People v. Heikkinen

• Decision Date: 14 June 2002
• Docket Number: Docket No. 229163.
• Citation: 646 N.W.2d 190,250 Mich. App. 322
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Robert HEIKKINEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

646 N.W.2d 190

250 Mich. App. 322

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Robert HEIKKINEN, Defendant-Appellant.

Docket No. 229163.

Court of Appeals of Michigan.

Submitted October 10, 2001, at Marquette.

Decided March 8, 2002, at 9:05 a.m.

Released for Publication June 14, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Cheryl L. Hill, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan J. Smith), Detroit, for the defendant on appeal. Before: RICHARD ALLEN GRIFFIN, P.J., and MARKEY and METER, JJ.

RICHARD ALLEN GRIFFIN, P.J.

Following a jury trial, defendant Kenneth Heikkinen was convicted of aggravated assault, M.C.L. § 750.81a(1). The trial court sentenced defendant to one year in the county jail and ordered restitution in the amount of $3,075.02. Defendant appeals as of right. We affirm. In so doing, we address the novel question whether the trial court erred in instructing the jury to weigh the testimony of an accomplice with caution, notwithstanding the fact that the accomplice's testimony, exculpatory in nature, was given on behalf of the defense rather than the prosecution. We hold that the trial court did not abuse its discretion in giving the jury instruction.

I

Defendant's conviction arises out of a brawl that took place at the victim's hunting camp in Marquette County. The victim, seventy-one-year-old Donald Theoret, invited defendant and his son, Richard Heikkinen, to his hunting camp to share a drink and "bury the hatchet" regarding perceived problems arising out of defendant's unauthorized presence on and around Theoret's private property. After several hours and several drinks, the conversation deteriorated and defendant reputedly attacked Theoret, causing him to sustain contusions and lacerations to the head.

Defendant testified that he acted in self-defense, stating that after the parties had been drinking and talking for several hours, the conversation became hostile and Theoret unexpectedly swung a hatchet at him, grazing his head. This, according to defendant, precipitated a struggle on the floor of the cabin. Defendant testified that he called out to his son for help, whereupon Richard Heikkinen pulled Theoret off defendant. According to defendant, Theoret kept coming at him, defendant hit Theoret once in the face in self-defense, and then both defendant and Richard left the premises. Defendant testified that at that time, he was unaware of the extensive nature of the facial trauma suffered by Theoret as a result of the fight. Defendant admitted that even after learning there was a warrant for his arrest, he did not turn himself in because he did not have bail money. Defendant testified that his son assisted him in his evasion of arrest.

Richard Heikkinen, the only other eyewitness to the assault in question, testified on his father's behalf, opining that defendant had acted in self-defense. Richard insisted that he saw Theoret swing the hatchet at his father and then jump on him. Richard testified that he went to his father's assistance and pulled Theoret off defendant. The Heikkinens then decided to leave. Richard testified that he never saw his father strike Theoret but conceded that defendant might have bitten Theoret while they were grappling on the floor. Richard admitted that he assisted his father in evading the police following the incident, commenting that "[a]nybody [would] do that for their father."

Defendant was originally charged with assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84, but the jury convicted defendant of the lesser included charge of aggravated assault. Defendant now appeals.

II

Defendant's sole argument on appeal is that the trial court committed error requiring reversal when, over defendant's objection, the court issued a cautionary "accomplice" instruction regarding the testimony of his son Richard, whose testimony supported defendant's claim of self-defense. The trial court instructed the jury using a modified version of CJI2d 5.5 and 5.6,¹ reflecting the fact that Richard testified favorably on behalf of defendant, and stated in pertinent part as follows:

Before you consider what Rick [Richard] Heikkinen said in court, you must decide whether he took part in the crime the defendant is charged with committing. Rick Heikkinen has not admitted taking part in the crime, but there is evidence that could lead you to think that he did. A person who knowingly and willingly helps or cooperates with someone else is [sic] committing a crime—else in committing a crime is called an accomplice.

When you think about Rick Heikkinen's testimony, first decide if he was an accomplice. If, after thinking about all the evidence, you decide that he did not take part in this crime, judge his testimony as you judge that of any other witness. But if you decide that Rick Heikkinen was an accomplice, then you must consider his testimony in the following way: Was the accomplice's testimony falsely slanted to make the defendant seem not guilty because of the accomplice's own interests, biases, or for some other reason?

