People v. Hughes
Decision Date | 07 August 1978 |
Docket Number | Docket No. 29408 |
Citation | 270 N.W.2d 692,85 Mich.App. 8 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald W. HUGHES, Defendant-Appellant. 85 Mich.App. 8, 270 N.W.2d 692 |
Court | Court of Appeal of Michigan — District of US |
[85 MICHAPP 10] James R. Neuhard, State Appellate Defender by John A. Lydick, Asst. Appellate Defender, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.
Before D. E. HOLBROOK, P. J., and KELLY and MARUTIAK, * JJ.
The defendant-appellant and two other persons were charged with first-degree felony murder, under M.C.L. § 750.316; M.S.A. § 28.548, for the shooting death of an Ypsilanti police officer during the armed robbery of a branch of the National Bank of Ypsilanti on July 11, 1975. Defendant was arraigned on July 14, 1975, [85 MICHAPP 11] and trial began April 19, 1976. Defendant submitted a pretrial motion for change of venue, alleging adverse pretrial publicity, and after denial pending voir dire, renewed this motion orally in court after voir dire examination of potential jurors. The trial court postponed decision on defendant's motion pending the voir dire, in order to determine whether or not an impartial jury could be impaneled.
Thirteen jurors were eventually excused for cause. The court denied three challenges for cause asserted by defense counsel. Defense counsel then utilized peremptory challenges to excuse each of the challenged jurors; abuse of discretion is alleged with respect to the court's failure to excuse two of these jurors for cause. After the voir dire, the court considered the jury selected to be impartial and defendant's request was denied.
Following the presentation of evidence, but before final argument, defense counsel requested that the court include in its instructions to the jury an instruction on manslaughter. This request, later renewed, was also denied.
While instructing the jury on the people's theory of the case, the court suggested that first-degree felony murder would lie if the prosecutor were to show that a "killing" occurred during the course of a robbery. This same mistaken phraseology was used infrequently by the prosecutor and defendant throughout the trial. The court did affirmatively instruct the jury on the necessity of a showing of malice: it did not instruct the jury that they could impute malice from the defendant's participation in the robbery. Defense counsel did not object to the instructions given by the court.
The jury returned a verdict of guilty of first-degree murder and defendant was sentenced to life [85 MICHAPP 12] imprisonment. He appeals as of right, alleging four separate errors.
The defendant first alleges reversible error in the court's refusal to instruct the jury on the offense of manslaughter. It was argued by defendant that manslaughter is necessarily a lesser included offense when murder is charged. The controversy in this regard was recently resolved by the Supreme Court in People v. Van Wyck, 402 Mich. 266, 268, 269-270, 262 N.W.2d 638, 639-640 (1978). The Court stated:
The evidence placed before the jury in the instant case would not support a verdict of common-law manslaughter. No evidence was presented tending to show that the police officer was shot accidentally or in the heat of passion. Van Wyck, supra, at 269, 262 N.W.2d 638. Since no evidence of the existence of [85 MICHAPP 13] mitigating factors which would reduce the offense to common-law manslaughter was brought forth at trial, it was unnecessary for the court to instruct the jury on that offense.
Under M.C.L. § 750.329; M.S.A. § 28.561, a separate offense of manslaughter is statutorily defined as causing death by the intentional discharge of a firearm without malice. Since the jury was twice instructed that it must find malice in order to convict the defendant of felony murder, and since the jury did find the defendant guilty of felony murder, it is clear that the charge of manslaughter would not lie under this section. Therefore, it was not error for the court to refuse to instruct the jury on manslaughter.
Next, defendant alleges that repeated misstatements of the felony-murder doctrine by the court and by both counsel "removed the essential element of malice from the jury's consideration" under the authority of People v. Fountain, 71 Mich.App. 491, 506, 248 N.W.2d 589, 596 (1976). Regardless of whether Fountain or People v. Till, 80 Mich.App. 16, 263 N.W.2d 586 (1977), correctly states the Michigan law of felony murder, the trial court's instructions to the jury met even the more stringent requirements. The misstatements to which the defendant refers consisted of defining felony murder as participating in the commission of a robbery during which a "killing" occurs.
Since the defendant did not object to the instructions given, this issue was not preserved for review under People v. Hall, 396 Mich. 650, 657, 242 N.W.2d 377 (1976). Nevertheless, we wish to add that at most, this loose phraseology bandied about the courtroom was merely harmless error. It appears that it was used primarily to characterize the people's theory of the case, and all parties carefully[85 MICHAPP 14] instructed the jury that counsels' statements did not constitute fact or law. Furthermore, the court gave the jury the Standard Michigan Criminal Jury Instructions on felony murder, including the instruction requiring a finding of malice. At the jury's request, these particular instructions were repeated. Any defects resulting from the fact that during the course of the trial the parties tended to paraphrase this rule were cured by the court's proper statement of the rule in its instructions.
The defendant also alleges error in the trial court's denial of defendant's motion for a change of venue, arguing that pretrial publicity precluded a fair and impartial trial in Washtenaw County. M.C.L. § 762.7; M.S.A. § 28.850 provides for a change of venue under such circumstances in the discretion of the trial court. The court's decision on such a question will be reversed only if this Court finds a clear abuse of such discretion. People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912), People v. Kochan, 55 Mich.App. 326, 222 N.W.2d 317 (1974).
In reliance on Swift, supra, the trial court delayed decision on this matter pending voir dire examination of prospective jurors. The jury finally impaneled consisted of three persons who had heard no media accounts of the case, two persons who had probably heard something but could remember no details, and seven other persons who vaguely remembered the media accounts of the crime but who remembered few, if any, details. All stated unequivocally that their verdict would be unaffected by any matter extraneous to the evidence adduced at trial. That some jurors had read or seen media accounts of the incident is not sufficient grounds for a change of venue, absent some showing of potential prejudice. See Murphy v. [85 MICHAPP 15] Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). People v. Ranes, 63 Mich.App. 498, 503-504, 234 N.W.2d 673 (1975), People v. Collins, 43 Mich.App. 259, 204 N.W.2d 290 (1972), Lv. den. 391 Mich. 798 (1974), Cert. den. 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974), Habeas corpus den. 539 F.2d 597 (C.A. 6, 1976). As noted above, only 13 jurors were excused for cause, three such challenges having been denied. Three of the jurors excused for cause were excused for reasons other than potential bias against the defendant.
The defendant's contention was litigated extensively in Collins, supra, and the facts of that case, as set forth in Mr. Justice LEVIN's discussion of Collins' petition for leave, 391 Mich. 798, 806-807 (1974), are illuminating. In Collins, all 126 potential jurors had heard about the case. Sixty prospective jurors admitted they could not give the defendant the benefit of the presumption of innocence. The defense exercised 19 peremptory challenges.
The Court of Appeals' opinion in Collins, 43 Mich.App. at 262-267, 204 N.W.2d 290, indicated that the following factors were relevant to denial of his motion for change of venue:
1) Several months elapsed between the preponderance of media coverage and jury selection.
2) The voir dire was conducted "meticulously" with individual questioning. At its conclusion defense counsel stated "We have a jury".
3) Adverse publicity did not continue up to and through the actual trial.
4) The trial court found no "strong community feeling" or "pattern of deep and bitter prejudice against defendant".
5) The record did not indicate that the jury was [85 MICHAPP 16] biased or that the defendant was convicted on extrinsic evidence.
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