People v. Curry

• Decision Date: 10 April 1989
• Docket Number: Docket No. 100734
• Citation: 437 N.W.2d 310,175 Mich.App. 33
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Albert CURRY, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 310

437 N.W.2d 310

175 Mich.App. 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Albert CURRY, Jr., Defendant-Appellant.

Docket No. 100734.

Court of Appeals of Michigan.

Submitted June 21, 1988.

Decided Feb. 21, 1989.

Released for Publication April 10, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., and Carol K. Bucher, Asst. Pros. Atty., for the People.

Richard A. Curry, Jr., Jackson, in pro. per.

James R. Rinck, Grand Rapids, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and BEASLEY and HARRISON, ^* JJ.

HARRISON, Judge.

Defendant appeals as of right from his conviction by jury trial of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and two counts of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced, following his conviction as a third-offense habitual offender, to life imprisonment on the second-degree murder conviction, forty to sixty years imprisonment for the assault conviction, and two years imprisonment on each of the felony-firearm convictions. The sentences on the murder and assault convictions were to run consecutively to the sentence on the felony-firearm convictions. We affirm.

Defendant's convictions stemmed from an incident on the morning of November 15, 1986. Defendant had gone to visit Barbara Perry, who was the mother of his son. Perry had been seeing another man while defendant was in prison, but defendant testified that their relationship was still a romantic one. However, when defendant arrived at Perry's house at approximately 5:00 a.m., he saw Anthony Hughes coming out of the house. Hughes got into the passenger side of a Cadillac Seville driven by his brother, David Hughes, and drove away. Defendant testified that he decided to confront Anthony Hughes, so he followed the Seville.

Defendant flashed his headlights, and the Seville pulled over. Anthony Hughes got out and stood by the passenger side of the car. Defendant parked behind the Seville and approached him. An argument ensued and defendant slapped Hughes, in response to which Hughes reached into his pocket and pulled out something that defendant thought was a gun. Defendant then pulled a pistol out of his pocket. Hughes came at defendant, so defendant jabbed him in the face with the gun and told Hughes to "get off him." Hughes continued to swing at defendant with what defendant thought was a gun. Defendant testified that at some point during the swinging altercation he realized that what Hughes had was a knife and not a gun. Nevertheless, defendant thought that Hughes was trying to kill him and therefore he "just started shooting." Defendant did not know how many times he fired the gun.

During the course of the altercation, defendant saw David Hughes get out of the car and approach from behind, fumbling under his jacket. Defendant turned and shot at David, who was hit and then fled the scene on foot.

Defendant was arrested two days later after a shoot-out with police in which one police officer was killed (see Court of Appeals Docket No. 100735).

At trial, several photographs in which police officers and David Hughes attempted to recreate the positions of defendant and the Hughes brothers during the incident were admitted into evidence. David Hughes stated that these were an accurate depiction of the scene on the morning of the incident, but defendant claimed that they were inaccurate. The prosecution also showed twelve slides of an autopsy performed on Anthony Hughes.

The trial judge instructed the jury without objection from defense counsel, and the jury returned guilty verdicts on all four counts. The same jury was used to try defendant on the supplemental charge of being a third-offense habitual offender, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. Defendant was found guilty of the supplemental charge.

I

Defendant raises four issues on appeal. First he argues that the trial court abused its discretion by refusing his request to impanel a new jury for the supplemental trial. Defendant asserts that the jury was prejudiced by the fact that defendant admitted to prior convictions at the first trial.

There is no absolute right to the impaneling of a new jury to hear habitual offender charges. People v. Potter, 115 Mich.App. 125, 139-140, 320 N.W.2d 313 (1982), lv. den. 417 Mich. 897 (1983). It is within the sound discretion of the trial court to impanel a new jury after balancing the cost and inconvenience against the possibility of prejudice to defendant. People v. Schram, 98 Mich.App. 292, 300-302, 296 N.W.2d 840 (1980).

We find that the trial judge did not abuse his discretion by denying defendant's motion to impanel a new jury for the supplemental trial. As we stated in Potter, supra, it would have been advisable for the trial court to give a cautionary instruction to the jury that it should disregard anything heard in the previous trial. However, given the overwhelming evidence of defendant's guilt of the supplemental charge, we cannot say that the trial judge's failure to give such an instruction was error requiring reversal.

