People v. Hawthorne, Docket No. 250144.

• Decision Date: 02 March 2005
• Docket Number: Docket No. 250144.
• Citation: 265 Mich. App. 47,692 N.W.2d 879
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank James HAWTHORNE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

692 N.W.2d 879

265 Mich. App. 47

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank James HAWTHORNE, Defendant-Appellant.

Docket No. 250144.

Court of Appeals of Michigan.

Submitted October 5, 2004, at Detroit.

Decided January 27, 2005, at 9:00 a.m.

Released for Publication March 2, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Agnello, Principal Attorney, Appeals, for the people.

State Appellate Defender (by Jacqueline J. McCann), for the defendant on appeal.

Before: KIRSTEN FRANK KELLY, P.J., and GAGE and ZAHRA, JJ.

ZAHRA, J.

Defendant appeals as of right from his jury trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, arising from the shooting death of Dennis Jeffries. The trial court sentenced defendant to consecutive terms of nineteen to thirty years' imprisonment for his second-degree murder conviction and five years' imprisonment for his felony-firearm conviction.

At trial, defendant argued that he was not guilty of murder because his shooting of Jeffries was an accident. The trial court refused to give CJI2d 7.1, the standard jury instruction for accident as a defense to murder, concluding that defendant was not entitled to such an instruction because defendant's actions at the time of the shooting amounted to, at a minimum, criminal negligence. The issue presented on appeal is whether the trial court erred in refusing defendant's request for CJI2d 7.1 and, if so, whether this error requires reversal. We hold that the trial court erred in refusing to give CJI2d 7.1, because accident is a defense to murder even if the defendant's actions amount to criminal negligence. We are bound by Supreme Court precedent holding that a trial court's failure to give an instruction on accident requires reversal when that defense is a central issue in the case. We therefore reverse defendant's convictions and remand for a new trial.

Although we are bound by existing Supreme Court precedent and must therefore reverse defendant's convictions, we urge our Supreme Court to review the continued viability of these decisions in light of People v. Lukity, 460 Mich. 484, 495, 596 N.W.2d 607 (1999), in which the Court held that, in the case of preserved, nonconstitutional error, the defendant has the burden of establishing a miscarriage of justice under a "more probable than not" standard. Were we free to apply Lukity without regard to prior decisions of the Supreme Court that suggest that the instructional error that occurred in this case requires reversal, we would conclude that defendant did not establish a miscarriage of justice and affirm his convictions.

I. Facts and Procedure

On the evening of October 18, 2002, defendant and Jeffries met at an illegal gambling house and got into an argument over a $5 bet. When the argument escalated, defendant walked out of the room and returned with an automatic handgun. Two men tried unsuccessfully to disarm defendant. Everyone present in the house then ran for the exits, except for Vance Claxton, who watched the encounter by peering around a wall. Jeffries said to defendant, "What you going to do with the gun? We supposed to be family. We supposed to be better than that. What, you going to shoot me?" Jeffries then challenged defendant to a fight. When defendant pressed the barrel of the gun into Jeffries's chest, Jeffries grabbed defendant's wrist and pushed him against the wall. Claxton saw defendant and Jeffries standing face-to-face and speaking while Jeffries held defendant's wrist and they waved the gun around, pointing it in different directions. Defendant was trying to push the gun toward Jeffries, and Jeffries was trying to push the gun away. Claxton then looked away, and approximately two seconds later he heard a gunshot and saw Jeffries fall to the ground.

About ten seconds after the shot, Claxton heard defendant say, "Man, I'm sorry. You know I didn't shoot you. The gun was on safety. I'm sorry." Defendant found Claxton hiding in the bedroom and told him, "I shot Dennis by accident. Come apply pressure to his chest." Defendant told Claxton to call 911. With defendant's help, Claxton put Jeffries in a car. Claxton then drove Jeffries to the hospital. More than a month later, Jeffries died from complications arising from the gunshot wound.

II. Analysis

A. Standards of Review

This Court generally reviews claims of instructional error de novo. People v. Fennell, 260 Mich.App. 261, 264, 677 N.W.2d 66 (2004). "This Court also reviews de novo the constitutional question whether a defendant was denied her constitutional right to present a defense." People v. Kurr, 253 Mich.App. 317, 327, 654 N.W.2d 651 (2002). But a trial court's determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion. People v. McKinney, 258 Mich.App. 157, 163, 670 N.W.2d 254 (2003).

