People v. Burgess

• Decision Date: 01 April 1980
• Docket Number: Docket No. 78-907
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee BURGESS, Defendant-Appellant. 96 Mich.App. 390, 292 N.W.2d 209
• Court: Court of Appeal of Michigan — District of US

Page 209

292 N.W.2d 209

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee BURGESS, Defendant-Appellant.

Docket No. 78-907.

96 Mich.App. 390, 292 N.W.2d 209

Court of Appeals of Michigan.

April 1, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 393] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

KELLY, Presiding Judge:

Defendant was charged with three counts of first-degree murder contrary to M.C.L. § 750.316; M.S.A. § 28.548. Following a jury trial defendant was convicted of the first-degree murder of Leslie Kinsman and the second-degree murders of Victor Bossio and James Ketelaar. Defendant [96 MICHAPP 394] received a life sentence on each conviction and now brings this appeal as of right.

On appeal, defendant makes several claims of error concerning the trial court's instructions to the jury regarding the malice element of first-degree murder, reasonable doubt, and the credibility of witnesses. In each instance, the instructions given conformed with Michigan Criminal Jury Instructions. The Supreme Court has strongly recommended use of these instructions when they are applicable and accurately state the law. People v. Thomas, 85 Mich.App. 618, 625, 272 N.W.2d 157 (1978); People v. Hernandez, 80 Mich.App. 465, 264 N.W.2d 343 (1978). With respect to the instructions given on reasonable doubt and credibility of witnesses, we find no error which warrants reversal.

Defendant argues that the following instructions related to both first and second-degree murder incorrectly defined the element of malice:

"Forthly (sic ), for murder, you must find that the Defendant consciously and knowingly performed the act, which caused death. The defendant must have, either intended to kill, that is, he must have done the act intending that it resulted in death, or in great and serious bodily injury, or he must have knowingly created a very high risk of death, with the knowledge that it probably would cause death."

It is defendant's position that the verdicts are invalid because they may have been predicated upon a finding that the defendant did not intend to kill, but that he created a very high risk of death with knowledge of its probable consequences. Defendant relies on People v. Milton, 81 Mich.App. 515, 518, 265 N.W.2d 397 (1978), in which a panel of this Court stated:

[96 MICHAPP 395] "Mere conscious indifference to the likelihood of death as a result of a person's intentional act is not enough; to commit first-degree murder, a person must act with the purpose of causing death. People v. Garcia, 398 Mich.App. 250, 259, 247 N.W.2d 547 (1976)."

We note initially that the court's instructions in the case at bar closely paralleled CJI 16:2:01. Wilful, deliberate and premeditated murder and the lesser included offense of second-degree murder are combined for instructional purposes with the admonition that a conviction for first-degree murder requires proof beyond a reasonable doubt of the additional elements of premeditation and deliberation. There is no differentiation made in CJI 16:2:01 between the degrees of murder with regard to the element of malice:

"(2) There are two kinds of murder, first degree and second degree, and you will be instructed as to both. (Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.)

"(10) Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"(11) The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person's life, and the defendant must have been conscious of that risk."

[96 MICHAPP 396] In the instant case the challenged "risk" language was properly included in the trial court's charge to the jury; in every case of first-degree murder the court is obliged to instruct, sua sponte, on the lesser included offense of second-degree murder. People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975). Neither Milton nor Garcia purports to criticize or reject the above definition of malice as an element of second-degree murder. The single consideration here is whether the court must specify, when employing the "risk" language, that its application is limited to the lesser offense of second-degree murder. In order that the instructions accurately reflect the law of this jurisdiction, this point of clarification is vital. To avoid confusion, it is highly advisable to make this distinction during the general murder instructions as well as when instructing on the specific intent required for first-degree murder.

The ambiguity present in CJI and general confusion surrounding the issue of the requisite intent for first-degree murder stems, as the Garcia Court indicates, from the terminology found in second-degree murder cases which is inappropriate when transferred to the first-degree murder context. Premeditation and deliberation are the crucial elements which distinguish first-degree murder and second-degree murder. See e. g., People v. Vail, 393 Mich.App. 460, 468, 227 N.W.2d 535 (1975); People v. Morrin, 31 Mich.App. 301, 326, 187 N.W.2d 434 (1971). Viewing the factors as the sole source of distinction, however, is misleading; not all malicious, premeditated, deliberated actions resulting in death constitute murder in the first degree. Perkins offers the example of an individual who wishes to destroy certain property by explosion. Conscious of the very high degree of risk that [96 MICHAPP 397] someone will be killed, and after taking all possible precautions short of abandoning his plan, he proceeds to cause the explosion which results in a person's death. His premeditated, deliberated act, executed with reckless disregard of its probable consequences, constitutes murder. Perkins, Criminal Law (2d ed.), p. 36. See also LaFave & Scott, Criminal Law § 70, p. 543. Absent is the actual intent to kill which would elevate the crime to first-degree murder.

Early Michigan Supreme Court cases hold that legislative refinement of the common-law definition of murder, dividing the crime into degrees of seriousness, was accomplished for the purpose of reducing the severity of punishment imposed upon those guilty of "wanton act" murder as opposed to first-degree murder. The Court made its position clear in People v. Potter, 5 Mich. 1, 7 (1858):

"Now, at the common law, if a mortal blow was malicious, although not given with intent to kill, or if death ensued from an act accompanying an unlawful collateral act, or under circumstances which showed general malice, such as a reckless disregard of the safety or lives of others, the killing would be murder, and would be punishable in the same manner as though perpetrated with the deliberate design of taking the life of the victim. It was to mitigate the punishment for this class of murders, and to leave it to the discretion of the court, to a considerable extent, that our statute was passed; while for murder perpetrated willfully, or in the perpetration, or attempt to perpetrate, either of the four felonies mentioned, the punishment is inflexibly fixed by the law. Hence, in defining the first degree of murder, the statute specifies two instances in which willfulness, deliberation, and premeditation are most strongly indicated, viz., the use of poison, and lying in wait; and then provides that all other willful, deliberate, and premeditated killing, should also be murder in the same degree. The more atrocious crime is separated [96 MICHAPP 398] from the general class of murder; and, it would seem to follow that to establish murder in the first degree, more proof is necessary than of the single fact of malicious homicide, and that it must be shown that the killing was willful, and with design to take the life of the victim."

See also, People v. Scott, 6 Mich. 287 (1859), People v. Doe, 1 Mich. 451, 457 (1850). The Potter Court continued:

"Now, malice aforethought is either express or implied, and there can be no case of murder in the first degree, except when committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, or when there does not exist express malice; while, in case of murder in the second degree, the malice is generally, if not universally, implied." 5 Mich. 1, 9.

The term "express malice" has generally been interpreted as an intent to kill, Perkins, supra, at 49; malice is "implied" when "there is no showing of actual intent to kill, but death is caused by acts which the law regards as manifesting such an abandoned state of mind as to be equivalent to a purpose to murder". 40 C.J.S. Homicide § 16, p. 863. The Supreme Court, in People v. Garcia, supra, has terminated all doubt that first-degree murder requires an actual intent to kill:

"This classification of murder by degree was first enacted by the state of Pennsylvania in 1794. In 1838, motivated by a concern that the more culpable forms of murder should be...