Defendant contends that the above instruction unfairly and impermissibly shifted the burden of proof, violated his constitutional right to present a defense, and denied him a fair trial.² We disagree. We review de novo defendant's claim of an erroneous jury instruction. People v. Hubbard (After Remand), 217 Mich.App. 459, 487, 552 N.W.2d 493 (1996). The determination whether a jury instruction is applicable to the facts of the case lies within the sound discretion of the trial court. People v. Perry, 218 Mich.App. 520, 526, 554 N.W.2d 362 (1996), aff'd. 460 Mich. 55, 594 N.W.2d 477 (1999). This Court reviews jury instructions in their entirety to determine "if error requiring reversal occurred." People v. Aldrich, 246 Mich.App. 101, 124, 631 N.W.2d 67 (2001). There is no error requiring reversal if, on balance, the instructions fairly present the issues to be tried and sufficiently protect the defendant's rights. Id.; People v. McFall, 224 Mich.App. 403, 414, 569 N.W.2d 828 (1997).

The credibility of an accomplice is a jury question. People v. Sullivan, 97 Mich.App. 488, 492, 296 N.W.2d 81 (1980). A jury may convict on the basis of accomplice testimony alone. Id. However, our courts have recognized that an accomplice may have a special interest in testifying, thus raising doubts concerning his veracity. It is therefore well established that when an accomplice testifies for the prosecution, the testimony is suspect and must be received only with great care and caution. People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974); People v. Lucas, 138 Mich.App. 212, 221, 360 N.W.2d 162 (1984). As our Supreme Court explained in People v. Reed, 453 Mich. 685, 691-692, 556 N.W.2d 858 (1996):

In People v. McCoy, supra, this Court created a rule that a trial judge may have an obligation to give a cautionary instruction sua sponte on accomplice testimony in certain situations. We stated:

"For cases tried after the publication of this opinion, it will be deemed reversible error ... to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge. [392 Mich. at 240, 220 N.W.2d 456.]"

This rule is motivated by the inherent weakness of accomplice testimony that is presented by the prosecution. The problem with such testimony is twofold. First, actual or implied threats or promises of leniency by the prosecutor will often induce an accomplice to fabricate testimony. Second, a jury may rely on otherwise incredible accomplice testimony simply because it is presented by the prosecutor. As the Court noted in McCoy, "`a long history of human frailty and governmental overreaching for conviction has justified distrust in accomplice testimony.'"

See also People v. Jensen, 162 Mich.App. 171, 186-190, 412 N.W.2d 681 (1987); People v. Smith, 158 Mich.App. 220, 228-230, 405 N.W.2d 156 (1987).

However, the propriety of giving a cautionary accomplice instruction over a defendant's objection when an accomplice testifies favorably on behalf of the defendant, rather than for the prosecution, is an issue of first impression in this state.³ In Reed, supra, the Court found that the McCoy rationale for the obligation to instruct sua sponte did not apply where the accomplice was also the codefendant in a joint trial before a single jury who voluntarily testified in his own defense, providing an account differing from that of the defendant. Rejecting the defendant's appellate claim that the trial court erred in failing to give a cautionary accomplice instruction sua sponte, the Reed Court held in pertinent part:

[T]he problems with the accomplice's testimony in McCoy are not present here. Unlike the accomplice in McCoy, Mr. Servant was not a prosecution witness. Rather, he was a codefendant who voluntarily testified in his own defense. Because Mr. Servant was on trial for first-degree murder, he obviously was not the beneficiary of any favorable deals from the prosecution. Thus, the rationale for the obligation to instruct sua sponte does not apply in this case.

Most importantly, the trial court properly could not have given a cautionary instruction such as CJI2d 5.6. Here, Mr. Servant took the stand in his own defense. Any cautionary instruction on accomplice testimony would have asked the jury to view Mr. Servant's testimony with suspicion and would have prejudiced his defense. Such an instruction in this case would certainly have been error requiring reversal. [Reed, supra at 693-694, 556 N.W.2d 858.]

Defendant herein argues that Reed is "closely related" to the present circumstances and clearly supports the impropriety of giving a cautionary...