People v. Hess

• Citation: 214 Mich.App. 33,543 N.W.2d 332
• Decision Date: 13 October 1995
• Docket Number: Docket No. 170778
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Daniel HESS, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 332

543 N.W.2d 332

214 Mich.App. 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Daniel HESS, Defendant-Appellant.

Docket No. 170778.

Court of Appeals of Michigan.

Submitted March 14, 1995, at Detroit.

Decided Oct. 13, 1995, at 9:20 a.m.

Released for Publication Jan. 23, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the People.

Sherry A. McCameron, Detroit, for defendant on appeal.

Before MARILYN KELLY, P.J., and TAYLOR and MARKEY, JJ.

TAYLOR, Judge.

Defendant appeals as of right his conviction of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553. Defendant had been charged with first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, with larceny as the underlying felony, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). We reverse and remand.

The decedent sustained two gunshot wounds to the left side of his head, one of which was fired from a range of four inches or less. Friends and neighbors of the decedent, although aware that he owned shotguns, had never seen him in possession of a pistol, but defendant was seen in possession of a pistol a week before the homicide. The decedent's house had been ransacked, and his wallet emptied of money. Defendant admitted that he lied to the police when he reported that he came home to find that the decedent, his housemate, had been killed during an apparent burglary or robbery.

The defense theory of accident was based on defendant's testimony at trial that, from all appearances, the decedent was preparing to go on a drinking binge. The decedent had asked defendant to bring him a beer. After bringing the beer to the decedent, defendant noticed a pistol lying on the kitchen table within the decedent's reach. For safety reasons, defendant took the pistol from the table and started to carry it away. Defendant claimed that the decedent grabbed defendant's arm in an attempt to get the pistol back from defendant. During the struggle for the gun, it discharged. Defendant claimed he does not know whether it was one of his fingers or one of the decedent's fingers that touched the trigger when the gun fired, and he claimed he did not intend to hurt the decedent. Because he was afraid, he arranged the scene to look like a robbery before summoning police. On cross-examination, defendant admitted firing the gun twice.

With regard to defendant's theory that the shooting was accidental, the trial court instructed the jury:

Obviously, and let me repeat a thousand times over, if you are satisfied that the defendant, it was an accident or that it was, indeed, self-defense--either one of those, then, ladies and gentlemen, there is no crime of murder, first, second, manslaughter, involuntary [sic, voluntary] or involuntary.

After giving detailed instructions on first- and second-degree murder, and voluntary and involuntary manslaughter, the court gave another instruction regarding the applicability of the defense of accident. Specifically, the court stated:

Both sides have pointed out, and thank you, very much, that I read to you about the defense of accidental or involuntary act. That, ladies and gentlemen--I said to you it could be one or the other since the theory of the defense is that it was either accidental or if it was done intentionally, it was done in self-defense. But accidental--the defense of accident is only a defense to murder. So it is not a defense to involuntary or voluntary manslaughter. If you find there is voluntary manslaughter, obviously, that couldn't be an accident. It is also not a defense to involuntary manslaughter. If you find that there was gross negligence, then there may have been--so the fact that there was an accidental shooting, if you believe that occurred, it cannot be a defense to those two charges. [Emphasis added.]

On appeal, defendant argues that the trial court committed error requiring reversal in instructing the jury that the defense of accident is a complete defense to a charge of murder but not to charges of voluntary or involuntary manslaughter.

At the outset, we note that there was no objection to the trial court's instructions; to the contrary, defense counsel expressed satisfaction with the instructions. Accordingly, the issue was not preserved for appellate review absent manifest injustice. People v. Heflin, 434 Mich. 482, 513, 456 N.W.2d 10 (1990). As a general rule, this Court is hesitant to reverse the judgment of a lower court because of an error in jury instructions where no objection was raised at trial.

Failure of counsel to object at the trial level precludes immediate correction, and it involves the criminal justice system in needless appeals and delay. Jury instructions must be read and considered as a whole to determine if there is error and, if there is error, it is not grounds for reversal in the absence of objection at trial except upon a showing of manifest injustice. [People v. Owens, 108 Mich.App. 600, 608, 310 N.W.2d 819 (1981).]

Our review of the record convinces us that the trial court's erroneous instruction regarding the defense of accident constitutes error requiring reversal. Contrary to the court's final instruction regarding the issue, the defense of accident is a defense to a charge of voluntary manslaughter. People v. Newman, 107 Mich.App. 535, 309 N.W.2d 657 (1981). Because the trial court gave both a correct and an incorrect instruction, we presume that the jury followed the incorrect charge. People v. Federico, 146 Mich.App. 776, 787, 381 N.W.2d 819 (1985).

"Accident" has been judicially defined as

a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops; something happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence. [Allstate Ins. Co. v. Freeman, 432 Mich. 656, 669, n 8, 443 N.W.2d 734 (1989), quoting American States Ins. Co. v. Maryland Casualty Co, 587 F.Supp. 1549, 1552 (E.D.Mich., 1984).]

As is apparent from this definition, when some form of intentional act must be established as an element of the crime, the occurrence of the crime is inconsistent with accident. Those criminal homicides that include intent as one of their elements, are excusable if the killing is accidental. People v. St. Cyr, 392 Mich. 605, 221 N.W.2d 389 (1974); Owens, supra.

As stated above, a well-established principle in our jurisprudence is that "homicide is excusable if the death is the result of an accident and the actor is not criminally negligent." People v. Morrin, 31 Mich.App. 301, 310, 187 N.W.2d 434 (1971). Voluntary manslaughter is an intentional killing committed under the influence of passion or hot blood produced by adequate provocation and before a reasonable time has passed for the...