People v. Jackson

• Decision Date: 15 September 1980
• Docket Number: Docket No. 46257
• Citation: People v. Jackson, 298 N.W.2d 694, 100 Mich.App. 146 (Mich. App. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew JACKSON and Michael Tolliver, Defendants-Appellants. 100 Mich.App. 146, 298 N.W.2d 694
• Court: Court of Appeal of Michigan

Page 694

298 N.W.2d 694

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew JACKSON and Michael Tolliver, Defendants-Appellants.

Docket No. 46257.

100 Mich.App. 146, 298 N.W.2d 694

Court of Appeals of Michigan.

Sept. 15, 1980.

Released for Publication Dec. 9, 1980.

Gerald M. Lorence, Detroit, for Tolliver.

[100 MICHAPP 150] Robert E. Slameka, Detroit, for Jackson.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief, Asst. Pros. Atty., Diane Odrobina, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P. J., and MAHER and CYNAR, JJ.

CYNAR, Judge.

Following a joint trial by jury defendants were convicted of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The trial court sentenced both defendants to concurrent terms of life imprisonment on the felony murder and armed robbery counts, and to the mandatory two-year consecutive sentence for the felony-firearm convictions. Defendants appeal as of right.

I

In the early evening hours of February 12, 1978, the victim, Ruby Tolliver Grant, was visiting at the home of Hosea Nicholes in the City of Detroit. [100 MICHAPP 151] The two had known each other for approximately seven years. Defendant Jackson, who resided with the deceased, arrived at Nicholes's home and was let in. Shortly thereafter, the victim, Jackson and the other guests present left. The decedent returned alone some 20 to 30 minutes later.

Around 9 p. m., a young girl, Tina Lattner, knocked on Nicholes's front door. She had been visiting a friend who lived next door, and while waiting for a bus in which to return home, she went to Nicholes's home to use the bathroom. After she left the house, Hosea locked the front door. Returning to the bus stop, Tina was approached by two men who asked her who was in the house. She identified one of the men as defendant Tolliver. Tina informed them that Nicholes and "this other lady" were inside. The men approached the home, whereupon Tina saw the victim appear at the door and unlock the screen door. The other man present with Tolliver was carrying a gun alongside his leg.

Inside, the victim had asked Nicholes for some water. He left the living room to get a glass of water for her and when he returned defendant Jackson met him at the front door holding a pistol aimed right between his eyes. Outside, Tina Lattner saw the same event from a different perspective. She then got scared and left the vicinity for approximately ten minutes before returning.

Jackson ordered Nicholes to turn around, and, when Hosea attempted to resist, Jackson hit him "upside the head" with his pistol. Next, Nicholes's wallet was taken from him. When he tried a second time to turn around, he was again struck on the temple with the gun, at which time he lost consciousness.

A next door neighbor, Walter Jones, had been at [100 MICHAPP 152] Nicholes's home earlier in the evening when defendant Jackson had arrived the first time. He returned later that night to find the victim lying face down on the floor of the living room. So too, when Tina Lattner later returned to the bus stop in front of the Nicholes residence, she saw the deceased lying on the floor. Hosea Nicholes regained consciousness when he heard someone knocking on his front door, and at that time he found the deceased lying on the floor.

A uniformed officer, Roscoe Mayfield, went to the home of one Queen Houser in response to a radio message about "a man shot". Upon arriving at that location, approximately one block from Nicholes's house, he observed defendant Tolliver with a gunshot wound in his leg. He then went to Nicholes's home and saw the decedent lying on the floor. When Tolliver attempted to leave, officer Mayfield placed him under arrest.

Another officer, John Gallager, was the first to arrive at Nicholes's house. He observed Nicholes in a "stunned" state and saw the deceased lying on the floor. He noted several spent and live cartridges about the place.

Defendant Tolliver testified at trial regarding the events of that evening. He stated that, while returning from a nearby store, he decided to stop at his mother's (the victim's) house before going home. His mother was not there, but defendant Jackson was. The two decided to proceed to Hosea Nicholes's house. Upon arriving, they were admitted by the deceased. Jackson immediately pulled a gun which Tolliver said was the decedent's. Tolliver attempted to take the gun from Jackson, and, in the struggle, was shot in the right leg. Next, he saw Nicholes grab a gun, at which time he hopped out of the house hollering for his mother to follow him. He then heard Nicholes start shooting.

