People v. Knott

• Decision Date: 24 February 1975
• Docket Number: Docket No. 19475,No. 3,3
• Citation: 228 N.W.2d 838,59 Mich.App. 105
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard KNOTT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 838

228 N.W.2d 838

59 Mich.App. 105

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard KNOTT, Defendant-Appellant.

Docket No. 19475.

Court of Appeals of Michigan, Division No. 3.

Feb. 24, 1975.

Released for Publication May 12, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Stanley Everett, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and KAUFMAN and O'HARA, ^* JJ.

KAUFMAN, Judge.

Defendant, Richard Knott, was convicted by a jury of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553. He appeals his conviction as of right.

On March 24, 1971 during an industrial strike, defendant shot one of his co-employees, Robert Hampton. Defendant admitted killing Hampton, but claimed he shot in self-defense. Defendant raises four claims of error which will be discussed Seriatim.

I.

Defendant's first claim of error is that the trial court refused to admit testimony regarding the character, reputation, and specific violent acts of the deceased.

The issue first arose when defense counsel was cross-examining a police officer. He attempted to elicit evidence of a brickthrowing incident in which deceased had been involved the day before this shooting. On objection by the prosecutor, the trial court properly ruled that before any evidence regarding deceased's violent nature could be introduced, defendant must lay a foundation by adducing some evidence that defendant acted in self-defense. People v. Cellura, 288 Mich. 54, 284 N.W. 643 (1939). He reserved to defendant the right to recall the witness after such proof was presented, but defense counsel did not recall the witness and there is no claim of error as to this particular piece of evidence.

After the prosecution rested and before defendant commenced his proofs, the trial judge and counsel had a discussion in chambers regarding what evidence defendant would be permitted to present. After this informal discussion, defense counsel went on record to set forth the evidence he hoped to produce. The evidence consisted of: a circuit court docket record indicating the deceased had been convicted of carrying a concealed weapon (CCW) a year and a half before this incident and was still on probation at the time of his death; Albion City Police Department records to present whatever evidence they had of specific acts on the part of the deceased; and, finally, two witnesses who purportedly would testify they had been present at a home the evening before this shooting when the deceased came to that home with a gun looking for defendant.

After objection by the prosecutor, the court made the following ruling:

'Well, I am going to rule that the defendant cannot show prior individual acts of the victim which were not known to him personally and that he cannot show acts of which he had no knowledge, and I do rely on People v. Farrell, 137 Mich. 127; (100 N.W. 264 (1904)); and People v. Dowd, 127 Mich. 140; (86 N.W. 546 (1901)), People v. Kirk, 151 Mich. 253; (114 N.W. 1023 (1908)). I believe that the concealed weapon act is remote and raises a collateral issue which we would get into to determine the facts of that situation; and I don't have any facts before me about the Albion City Police records. I can't really rule on that. I don't know if there is anything. Nothing has been produced * * *.'

The trial court's refusal to allow evidence of the conviction of the CCW charge was not an abuse of discretion, even if we assume, Arguendo, that defendant was aware of this conviction. The Court in People v. Farrell, 137 Mich. 127, 130, 100 N.W. 264, 265 (1904), cited by the trial judge, stated:

'But it is well settled that it is not admissible to show specific acts of violence committed by deceased upon third persons, in no wise connected with nor observed by the (accused) * * * .'

This is true whether the purpose of the proposed evidence is to show the state of mind of the defendant, or to prove who was the aggressor. People v. Cellura, Supra, People v. Rapier, 43 Mich.App. 297, 204 N.W.2d 339 (1972).

The trial court's finding that the CCW charge was too remote to be admitted is supported by People v. Cellura, Supra, 288 Mich. at 64, 284 N.W. at 647:

'* * * evidence of particular acts of violence or lawlessness is not admissible unless they were directly connected with and involved in the homicide.'

It is not clear from the transcript whether the arrest record defendant proposed to introduce would have, in fact, revealed any other prior or unlawful acts by the deceased. In any event, the record was properly excluded under the same authority cited for the rejection of the CCW conviction. We note that a defendant is not precluded from introducing all evidence of the deceased's violent character, but the courts have seen fit to limit that showing to reputation evidence, where there is no showing that the defendant knew of the prior acts or that any act was directly connected with the homicide. People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961).

