People v. Dumas

• Decision Date: 20 May 1997
• Docket Number: No. 4,Docket No. 102355,4
• Citation: 454 Mich. 390,563 N.W.2d 31
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney DUMAS, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 31

563 N.W.2d 31

454 Mich. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney DUMAS, Defendant-Appellant.

Docket No. 102355.

Calendar No. 4.

Supreme Court of Michigan.

Argued Dec. 10, 1996.

Decided May 20, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, Detroit, for the People.

State Appellate Defender by Peter Jon Van Hoek, Detroit, for Defendant-Appellant.

Dorean Marguerite Koenig, Lansing, amicus curiae, for Criminal Defense Attorneys Association of Michigan.

Opinion

RILEY, Justice.

In this appeal, we are asked to examine the jury instructions given by a trial court in a felony-murder case in light of our decision in People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). The instructions in the instant case violated Aaron by allowing the jury to convict defendant of murder from his intent to commit the underlying crime alone. The jury did not need to determine that defendant had a malicious intent before determining that he was guilty of murder. Therefore, we would reverse the Court of Appeals decision to affirm defendant's conviction and would remand for a new trial.

I. FACTS AND PROCEEDINGS

On June 21, 1991, defendant Rodney Dumas and codefendant Patrick Smith entered the garage of Porter Thomas, a self-employed mechanic, to commit an armed robbery. A customer, Eddie Fultz, was present at the garage at the time. When the two men entered the shop, defendant approached Fultz. Smith pushed Thomas into the garage. Fultz explained that he did not work there, but defendant told him to go into the office and said "nothing [will] happen to you." Defendant gestured to his hip, suggesting that he might have a gun. When defendant looked back toward the garage, Fultz fled by climbing over a seven-foot fence. As he climbed the fence, he heard Thomas repeatedly say in a frightened voice, "I don't have any money." Before hitting the ground, Fultz heard a single gunshot. Fultz returned to the garage to see defendant and Smith running toward their vehicle. After Thomas, wounded in the chest, emerged from the garage carrying a rifle, he collapsed. He died from the wound, which was made by a .357 or .38 hollow point bullet.

Defendant and Smith were charged with felony murder. M.C.L. § 750.316; M.S.A. § 28.548. Smith was also charged with possession of a firearm during the commission of a felony. M.C.L. § 750.227b; M.S.A. § 28.424(2). In January 1992, defendant and Smith were tried jointly, although separate juries were impaneled. Evidence of similar acts was presented at trial against defendant, indicating that he and Smith had been involved previously in three other armed robberies together. This evidence was introduced for the purpose of demonstrating defendant's knowledge that Smith was carrying a gun during the robbery of Thomas. Defendant did not testify and did not call any witnesses. In closing argument, defense counsel conceded that defendant intended to commit the robbery, but rested his defense on the theory that defendant did not know that Smith had an intent to shoot the victim. Counsel asked that the jury convict defendant of the lesser offense of attempted armed robbery. ¹

The only issue in this appeal is the adequacy of the trial court's instructions to the jury. Defendant claims that the trial court erred in giving the following instruction:

[I]f you find that the defendant consciously intended to commit, attempted to commit or assist others in the commission of the crime of robbery or larceny, you may infer that he knowingly created a high risk of death or serious bodily injury with knowledge that it probably would cause death.

Defendant objected to this instruction, but the trial court gave the instruction over his objection. ²

On January 27, 1992, the jury found defendant guilty of first-degree felony murder, ³ and he was sentenced to life in prison without an opportunity for parole, as required under M.C.L. § 750.316; M.S.A. § 28.548.

Defendant appealed his conviction in the Court of Appeals, which affirmed in an unpublished per curiam opinion, concluding:

A review of the instructions as a whole reveals that the court properly instructed the jurors on the issue of intent. The court read the requisite elements of felony murder. The court included an instruction which addressed the act of murder. The court next instructed the jurors on the fifth element outlined in the CJI2d, which explained that in order to convict a defendant of first-degree felony murder, the killing must occur "as a result of the crime of larceny or robbery." Finally, the court gave its instruction on transferred intent. Although in isolation, the alleged erroneous instruction may have somewhat blurred the concept of intent to commit the underlying felony and intent to cause great bodily injury, the given instructions, when read as a whole does not amount to reversible error. [Issued January 11, 1995 (Docket No. 153325), slip op. at 2.]

