People v. Goddard

• Decision Date: 02 August 1984
• Docket Number: No. 61849,61849
• Citation: 135 Mich.App. 128,352 N.W.2d 367
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Allan GODDARD, Defendant-Appellant. 135 Mich.App. 128, 352 N.W.2d 367
• Court: Court of Appeal of Michigan — District of US

Page 367

352 N.W.2d 367

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Allan GODDARD, Defendant-Appellant.

No. 61849.

135 Mich.App. 128, 352 N.W.2d 367

Court of Appeals of Michigan.

Submitted April 5, 1983.

Decided June 5, 1984.

Rehearing Denied July 20, 1984.

Released for Publication Aug. 2, 1984.

[135 MICHAPP 131] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Eugene Malanyn, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

James R. Newhard, State Appellate Defender by Richard B. Ginsberg, Detroit, for defendant-appellant.

Before BEASLEY, P.J., and R.B. BURNS and MEGARGLE ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree (felony) murder. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. We affirm.

Defendant was charged with the murder of George Wissmiller, the caretaker of a summer home and hunting lodge in Alcona County. The lodge was located on a private, wooded estate of [135 MICHAPP 132] about 850 acres. Defendant's father testified that he and defendant had gone onto the estate to hunt deer and possibly to break and enter the lodge. As they were about to break in, they heard a tractor approaching. They saw Mr. Wissmiller drive the tractor into a garage. He then came out and let his dog loose. The dog circled the area in which defendant and his father were standing and began barking. Wissmiller went into his house, came back out, then walked past the spot where defendant and he were standing. The dog kept barking and Wissmiller began walking slowly toward where they were hidden. Defendant's father whispered "let's get out of here". Defendant said, "I'll take a fast look through the scope to see what he's doing". Defendant's rifle then went off, although defendant's hands were not near the trigger. Defendant then said, "I didn't mean to do it. The safety must have been off". Thereafter, defendant and his father broke into the lodge and stole various items. Defendant later testified that his father shot and killed Wissmiller.

Over objection, Michael Koski testified that he and defendant had burglarized several cabins, lodges, and other buildings in the area of Alcona County on a night about six months before the alleged murder. Koski further testified that, while at one lodge, defendant drew a handgun from a holster and fired three shots into a television set and then told Koski that, if someone approached him while he was committing a breaking and entering, he would fire a shot in the air and if the person kept coming, he would shoot at him.

Defendant now claims that the trial judge abused his discretion by admitting Koski's testimony into evidence. Defendant bases this contention on the similar acts rule, MRE 404(b). See [135 MICHAPP 133] People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982).

In People v. Golochowicz, supra, p. 309, 319 N.W.2d 518, the Supreme Court declared that the following evidentiary safeguards must be met before evidence of similar acts, i.e., defendant's uncharged misconduct, may be admitted:

"(1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant's identity or the motive, intent, absence of mistake or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant's guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice." (Footnote omitted.)

Defendant claims that the bad acts at issue were not sufficiently similar to the charged crime to meet the test set forth in Golochowicz, supra. We disagree. In this case, the evidence of the bad acts was offered to prove intent and absence of accident. In Golochowicz, supra, evidence of similar acts was introduced in order to prove identity. The Supreme Court's statement that admission of similar-acts evidence is proper only where the circumstances and manner in which the two crimes were committed are so nearly identical in method as to earmark the charged offense as the handiwork of the accused was limited to cases in which the evidence was offered to prove identity. Golochowicz, supra, pp. 310, 325, 319 N.W.2d 518. We conclude that a less [135 MICHAPP 134] vigorous showing of similarity is required where factors other than identity are sought to be shown.

