People v. Mathis

• Decision Date: 02 May 1977
• Docket Number: Docket No. 26638
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Clarence MATHIS, Defendant-Appellant. 75 Mich.App. 320, 255 N.W.2d 214
• Court: Court of Appeal of Michigan — District of US

Page 214

255 N.W.2d 214

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Clarence MATHIS, Defendant-Appellant.

Docket No. 26638.

75 Mich.App. 320, 255 N.W.2d 214

Court of Appeals of Michigan.

May 2, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 323] State Appellate Defender by James R. Nuhard, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Prosecutor, Edward R. Wilson, Appellate Chief, Larry L. Roberts, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Before ALLEN, P. J., and D. E. HOLBROOK and RILEY, JJ.

RILEY, Judge.

On Remand

Following his second trial and conviction of second-degree murder (the first trial having failed for want of jury consensus), defendant Paul Mathis appealed unsuccessfully to this Court. People v. Mathis, 55 Mich.App. 694, 223 N.W.2d 310 (1974). Acting upon defendant's delayed application, the Supreme Court remanded the case to the Court of Appeals for consideration of the issues raised in defendant's application for leave. 395 Mich. 788 (1975).

Defendant alleges a variety of instructional and [75 MICHAPP 324] other errors which, he argues, deprived him of a fair trial. With four of his contentions, we agree.

Defendant's first claim of error raises an issue that has been resolved in his favor by People v. Gilbert, 55 Mich.App. 168, 222 N.W.2d 305 (1974), and People v. Skowronski, 61 Mich.App. 71, 232 N.W.2d 306 (1975). As in Gilbert and Skowronski, the judge below informed the jury that he had determined in a separate hearing that defendant had voluntarily uttered a statement to a policeman concerning the alleged crime. The jury's task, the judge then declared, was twofold: to determine (1) whether the statement was made; and (2) whether, if made, it was true. Although the defendant did not object at the time, he did object when the matter was revived by the prosecutor in rebuttal argument. While a more prompt objection would have been preferable, we consider defendant's effort sufficient to have preserved the error on appeal.

We therefore hold with Gilbert and Skowronski, supra, that the trial court erred reversibly in apprising the jury of his earlier finding at the Walker ¹ hearing. It is senseless to ask the jury whether a statement has been made after informing them that the statement was voluntary. The jury is thus left to wonder whether it is being asked, on the one hand, to side with the judge's conclusion and proceed to determine the truth of the statement, or on the other, to overrule the judge and conclude on their own that the statement (no matter how voluntary) was never made. We cannot and do not expect a jury, so perplexed, to render a fair and impartial verdict. Consequently, we reverse. ² [75 MICHAPP 325] Defendant next asserts as error the lower court's sua sponte instruction on voluntary manslaughter which failed to incorporate a charge on involuntary manslaughter. This issue is a mirror image of a question addressed and resolved in People v. Jones, 395 Mich. 379, 390-391, 236 N.W.2d 461 (1975). We trust that it will not recur on retrial.

Defendant argues that reversible error arose from the following instruction:

"The element of malice is present in murder and not in manslaughter. Murder may be and often is committed without any specific intent or actual intention of killing.

"It is not necessary in all cases that one charged with murder must have intended to take the life of the person he slays by his wrongful act.

"If the intent with which he acted shall be equivolent (sic ) in legal character to a crime purposely aimed against human life, you find the accused uses upon another a deadly weapon such as a pistol in such a manner that the natural and ordinary probable use of such a deadly weapon in such a manner would be to take the life, the law presumes that such a person so assaulting intended to take the life.

"You may find malice from the use of such a deadly weapon in such a manner in which it was used that the natural consequence would be to result in the death of the deceased." (Emphasis added).

While the instant instruction is perhaps slightly less egregious than the charge condemned in People v. Martin, 392 Mich. 553, 221 N.W.2d 336 (1974), it is nonetheless reversibly erroneous. People v. Conway, 70 Mich.App. 629, 247 N.W.2d 317 (1976). [75 MICHAPP 326] Compare People v. Gibson, 71 Mich.App. 543, 248 N.W.2d 613 (1976). Hence, instructional language speaking in terms of presumed malice or intent should be avoided on retrial, lest the jury's province as factfinder be invaded and a possible conviction undermined.

