People v. Moore

• Decision Date: 07 May 1991
• Docket Number: Docket No. 110180
• Citation: 472 N.W.2d 1,189 Mich.App. 315
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Laurie Monroe MOORE, Defendant-Appellant. 189 Mich.App. 315, 472 N.W.2d 1
• Court: Court of Appeal of Michigan — District of US

Page 1

472 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Laurie Monroe MOORE, Defendant-Appellant.

Docket No. 110180.

189 Mich.App. 315, 472 N.W.2d 1

Court of Appeals of Michigan.

Submitted Oct. 4, 1990, at Lansing.

Decided March 8, 1991.

Approved for Publication May 7, 1991, at 11:00 a.m.

Released for Publication July 29, 1991.

[189 MICHAPP 316] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Norman R. Hayes, Pros. Atty., and Dawn Pyrek, Chief Asst. Pros. Atty., for People.

State Appellate Defender by F. Martin Tieber, for defendant-appellant on appeal.

Before WAHLS, P.J., and DOCTOROFF and ALLEN, ^* JJ.

PER CURIAM.

Tried by an Otsego Circuit Court jury on a charge of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, defendant was found guilty of voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, on November 7, 1987. Defendant was sentenced on May 3, 1988, to seven to fifteen years' imprisonment. He appeals as of right. We reverse his conviction.

The charge against defendant arose out of the death of Jerry Tobias, an oil well worker employed by Acme Tool, whose frozen body was found around 4:00 p.m. on December 8, 1986, in the bed of his pickup truck, which was parked near the City of Gaylord Fire Hall. When found, jumper cables entwined his hands, and his shirt was pulled up around his head, torn and stained with blood. Scrape marks, running lengthways, scarred his cowboy boots. There were areas of recent bleeding over the right temple, behind the right ear, over the crown of the head, over the left midparietal area, and over the left ear below that.

Patricia Newhouse, the state's pathologist, testified at trial that the marks on Tobias' boots were [189 MICHAPP 317] consistent with the body having been dragged in an unconscious state. She also testified that she discovered nine to eleven areas of trauma to the head and a total of sixteen to twenty areas of trauma during an autopsy. Some of these wounds were consistent with defense wounds. Newhouse opined that the cause of death was a blunt (nonpenetrating) trauma to the head with hemorrhage in the midbrain and pons.

The case against defendant was totally circumstantial, built primarily upon evidence that (1) linked Tobias to Walt's Butcher Shop, a business owned by defendant, his mother, and his wife, a prominent Gaylord attorney, (2) suggested that Tobias was to meet defendant at midnight on Friday, December 5, 1986, for a cocaine buy, and (3) established that decedent used cocaine.

Don and Becky Nelson testified that Tobias had come to their house at approximately 8:00 p.m. on December 5, 1986, and that they gave him $200 to purchase cocaine. At that time, Tobias stated that he was to meet with defendant at Walt's around midnight and that he would be in contact with them later that night or on Saturday. The following day, December 6, Becky Nelson saw defendant at Walt's and inquired regarding whether defendant had seen Tobias. Defendant responded that he had met Tobias around midnight but that nothing had come through.

Newhouse testified that she discovered multiple puncture wounds present at the bend in Tobias' arms opposite the elbows which appeared fresh. Tobias' wife testified that she knew of one incident in May 1986 when her husband had mainlined cocaine. Urine taken from Tobias showed the presence of cocaine and cocaine metabolites. His blood was not tested for the presence of cocaine.

A search of Tobias' truck led to the discovery of [189 MICHAPP 318] a package of meat, admittedly from Walt's, behind the front seat of the truck. On December 12, 1986, police searched Walt's and seized a chicken rotisserie skewer. No blood or other physical evidence was found on the skewer. On December 17, 1986, Tobias' body was exhumed and the various wounds were compared to the skewer. Newhouse testified that several of the wounds were consistent with an injury which could have been caused by the skewer, inasmuch as the tips of the skewer were 0.6 centimeter and the round wounds on Tobias' forehead and the longitudinal wounds on the arms measured 0.6 centimeter and the distance between the two large tips of the skewer was 7.5 centimeters, which was the same distance apart as two wounds on the head and the two 0.6 centimeter wounds on the shoulder.