In this case, the prior bad act was sufficiently similar to the charged crime to justify its admission on the issue of defendant's intent in going onto the estate and in shooting Wissmiller. These matters were clearly material to the determination of defendant's guilt of the charged crime in that issues had been raised as to whether defendant entered onto the estate for the sole purpose of hunting and whether Wissmiller was shot accidentally. Defense counsel inquired into these matters on cross-examination of defendant's father. These inquiries were sufficient to put these matters in issue. See Golochowicz, supra, p. 316, 319 N.W.2d 518. Furthermore, the probative value of the evidence was not outweighed substantially by its prejudicial effect.

Defendant next claims that the trial judge erred by holding that the district judge erred as a matter of law by refusing to bind defendant over on first-degree felony murder. Felony murder is a murder which occurs "in the perpetration or attempt to perpetrate" one of the felonies listed in M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, such as breaking and entering. The trial judge, relying on the facts found by the district judge, held that sufficient proof had been presented that the killing was committed in the perpetration or attempted perpetration of a felonious breaking and entering to justify the defendant's bindover on felony murder. Defendant argues that a murder is not "in the perpetration or attempted perpetration of" a crime if it is committed before a defendant has taken actions sufficient to constitute an attempt to commit the crime. In this case, defendant argues that he could not have been convicted of attempted [135 MICHAPP 135] breaking and entering based on his actions before the shooting. Therefore, the shooting was not in the perpetration or attempted perpetration of the breaking and entering.

Michigan courts have held that a homicide qualifies as felony murder if it is committed while a defendant is attempting to escape from or prevent detection of the felony, and if it is immediately connected with the underlying felony. People v. Podolski, 332 Mich. 508, 518, 52 N.W.2d 201 (1982); People v. Smith, 55 Mich.App. 184, 189, 222 N.W.2d 172 (1974). While these cases are not directly on point, their reasoning can be applied to the present case, leading us to conclude that if a homicide occurs before the underlying felony, yet is closely connected with the felony, the homicide can be found to be felony murder.

This position has been adopted in other jurisdictions. Although the language of other felony-murder statutes varies widely, most require that the killing be in the "commission/perpetration" or attempt to "commit/perpetrate" the underlying felony. LaFave & Scott, Criminal Law, Sec. 71, p. 555. Where a causal connection between the killing and the underlying felony exists, courts generally have held that a killing may take place sometime before or after, as distinguished from during, the felony and yet still qualify as a killing "in the commission or attempted commission of" the felony. LaFave & Scott, supra, p. 555. ¹ Courts have usually [135 MICHAPP 136] required that the killing and the underlying felony be "closely connected in point of time, place and causal relation". State v. Adams, 339 Mo. 926, 98 S.W.2d 632 (1936). The required relationship between the homicide and the underlying felony has been summarized as being "whether there is a sufficient causal connection between the felony and the homicide depends on whether the defendant's felony dictated his conduct which led to the homicide". LaFave & Scott, supra, p. 557.

We hold that, to qualify as felony murder, the homicide must be incident to the felony and associated with it as one of its hazards. It is not necessary that the murder be contemporaneous with the felony. A lapse of time and distance are factors to be considered, but are not determinative. State v. Phams, 342 N.W.2d 792 (Iowa, 1983); State v. Conner, 241 N.W.2d 447, 464 (Iowa, 1976). Defendant must intend to commit the felony at the time the killing occurs. See Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980); People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 (1980).

The magistrate concluded that the evidence showed that defendant killed George Wissmiller immediately before and at the scene of the subsequent breaking and entering. More importantly, he concluded that a case had been made that [135 MICHAPP 137] Wissmiller was killed in order to enable defendant to proceed with the break-in without delay. Under these circumstances it could be found that the intent to commit the break-in had been formed when the homicide had occurred and that the homicide was incident to the break-in and associated with it as one of its hazards. Accordingly, the magistrate's factual findings justified a bind over on the felony-murder charge. Furthermore, there was sufficient evidence to convict defendant of felony murder under the doctrine.

Defendant also claims that his conviction must be reversed because the trial judge failed to instruct the jury on the definition of attempt. The judge, following CJI 16:2:02, told the jury that, to convict defendant, they must find that the murder was committed in the perpetration or attempted perpetration of the breaking and...