People v. Anderson

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM; PETERSON
• Citation: People v. Anderson, 383 N.W.2d 186, 147 Mich.App. 789 (Mich. App. 1986)
• Decision Date: 21 March 1986
• Docket Number: Docket No. 79232
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derell Floyd ANDERSON, Defendant-Appellant. 147 Mich.App. 789, 383 N.W.2d 186

Page 186

383 N.W.2d 186

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derell Floyd ANDERSON, Defendant-Appellant.

Docket No. 79232.

147 Mich.App. 789, 383 N.W.2d 186

Court of Appeals of Michigan.

Submitted May 8, 1985.

Decided Nov. 26, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 790] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., Dennis B. Leiber, Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and MAHER and PETERSON ^*, JJ.

PER CURIAM.

A jury convicted defendant of first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, assault with intent to rob [147 MICHAPP 791] while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) as charged. The trial court sentenced him to concurrent terms of life imprisonment, from 20 to 40 years, and from 15 to 30 years, in addition to the mandatory, consecutive two-year term for felony-firearm. Defendant appeals as of right, claiming that the trial court erred by refusing to admit evidence of the decedent's violent, turbulent and aggressive character. We agree with defendant's assertion that the trial court so erred, but conclude that the error was harmless beyond a reasonable doubt under the circumstances of this case. Therefore, we affirm.

The decedent and a witness were standing behind the counter in a Grand Rapids party store on the evening of November 7, 1983. Defendant entered the store and bought a pack of cigarettes. He then pointed a handgun at the witness's chest and demanded the contents of the cash register. The weapon was "cocked and all ready to go". Defendant turned toward the decedent and said, "What do you think this is, some kind of joke?" The decedent and defendant engaged in a scuffle. The witness heard defendant bump into a potato chip rack. "A couple seconds" later, the witness heard a gunshot. While running to the front door, he heard another shot, this one louder than the first.

There were three persons in the back room of the store. One of these witnesses heard two shots. He ran to the main portion of the store and saw defendant. Another of these witnesses was watching the decedent as he was shot. She recalled that the decedent was bending over, as if to obtain a gun under the counter, when he was shot. She saw no fight or scuffle.

A forensic pathologist testified that the fatal bullet entered the decedent's body at an upward [147 MICHAPP 792] angle. A detective, after finding no powder burns on the victim's jacket, concluded that the gun must have been four or more feet away when it was fired. An evidence technician found shell fragments on a shelf 46 inches above the floor. The technician surmised that the bullet had traveled in a southwesterly direction, that is, toward the front of the store.

Defendant admitted that he was the perpetrator, but claimed that the gun discharged accidentally because the decedent kicked his hand. Defendant did not remember firing the second shot.

Defendant offered testimony of the decedent's "violent, turbulent" character. The trial court found the evidence irrelevant because defendant did not claim self-defense.

Defendant argues that the victim's combative nature was "a pertinent trait of character" because it would, if proved, have made his version of the shooting more credible. MRE 404(a)(2). According to defendant, an aggressive individual would more likely have kicked his hand, causing the inadvertent discharge of the handgun. If the jury believed the shooting was accidental, defendant urges, they would not have convicted him of felony murder.

We think there is some merit in defendant's argument. An aggressive individual would, arguably, be more likely than a submissive person to kick an armed robber. To the extent this is true, it lends support to the defense theory. Of course, the jury might have validly convicted defendant of felony-murder even if they concluded that the gun went off accidentally. "A jury can properly infer malice from evidence that a defendant set in motion a force likely to cause death or great bodily harm." People v. Aaron, 409 Mich. 672, 729, 299 N.W.2d 304 (1980) (emphasis in original). The jury [147 MICHAPP 793] could have concluded that, even though defendant did not specifically intend to kill, his actions prior to the shooting showed a wanton disregard "of the likelihood that the natural tendency of [his] behavior [was] to cause death or great bodily harm". Aaron, supra, p. 730, 299 N.W.2d 304. When defendant pointed the gun ("cocked and all ready to go") at the victims, he took the risk that they might exercise their natural right of self-preservation.