On this evidence, the prosecution theorized that Tobias had been killed by defendant during a drug deal that had gone bad.

Defendant presented Laurence Simson, a board-certified forensic pathologist, who testified that the skewer was not the weapon that killed Tobias. He also testified that he did not believe that Tobias died of head injuries because he would expect to see skull fractures, skin lacerations, and swelling where a blow to the head was struck with sufficient force to cause brain injury. He testified that the hemorrhaging could have been caused by the freezing and thawing of the body. Simson further testified that he did not know the cause of death, but noted that cocaine could have played a significant role in Tobias' death. He was critical of the prosecution's failure to make every effort to find out more about Tobias' drug use.

Following the close of proofs, the prosecution asked the court to instruct the jury regarding second-degree murder and voluntary manslaughter[189 MICHAPP 319] . Defendant objected to the giving of an instruction on voluntary manslaughter. The court gave it over defendant's objection. The jury returned a verdict of guilty of voluntary manslaughter the following day, after being unexpectedly sequestered overnight.

On appeal, defendant raises thirteen issues. Because reversal is mandated by error on defendant's first issue, we find it unnecessary to address defendant's remaining issues.

Defendant argues that the trial court erroneously instructed the jury, over his objection, on the offense of voluntary manslaughter. We agree.

At a criminal trial, the judge functions both as a neutral arbiter between the two contesting parties and as the jury's guide to the law. This role requires that the judge instruct the jury regarding the law applicable to the case, M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052, and fully and fairly present the case to the jury in an understandable manner. People v. Jones, 419 Mich. 577, 579, 358 N.W.2d 837 (1984). The fulfillment of this obligation requires that the judge instruct on included offenses where there is a request to do so and where there is evidence in the record which would support a conviction of the lesser offense. People v. Richardson, 409 Mich. 126, 135, 293 N.W.2d 332 (1980); People v. Ora Jones, 395 Mich. 379, 386, 236 N.W.2d 461 (1975). When no evidence exists to support a conviction of a lesser-included offense, an instruction with regard to a lesser-included offense detracts from, rather than enhances, the rationality and reliability of the fact-finding process. People v. Beach, 429 Mich. 450, 481, 418 N.W.2d 861 (1988). Voluntary manslaughter is a cognate lesser included offense of murder. People v. Pouncey, 183 Mich.App. 216, 218, 454 N.W.2d 130 (1989).

Our Supreme Court has described manslaughter [189 MICHAPP 320] as a homicide "devoid of actions which require unimpassioned calculation for their accomplishment." People v. Younger, 380 Mich. 678, 681, 158 N.W.2d 493 (1968). It is the product of provocation which unseated reason and permitted passion free reign. Id., at 681-682, 158 N.W.2d 493.

It requires that a defendant be found to have had an intent to kill or an intent to do serious bodily harm to the deceased. To this extent the offense parallels the crime of murder; but, as noted above, it is distinguished from murder by an absence of malice. To reduce a homicide to voluntary manslaughter the fact finder must determine from an examination of all the circumstances surrounding the killing that malice was negated by provocation and the homicide committed in the heat of passion. People v. Scott, 6 Mich. 287, 295 (1859). [People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974).]

Once the sufficiency of the evidence standard as set forth in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. sub nom. Michigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980), has been satisfied regarding the murder charge, the jury may consider the lesser charge if there is "only a modicum of evidence of provocation." People v. King, 98 Mich.App. 146, 152, 296 N.W.2d 211 (1980). The standard has been defined as "slight but sufficient" evidence. Id. Because provocation is not an element of voluntary manslaughter, it need not be proven by the prosecution beyond a reasonable doubt. Id., at 150-151, 296 N.W.2d 211. Therefore, though there need not be proof beyond a reasonable doubt of provocation, there must be some "slight but sufficient" evidence in order for the instruction on voluntary manslaughter to be given.

Our review of the record fails to disclose evidence[189 MICHAPP 321] surrounding the killing itself from which defendant's state of mind can be ascertained. It also fails to disclose evidence of any provoking event from which the jury could determine that the event was of the...