People v. Griffin

• Decision Date: 18 August 1981
• Docket Number: Docket No. 47373
• Citation: 310 N.W.2d 829,108 Mich.App. 625
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack A. GRIFFIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 829

310 N.W.2d 829

108 Mich.App. 625

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack A. GRIFFIN, Defendant-Appellant.

Docket No. 47373.

Court of Appeals of Michigan.

Aug. 18, 1981.

Released for Publication Oct. 20, 1981.

William D. Bond, Asst. Pros. Atty., Monroe, for plaintiff-appellee.

Kim R. Fawcett, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.

BASHARA, Judge.

The majority concurs with the reasoning and result reached by Judge Bronson's holding that the trial court's instruction to the jury as to the issue of malice was erroneous and requires reversal. People v. Richardson, 409 Mich. 126, 142-146, 293 N.W.2d 332 (1980); People v. Wright, 408 Mich. 1, 18-23, 289 N.W.2d 1 (1980).

However, we specifically reject the balance of the dissenting opinion, both as to rationale and result. For the benefit of the trial judge on retrial, our review leads us to the conclusion that his instructions on specific intent elements of first-degree murder and assault with intent to murder were proper. We further find that the evidence adduced could lead a finder of fact to conclude that first-degree murder was committed.

Reversed, and remanded to the trial court for retrial on the original charge, at the discretion of the prosecutor.

V. J. BRENNAN, P. J., concurs.

BRONSON, Judge (concurring in part; dissenting in part).

Following a jury trial in the Monroe County Circuit Court, defendant was convicted of first-degree murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548, and assault with intent to murder, contrary to M.C.L. § 750.83; M.S.A. § 28.278. Defendant was sentenced to concurrent terms of life imprisonment for the convictions, and now appeals as of right.

The testimony will be briefly summarized. Defendant stated that on November 25, 1978, he was sitting on his front porch when the victim, William Harmon, drove up looking for Willie Whit, defendant's neighbor. Mr. Harmon hoped that Mr. Whit would help him unload some lumber. Whit was not at home. However, defendant knew Mr. Harmon from seeing him in the neighborhood and agreed to assist in the project.

En route to the unloading site, Harmon stopped at a party store. He gave defendant five dollars, which constituted payment for the job. Defendant purchased a pint of whiskey and a sixteen-ounce bottle of beer.

Defendant Griffin began to drink the whiskey in the pickup truck. At the site, defendant worked on unloading the lumber, and during a rest break finished the whiskey. He then began to drink the beer. However, he could not recall if he finished it. Indeed, other than recollecting that he resumed unloading, defendant Griffin had no further recall of the events in issue.

The sole eyewitness to the killing was Curtis Norris. At approximately 5 p. m. Messrs. Harmon and Griffin arrived at Norris's farm. Norris invited Harmon to pick some recently cut corn. Norris had never seen Griffin before, but could tell that he had been drinking.

The three men got into Norris's pickup truck and drove to the cornfield. Norris and Harmon went into the field, but Griffin remained in the truck. While Norris and Harmon were picking the corn, defendant got out of the truck and walked to the driver's side of the vehicle. Mr. Norris yelled to defendant, "(C)ome over here and help pick this corn up and I'll buy you a drink".

At this point, Griffin got into the truck, drove forward some 300 feet, turned and proceeded toward Norris. Mr. Norris, who had two artificial legs, moved to get out of the way and fell down. The truck missed him, and continued on past for a few hundred feet. Norris called Harmon to help him. Meanwhile, the pickup truck turned back towards the men. Harmon was hit directly, and Norris was struck on his hand.

Monroe County Deputy Sheriff Daniel Case testified that he went to the crime scene and examined it for physical evidence. He stated that he paced off a circle made by the truck's tire tracks and that the circumference of the circle was 55 yards. Deputy Case's testimony, then, conflicted with that of Norris concerning the distances defendant traveled in the truck.

After Harmon was hit, Norris went to his house to get help. On the way he noticed that the pickup truck was empty and lodged in a pile of brush, logs, and trash. Harmon was taken to a hospital, where he died a few hours later.

Approximately an hour and a half after the incident, defendant was seen standing near Norris's house. The police were called and found him lying on the ground, apparently beaten. Griffin was taken to the hospital where a blood test was taken. The parties stipulated that defendant was found to have .318 percent by weight of alcohol in his blood, which would indicate severe alcoholic intoxication.

