People v. Fournier, Docket No. 77-5035

• Decision Date: 06 November 1978
• Docket Number: Docket No. 77-5035
• Citation: 86 Mich.App. 768,273 N.W.2d 555
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert FOURNIER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 555

273 N.W.2d 555

86 Mich.App. 768

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert FOURNIER, Defendant-Appellant.

Docket No. 77-5035.

Court of Appeals of Michigan.

Nov. 6, 1978.

Released for Publication Jan. 12, 1979.

DeVries & Lamb, P. C., by Richard R. Lamb, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and T. M. BURNS and VanVALKENBURG, JJ. ^*

VanVALKENBURG, Judge.

Defendant was charged with the first-degree murder of Anthony Doss, contrary to M.C.L. § 750.316; M.S.A. § 28.548, but was convicted on November 7, 1975, following an eleven day jury trial, of voluntary manslaughter. He was sentenced on December 8, 1975, to 10 to 15 years and was given credit for 420 days spent in the county jail, with the further recommendation that he should not be paroled and that he be deported from the country.

A motion for a new trial was argued on September 20, 1977, and denied on October 25, 1977. The appeal to this Court followed as of right.

The shooting, which was an outgrowth of an "eternal triangle", occurred on October 14, 1974, and Doss died on November 5, 1974. The three principals include: the deceased, who was pictured during the lengthy trial as a brutal thug; defendant, who appeared to be psychotic and could not live with the fact that women were not attracted to him; and the necessary woman, Sally Schippers, who was characterized as a fickle jezebel who had two fiances at the same time and led each of them to believe that she would marry him.

There is some confusion concerning the events on the 14th which led up to the shooting. However, the two men confronted each other, either at the residence of Sally Schippers or at the gas station where the deceased was employed. Thereafter, defendant returned to his mother's home, obtained a 12-gauge shotgun and headed for the station where he kidnapped Sally at gunpoint and drove off in a red car. Doss followed and finally caught up with him at the intersection of West Michigan Avenue and South Park Street in downtown Kalamazoo. At this point the deceased rammed defendant's car several times. The latter, finding that his steering gear was jammed, shot twice through the rear window of the Doss vehicle, reloaded the gun, exited from his car and ran south on Park Street. Doss followed him in his car driving the wrong way up Park Street, a one-way street, to the vicinity of Bronson Park, which is one block south of Michigan Avenue. There is some evidence that Doss was attempting to run the defendant down, but was prevented from doing so when he collided with a lamppost. He immediately exited from his automobile and, while attempting to approach defendant, was shot in the stomach.

A state police firearms expert testified at trial that three 12-gauge shotgun shells were found at the scene of the crime and that the tests showed that they matched the ones later fired from the gun.

The prosecution alleged that the acts of defendant were willful, deliberate and premeditated.

Defendant, on the other hand, claimed that at the time of the shooting he was acting in self-defense out of fear of the deceased, and that his psychological makeup was such that he could not form the intent to kill anyone.

The six issues raised by the defendant on appeal will be considered Seriatim.

I

This issue is divided into two parts: (A) Did the trial court err in failing to advise the jury that they could return a general verdict of not guilty? (B) Was the burden of proof shifted to defendant when the trial judge gave his instruction on malice?

There is an admission in defendant's brief that the court did begin his instructions by saying "that if the prosecutor did not prove the defendant guilty beyond a reasonable doubt, the jury must find him not guilty".

This statement was followed up in the general instructions on presumption of innocence, burden of proof, and reasonable doubt as follows:

"Each and every one of you must be satisfied beyond a reasonable doubt after deliberating that the defendant is guilty or you must find him not guilty. You must begin this trial with these principles foremost in your mind. * * * The burden of proof means that every element of the offense charged must be proven by evidence beyond a reasonable doubt. By stating that the prosecution must prove the guilt beyond a reasonable doubt I mean that there must be such evidence as causes you to have a firm conviction, amounting to a moral certainty of the defendant's guilt. If after considering all the evidence you do not have such a certainty, then that is a reasonable doubt."