Defendant sought leave to appeal, and this Court granted leave, "limited to whether the trial court improperly instructed that the intent required for a felony-murder conviction can be inferred from the intent to commit the underlying felony." ⁴

II. ANALYSIS

A

In reviewing a trial court's jury instructions, this Court examines the instructions as a whole, and, even if there are some imperfections, there is no basis for reversal if the instructions adequately protected the defendant's rights by fairly presenting to the jury the issues to be tried. People v. Kalder, 284 Mich. 235, 241-242, 279 N.W. 493 (1938). This Court will not reverse a conviction for an instruction that is not " 'strictly correct' " where we " 'can clearly see that the jury could not have been misled by it'...." People v. Dupie, 395 Mich. 483, 488-489, 236 N.W.2d 494 (1975), quoting the syllabus from People v. Scott, 6 Mich. 287 (1859).

B

To prove murder, the people must demonstrate that the defendant acted with malice in causing the death of another. Aaron, supra at 728, 299 N.W.2d 304. Malice is defined as (1) the intent to kill, (2) the intent to do great bodily harm, or (3) a wanton and wilful disregard of the likelihood that the natural tendency of the defendant's act is to cause death or great bodily harm, i.e., depraved-heart murder. Id. In 1980, in Aaron, this Court abolished the common-law felony-murder rule, which had previously established that a defendant was guilty of murder for a homicide that occurred during the course of a felony if he had the intent to commit the underlying felony, insofar as this rule equated malice with the intent to commit the underlying felony. See id. at 727-728, 299 N.W.2d 304. Rather, the people must prove one of the three intents that define malice in every murder case. Id. at 728, 299 N.W.2d 304. After this decision, the felony-murder rule continued to exist in part by statute, operating only to elevate a second-degree murder conviction to first-degree murder if the murder occurred during the commission of one of the statutorily enumerated crimes. Id. at 734, 299 N.W.2d 304. At the time of defendant's trial, the first-degree murder statute provided in full:

Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life. [M.C.L. § 750.316; M.S.A. § 28.548.][ ⁵

In abolishing the felony-murder rule from the common law, this Court explained that the malice necessary for a felony-murder conviction cannot be inferred from the intent to commit the underlying felony alone. SeeAaron, supra at 727-728, 299 N.W.2d 304. ⁶ See also People v. Kelly, 423 Mich. 261, 273, 378 N.W.2d 365 (1985). ⁷ However, we noted that the jury may infer a malicious intent from the facts and circumstances of the underlying felony:

The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence. [Aaron, supra at 728-729, 299 N.W.2d 304. See also Kelly, supra at 273, 378 N.W.2d 365.][ ⁸ Five years after Aaron was decided, this Court, in Kelly, addressed a similar issue as the one raised in this appeal. Notwithstanding the ruling of Aaron, the trial court in Kelly provided an instruction regarding malice that was virtually the same as the one contested in the instant case, ⁹ in a felony-murder trial in which the underlying felony was robbery. ¹⁰ As in this case, the defendant objected to the instruction, but the trial court overruled the objection. Kelly, supra at 269-270, n. 2, 378 N.W.2d 365.

In reviewing the particular instruction, we concluded that the instruction, read in isolation, "may be inaccurate." Id. at 264, 378 N.W.2d 365. Nevertheless, in reviewing the instructions in their entirety, we determined that the instructions merely identified the underlying crime as a factor for the jury to consider in determining whether the defendant was guilty of malice. Id. at 273, 378 N.W.2d 365. We noted that the contested instruction only created a "permissive inference" and not a mandatory one. Id. at 273, n. 4, 378 N.W.2d 365. We also noted that the trial court had (1) properly instructed the jury that malice is an essential element of murder, (2) given a proper instruction on the definition of malice, and (3) instructed the jury that it must consider all...