People v. Bailey

• Citation: 451 Mich. 657,549 N.W.2d 325
• Decision Date: 18 June 1996
• Docket Number: Docket No. 101017,No. 10,10
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Lee BAILEY, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 325

549 N.W.2d 325

451 Mich. 657

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Lee BAILEY, Defendant-Appellee.

Docket No. 101017.

Calendar No. 10.

Supreme Court of Michigan.

Argued Dec. 6, 1995.

Decided June 18, 1996.

[451 Mich. 660] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, Detroit, for people.

Joan Ellerbusch Morgan, Detroit, for defendant.

Earl R. Spuhler, Fenton, amicus curiae, for Criminal Defense Attorneys of Michigan.

OPINION

BOYLE, Justice.

We are asked to decide if the trial court erred in refusing defendant's request to provide the jury with an instruction on assault with intent to do great bodily harm less than murder ¹ as a cognate lesser included offense of the principal charge of second-degree murder. ² We hold that the trial court properly refused to give that instruction. No evidence was presented at trial that any alleged act following defendant's assault of the decedent constituted an independent intervening cause, cutting off defendant's criminal liability for the death of the decedent. Evidence that defendant proximately caused decedent's death thus stood uncontroverted. At best, defendant only introduced evidence that there may have been a second, contributory cause of death in addition to the defendant's admitted attack on the decedent with a baseball bat. Consequently, because there was no evidentiary basis for separating a death resulting from defendant's intentional act from the theory that defendant committed only an intentional act of assault with intent to commit great bodily harm, the defendant failed to meet the requirement for cognate lesser included offense instruction that the evidence adduced at trial support the requested lesser offense. People v. Beach, 429 Mich. 450, 464, 418 N.W.2d 861 (1988). We reverse the decision of the Court of Appeals and reinstate defendant's conviction.

I

A

This appeal arises from an incident that occurred on July 15, 1991, in the City of Detroit. Although somewhat differing accounts of the events were presented at trial, for present purposes, we rely primarily on the account of the incident provided by defendant. Richard Bailey testified that on the date noted above, he encountered the decedent, Charles Peoples, on the front porch of the apartment building where both resided when defendant was taking his dog for a walk. Defendant chastised Peoples for drinking beer on the front porch, an activity that had recently been prohibited by the owner of the building. ³ Peoples responded that Bailey had no business telling him what to do.

Defendant further testified that he then proceeded off the porch and across the street with his dog. At that time, defendant noticed his brother and sister-in-law driving up the alley. Defendant continued across the street, and upon turning to return to the apartment building, noticed his brother standing outside his car, with a baseball bat in his hands. Defendant also observed that his brother and Peoples, who was on the sidewalk on the passenger side of the car, were shouting at each other, although he could not tell what the discussion was about. ⁴ When Peoples stepped back a couple of steps, defendant's brother tossed the baseball bat in the back seat of his car. At that point, Peoples returned to his seat on the porch.

Bailey testified that he interpreted the events he observed as continued acts of harassment of his family by Peoples. Bailey alleged that throughout the three-week period that he had known the decedent, Peoples had continually harassed and made negative comments to Bailey and his family. Responding to the confrontation he witnessed between Peoples and his brother, Bailey walked back across the street, dropped his dog's leash in front of his brother, and retrieved his brother's baseball bat from the car. Bailey then proceeded around the car to where Peoples was seated, yelled at Peoples, "I'm tired of you fucking with my family. I'm tired of you just doing what you can do," and struck Peoples in the left knee with the baseball bat. Peoples then stood up, which Bailey interpreted as a sign that Peoples was going to retaliate. Bailey reacted by striking Peoples again with the bat, this time hitting him on his left side. Peoples then walked to the side rail of the porch, grasped it in both hands, and asked Martha Anderson, a woman who lived with him and who was present on the porch during the course of these events, to let him in the door of the apartment building. Anderson let Peoples inside.

Although no witnesses observed Peoples immediately after entering the apartment building, it is uncontroverted that Peoples made his way up to the third floor. Defendant presented the testimony of Helen Noble, a resident of the apartment building who lived with defendant Bailey, who testified that she observed Peoples staggering down the third-floor hallway of the apartment for a few seconds and then saw him fall on his face. Noble further stated that she summoned Gerald Coutier, another resident of the building, to the spot where Peoples had collapsed and then departed for work.

