People v. Haack

• Decision Date: 21 April 1976
• Docket Number: No. 6,6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur J. HAACK, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 704

240 N.W.2d 704

396 Mich. 367

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur J. HAACK, Defendant-Appellant.

No. 6.

Supreme Court of Michigan.

April 21, 1976.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Arthur N. Bishop, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Daniel J. Wright, Asst. Defender, Susan Smith, Research Assistant, Detroit, for defendant-appellant.

LEVIN, Justice.

The question is whether the record shows a factual basis for a plea of guilty of second-degree murder.

Arthur Haack, charged with first-degree murder, pled guilty to second-degree murder. The Court of Appeals affirmed: ¹

'The facts recited by the defendant adequately establish second-degree murder as defined above. The defendant killed a man by intentionally pointing a loaded gun and firing that gun. He knew the gun was loaded. There was bad blood between the defendant and the decedent.'

We affirm.

I

During the plea-taking colloquy, Haack said that on the night of the homicide an acquaintance gave him a .45-caliber revolver to carry in his coat pocket. There were four bullets in the cylinder. Haack placed one of the empty chambers under the hammer and the other immediately to the left of it. He thought the cylinder rotated clockwise and that the hammer would strike an empty chamber if the gun was fired. He put the gun in his pocket.

At a party later that night the deceased, whom Haack had not met before, asked Haack why he had a gun. Haack responded 'if you knew the people that I knew you would carry a gun too.' Haack sought to terminate the conversation. The deceased moved away. Haack overheard another person urge the deceased to leave Haack alone. Then the deceased 'turned and faced me and said that if I was such a big man with the gun why didn't I shoot him.'

Haack described what followed:

'I figured this guy is pushing me far enough and I'm going to scare the hell out of him and let it go at that.

'I pulled the gun out and cocked the hammer and pulled the trigger. It fired.

'I found out that on a couple of makes of the older .45 revolvers that they spin counter clockwise instead of clockwise and that's what happened.'

Haack contends his assertion to the judge that he believed the gun would not fire and he intended only to scare the deceased negates intent to kill, a requisite element of second-degree murder. He contends that while he intentionally pulled the trigger, the shooting was an accident. Alternatively, he contends that his belief the gun would not fire was reasonable and is a mitigating factor that reduces the offense to manslaughter.

The prosecutor responds that intent to kill can be inferred from the facts recited by Haack when he offered his plea. Haack pointed a gun he knew was loaded at the deceased and intentionally pulled the trigger. The prosecutor characterizes Haack's action as 'an erroneous Russian Roulette.' The natural tendency of such reckless behavior is to cause death or great bodily harm.

II

Haack's plea of guilty was accepted ² before the effective date of the general revision of GCR 1963, 785 providing in subsection 7(3) for a determination of the factual basis for a plea of guilty. ³

While former rule 785 and the statute ⁴ did not explicitly require a determination that there was a factual basis, such a requirement was established by judicial construction of the rule and statute in People v. Barrows, 358 Mich. 267, 272, 99 N.W.2d 347 (1959):

'The direct questioning of a defendant by the trial judge on plea of guilty is required by the rule for the purpose of establishing the crime and the participation therein of the person pleading guilty. This is a precaution against involuntary or induced false pleas of guilty, and against subsequent false claims of innocence.' ⁵

In reviewing convictions on pleas of guilty accepted before the 1973 revision of rule 785, this Court followed the Barrows rule requiring a factual basis supporting the conclusion that a crime was committed and that defendant participated in its commission. ⁶

In People v. Taylor, 387 Mich. 209, 224, 195 N.W.2d 856 (1972), a plea-based conviction was reversed for the judge's failure 'to conduct such an examination as to show that what the defendant actually did was indeed a crime'. ⁷ A plea-based conviction was reversed in People v. Carlisle, 387 Mich. 269, 273, 195 N.W.2d 851, 852 (1972), for failure to comply with Barrows:

