People v. Hansma

Decision Date19 June 1978
Docket NumberDocket No. 28850
Citation269 N.W.2d 504,84 Mich.App. 138
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregg John Derrick HANSMA, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

DeVries & Lamb, P. C., by Richard R. Lamb, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BRONSON and KELLY, JJ.

CAVANAGH, Presiding Judge.

Defendant allegedly shot to death one John Bowler, a service station attendant, when Bowler resisted defendant's attempted robbery. Defendant was brought to trial and the jury instructed on felony (first-degree) murder, M.C.L. § 750.316; M.S.A. § 28.548, and second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. The jury's verdict was "guilty as charged". Defense counsel, the prosecutor and the court all interpreted this verdict as guilty of first-degree murder. Defendant was subsequently sentenced to life imprisonment. He appeals by right.

I

Defense counsel, arguing that there was evidence that the killing occurred during a struggle, requested a jury instruction on manslaughter. M.C.L. § 750.321; M.S.A. § 28.553. The court refused to give this instruction. Defendant now contends, and we agree, that this was error. Cf. People v. Van Wyck, 72 Mich.App. 101, 249 N.W.2d 311 (1976), Rev'd, 402 Mich. 266, 262 N.W.2d 638 (1978). See also People v. Paul, 395 Mich. 444, 447-450, 236 N.W.2d 486, 488 (1975), People v. Dykes, 37 Mich.App. 555, 558-559, 195 N.W.2d 14, 16 (1972), People v. Robert Brown, 37 Mich.App. 565, 568-570, 195 N.W.2d 60, 62 (1972), Lv. den., 387 Mich. 763 (1972). Defendant's conviction of first-degree murder is reversed and the case remanded for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of first-degree murder. See People v. Jenkins, 395 Mich. 440, 442-443, 236 N.W.2d 503, 504 (1975).

II

Defendant next contends that the court erred in its instructions on first-degree murder. Over objection by defense counsel, the court gave the following charge:

"The fifth element in felony murder is that the defendant caused the death of John Bowler without justification, excuse or mitigation. It is no defense to this charge that the death of John Bowler was the result of an accident. If you find beyond a reasonable doubt that the death occurred as a result of the attempt to commit the crime of robbery by this defendant, that is felony murder. (Emphasis added.)

In People v. Fountain, 71 Mich.App. 491, 505-506, 248 N.W.2d 589, 596 (1976), this Court considered a claim that very similar instructions constituted reversible error. After a careful analysis of Michigan case law, the Fountain Court concluded:

"Michigan has neither a statutory felony-murder doctrine nor a common law felony-murder doctrine. Malice is not, in this state, imputed to an act of killing from the intent to commit an underlying felony. Although malice may be inferred from the nature of the underlying felony and the circumstances surrounding its commission, the presence or absence of malice in each case remains a question for jury determination.

"Insofar as the trial court's instructions removed the essential element of malice from the jury's consideration, they were erroneous."

Comparable instructions were before the Court in People v. Wright, 80 Mich.App. 172, 178, 262 N.W.2d 917, 920 (1977), wherein the Court, finding reversible error, stated:

"First-degree felony murder is murder in the second degree plus the element of perpetration of an enumerated felony. * * * Since the law may not impute malice to a second-degree murder, * * * it accordingly may not impute the malice requisite to a conviction of first-degree felony murder." (Citations omitted.)

Although one other panel of this Court has disagreed (See People v. Till, 80 Mich.App. 16, 263 N.W.2d 586 (1977)), we remain persuaded that Fountain and Wright correctly state the law. Under that law, the court's instructions on felony murder in the instant case were erroneous.

We have given very serious consideration to the argument that these instructions, when read as a whole, do not take the element of malice from the jury. We reject this argument.

Because we have concluded that the instructions here were erroneous, we must consider the appropriate remedy. Defendant requests that we reverse his conviction and remand for a new trial. However, we do not find that the error here entitles defendant to this relief. The error in these instructions is that they allowed the jury to convict the defendant of murder without finding that he acted with malice. However, as was explained in People v. Clark, 5 Mich.App. 672, 676, 147 N.W.2d 704, 706 (1967), Lv. den., 379 Mich. 763 (1967), murder, absent malice, is manslaughter, " 'the unlawful killing of another without malice, express or implied.' 'Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder, is absent.' " (Citations omitted.) Thus, even if the jury here convicted the defendant without a finding of malice, their verdict, on these instructions, is tantamount to a conviction of manslaughter. Cf. People v. Jenkins, supra, 395 Mich. at 442-443, 236 N.W.2d at 504. A conviction of manslaughter was perfectly compatible with the evidence. (See cases cited Supra, in issue I.) We therefore decline to disturb the disposition reached in resolution of the previous issue.