The trial court should also upon remand take pains to see that the jury is properly instructed on self defense. In this regard, we note that one view of the facts would support defendant's present argument that he had been residing with the decedent in her home at the time of her death. Thus, this evidence, if believed by the jury, would absolve defendant of an obligation to retreat before resorting to deadly force in self defense. See People v. Smith,54 Mich.App. 652, 221 N.W.2d 464 (1974); People v. McDaniels, 70 Mich.App. 469, 245 N.W.2d 793 (1976), and People v. McGrandy, 9 Mich.App. 187, 156 N.W.2d 48 (1967). Moreover, with regard to the requirement that defendant be non-aggressive, i. e., without fault in bringing on the deadly affray, People v. Bright, 50 Mich.App. 401, 406, 213 N.W.2d 279 (1973), the lower court should charge (assuming sufficient evidence is adduced on the point) that defendant "may only be held legally accountable as an aggressor for responsive conduct by another that is reasonably attributable to appellant's (defendant's) own conduct." People v. Townes, 391 Mich. 578, 592, 218 N.W.2d 136, 142 (1974). See also LaFave & Scott, Criminal Law, p. 395, quoted in People v. Johnson, 75 Mich.App. 337, 254 N.W.2d 667 (1977).

On all other claims of error, we agree with Judge holbrook's analysis.

Reversed and remanded.

[75 MICHAPP 327] D. E. HOLBROOK, Judge (dissenting).

Defendant was originally charged with second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. During the preliminary examination the prosecutor moved and the court ordered over the defendant's objection that a count of first-degree murder be added. M.C.L.A. § 750.316; M.S.A. § 28.548. After a trial in which the jury was unable to agree, defendant was retried on the first-degree murder charge and convicted of second-degree murder by another jury on November 4, 1971. He was sentenced to a prison term of 14 to 30 years on December 2, 1971. Defendant requested appointed appellate counsel on January 14, 1972, and counsel was appointed on January 19, 1972. Appointed appellate counsel was removed by the trial court and defendant was allowed to proceed to this Court in propria persona. An order to show cause was later filed against appellate counsel. Defendant's conviction was affirmed by this Court, 55 Mich.App. 694, 223 N.W.2d 310 (1974). Defendant filed a delayed application for leave to appeal to the Supreme Court on or about June 27, 1975. On November 19, 1975, the Supreme Court remanded this case to this Court for consideration of the issues raised in defendant's application for leave to appeal, 395 Mich. 788 (1975). Defendant raises numerous issues on appeal.

I

Defendant maintains it was legally and factually improper to charge him with first-degree murder. Defendant was originally charged with second-degree murder. However, during the preliminary examination the prosecutor moved and the court ordered that a charge of first-degree murder be added. Defendant claims error in that there was [75 MICHAPP 328] no evidence to support a first-degree murder charge, and that it was improper at that point to add such a charge.

The prosecution must show at a preliminary examination that the offense charged has been committed, there must be evidence on each element of the crime charged or evidence from which these elements may be inferred, including premeditation where the charge is first-degree murder. People v. Oster, 67 Mich.App. 490, 241 N.W.2d 260 (1976). The facts herein could support a finding that defendant did have time to take a second look and premeditate in regards to this murder.

Defendant and the deceased herein lived together off and on for several months. They had previously had several violent arguments. Testimony of a girl who lived with them indicated that on the day of this incident defendant and the deceased had an argument which extended off and on for several hours. The defendant took the deceased's gun from her purse. The deceased, who owned the home, told the defendant to pack up and leave. Defendant threatened several times to kill the deceased. The evidence indicated that the defendant went to the basement, retrieved a hammer and, thereafter, threatened the deceased with this instrument. The deceased told the defendant she would call the police unless he returned her gun and left the premises. The defendant responded that if she did call the police he would blow her brains out and tell the police that she was shot during a fight. The defendant and the deceased had bad blood between them. Defendant was apparently supported in part, at least, by the deceased who during the course of an argument demanded that he leave. He left the premises but returned shortly with the gun he had taken earlier[75 MICHAPP 329] from the deceased's purse. Shortly thereafter a shot was heard and defendant was seen with the murder weapon in his hand, emerging from the bathroom where the deceased's body was. Premeditation can be inferred from the entire circumstances surrounding the killing. People v. Vertin, 56 Mich.App. 669, 224 N.W.2d 705 (1974); People v. Moss, 70 Mich.App. 18, 245 N.W.2d 389 (1976). Defendant did attempt to explain away certain of these facts and, if believed, his version of the story may have allowed a jury to find him guilty only of...