B. Instruction on Accident

Defendant argues that the trial court erred in denying defendant's request for CJI2d 7.1, the standard jury instruction on accident as a defense to murder.¹

It is the function of the trial court to clearly present the case to the jurors and instruct them on the applicable law. Jury instructions must therefore include all the elements of the charged offenses and any material issues, defenses, and theories that are supported by the evidence. Even if the instructions are somewhat imperfect, reversal is not required if the instructions fairly presented the issues to be tried and were sufficient to protect the rights of the defendant. [Fennell, supra at 265, 677 N.W.2d 66.]

"When a defendant requests a jury instruction on a theory or defense that is supported by the evidence, the trial court must give the instruction." People v. Riddle, 467 Mich. 116, 124, 649 N.W.2d 30 (2002).

Here, the trial court relied on People v. Hess, 214 Mich.App. 33, 543 N.W.2d 332 (1995), and People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), in concluding that defendant was not entitled to an instruction on accident because he was criminally negligent. In Morrin, supra at 310, 187 N.W.2d 434, this Court stated that "[h]omicide is `excusable' if the death is the result of an accident and the actor was not criminally negligent", which this Court quoted in Hess, supra at 38, 543 N.W.2d 332. However, neither Morrin nor Hess precludes a defendant from receiving an instruction on accident as a defense to murder if there is evidence that the defendant's actions were criminally negligent. Morrin and Hess merely explained that, for a defendant to be completely excused from killing a person (i.e., to be acquitted of all charges of murder, manslaughter, and careless, reckless, or negligent discharge of a firearm causing death, etc.), the death must be the result of an accident, and the defendant cannot have acted with criminal negligence. Hess, supra at 39, 543 N.W.2d 332, held that accident is not a defense to involuntary manslaughter, because involuntary manslaughter is not an intent crime and accident is subsumed within that offense. Thus, a defendant is only excused from involuntary manslaughter if he did not act with criminal negligence.² But the defendant need not be free of criminal negligence to be excused from a homicide charge that includes intent as one of its elements, such as murder. Accident is a viable defense to murder even if the defendant acted with criminal negligence. Neither Morrin nor Hess held that a defendant cannot be excused from murder if the death was an accident but was the result of the defendant's criminal negligence.

The prosecution does not dispute that an instruction on accident is applicable even when the defendant acted with criminal negligence. Rather, the prosecution argues that the evidence in this case did not support a finding that the shooting was accidental. Although the trial court refused to give CJI2d 7.1, it conceded that "there may not have been an intent to pull the trigger. The pulling of the trigger may have been an accident...." This factual finding by the trial court supports defendant's claim that CJI2d 7.1 should have been given.

We agree with the trial court that there is evidence to support defendant's theory that the shooting was an accident. Defendant and Jeffries were struggling for control of the gun when it discharged. After Jeffries was shot, defendant made statements indicating that he was sorry and that he had fired the gun accidentally. He also helped get medical attention for Jeffries. "[W]hen ... the defense theory is accidental homicide, the defense requests an instruction on the theory, and there is evidence to support the theory, the trial court must properly instruct the jury on the defense theory." People v. Lester, 406 Mich. 252, 254-255, 277 N.W.2d 633 (1979) (Lester II). Here, defendant's theory was that the shooting was an accident, there was evidence to support this theory, and defendant requested a jury instruction on accident. Therefore, the trial court erred in denying defendant's request for such an instruction.³

The prosecution argues that any instructional error committed by the trial court was harmless because, by convicting defendant of second-degree murder, the jury necessarily found that defendant acted with malice, obviating the possibility that it could have found that the shooting was an accident. While the prosecution's argument is logical, our Supreme Court rejected the notion that the trial court's proper instruction of the jury regarding the intent element of murder renders harmless the court's failure to give an instruction on accident. In People v. Lester, 78 Mich.App. 21, 35-37, 259 N.W.2d 370 (1977) (Lester I), this Court held that the trial court's refusal to give an instruction on accident did not require...