People v. Handley
| Decision Date | 24 October 1980 |
| Docket Number | Docket No. 78-4288 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HANDLEY, Jr., Defendant-Appellant. 101 Mich.App. 130, 300 N.W.2d 502 |
| Court | Court of Appeal of Michigan — District of US |
[101 MICHAPP 132] Robert E. Slameka, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Atty., Anne B. Wetherholt, Asst. Pros. Attys., for plaintiff-appellee.
Before MAHER, P. J., and BRONSON and QUINN, * JJ.
The defendant Joseph Handley, Jr., and codefendant Caroline Pegram were charged with first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and with possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Codefendant Pegram entered a plea of [101 MICHAPP 133] guilty to second degree murder, M.C.L. § 750.317; M.S.A. § 28.549 and felony firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant Handley was tried before a jury in the Detroit Recorder's Court, and, on June 14, 1978, he was convicted as charged. The defendant was sentenced to a term of life imprisonment for murder with an additional two year mandatory sentence for the felony firearm conviction. On September 27, 1978, defendant's motion for a new trial was denied. Defendant appeals as of right.
At approximately 11 a. m. on February 8, 1978, a passerby alerted several officers in a patrol car that there was a dead body lying in a ditch in a deserted area near Leland and Russell Streets in Detroit. The officers found the body of a young black female whose head had been "blown open". There was blood everywhere. A search of the immediate locale turned up a man's gold ring lying 3 feet from the body, a man's digital watch lying 20 feet from the body, a hat with blood on it, a belt from a coat, and a bloody potato chip bag. The body was later identified as Ira Marie Hesterley. An autopsy disclosed that the victim had died as the result of two gunshot wounds to the head. One of these was a "contact" wound, meaning that the muzzle of the gun had been placed right against the victim's head when the gun was fired. There was also evidence of strangulation, as well as seven lacerations which were "blunt force" injuries which may have been the result of pistol whipping.
At 1:30 a. m. on February 9, 1978, the police observed a brown, two-door Mercury, which was reportedly involved in an armed robbery, parked in front of the Town Motel. A box of bullets was lying on the front seat. The officers arrested defendant[101 MICHAPP 134] and Ms. Pegram in a motel room where they also found a gun. A blue parka with brown stains on the front was hanging in the closet. Later testing disclosed that these were bloodstains of the same type as that of the victim. There was also a small trace of blood of undetermined type on the front passenger door of the Mercury Cougar and a spent bullet casing under the driver's seat. Ballistic tests revealed that the bullet slugs removed from the victim's head had been fired from the gun recovered from defendant's motel room.
The defendant had been dating the victim for about a month prior to her death. The defendant was also "going with" Ms. Pegram and shared an apartment with Pegram and her homosexual lover, Renee Smithson. Ms. Smithson identified the ring and watch recovered near the victim's body as belonging to the defendant. She also identified the blue parka as belonging to the defendant.
Mitchell Sanders, a neighbor of the defendant, stated that he had a conversation with the defendant on the day of the murder. The defendant told Mitchell that earlier that day he (defendant), Pegram, and Hesterley had "jumped on some girl" and pulled her into a car. The defendant was afraid that Hesterley might go to the police, and defendant was worried because he did not want to go back to the penitentiary. The defendant said he did not know whether he should "take her out", i. e., kill her. Shortly after this conversation, Sanders saw defendant leave the building with Ms. Hesterley. Michael Sanders, Mitchell's twin brother, said that he saw the defendant at the apartment building on the evening of February 7, 1978, some time before midnight. At that time, defendant allegedly said, "I'm going to fuck that bitch up." Michael did not know who the "bitch" was.
[101 MICHAPP 135] At the trial, defense counsel introduced a taped statement made by the defendant and Ms. Pegram on February 9, 1978, and taken by Detroit Police Sergeant Gilbert Hill as follows. Ms. Pegram said that she told defendant she wanted "to beat (the victim's) ass", and he told her he knew of a place where she could beat the victim. When they arrived on the scene, defendant pushed the victim out of the car. He got out and hit the victim and pushed her to the ground. Pegram then attempted to strangle the victim and fell on the victim's head with her knees a couple of times. Pegram then stabbed the victim in the head with a screwdriver and hit her on the head with a pistol. She then decided to kill her and shot her twice in the head, using defendant's gun. Pegram said that she had not intended to kill the victim prior to this time and claimed that defendant did not know that she would shoot the victim. The defendant then stated that he had no idea that Ms. Hesterley was going to be killed when he struck her and that he told Pegram to stop the attack. Ms. Pegram did not testify at the trial.
On cross-examination, Sergeant Hill indicated that after making the taped statement, Pegram told him that the defendant had actually pistol whipped and shot the victim, but she did not want him to go back to prison as defendant was afraid he would be hurt if he returned to prison. Sergeant Hill also revealed that, in a statement made by Pegram to Sergeant Brantley prior to the taped statement, she admitted that she was the one who shot the victim twice.
We find that one of the issues raised by the defendant on appeal is dispositive. Defendant claims that the trial court's jury instruction on lesser offenses was coercive because it required the [101 MICHAPP 136] jurors to acquit the defendant of the charged offense before considering any lesser offenses.
The instruction in question provided as follows:
In the absence of manifest injustice, a failure to make timely objection to a jury instruction precludes appellate review. People v. Dixon, 84 Mich.App. 675, 685, 270 N.W.2d 488 (1978); People v. Hall, 77 Mich.App. 456, 258 N.W.2d 517 (1977). In the instant case, defense counsel failed to object to the allegedly erroneous jury instruction. However, this Court will review the issue despite the failure to object, since defendant was convicted of the charged crime leading to a conclusion that the instruction was indeed prejudicial. See People v. Ray, 43 Mich.App. 45, 204 N.W.2d 38 (1972); People v. Harmon, 54 Mich.App. 393, 221 N.W.2d 176 (1974).
In People v. Hurst, 396 Mich. 1, 10, 238 N.W.2d 6 (1976), the Michigan Supreme Court considered the following instruction:
"If you find either of the defendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of the [101 MICHAPP 137] crime of manslaughter is guilty of the crime of assault and battery."
Although reversal was not predicated on this basis, the Court disapproved of the instruction for the following reasons:
Id. (Footnote omitted.)
In the past, there were two lines of cases in this Court as to reversal for instructional errors which suggest an order of deliberations. One line of cases held that there was no reversible error unless the trial judge expressly told the jury that they had to reach a unanimous agreement of innocence on the principal offense before they could commence consideration of the lesser offenses. People v. Johnson, 74 Mich.App. 250, 253 N.W.2d 722 (1977); People v. Shears, 73 Mich.App. 683, 252 N.W.2d 563 (1977); People v. Erwin, 70 Mich.App. 60, 245 N.W.2d 173 (1976); People v. Lopez, 65 Mich.App. 653, 237 N.W.2d 599 (1975). The other line of cases holds that an instruction which does not expressly require unanimity is reversible if there [101 MICHAPP 138] is "implied coercion". People v. Johnson, 83 Mich.App. 1, 268 N.W.2d 259 (1978); People v. Summers, 73 Mich.App. 411, 251 N.W.2d 311 (1977); Harmon, supra.
This split was recently resolved in People v....
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People v. Handley
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