People v. Louris
| Decision Date | 19 October 2017 |
| Docket Number | No. 333123,333123 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNETH EARL LOURIS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court
Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.
Defendant was convicted in a jury trial of felony murder, MCL 750.316(1)(b), three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, armed robbery, MCL 750.529, and felon in possession of a firearm (felon-in-possession). He was sentenced as a fourth habitual offender, MCL 769.13, to natural life imprisonment for the felony murder conviction, two years imprisonment for each of the three counts of felony-firearm, 40 to 60 years' imprisonment for the armed robbery conviction, and 6 to 30 years' imprisonment for the felon-in-possession conviction. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.1
This appeal arises from the conviction and sentences of defendant arising from the death of William McGee (victim) in December, 2015. On the evening of December 3, 2015, the victim and his friend Jordan Worrall went to the home of Lajazim Alexander in the City of Pontiac. They were joined there by others2, including a cousin of the victim, Daijon Grandberry, and the victim's brother, Kavonte Manley. Witnesses testified that the men gathered in the basement of the home to gamble, primarily on dice. Of particular importance to this appeal was theconflicting testimony as to whether Worrall was gambling. Grandberry testified that Worrall was shooting dice and gambling whereas Worrall testified that although he had $50, he did not gamble.
Witness testimony revealed that sometime between 11:30 and midnight, defendant came to Alexander's home and went into the basement. Though the exact timeframe was not discernable, shortly after defendant arrived, he stuck what Worrall described as a long-barreled revolver to Worrall's ribs and demanded Worrall's money. According to Worrall, the victim told defendant, to "Leave 'J' alone, Ken."3 Worrall testified that defendant then told the victim to "Shut the f*** up." Then, defendant struck Worrall on the top of his head with the gun, knocking Worrall unconscious. Worrall does not recall a shot being fired, but according to Grandberry, as soon as defendant hit Worrall with the gun, the gun fired a single shot hitting the victim in the head. Manley could not specifically recall how much time passed between defendant hitting Worrall with the gun and the gun being fired, but he approximated it was 15 to 20 seconds.
After hearing shots, Alexander went to see what was happening in her basement when she heard Manley screaming "...he shot my brother." She looked into the basement and saw defendant with a revolver in his hand and heard him state: She then screamed at defendant to get out of her house which he did, but not before most of the people in the basement had fled. A number of guests then telephoned police who arrived at Alexander's house. The victim was still alive, though he was lying in a large pool of blood having been shot in the head, and Worrall needed over twenty stiches in his head to close up the wound he had suffered as a result of the blow to his head. The victim died approximately five days later from the gunshot wound to the head.
After the close of proofs, defense counsel requested that the trial court instruct the jury on accident, M Crim JI 7.3a and involuntary manslaughter, M Crim JI 7.3. The trial court refused both instructions stating that neither instruction was supported by the evidence. Defendant was thereafter convicted and sentenced as stated above. This appeal then ensued.
On appeal, defendant argues that the trial court erred when it refused to instruct the jury on accident or involuntary manslaughter. As a result of this refusal, defendant argues that he was denied the right to have a properly instructed jury as well as his constitutional right to present a defense.
This Court reviews de novo claims of instruction error which involve a question of law and we review for abuse of discretion a trial court's ruling that a jury instruction is factually inapplicable. People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). "An abuse of discretion occurs when the trial court chooses an outcome that falls outside the permissible range of principled outcomes." People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2006).
Here, defendant requested that the jury be instructed on accident and manslaughter and the trial court denied his request. An issue is preserved for appellate review when it is raised before and addressed and decided by the trial court. See, People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Defendant's request for an instruction on M Crim JI 7.3 and M Crim JI 7.3a are therefore preserved. However, while defendant references M Crim JI 7.2, which is titled "Murder: Defense of Accident (Not Knowing Consequences of Act)," defendant explicitly acknowledges that only M Crim JI 7.3a was requested in the trial court. Thus, to the extent that defendant contends that the trial court should have instructed the jury on M Crim JI 7.2, that issue is unpreserved. Additionally, defendant did not raise a constitutional argument in the trial court relative to his claim that failure of the trial court to give his requested jury instructions deprived him of a defense. This Court reviews unpreserved issues for plain error. People v Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015), citing People v Dunbar, 264 Mich App 240, 251; 690 NW2d 476 (2004), overruled on other grounds by People v Jackson, 483 Mich 271, 290; 769 NW2d 630 (2009). To avoid forfeiture under the plain error rule, the defendant must demonstrate that an error occurred, the error was plain, and the plain error affected substantial rights. People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009), citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "The third prong requires a showing of prejudice, which occurs when the error affected the outcome of the lower court proceedings." People v Putman, 309 Mich App 240, 243; 870 NW2d 593 (2015), citing Carines, 460 Mich at 763.
"When this Court reviews jury instructions for reversible error, we consider the instructions as a whole." People v Richardson, 490 Mich 115; 803 NW2d 302 (2011), citing People v Kelly, 423 Mich 261, 270-272; 378 NW2d 365 (1985). " 'A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.' " People v Armstrong, 305 Mich App 230, 239; 851 NW2d 856 (2014), quoting People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). "The jury instructions must include all elements of the crime charged, and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them." Armstrong, 305 Mich App at 240 (citation and quotation marks omitted).
"The trial court may issue an instruction to the jury if a rational view of the evidence supports the instruction." Id., citing MCL 768.29, and Riddle, 467 Mich at 124. "[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v Cornell, 466 Mich 335, 357; 646 NW2d 127 (2002). "Even if somewhat imperfect, instructions do not create error if they fairly present to the jury the issues tried and sufficiently protect the defendant's rights." People v Bartlett, 231 Mich App 139, 143-144; 585 NW2d 341 (1998) (citations omitted).
Defendant argues that the trial court erred when it refused to instruct the jury on involuntary manslaughter. "Manslaughter is a necessarily included lesser offense of murder" and if "a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence." People v Gillis, 474 Mich 105, 137; 712 NW2d 419 (2006) (citations omitted). See also, People v Mendoza, 468Mich 527, 541; 664 NW2d 685 (2003). "Involuntary manslaughter is the unintentional killing of another, without malice, during the commission of an unlawful act not amounting to a felony and not naturally tending to cause great bodily harm; or during the commission of some lawful act, negligently performed; or in the negligent omission to perform a legal duty." Mendoza, 468 Mich at 536. "Every unintentional killing of a human being is involuntary manslaughter if it is neither murder nor voluntary manslaughter nor within the scope of some recognized justification or excuse." People v Datema, 448 Mich 585, 594-595; 533 NW2d 272 (1995) (citation and quotation marks omitted).
" '[T]he sole element distinguishing manslaughter and murder is malice[.]' " Gillis, 474 Mich at 138, quoting People v Holtschlag, 471 Mich 1, 21-22; 684 NW2d 730 (2004). " 'Malice' is defined as an act done 'with either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.' " Gillis, 474 Mich at 138, quoting Mendoza, 468 Mich at 536. A defendant is "entitled to an involuntary manslaughter instruction only if a rational view of the evidence would have supported a finding" that a victim's death was "caused by an act of 'gross negligence or an intent to injure, and not malice . . . .' " Gillis, 474 Mich at 138, quoting Holtschlag, 471 Mich at 21-22.
On appeal, defendant advances the theory as he did in the trial court that there was no evidence that defendant intended to harm the victim because there...
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