People v. Kelly

• Decision Date: 13 November 1985
• Docket Number: Docket No. 71704
• Citation: 423 Mich. 261,378 N.W.2d 365
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome KELLY, Defendant-Appellant. 423 Mich. 261, 378 N.W.2d 365
• Court: Michigan Supreme Court

Page 365

378 N.W.2d 365

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome KELLY, Defendant-Appellant.

Docket No. 71704.

423 Mich. 261, 378 N.W.2d 365

Supreme Court of Michigan.

Argued April 2, 1985.

Decided Nov. 13, 1985.

John D. O'Hair, Pros. Atty., County of Wayne, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., A. George Best, II, P-27749 Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by James Krogsrud, Asst. Defender, Detroit, for defendant-appellant.

WILLIAMS, Chief Justice.

This case involves a determination of the accuracy of jury instructions given on the issue of intent in a prosecution of felony murder and aiding and abetting the murder. Specifically, the first issue revolves around the following sentence: "If you find that the defendant consciously intended to commit, attempted to commit or assisted another in the crime of robbery, you may infer that he knowingly created a very high risk of death with knowledge that it probably would cause death." (Emphasis added.) While this sentence in isolation may be inaccurate, the instructions in their entirety correctly state the law.

The second issue involves a portion of the instructions given on the aiding and abetting charge which was not objected to in the trial court. We apply the standard of review for unpreserved objections and find that no manifest injustice occurred. We offer no opinion as to the result if this issue had been properly preserved.

The appeal raises two additional issues: (1) whether the trial court committed error requiring reversal by allowing the introduction of a rebuttal witness to testify about an issue raised by the defense and elaborated upon by the prosecutor in cross-examination; and (2) whether the trial court abused its discretion by allowing evidence of the defendant's three prior convictions to be used for impeachment purposes. We answer each of these issues in the negative, and we therefore affirm the defendant's conviction.

I. FACTS

On the evening of July 18, 1980, Willie Espy, Sr., was found dead on the floor of his house with his hands tied behind his back and a large wound, made by several cuts with a sharp instrument, on the side of his neck. The house had been ransacked, and among the items missing were a large television set and a rifle.

The defendant, Jerome Kelly, and Lawrence Moses, ¹ were linked to the killing by witnesses who saw them approaching the house, signaling to each other before entering the house, carrying a rifle and a large knife towards the house, and running from the direction of the decedent's house with a rifle and a large knife wrapped in a bloodied sheet. They were also seen loading a television set into a van parked a short distance from the Espy residence.

The defendant admitted to helping Moses remove the television set from the decedent's property and to having blood stains on his pants, but denied any involvement in the killing.

The prosecution proceeded on one of two theories at trial: (1) that the defendant was guilty of first-degree felony murder, or (2) that the defendant aided and abetted the felony murder. Consistent with this, the jury instructions specified the elements of each theory as well as the broader requirements with respect to burdens of proof and the presumption of innocence. The relevant portions of the instructions follow:

"Now the defendant in this case is charged with murder in the first degree--felony murder. The essential element of all murder is malice. Now malice is a term with a special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that his act would probably result in death.

"Now there are two degrees of murder, and if you find that defendant is guilty of murder, it is your duty to state in your verdict whether the defendant is guilty of murder of the first degree or murder of the second degree. For murder of the first degree there must be proof beyond a reasonable doubt that the killing occurred as a result of the crime of robbery and that the defendant was at the time engaged in committing, attempting to commit or aiding another in the commission of that crime.

* * *

"As I have told you before, there are two kinds of murder, first and second degree, and I will instruct you as to both. Now, murder of either degree, as I have told you before, is the killing of one person by another with malice. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or mitigate the crime.

* * *

"You will first be instructed on murder of the second degree. Keep in mind that all of the elements of second degree murder are necessary to prove first degree murder.

* * *

"Second, that his death was caused by an act of the defendant or because the defendant consciously created a very high risk of death to another with knowledge that it probably would cause death.

* * *

"Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"IF YOU FIND THAT THE DEFENDANT CONSCIOUSLY INTENDED TO COMMIT, ATTEMPTED TO COMMIT OR ASSISTED ANOTHER IN THE CRIME OF ROBBERY, YOU MAY INFER THAT HE KNOWINGLY CREATED A VERY HIGH RISK OF DEATH WITH KNOWLEDGE THAT IT PROBABLY WOULD CAUSE DEATH.

"Now, you may also gain some insight into the intent with which an act is done by the way in which it is done.

"Now, a gun is a dangerous weapon. There are some instruments which are dangerous because they are specifically so designed and are in themselves deadly, such as firearms, knives or bombs. Now, other instruments, though designed for peaceful and proper purposes, also may be dangerous weapons. The manner in which an instrument is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an instrument is used in a manner reasonably calculated and likely to produce serious physical injury or death, it is a dangerous weapon. You may infer an intention to kill from the use of a dangerous weapon when it is used in a manner that the death of the person was plainly likely. Now, you may infer that a person intends the usual results which follows from the use of a dangerous weapon.

"Now, you must consider all of the facts and circumstances in determining the state of mind of the defendant at the time of the act. This may be inferred from the kind of weapon used, the nature of the wounds inflicted, the circumstances surrounding the killing, the acts, conduct and language of the accused or any other circumstance in evidence.

"In determining whether a person who has killed another is guilty of murder, the nature and extent of the injury or wrong which was actually intended must usually be of controlling importance. There cannot be a conviction of murder unless the injury intended was one of a very serious character which might naturally and commonly involve loss of life or grievous mischief.

"If all of the evidence does not convince you beyond a reasonable doubt that the defendant either intended to kill or consciously created a high risk of death with knowledge of the probable consequences, then you must find the defendant not guilty of this crime.

"Now, the degree for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person's life, and the defendant must have been conscious of that risk.

* * *

"Now, it is the theory of the prosecution in this case that the defendant either directly committed the crime charged, that being felony murder, or that he intentionally aided or assisted another in the commission of that crime.

"All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense or as aiders and abettors. Before you may convict you must be convinced beyond a reasonable doubt.

"First, that the defendant intended to commit the crime of robbery, either robbery unarmed or robbery armed at the time of giving the aid or encouragement.

"Second, that the defendant performed acts or gave encouragement which aided or assisted the commission of the crime of robbery either before or at the time of the commission of the crime.

"Third, that the crime of felony murder occurred as a result of this robbery.

"FOURTH, THAT THIS CRIME WHICH OCCURRED, THAT IS THE FELONY MURDER, WAS FAIRLY WITHIN THE CRIMINAL PLAN AND THE DEFENDANT MIGHT HAVE EXPECTED THIS TO HAPPEN IN THE COURSE OF COMMITTING THE ROBBERY." (Emphasis added.)

During trial, defense counsel objected to that portion of the instruction involving the malice requirement of felony murder, ² (first portion of the instructions in capitals above), but did not object to the instructions given with respect to aiding and abetting (second portion of the instructions in capitals above). The jury convicted Kelly of felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and he was sentenced to the mandatory life imprisonment. The Court of Appeals affirmed the conviction on March 11, 1983, in an unpublished decision. We granted leave to appeal, instructing the parties to "include among the issues to be briefed whether the trial court's instructions were erroneous in permitting a conviction of felony murder on an aiding and abetting theory without a finding that defendant possessed an intent to murder, People v. Aaron, 409 Mich. 672 [299 N.W.2d 304] (1980)." 419 Mich. 922 (1984).

II. APPLICABLE LAW WITH RESPECT TO JURY...