At trial, Coutier testified that when he first observed Peoples lying in the third-floor hallway, he asked Peoples if he was "okay," to which Peoples responded affirmatively and said he was just going to his brother's apartment. ⁵ Coutier testified that he observed a cut above Peoples' left eye, and told Peoples he might need some stitches. Peoples repeatedhis previous response, and Coutier went to his apartment.

Coutier testified that after his initial encounter, he passed by Peoples on two additional occasions. The final time he observed Charles Peoples lying in the hall, Coutier testified that Peoples' brother, William, and Martha Anderson were also present. On this occasion, Coutier testified that he observed William kick Peoples two times on the left side, wearing a pair of blunt-toed dress shoes, both times stating "Come on, get up." Coutier stated that when kicked, Peoples' body rolled up and back. On rebuttal, Anderson testified that she had summoned William Peoples to the hallway, that William came into the hallway without shoes on, and that William never kicked the decedent. ⁶

The parties stipulated to the Wayne County medical examiner's report, which was read into the record:

"I hereby certify that on the 16th day of July in the year 1991, at the Wayne County Medical Examiner's Office, in accordance with the provisions of law, there was made an examination of the body and personal inquiry into the cause and manner of the death of Charles Peoples, a 45-year old white male who died at Detroit Receiving Hospital, Detroit, Michigan on the 15th day of July in the year 1991. It is my opinion that the decedent died of blunt force injuries sustained as a victim of assault. There was a purple contusion on the left side of the back, back of the left leg, and a laceration of the forehead. The internal examination showed left rib fractures involving 10 to 12, ruptured spleen with capsular hematoma and hemoperitonium [sic]. The manner of death is homicide."

B

Defendant Bailey was charged with second-degree murder and tried before a jury. In addition to receiving instruction on the elements of the principal charge, the jury was instructed on the lesser included offense of voluntary manslaughter and with regard to the requisite factual finding to conclude that defendant's act caused decedent's death. The trial court refused defendant's request that the jury be instructed on the lesser included offense of assault with intent to do great bodily harm less than murder.

During closing argument, defense counsel asserted that the jury lacked sufficient evidence to conclude that defendant's admitted blows with the baseball bat caused decedent's death. He also acknowledged that the jury lacked testimony about whether the kicks allegedly administered by decedent's brother could have caused the injuries reported by the medical examiner. Nonetheless, counsel further argued that the kicks acted as an intervening cause of death. ⁷ The jury returned a verdict finding defendant guilty of voluntary manslaughter.

Defendant appealed his conviction as of right in the Court of Appeals, arguing that the trial court had erred in refusing to instruct the jury on assault with intent to do great bodily harm less than murder and that reversal was required. The Court of Appeals reversed, citing this Court's order peremptorily reversing the Court of Appeals and remanding the case for a new trial in People v. Boles, 420 Mich. 851, 358 N.W.2d 894 (1984), rev'g 127 Mich.App. 759, 339 N.W.2d 249 (1983). ⁸ In Boles, we opined that the trial judge had erred in refusing to give a requested instruction on assault with intent to do great bodily harm less than murder as a lesser included offense of second-degree murder, even though the Court of Appeals had found that the defense theory "conceded that defendant had killed the deceased with a knife." Boles, 127 Mich.App. at 771, 339 N.W.2d 249. Explaining that it felt constrained by Boles, the Court of Appeals urged this Court, "in reviewing this case, to explain 'how and why, where a defendant admits acting with felonious intent and does not dispute death as a result, a jury must be permitted to find nonculpability for such death.' " 207 Mich.App. 8, 12, 523 N.W.2d 798 (1994) (citation omitted). We granted the prosecutor's application for leave to appeal. 449 Mich. 852, 535 N.W.2d 789 (1995).

II

A

Initially adopted as an interim measure until a court rule could be promulgated, People v. Henry, 395 Mich. 367, 374, 236 N.W.2d 489 (1975), the formula for instruction on lesser included offenses first articulated by this Court in a series of cases in 1975 continues to provide the basis for guidance...