'We reaffirm our holding in Barrows. No plea of guilty should be accepted by a trial judge until facts sufficient to establish the defendant's guilt have been set out in the record. Preferably, these facts should be brought forth through a direct examination of the accused by the trial judge at the time the plea of guilty is accepted.' ⁸

III

Intent to kill is an element of the offense of murder. Haack's assertions to the judge that the shooting was an accident and that there were mitigating circumstances do not, however, negate a factual basis for his plea of guilty to second-degree murder. While Haack may not have actually intended to kill the deceased, intent to kill may be inferred by the trier of fact ⁹ where the natural tendency of the defendant's behavior is to cause death or great bodily harm.

'A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse ¹⁰ or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. * *

'Thus, as 'malice aforethought' is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim and even though he 'acted on the spur of the moment." People v. Morrin, 31 Mich.App. 301, 310--312, 187 N.W.2d 434, 438--439 (1971).

The issue here is whether a factual basis has been established for the taking of a plea. ¹¹

In Guilty Plea Cases, 395 Mich. 96, 128--132, 235 N.W.2d 132 (1975), this Court considered a number of questions concerning the application of rule 785.7, including questions arising under 785.7(3), 'Determining factual basis for plea.' ¹² We said that on appellate review the standard to be applied in determining the adequacy of the factual basis is whether the trier of fact could properly convict on the facts as stated by the defendant. Disclaimers by the defendant during the plea taking of knowledge that a confederate had a gun (in the case of Sanders ¹³) or of intent to kill (in the cases of Harrell ¹⁴ and Robinson ¹⁵) do not preclude acceptance of a plea since on defendant's own recital a jury could properly infer the requisite participation or intent. 'A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.' Guilty Plea Cases, supra, p. 130, 235 N.W.2d p. 145.

Although Haack asserted the shooting was accidental, in deciding whether to accept his plea of guilty the judge could, on the strength of Haack's inculpatory statements, properly reject his disclaimer of intent to kill and his assertion that the shooting was accidental and accept his plea of guilty. On Haack's statement that he had pointed a revolver he knew was loaded at the deceased and intentionally pulled the trigger, a trier of fact could properly infer intent to kill.

Before accepting a plea of guilty, the judge need not decide that a jury would convict. He may accept the plea if he finds from defendant's recital a factual basis which would support conviction and that the defendant enters his plea advisedly. A guilty plea 'may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after Careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant.' ¹⁶

Affirmed.

T. G. KAVANAGH, C.J., and COLEMAN and WILLIAMS, JJ., concur.

FITZGERALD, LINDEMER and RYAN, JJ., not participating.

1 The opinion of the Court of Appeals, filed December 7, 1973, docket No. 16895, is unreported.

2 Haack was examined by the judge and offered his plea on January 29, 1973. The plea was taken under advisement. On February 13, 1973 the plea was accepted and Haack was sentenced to a prison term of 10--20 years.

3 June 1, 1973 was the effective date of the general revision of GCR 1963, 785. 389 Mich. liii. Haack's plea was accepted on February 13, 1973.

The court rule in effect at the time Haack's plea was accepted required the judge to examine the accused and 'ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency.' GCR 785.3, effective January 1, 1963.

The foregoing language, which can be traced back to Court Rule No. 35A, added June 4, 1947, effective September 1, 1947 (318 Mich. xxxix), was to be replaced effective January 1, 1967 by language requiring that the court 'determine from the accused's own narration what the accused did at the time of the offense charged' and that '(i)f the accused's description of his actions at the time of the offense charged would not support a finding of guilt of the crime charged, the plea of guilty offered by the accused shall be rejected by the court.' 378 Mich. xxxix. However, by order of the Court dated November 16, 1966, the effective date of this amendment was 'suspended until further notice.' 378 Mich. xliii.

On June 8, 1967 this Court 'repealed effective instanter' the various amendments...