[100 MICHAPP 153] On cross-examination, inconsistencies in this story were elicited. Tolliver stated that Jackson pulled the gun before entering the house, pushed him inside, physically attacked Nicholes, and shot him (Tolliver) as he attempted to escort his mother outside.

Defendant Jackson also testified in his own behalf. He stated that he lived in the same house with the deceased, Ruby Tolliver Grant. He confirmed that he had visited Nicholes's residence sometime during the late afternoon of February 12. He escorted the deceased home from Nicholes's place and then back again a short time later. He then left and went to purchase cigarettes. Returning from the store, he met Tolliver, who asked him where his mother was. Informing Tolliver of his mother's whereabouts, the two proceeded to Nicholes's home. Upon knocking on the door, Jackson said that he heard Hosea's voice stating "nobody opens my God damn (sic) door but me". Nicholes then appeared with a rifle and exchanged words with the victim with regard to her opening the door for the defendants. Jackson said that the victim asked him for her gun, which Jackson had earlier picked up and kept in his possession. Next, according to Jackson, Hosea Nicholes opened fire with the rifle. Then he (Jackson) struck Nicholes across the head with the deceased's revolver. He testified that he saw Hosea Nicholes shoot the deceased.

II

Defendants initially contend that the jury which convicted them was never properly sworn, as any notation to that effect is missing from the transcribed record. The only indication that the jury [100 MICHAPP 154] was sworn is found in the notes taken by the clerk of the court. As such, defendants claim entitlement to a remand for an evidentiary hearing wherein the accuracy of those notes would have to be established. We disagree.

Defendants' contention is answered by People v. Livingston, 57 Mich.App. 726, 226 N.W.2d 704 (1975), modified on other grounds 396 Mich. 818, 238 N.W.2d 360 (1976), where this Court stated:

"Defendant also maintains that the jury which convicted him was never properly sworn. Though the transcript does not indicate that the jury was ever sworn, the work sheet for the clerk of the Recorder's Court dated May 22, 1973, an official part of the lower court file, states that the jury was indeed sworn on that date. That entry is part of the record on appeal. GCR 1963, 812.1(a). The record therefore clearly demonstrates that the jury was properly sworn, and defendant's contention to the contrary is without merit." Id., 734, 226 N.W.2d 704.

We find this case sufficiently on point to control defendants' contention of error.

III

Next, defendants complain that the trial court reversibly erred by excusing a juror who was discovered to have known the deceased and the deceased's sister as a result of the juror's employment. The record indicates that the juror was dismissed before the jury had been sworn but after it had been selected. The juror indicated that she would not feel uncomfortable sitting on the jury, and defense counsel expressed no objection to the juror remaining on the panel. However, upon the prosecutor's registering his objection, the trial court excused the juror.

The motion of the prosecutor to excuse the juror [100 MICHAPP 155] may be viewed as a delayed challenge for cause under GCR 1963, 511.4. Analyzing it as such, we conclude that the challenge was properly made under GCR 511.4(10). ¹ Although it does not expressly include fellow workers of immediate relatives of the parties within its ambit, an extension of the rule to include those so situated is plainly within the spirit of the rule. Moreover, as noted by the authors of Michigan Court Rules Annotated, the enumerated grounds in GCR 511.4 presumably were not intended to be exhaustive, but were merely a codification of prior case law. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 466. The trial judge's action did not operate to deny defendants a trial by a fair and impartial jury of their peers. We conclude that the trial judge acted with proper circumspection and that his decision to excuse the juror did not constitute an abuse of discretion. Cf., People v. Gerald Hughes, 85 Mich.App. 8, 16-18, 270 N.W.2d 692 (1978).

IV

Defendants also question whether the trial court adequately instructed the jury that, in order to convict defendants of felony-murder, the killing must be attributable to the defendants and could not have been committed by the robbery victim. [100 MICHAPP 156] We find that the instructions, reviewed in their entirety, did adequately inform the jury that before they could convict defendant(s) of felony-murder they must find that the killing was attributable to the defendant(s), not the victim, in accord with the rule found in People v. Carter, 387 Mich. 397, 422, 197 N.W.2d 57 (1972). The fact that the court followed this instruction with an instruction on transferred intent did not serve to so confuse the jury or otherwise obfuscate the questions which they were to decide so as to constitute reversible error. Criminal intent is distinct...