Defendant Griffin stated that he had never argued with Harmon and had no reason to want to kill him. At the time of trial, Griffin was 45 years of age. He had no prior criminal record, but he did acknowledge a drinking problem.

Defendant contends that a number of instructional errors entitle him to reversal of his convictions. The first problem involves the trial court's malice instructions. The judge charged the jury:

"Fifth and last element of murder of the second degree: that the killing was done with malice aforethought.

"More about malice. If one person without just cause inflicts a wrong upon another, we call him malicious. So when one person without legal provocation, justification, excuse, or mitigation intentionally kills another, we call him a murderer. The law implies from an unprovoked, unjustifiable, inexcusable killing without mitigating circumstances the existence of that wicked disposition of mind, which the law terms malice aforethought. Malice is implied from any deliberate or cruel act against another person however sudden. The time within which the wicked purpose is formed is not material as long as it is formed before the act. Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and execution of the intent to take life, but rather denotes purpose and design. It means malice existing at any time before the killing so as to be its moving cause.

"In determining whether this element existed you may consider the manner in which the killing was done, the instrument used, and all other circumstances." (Emphasis added.)

While a jury could properly draw an inference of malice on the facts of this case, this inference does not rise to the status of a legal presumption. Instructions telling the jury that "the law presumes" or "the law implies" facts of significance to the ultimate outcome of the case are erroneous. The Michigan Supreme Court has so held on several occasions. Maher v. People, 10 Mich. 212, 218 (1862); People v. Martin, 392 Mich. 553, 560-562, 221 N.W.2d 336 (1974); People v. Wright, 408 Mich. 1, 18-23, 289 N.W.2d 1 (1980); People v. Richardson, 409 Mich. 126, 142-146, 293 N.W.2d 332 (1980). See, also, Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), holding that such "presumption" instructions are violative of the Fourteenth Amendment's due process clause.

The prosecution on appeal relies in large part on People v. Gibson, 71 Mich.App. 543, 248 N.W.2d 613 (1976), lv. den. 400 Mich. 854 (1977). Any precedential value Rosemary Gibson once had has been destroyed by Richardson, supra. Indeed, the analytical underpinnings upon which this Court distinguished Rosemary Gibson from Martin, supra, was rejected sub silentio by the unanimous Supreme Court in Richardson.

Malice aforethought has been defined as the intention to kill, actual or implied. People v. Doss, 406 Mich. 90, 99, 276 N.W.2d 9 (1979); People v. Morrin, 31 Mich.App. 301, 310-311, 187 N.W.2d 434 (1971), lv. den. 385 Mich. 775 (1971). While a jury could reasonably infer the element of malice aforethought from the evidence adduced, it could also have declined to do so. Griffin was severely intoxicated at the time of the incident. Defendant also suffered from poor eyesight, and because he lacked corrective lenses had been unable to obtain a driver's license. Given the totality of the circumstances of this case, it is conceivable that, but for the instruction that the law implies malice, a reasonable juror might have concluded that this element had not been established. The instruction had the potential of substantially diluting the prosecution's burden of proof on malice, while defendant's case was based on a lack of malice. As such, the error cannot be deemed harmless. ¹

Defendant next argues that the trial court's instructions on the specific intent elements of first-degree murder and assault with intent to murder require reversal. The instructions on first-degree murder and specific intent provided in pertinent part:

"If you determine that the People have proved beyond a reasonable doubt all the following elements, then the defendant is guilty of murder of the second degree, but if you do not so determine, then you must find the defendant not guilty of that offense.

"First element: that William Harmon died on or about November 25th, 1978.

"Second element: that the defendant, Mr. Griffin, caused his death. That is, he did the act which caused his death intending that it result in his death or in great serious bodily injury, or he must have known he created a very high risk of death with knowledge that it probably would cause death.

"Third element: that the defendant intended to kill William Harmon.

"More about intent. Intent, except when stated verbally, is a matter of inference and can be proved only by actions or circumstances because nobody can look into the mind of another person. In determining whether the defendant had the required intent you're to consider all the evidence in the case. In determining the intent with which a person performs an act you may take into consideration the nature of...