People v. Gayton

• Decision Date: 22 February 1978
• Docket Number: Docket No. 29330
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Bernard GAYTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 344

265 N.W.2d 344

81 Mich.App. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence Bernard GAYTON, Defendant-Appellant.

Docket No. 29330.

Court of Appeals of Michigan.

Feb. 22, 1978.

Released for Publication May 10, 1978.

Hooe & Posey by Lynn V. Hooe, Jr., Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, App. Chief Asst. Pros. Atty., Michael J. Modelski, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and R. B. BURNS and BOYLE, ^* JJ.

BOYLE, Judge.

Defendant was convicted by a jury of murder in the second degree and was sentenced to twenty to forty years in prison. He appeals as of right.

There is no marked dispute about the facts of this case. On the afternoon of November 15, 1975, several people had gathered together to socialize at 410 Central Street in Pontiac, Michigan. Among them were the defendant and the decedent, Mr. Willard Washington. At some point in time the defendant and the decedent began discussing an incident that had occurred the previous night and which had involved the defendant and the decedent's son, Jimmy Leroy Washington.

The defendant, when questioned by the decedent as to what had happened the previous night, stated, "You better check him (decedent's son), if that damn gun had gone off last night he would have been a dead son-of-a-bitch." As testified to by a witness to this discussion, the defendant further stated that, although the gun did not go off last night, it would go off today.

Later that afternoon, subsequent to this discussion, the defendant left the house and went to a grocery store and returned to the house approximately 15 minutes later to retrieve his coat. He remained in the house only a few minutes before again leaving.

The decedent followed him to the front door soon afterwards, opened it, and addressed the defendant. Although there is no agreement as to the exact words used by the decedent, the gist of decedent's statement to defendant is agreed upon. A witness testified that the decedent opened the front door and said to the defendant, " '(Y)ou don't have to leave because nobody is mad at you, come on back.' " She further testified that the decedent had done nothing other than address the defendant.

Another witness testified that decedent said, " 'We know you got your gun; you don't have to run, you don't have to hide.' " A third witness testified that the decedent stated to the defendant, " 'You don't have to leave. No one is mad at you. We know you got your little ole gun.' "

A twelve-year old witness testified he witnessed this scene from about five feet away from the defendant. He testified that he saw the defendant standing on the sidewalk and the decedent standing in the doorway. He heard the defendant say to the decedent, "If you say another word, I'll shoot you." To this, the decedent responded, "Nobody's going to hurt you. Come on back."

It is uncontroverted that the decedent had nothing in his hands at the time that he addressed the defendant. Immediately after the decedent made this statement, the defendant turned towards him and shot two times at him with a handgun.

At this, the decedent stepped back into the house, having been shot in his left hip. The defendant, with gun in hand, ran back up the steps to the porch and opened the front door. The decedent then grabbed the defendant's arm and they began to grapple for the gun. In the process of doing so, they fell off the front porch. The defendant fell to the ground and the decedent fell on top of him. When they got to their knees, face to face, the defendant's gun discharged three times.

Defendant raises three issues, each of which we will discuss. He initially contends that he had argued the absence of premeditation and deliberation but that the trial court erroneously instructed the jury that one part of defendant's theory of the case was that there was an absence of premeditation and deliberation and that, therefore, the jury should consider only murder in the second degree and manslaughter.

It was the duty of the trial court to present adequately the defendant's theory of the case to the jury. GCR 1963, 516; People v. Savoie,75 Mich.App. 248, 255 N.W.2d 11 (1977), and a failure to do so is reversible error despite the fact no request or objection is made. People v. Jones, 69 Mich.App. 459, 462, 245 N.W.2d 91 (1976). Here, the trial court did direct the attention of the jury to defendant's theory of self-defense. Defendant did not object to the substance of this charge by the trial court. It was the duty of defense counsel to submit to the trial court at the close of the evidence a statement of the issues and his theory of the case as to each issue. GCR 1963, 516.7. He failed to do so. The trial court on his own motion instructed the jury as follows:

THE COURT: * * * Now, the Defendant in this case stated as I understand the situation two things:

"One that the act of the Defendant was without premeditation and deliberation and accordingly first degree murder should not be considered by you and that you should consider only second degree murder and manslaughter.

"Of course the Defendant strongly contends for a verdict of not guilty.

"One of those theories that the Defendant contends is that the actions of the Defendant were justifiable and excuseable (sic) by reason of the defense of self-defense."

Defendant contends that this instruction, in effect, told the jury that one of defendant's theories in the case was that he was guilty of second-degree murder only. When this was brought to the attention of the trial court by defense counsel, the court denied such was the effect or intent of the instruction. The trial court offered to reinstruct the jury before they began deliberations to cure any possible misstatement of defendant's theory of the case. Defense counsel refused the judge's offer to reinstruct the jury even though this action was one which defense counsel had requested.

At one point during their deliberations, the jury requested reinstruction on murder in the second degree and manslaughter. The trial court took this opportunity to reinstruct the jury on all charges against defendant, as well as on defendant's theory of the case. Defense counsel did not object to this instruction on defendant's theory of the case.

We find that, considering the instructions in their entirety, the trial court fairly presented defendant's theory of the case to the jury. Defendant was not entitled to a mistrial on the basis of such instructions.

Defendant next contends that the people did not present sufficient evidence of premeditation and deliberation to take the question of murder in the first degree to the jury, and that he was entitled to a directed verdict as to that charge.

The issue presented by a motion for a directed verdict of not guilty is whether there is sufficient evidence from which a jury can reasonably infer all of the elements of the crime charged. People v. Moore, 51 Mich.App. 48, 214 N.W.2d 548 (1974). When determining whether there was sufficient evidence on each essential element of a charge of murder in the first degree so as to permit submission of that charge to the jury, the People's evidence must be taken as true, and it must be viewed in a light most favorable to them so that they may benefit from every reasonable inference to be drawn therefrom. People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547 (19...