 69 Mich App 459; 245 NW2d 91 (1976); People v Hearn, 100 Mich App 749; 300 NW2d 396 (1980). The rule announced in those cases is inconsistent with the language of GCR 1963, 516.7, which presupposes a request for an instruction as to a party's theory."

In the instant case no request was made for the imperfect self-defense instruction. Therefore, we conclude, based on those panels which reject sua sponte instruction by a trial court, that there was no error.

Moreover, even if we follow the line of cases calling for sua sponte instruction by a lower court, we nonetheless conclude that there was no error.

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