Nevertheless, it was error to exclude the evidence of the decedent's allegedly violent character. That the jury might have convicted defendant of felony murder even if they thought the shooting itself was accidental does not, in itself, extinguish the possibility that the jurors would have found malice lacking if the evidence had been admitted. "[T]he issue of malice must always be submitted to the jury." Aaron, supra, p. 733, 299 N.W.2d 304.

The people argue, and the trial court ruled, that evidence of the victim's character is inadmissible where the accused does not claim self-defense. We disagree. Under MRE 404(a)(2), evidence of any "pertinent trait" of the victim is admissible. If the victim's nature sheds light on whether the killing was intentional or accidental, it is surely pertinent. In this case, the people, in order to secure a conviction, had to prove that defendant acted with malice. Aaron, supra. A conclusion that the shooting was accidental, though not necessarily inconsistent with a verdict of guilty of felony murder, would have made conviction of a lesser offense more likely.

In People v. Burks, 387 Mich. 393, 395, 196 N.W.2d 777 (1972), the Supreme Court stated that evidence of the deceased's character may be admissible even if the accused does not interpose a plea of self-defense. The Court quoted from 40 C.J.S., Homicide, Sec. 222, pp. 1138, 1140:

[147 MICHAPP 794] "Aside from the situation where there is a claim of self-defense and some evidence in support thereof * * * the violent, turbulent, and dangerous character of deceased may be shown when from the circumstances of the case it is a part of the res gestae, or it is relevant to illustrate the circumstances attending the homicide * * * or there is evidence of threats by deceased against accused, or when the evidence of the homicide is wholly circumstantial, or where the immediate circumstances of the killing render it doubtful whether the act was justifiable or not, or leave the question of the intention of accused in committing the crime doubtful or the proof evenly balanced, or indicate provocation on the part of the deceased."

The people contend that, regardless of his character, the decedent had every right to resist an armed attack. We agree that the victim had the right to defend himself. However, if in doing so he caused the gun to discharge, that fact is relevant to defendant's intent. We must bear in mind that the issue concerns only the degree of homicide, not whether defendant would go completely unpunished for the killing.

A thorough scrutiny of the record convinces us that the error was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972). Several aspects of the matter indicate that, even if the testimony concerning the victim's nature had been allowed, not a single juror would have been convinced the shooting was an accident. People v. Gallon, 121 Mich.App. 183, 189, 328 N.W.2d 615 (1982).

First, defendant displayed a murderous intent by his assault of the witness as the witness tried to flee by the front door. The jury found that defendant intended to murder the witness. The jury's finding of the intent required for assault with intent to murder indicates that the panel also would have found the malice required for a felony [147 MICHAPP 795] murder conviction, despite any evidence of the murder victim's character. Defendant's unprovoked attempt to shoot the fleeing witness casts doubt on his testimony that the shooting was accidental.

Secondly, the same witness also testified that "a couple seconds" elapsed between the scuffle and the first shot, and that defendant had sprawled backward onto a potato chip rack during the scuffle. This testimony tended to disprove the defense theory, for if the shot rang out after the scuffle, then it was not caused by the alleged kick from the victim.

Furthermore, the witness in the back room, who observed the decedent at the moment of the shooting, saw no scuffle and stated that the victim was shot while reaching under the counter. According to this witness, the victim was bending over as if to obtain a gun. The victim was in no position to kick defendant's hand. Indeed, the witness saw no such kick. This testimony shows that the decedent succeeded in pushing or kicking defendant away for a moment, but his attempt to reach for a weapon was cut short by the shooting. This proof, also, is contrary to the defense theory.

Finally, evidence of the victim's character would have added little to defendant's chances. The jury was already aware that the victim engaged in a struggle with defendant just before the shooting. Therefore, additional testimony that he had character traits that would lead him to resist, although relevant, was somewhat redundant. The main question raised by defendant's testimony was not whether the decedent was the sort of man who would resist (the jury knew he was from the testimony of the other man behind the counter), but whether in resisting he caused the gun to discharge. As noted above, defendant's theory of [147 MICHAPP 796] the...