People v. Jackson

• Decision Date: 18 December 1973
• Docket Number: O,No. 1,1
• Citation: 390 Mich. 621,212 N.W.2d 918
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert JACKSON, Defendant-Appellant. ct. Term. 390 Mich. 621, 212 N.W.2d 918
• Court: Michigan Supreme Court

Page 918

212 N.W.2d 918

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

No. 1, Oct. Term.

390 Mich. 621, 212 N.W.2d 918

Supreme Court of Michigan.

Dec. 18, 1973.

William L. Calahan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by David A. Goldstein, Deputy Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

LEVIN, Justice.

Robert Jackson shot and killed Jackie (Sonny) Wilson, Jr., during a shoot-out with Richard Holmes.

Michael Lewis testified that Holmes shot first and Jackson then returned Holmes's fire. Wilson was shot in the cross-fire. Jackson was convicted of second-degree murder by the judge who sat without a jury.

Wilson was a friend of Jackson and there is no reason to believe that Jackson intended to kill him. The case was tried on the assumption stated both by the prosecutor and Jackson's lawyer that Wilson's death was accidental.

The unintended killing of an innocent bystander is not murder if justifiably committed in proper self-defense. It may, however, be manslaughter.

'If A in proper self-defense aims at his adversary B but misses B and unintentionally strikes innocent bystander C, he is not liable for C's injury or death unless his conduct, under all of the circumstances (including the need to defend himself) was reckless with regard to C. In such a case he would be liable for battery if he merely injuries, involuntary manslaughter if he kills, C.' LaFave and Scott, Criminal Law, p. 396. ¹

I

Jackson claims that since the uncontradicted testimony was that Holmes shot first, he was legally justified in firing back and is not criminally responsible for Wilson's death.

Lewis testified that the shoot-out occurred when Jackson, Wilson, and Lewis went to Holmes's residence to purchase narcotics. When Holmes responded to the doorbell, Wilson and Lewis were on the porch and Jackson was on the stairs with a sawed-off shotgun concealed under his clothing. Holmes refused to do business with Wilson because he did not recognize Lewis. Wilson then reached into his pocket. Holmes jumped back. Lewis said Holmes fired and Jackson returned the fire instantly killing Wilson and seriously injuring Holmes.

The trier of fact was not obliged to believe Lewis's testimony simply because it was not contradicted by another witness. ² There was ample reason to doubt Lewis's credibility. He could have been prosecuted on the theory that he was involved with Jackson in a concert of action which involved the carrying by Jackson of a weapon which culminated in Holmes's injury and Wilson's death.

II

The Court of Appeals erred in suggesting that the defendant had the burden of establishing his defense of self-defense ('Thus, the defendant has not met his burden of establishing his defense of self-defense.' People v. Jackson, 41 Mich.App. 530, 536--537, 200 N.W.2d 465, 469 (1972)). The Court of Appeals was not, however, the trier of fact. Had the judge indicated that he was under the impression that the defendant had the burden of proof (or had so instructed a jury) a new trial probably would be required as once the issue of self-defense is injected and evidentially supported, '(t)he burden of proof to exclude the possibility that the killing was done in self-defense rests on the prosecution.' People v. Stallworth, 364 Mich. 528, 535, 111 N.W.2d 742, 746 (1961).

III

Jackson also asserts that he is entitled to a new trial because the prosecutor failed to produce Richard Holmes who was an indorsed res gestae witness. At the preliminary examination, the tendency of Holmes's testimony was that Jackson was the aggressor. Thus, if called as a witness at the trial, Holmes probably would have contradicted Lewis's trial testimony that Jackson was only returning Holmes's fire.

Claiming that Holmes was out of the state and he had made diligent efforts to produce him, the prosecutor attempted to read Holmes's preliminary examination testimony at the trial. The judge ruled that the effort to produce Holmes was inadequate and refused to permit his testimony to be read.

Jackson now asserts that the failure to produce Holmes deprived him of a fair trial. At the trial, rather than insisting on Holmes's presence, Jackson's lawyer objected to the judge's granting the prosecutor a short continuance to permit a further effort to produce Holmes. It is apparent from Holmes's preliminary examination testimony why Jackson did not wish to have him produced.

Nevertheless, since it is not perfectly clear whether Jackson waived Holmes's nonproduction and, as will appear, we are remanding for other reasons, Jackson may pursue this issue on remand if he wishes in accordance with the procedures set forth in People v. Robinson, Mich., 213 N.W.2d 106 (1973).

IV

In People v. Thomas, 387 Mich. 368, 197 N.W.2d 51 (1972), the plurality opinion stated: '(N)o special findings of fact are required in judge-tried criminal cases.' This opinion was signed by three justices, one justice concurring in the result. The dissenting opinion, signed by three justices, stated that GCR 1963, 517.1, requiring fact finding in bench trials, applies equally to civil and criminal cases.

Since neither opinion obtained four signatures, neither is binding under the doctrine of Stare decisis.

We are now of the opinion that in criminal cases as well as civil cases a judge who sits without a jury § obliged to articulate the reasons for his decision in findings of fact. Findings of fact in a nonjury case serve a function paralleling the judge's charge in a jury case, that of revealing the law applied by the fact finder. ³

In this case there is considerable doubt regarding the law applied by the fact finder. During colloquy with Jackson's lawyer, the judge asked,

-- 'How could self-defense be a defense in this case?'

--'There is no suggestion that the Deceased here fired anything.' (Emphasis supplied.)

--'Suppose you shoot in self-defense and you accidentally killed somebody else?'

--'Suppose you shoot in self-defense and you do it so negligently that you kill somebody else?'

The judge did not indicate in the findings he stated a short time later how he resolved the questions which were troubling him.

Although, as indicated above, the judge was not obliged to believe Lewis's testimony exculpating Jackson, the judge did not say that he found against Jackson because he disbelieved Lewis or because he concluded that excessive force was used by Jackson.

The judge recited in his findings that at the door Holmes expressed some doubts concerning the unknown Lewis, and then Jackson drew a shotgun and fired the fatal shot killing Wilson. 'There is no question, Therefore, that we do have here a felonious homicide.' (Emphasis supplied.)

It would not, however, have been felonious homicide if Jackson acted justifiably, in self-defense, even though Wilson, although 'innocent,' was killed accidentally.

There is sufficient doubt whether the judge correctly applied by law to the facts of this case to require remand for additional fact finding on the record already made, supplemented by Holmes's testimony if he is produced on remand.

Remanded for further proceedings consistent with this opinion....