III

Defendant next urges that his conviction should be reversed because the trial court refused his request to instruct on intoxication as a defense. The court seems to have refused the instruction because the intoxication defense was inconsistent with defendant's alibi theory. 1

However, defendants in criminal cases are entitled to raise inconsistent defenses (People v. John Willie Williams, 26 Mich.App. 218, 222, 182 N.W.2d 347, 349 (1970)), and this Court has specifically held that a defendant may raise the alternative defenses of intoxication and noninvolvement in the offense. People v. McLean, 52 Mich.App. 182, 185, 186, 217 N.W.2d 138, 140, 141 (1974), Lv. den., 394 Mich. 807 (1975). It follows that the reason stated by the court was insufficient to justify denying defendant's request to instruct.

Nonetheless, whatever the reason stated, it would not be error to refuse giving the instruction if there were a valid reason for doing so. The applicable law was well summarized in People v. Bonello, 25 Mich.App. 600, 602, 181 N.W.2d 652, 654 (1970):

"It is the duty of the trial court to cover in his charge to the jury in a criminal prosecution the theory upon which the defense is founded if a proper request is made and supported by competent testimony. People v. Welke (1955), 342 Mich. 164, 68 N.W.2d 759; People v. Lane (1942), 304 Mich. 29, 7 N.W.2d 210. Therefore, since it is the duty of the trial court to instruct the jury as to the law applicable to the case, M.C.L.A. § 768.29 (Stat.Ann.1954 Rev. § 28.1052), the refusal of the court to give a requested proper instruction is reversible error. Defendant has a right to a properly instructed jury. People v. Liggett (1967), 378 Mich. 706, 148 N.W.2d 784; People v. Barringer (1945), 311 Mich. 345, 18 N.W.2d 850; People v. Bowen (1968), 10 Mich.App. 1, 158 N.W.2d 794."

See also People v. Reed, 393 Mich. 342, 349-350, 224 N.W.2d 867, 870 (1975), Cert. den., 422 U.S. 1044, 1048, 95 S.Ct. 2660, 45 L.Ed.2d 696, 701 (1975), People v. Hoefle, 276 Mich. 428, 431, 267 N.W. 644, 645 (1936). It is not disputed that proper request was made here. Therefore, we turn to consideration of whether the defense was supported by competent testimony.

There is some ambiguity in the cases regarding the quantum of evidence which must be introduced to support an instruction on intoxication. In People v. Kirk, 151 Mich. 253, 258, 114 N.W. 1023, 1025 (1908), quoted in People v. McLean, supra, 52 Mich.App. at 186, 217 N.W.2d at 140, the Court stated that the jury should be instructed on intoxication,

"if there was testimony which would warrant a jury in saying that the intoxication of respondent was of a degree which rendered him incapable of entertaining the intent charged."

Of course the "capacity" test was rejected by the Supreme Court in People v. Crittle, 390 Mich. 367, 374, 212 N.W.2d 196, 199-200 (1973), but our focus here is on that part of the quoted language which suggests that a defendant has no right to the instruction unless the evidence is sufficient, not only to raise a reasonable doubt, but to affirmatively establish defendant's intoxication. This standard is similar to that applied where the defendant challenges the sufficiency of evidence to warrant an instruction to the jury on an offense (See, E. g., People v. Royal, 62 Mich.App. 756, 757-758, 233 N.W.2d 860, 861-862 (1975)), but conflicts sharply with the test applied to the sufficiency of the evidence supporting other defenses, such as insanity, Viz., that the defendant is entitled to the instruction if there is Any evidence tending to establish the defense. See, E. g., People v. Neumann, 35 Mich.App. 193, 195, 192 N.W.2d 345, 346 (1971). See also, People v. Chivas, 322 Mich. 384, 390-391, 34 N.W.2d 22, 25 (1948). The "any evidence" test is much more consistent with the prosecution's burden of proof beyond a reasonable doubt, and its adoption by the Supreme Court was at least suggested by the Court's language in People v. Cahill, 215 Mich. 322, 324, 183 N.W. 752 (1921), where it was stated:

"We think the instruction given (on intoxication) might...

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