II

Defendant next argues that the trial court improperly instructed the jury. Specifically, he asserts that the trial court erred by failing to give, sua sponte, the following instructions: (1) the specific intent instruction for first-degree murder, (2) the complete second-degree murder instruction, (3) the mitigating circumstances or "qualified" self-defense instruction on the manslaughter/assault with intent to commit murder issue, (4) the nondeadly aggressor assaulted with deadly force instruction, (5) the past violence of complainant or decedent instruction, and (6) the self-defense against persons acting in concert instruction.

Since defendant did not object to the instructions or request that any specific instructions be given, appellate review of this issue is waived absent manifest injustice. People v. Trammell, 70 Mich.App. 351, 355, 247 N.W.2d 311 (1976). Manifest injustice results, and an error is not waived, where the trial court improperly instructed the jury on the law of the case. People v. Kohler, 113 Mich.App. 594, 599, 318 N.W.2d 481 (1981). However, there is no error in somewhat imperfect instructions if the instructions as given fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant. People v. Bender, 124 Mich.App. 571, 574-575, 335 N.W.2d 85 (1983). The instructions to the jury must include all elements of the crime charged and must not exclude from jury consideration material issues, defenses and theories if there is evidence to support them. People v. Reed, 393 Mich. 342, 349-350, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975).

On review of the record, we find that the trial court properly instructed the jury on the law of the case and fairly presented to the jury the issues to be tried. The jury was instructed on the charges of first-degree murder and its lesser-included offenses and assault with intent to commit murder and its lesser-included offenses. The jury was also instructed on self-defense, which was defendant's asserted defense at trial. The instructions which defendant, for the first time on appeal, now contends should have been read were either unnecessary or inappropriate.

Defendant first contends that the trial court should have given CJI 3:1:16, the separate specific intent instruction, in addition to the first-degree murder instruction. CJI 3:1:16 should be given if intent is a disputed issue in the case, or if the jury appears to be confused. People v. Beaudin, 417 Mich. 570, 575-576, 339 N.W.2d 461 (1983); People v. Yarborough, 131 Mich.App. 579, 582, 345 N.W.2d 650 (1983). Intent was not an issue in the instant case; defendant admitted shooting the Hughes brothers, but claimed that it was in self-defense. Further, the jury found defendant guilty of second-degree murder, which is not a specific intent crime. See People v. Langworthy, 416 Mich. 630, 653, 331 N.W.2d 171 (1982). The failure to give the separate instruction on specific intent was therefore harmless beyond a reasonable doubt.

Defendant's next contention is also without merit. He argues that the trial court erred by giving CJI 16:3:02 rather than CJI 16:3:01, the complete second-degree murder instruction. In every case of first-degree murder, the jury must be instructed, sua sponte, on the necessarily included offense of second-degree murder. People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975). The Use Notes for CJI 16:2:01 state that CJI 16:3:02 should be used for this purpose. The trial court properly informed the jury of the issues to be tried by using CJI 16:2:01 and CJI 16:3:02.

Defendant asserts that the jury should have been instructed on the rights of a nondeadly aggressor assaulted with deadly force, CJI 7:9:05. Defendant also assigns error to the trial court's failure to instruct, sua sponte, on the law of "imperfect" or "qualified" self-defense. This defense focuses on whether defendant would have been entitled to claim self-defense but for his actions as initial aggressor, and mitigates murder to manslaughter. People v. Springer, 100 Mich.App. 418, 421, 298 N.W.2d 750 (1980); People v. Vicuna, 141 Mich.App. 486, 493, 367 N.W.2d 887 (1985).

We do not find that the failure to give these instructions resulted in manifest injustice. Jury instructions must include defendant's theory of the case if there is evidence to support it. People v. Hoskins, 403 Mich. 95, 100, 267 N.W.2d 417 (1978). Where evidence of an element of self-defense is clear and uncontested, it is error to fail to instruct on that element even in the absence of a request. People v. Terrell, 106...