Undoubtedly, the failure to repeat the fact that the jury could find defendant not guilty at the close of the instructions was a mere oversight. The entire panel, before any jury was selected, was advised of this basic rule. The instructions as a whole adequately informed the members of the jury that they could bring in a verdict of not guilty. Under these circumstances it cannot be concluded that the jury, which must have been composed of reasonably intelligent citizens, was misled. Furthermore, counsel did not object to the instructions.

Defendant contends that the trial court made a more serious error when it instructed the jury as follows:

"It is the law that death resulting from an assault in the absence of any proof to the contrary is presumed to be felonious either murder or manslaughter. Where the death is shown to be resulted (sic) from the use of a deadly weapon in the absence of any proof to the contrary, an absence to any testimony in relationship to that, the presumption is that the death was inflicted with malice."

This instruction was erroneous since malice is an element of the crime of first and second-degree murder and determination of that element must be made by a jury.

"Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law". People v. Martin, 392 Mich. 553, 561, 221 N.W.2d 336, 341 (1974).

However, voluntary manslaughter is distinguished from murder by the absence of the element of malice. People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974).

Here, the jury must have found that the killing, although intentional, was committed under the influence of passion or heat of blood produced by an adequate or reasonable provocation before reasonable time had elapsed for the blood to cool and reason to resume its habitual control. A finding of manslaughter indicates that the jury found no malice, thus the trial court's charge to the jury, although erroneous, constituted harmless error. People v. Swan, 56 Mich.App. 22, 31, 223 N.W.2d 346 (1974).

II

Did the trial court commit reversible error in excusing the prosecution from producing witness Tom Hatcher and in ruling that the people had exercised due diligence by their efforts to produce him as a witness?

Prior to the voir dire of the jury on October 22, 1975, a hearing was held to give the prosecution an opportunity to show due diligence in attempting to serve witness Tom Hatcher with a subpoena. Officer Lewandowski testified that he was aware of the fact that Mr. Hatcher had moved to Grand Rapids. He contacted Mr. Hatcher's mother there and was advised by her that the whereabouts of her son were unknown and that according to the latest information he was in Seattle, Washington and expected to leave for other destinations very soon thereafter. The officer made two additional calls and left his address and telephone number, which would enable the mother to contact him if the location of her son became known.

The trial judge ruled that due diligence had been exercised and commented that perhaps something would be learned as to the address of the witness during the trial.

It is well established, according to both case law and statute, M.C.L. § 767.40; M.S.A. § 28.980, that the prosecutor has an affirmative duty to endorse and produce all res gestae witnesses to a crime at the time of the trial.

Application of this rule has, however, brought about different interpretations. In People v. Serra, 301 Mich. 124, 130, 3 N.W.2d 35, 38 (1942), the Supreme Court stated:

"It is not error for the court to refuse to compel the prosecution to call witnesses whose names are endorsed on the information who are not within the State and answerable to process of the court."

In People v. Ivy, 11 Mich.App. 427, 431, 161 N.W.2d 403, 405 (1968), the witness left for New York and the prosecutor made no further efforts whatsoever to contact him. The trial court submitted the question of due diligence to the jury and instructed the members that if they found that the prosecutor had failed to employ due diligence, "they could consider that the witness, if called, would be adverse to the people". Apparently, the jury was satisfied since defendant was found guilty. Such a procedure was held to be permissible.

In People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106 (1973), the Supreme Court held that before filing a brief on appeal, a motion for new trial must be made. However, no mention was made of the line of cases holding that a motion for a continuance must be made in order to save the alleged error for review on appeal. See People v. Gibson, 253 Mich. 476, 235 N.W. 225 (1931), People v. Tiner, 17 Mich.App., 18, 20-21, 168 N.W.2d 911 (1969), People v. McNary, 43 Mich.App. 134, 137, 203 N.W.2d 919 (1972).

In Robinson the witness was not endorsed on the information and no due diligence hearing was held. Therefore, the question remains whether that decision overruled Gibson when a situation such as the one present here exists. Counsel in this case failed to ask for a continuance or make any similar request as permitted under circumstances set out in People v. Ivy, supra. Nevertheless, we will consider the issue as presented.

It is well settled...