People v. Bryant

• Decision Date: 27 November 1972
• Docket Number: No. 1,Docket No. 12170,1
• Citation: 43 Mich.App. 659,204 N.W.2d 746
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Durvan BRYANT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 746

204 N.W.2d 746

43 Mich.App. 659

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Durvan BRYANT, Defendant-Appellant.

Docket No. 12170.

Court of Appeals of Michigan, Division No. 1.

Nov. 27, 1972.

Released for Publication March 9, 1973.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief App. Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

O'HARA, Judge.

Following a nonjury trial in Detroit's Recorder's Court, defendant was found guilty of second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. He appeals of right, asserting several errors. We consider three to be meritorious.

We recite the facts necessary to understand our decision. Two groups of young people, one from Canada and one from this city (quite by accident as far as the record shows), came together on opposite sides of the street, Canfield to be exact, in Detroit. One of the Canadian boys, of Scottish ancestry, was strumming and singing some of his ethnic folk music. One of the American young men characterized the music in words which would have done credit to a Marine drill sergeant. Apparently this is an unforgivable offense within the two groups of young people assembled at the scene. The exact terms of the criticism, which we do not quote, seemed to be 'fighting words'. An altercation ensued. The deceased prevailed. Defendant fled the scene. After a futile and illconsidered attempt to borrow a gun from a resident of the neighborhood, defendant returned to the scene without a firearm.

It should be noted here that the request made for the loan of a gun, if serious, was so naive as to be well-nigh incredible. He directed the request to an older couple sitting on their front porch near the scene of the fight. They were complete strangers to him. Understandably they simply indicated they had no firearms. The defendant testified at the trial that he wanted a gun so he could go back and scare off his critics and thus redeem his honor. The testimony is unclear, or at best conflicting, as to which party was the aggressor in the second fray, or who was getting the upper hand. It may be fairly inferred that defendant was coming off badly again. In any event, during the struggle the combatants fell among some bushes off to the side of the street. The evidence and testimony established that defendant fatally stabbed the deceased. The cause of death was stipulated--a fatal knife wound.

From these facts, the trial court determined defendant was guilty of second-degree murder.

Defendant alleges error, first because the trial judge viewed the scene of the altercation out of the presence of both counsel and the defendant, citing People v. Eglar, 19 Mich.App. 563, 173 N.W.2d 5 (1969). Before viewing the scene the judge discussed with counsel his intention so to do. There was no objection made. Hence, under the circumstances, there was no preserved error.

Defendant also challenges the action of the trial court in taking judicial notice of a medical chart prepared by the Lafayette Clinic purportedly establishing the effect of certain drugs on the human personality.

This claim is highly significant because the defendant testified he was on 'speed', apparently some form of amphetamine. He testified he had ingested at least six pills before the incident. It was part of the theory of defense that he was so 'high' that he was incapable of entertaining the requisite malice. It should be further noted here that the defendant had a long history of hospitalization, enforced and otherwise, for treatment of mental instability.

As to the effect of the particular compound the defendant had taken, and more importantly the effect thereof upon him, the trial judge asked certain highly sensitive questions. We quote:

'The Court: Just a minute * * * is one of the normal characteristics of the users of Speed aggressiveness?

'A. I would say no but, of course, in some instances, I suppose it could be; * * *. I don't think I could be a judge of it that far, but I think I would say no.

'The Court: Have you ever seen the defendant being aggressive at times when you knew that he had been using speed?

'A. I really couldn't answer that.'

Thereafter, the court Sua sponte, without foundation testimony or any offer by either party as an exhibit, said:

'The Court will state at this time that chart to which I am referring is one that was prepared by Lafayette Clinic, listing the various types of drugs and addictions and including amphetamines and certain ones described as 'Speed', and one of the effects of--that are listed are excitation * * * and Agressiveness, and the Court will Take judicial notice that these are characteristic effects of such drugs * * *.' (Emphasis supplied.)

It is difficult to imagine any area of cause and effect of which the court could not take judicial notice more than the whole controversial area of the effect of given narcotics or nonnarcotic prescription-required compounds on human behavior. Little, if any, consensus exists even among the most knowledgeable experts. This action of the trial judge was ill-advised. However, defendant made no objection. The claimed error may not first be asserted on appellate review.

Next, the defendant contends that the whole record does not support a verdict of...