People v. Bailey

• Decision Date: 19 September 1994
• Docket Number: Docket No. 152415
• Citation: People v. Bailey, 523 N.W.2d 798, 207 Mich.App. 8 (Mich. App. 1994)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Lee BAILEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 798

523 N.W.2d 798

207 Mich.App. 8

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

Docket No. 152415.

Court of Appeals of Michigan.

Submitted April 13, 1994, at Detroit.

Decided Sept. 19, 1994 at 9:25 a.m.

Released for Publication Dec. 2, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Asst. Pros. Atty., for the people.

Joan Ellerbusch Morgan, Detroit, for defendant on appeal.

Before SHEPHERD, P.J., and TAYLOR and GOTHAM, ^* JJ.

TAYLOR, Judge.

Defendant appeals as of right his conviction of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553. We reverse.

Defendant, armed with a baseball bat, approached Charles Peoples and struck him with the bat two or three times. Peoples died. Defendant testified that he was "out to hurt" Peoples when he struck him with the bat. Peoples died as a result of blunt-force injuries, the majority of which were on the left side of his body. Defendant was arrested and charged with second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. The court provided the jury with instructions regarding second-degree murder and voluntary manslaughter, but refused defendant's request to provide the jury with an instruction regarding assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. The jury found defendant guilty of voluntary manslaughter.

Defendant argues that where a request to instruct the jury on a lesser included offense has been made, it is error requiring reversal to deny the request to charge regarding such included offense. Second-degree murder is the unjustified and unexcused killing of a human being with malice. While the actual intent to kill is not an essential element of the offense, the prosecution must establish that the defendant created and disregarded a very high risk of death at the time of his assaultive activities. People v. Jones, 115 Mich.App. 543, 554-555, 321 N.W.2d 723 (1982). The elements of assault with intent to commit great bodily harm less than murder include an attempt or offer with force or violence to do corporal harm to another coupled with an intent to do great bodily harm less than murder. M.C.L. 750.84; M.S.A. 28.279; People v. Leach, 114 Mich.App. 732, 735, 319 N.W.2d 652 (1982). Assault with intent to commit great bodily harm less than murder is a cognate lesser included offense of second-degree murder. People v. Fountain, 392 Mich. 395, 402, 221 N.W.2d 375 (1974); People v. Boles, 127 Mich.App. 759, 770, 339 N.W.2d 249 (1983), rev'd 420 Mich. 851, 358 N.W.2d 894 (1984).

In Boles, this Court held that it was not error for a trial court to refuse to instruct on assault with intent to commit great bodily harm less than murder as a lesser included offense of second-degree murder where there was evidence that the deceased died as a result of traumatic injury and that the defendant inflicted it. Id. p. 771, 339 N.W.2d 249. However, the Supreme Court peremptorily reversed and remanded the matter for a new trial stating that the trial court erred in refusing to give the requested instruction on assault with intent to do great bodily harm less than murder.

Subsequently, in People v. Williams, 143 Mich.App. 574, 374 N.W.2d 158 (1985), the trial court instructed the jury on first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, second-degree murder, manslaughter, and reckless discharge of a firearm resulting in the death of another, M.C.L. § 752.861; M.S.A. § 28.436(21), but refused to instruct the jury on assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, assault with intent to do great bodily harm less than murder, and felonious assault, M.C.L. § 750.82; M.S.A. § 28.277. The jury found the defendant guilty of first-degree murder, and, on appeal, the defendant argued that the trial court erred in refusing to give the requested assault instructions. This Court held that the trial court erred in failing to instruct the jury on the cognate lesser included offenses of assault with intent to commit murder and assault with intent to do great bodily harm less than murder. However, this error was deemed harmless beyond a reasonable doubt because the jury had the opportunity to convict on another intermediate charge and yet convicted on the greater offense.

In a concurring opinion, Judge Shepherd remarked as follows:

In my view, the appellate courts of this state should recognize that defendant's right to instructions on cognate offenses has its logical limits. I believe that in murder cases in which the only issue is the accused's intent, the extent of that right is demarcated by the uncontroverted result of his conduct, namely death. There are enough offenses involving death in the criminal code to cover any conceivable defense theory with regard to the intent of the accused. We need not burden the jury with consideration of an entire new set of offenses. [Williams, supra, p. 591, 374 N.W.2d 158.]

The Supreme Court denied leave to appeal in Williams, 431 Mich. 878, 430 N.W.2d 148 (1988), but we are compelled by the dissent of Justice Boyle, who stated as follows:

I would grant leave to fully consider the question addressed by Judge Shepherd in concurrence: Whether the peremptory order...