People v. Clark

Decision Date27 December 1996
Docket NumberDocket No. 103664,No. 9,9
Citation556 N.W.2d 820,453 Mich. 572
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Bertha CLARK, Defendant-Appellee. Calendar
CourtMichigan Supreme Court
OPINION

MALLETT, Justice.

The defendant was convicted by a jury of involuntary manslaughter in the death of her four-year-old son and was sentenced to a prison term of seven to fifteen years. The Court of Appeals reversed, holding that the defendant was prejudiced by a change in the jury instructions. We would affirm the decision of the Court of Appeals that the defendant was prejudiced by the change in the instructions and is entitled to a new trial.

I

The decedent was adopted when he was nine months old in March, 1986. He died unexpectedly at the age of four. The medical examiner ultimately concluded that he died from dehydration. This dehydration could not be explained, however, by any underlying, ongoing, or apparent disease process. Child abuse was suspected in the death because of ligature marks and bruises observed on his body. 1

The decedent suffered from excessive and overwhelming thirst that seemed to have no discovered medical basis. He was described as a compulsive drinker and would go as far as drinking from toilets. He also suffered from frequent urination and began wetting the bed around two years of age. On the advice of her doctor, the defendant restricted the child's liquid intake several hours before bedtime, starting at 7:00 p.m. She asked the teachers not to let him drink more water than the other children at school. She also restricted his intake during the hours that he was in her care.

In March 1989, defendant found the child having a seizure in his room. She told the physician that he drank over a gallon of water earlier that day. Testing revealed unusually high salt levels that were inconsistent with drinking so much water. The cause of this high salt level remains unknown. 2 Defendant took the child to the family physician, who sent him to the hospital for follow-up tests. The results of these tests were not reported to the defendant.

The prosecutor presented the defendant as a mother who became obsessed with her son's bed-wetting to the point that she withheld liquids, causing him to be fatally dehydrated. Testimony revealed that defendant disciplined her children with a belt and that she would keep the child tied in bed with a cloth belt or nylon stockings to keep him from getting up at night. When he was brought into the hospital, nylon stockings were found under his body on the stretcher. The defense, on the other hand, argued that this was a frustrating and difficult child who had many medical problems that were inadequately addressed by the medical community. The Kent County medical examiner who performed the autopsy concluded that the child died because water was withheld from him.

The defendant was charged with involuntary manslaughter. The statute for that offense only defines the penalty; 3 the elements of involuntary manslaughter are defined by common law:

"Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." [People v. Ryczek, 224 Mich. 106, 110, 194 N.W. 609 (1923) (citation omitted).]

The kind of negligence required for manslaughter is something more than ordinary or simple negligence, however, and is often described as "criminal negligence" or "gross negligence," People v. Townes, 391 Mich. 578, 590, n. 4, 218 N.W.2d 136 (1974), "wilfulness, or of wantonness and recklessness." People v. Orr, 243 Mich. 300, 307, 220 N.W. 777 (1928).

For a defendant's behavior to be considered grossly negligent, three elements must be satisfied. 4 These elements are embodied in CJI2d 16.18 that expressed the people's theory of the defendant's guilt. The instruction states:

(1) Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act. In order to find that the defendant was grossly negligent, you must find each of the following three things beyond a reasonable doubt:

(2) First, that the defendant knew of the danger to another, that is, he knew there was a situation that required him to take ordinary care to avoid injuring another.

(3) Second, that the defendant could have avoided injuring another by using ordinary care.

(4) Third, that the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.

Before closing arguments, the parties and the court agreed to this instruction.

At the end of closing argument, and in reliance on CJI2d 16.18, the prosecutor noted that the people did not have to prove that the defendant intended that the child should die, but instead that her grossly negligent behavior of withholding fluids resulted in his death. The prosecutor stated:

You are going to get an instruction on what gross negligence is. You are going to hear that it is you knew of the danger, there was a danger to another--that is, she knew that there was a situation that required him to take--that required her to take ordinary care to avoid injuring another, that she could have avoided the injury by using ordinary care--giving the child water--and that she failed to use ordinary care to prevent injuring another when to a reasonable person it must have been apparent that the result was likely to cause serious injury.

The prosecutor summed up the evidence that pointed to defendant's knowledge that restricting fluids was imprudent and harmful to the point that it could cause death and did so in this instance.

After the prosecutor's closing argument, defense counsel requested a change in the jury instruction on gross negligence. 5 Defense counsel wanted the phrase "cause death" to replace "cause serious injury," in CJI2d 16.18(4). This request occurred in a sidebar conference, out of the hearing of the jury, and was not recorded. However, without considering the effect this would have on the proceedings, the prosecutor and the judge agreed to the modification. Defense counsel then proceeded with his closing argument. The defense argued that the decedent was a difficult child, that the defendant was not inattentive to his needs, but was a concerned parent doing her best in a difficult situation, and that it could not possibly have been apparent to her that her actions would result in his death.

Before instructing the jury, defense counsel raised the issue of the changed instruction to confirm the modification. The prosecutor entered an objection to the previously modified instruction, noting that the people did not have to prove that the defendant knew that her actions would cause death under the definition of gross negligence embodied in the manslaughter instructions. Indicating that the modification might be a misstatement of the law and that it also set a higher standard than the law required, the judge changed his mind and decided that the instruction should not be given. Consequently, the judge properly instructed the jury with the standard instruction that was the correct statement of the law.

Defense counsel objected because he had relied on the modified instruction in formulating his closing argument. The judge, acknowledging the predicament that had been created, offered the defense the opportunity to reopen the closing argument. Defense counsel declined this invitation, stating that in his opinion the modified instruction was not a misstatement of the law and that to reargue would only accentuate issues that should not be accentuated and create credibility problems with the jury. Further, he noted that he could not prepare a new argument on such short notice.

During deliberations, the jury requested a "[d]efinition of the guidelines to find negligence." The parties and the court determined that this was a request for clarification of the definition of gross negligence and agreed to a rereading of CJI2d 16.18, the legal instruction on gross negligence. Eventually, the jury returned a verdict of guilty.

Defense counsel moved for a new trial, arguing that his client's right to a fair trial was irreversibly prejudiced when the judge changed the content of the instruction after defense counsel relied on the previous modification. This motion was denied. At no time did the parties or the court raise the possibility of declaring a mistrial. 6

The defendant appealed her conviction in the Court of Appeals, 7 arguing that the modification of the jury instruction and defense counsel's reliance on the modification, and the judge's decision to give the unmodified instruction, was sufficiently prejudicial to require reversal. The Court of Appeals agreed. It found that the difference between the two instructions was critical. The Court could not find that this was a case in which the error was so minor as to be harmless or that this was error that could be cured easily by reargument. Reargument would only be appropriate if it would not prejudice the defendant. The Court noted, "Clearly, there is a substantial difference between having to prove that a reasonable person would know that the conduct would likely cause death and proving that a reasonable person would know that his conduct would likely cause serious injury." Unpublished opinion per curiam issued June 23, 1995 (Docket No. 144551), slip op at 2. The...

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