It is unclear what ruling the judge made with regard to the two witnesses defense counsel proposed to call who could testify to seeing the deceased with a gun the night before this incident. At one point in the argument the court referred to one of the witnesses defense counsel mentioned, and stated, 'I was not aware of the Thomas Watts statement that you just mentioned'. He later made the ruling already quoted, without mentioning this offer of proof. That ruling does not appear to reject such offer of proof. Yet, defense counsel neither called the witnesses at trial, nor made a separate record of their testimony. It is therefore not necessary for this Court to determine whether that testimony should have been allowed as relevant evidence of violent acts directly connected with or involved in the homicide. People v. Cellura, Supra. Defense counsel having failed to introduce the testimony or make a separate record, did not preserve that argument for appeal. People v. Eddington, 387 Mich. 551, 556, 198 N.W.2d 297, 303 (1972), People v. Reynold, 20 Mich.App. 397, 174 N.W.2d 25 (1969).

II.

The defendant further cites error in the trial court's refusal to give an instruction, as requested by defense counsel, on reckless use of a firearm. M.C.L.A. § 752.861; M.S.A. § 28.436(21). Defendant accurately quotes the test used by our Court to determine whether an offense is 'lesser included' of another offense:

'For an offense to be lesser included it must contain some, but not all of the elements of the higher offense and there must be no additional elements in the 'included' offense which are not part of the 'higher' offense.' Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 684, 194 N.W.2d 693, 699 (1972).

See also, People v. Jones, 45 Mich.App. 373, 206 N.W.2d 453 (1973), lv. granted, 390 Mich. 793 (1973).

As the Court pointed out in Jones, supra, reckless use of a firearm requires that a firearm be proved as an element of the crime. A firearm is not a necessary element of the crime of murder or manslaughter, although it is often the tool used, as is the case here. Reckless use of a firearm, therefore, is not a lesser included offense of manslaughter.

Defendant argues that while the test used is effective as a guide to prosecutors, when employed by our courts to limit instructions on included offenses, it exalts form over substance. Defendant cites several cases in which courts appear to employ a factual test rather than the semantic test used in Michigan. Defendant fails to note, however, that the factual test is the second step in any determination of included offenses. A trial judge must first determine whether the charge requested falls within the strict rule cited, and, if the answer is affirmative, he must then move to the factual question of whether, in the circumstances of the particular case, such a charge is warranted. If the first cannot be answered in the affirmative, there is no necessity to reach the second factual determination. People v. Carter, 387 Mich. 397, 197 N.W.2d 57 (1972).

If the rule were otherwise, judges would be acting as prosecutors in every case, determining what charges will be brought against the defendant. The judiciary may not properly exercise that function. Genesee Prosecutor v. Genesee Circuit Judge, Supra. In this case, the prosecutor could have chosen to charge defendant with reckless use of a firearm. Instead, he chose to charge manslaughter. The former is not lesser included of the latter, and the trial judge had no authority, over a prosecutor's objection, to make such a charge.

Defendant further argues that the charge should have been given as part of defendant's theory of the case. Defendant misreads the authority cited. A defendant is entitled to a charge on his theories of Defense, People v. Hoefle, 276 Mich. 428, 267 N.W. 644 (1936). He is not entitled to determine the charge which will be brought against him. Reckless use of a firearm is not a defense to manslaughter. The charge requested by defendant was properly refused by the trial court.

III.

Defendant's next claim of error challenges the sufficiency of the instruction on manslaughter and the court's failure to distinguish voluntary and involuntary manslaughter. Defendant asserts that the instruction denied defendant his right to a determination by a properly instructed jury of defendant's degree of criminal culpability.

In charges of involuntary manslaughter the practice is to set up in the information the particular facts upon which the charge rests. People v. Ryczek, 224 Mich. 106, 194 N.W. 609 (1923), People v. Olmstead, 30 Mich. 431 (1874). The defendant in this case was charged in the information with manslaughter. No particular facts were defined, and it is clear that the charge against this defendant was voluntary manslaughter. The jury's verdict of guilty as charged, therefore,...