People v. Moore

• Decision Date: 05 June 1989
• Docket Number: Docket No. 103080
• Citation: 176 Mich.App. 555,440 N.W.2d 67
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Claxton MOORE, Defendant-Appellant. 176 Mich.App. 555, 440 N.W.2d 67
• Court: Court of Appeal of Michigan — District of US

Page 67

440 N.W.2d 67

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

Docket No. 103080.

176 Mich.App. 555, 440 N.W.2d 67

Court of Appeals of Michigan.

Submitted Dec. 12, 1988.

Decided April 18, 1989.

Released for Publication June 5, 1989.

[176 MICHAPP 555] State Appellate Defender's Office by Derrick A. Carter, for defendant-appellant on appeal.

[176 MICHAPP 556] Before BEASLEY, P.J., and J.H. GILLIS and HAMMOND, ^* JJ.

PER CURIAM.

On May 13, 1987, a jury found defendant, Claxton Moore, guilty of two counts of felonious assault and one count of possession of a firearm during the commission of a felony, in violation of M.C.L. Sec. 750.82; M.S.A. Sec. 28.277 and M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) respectively. Defendant was sentenced to serve two years in prison on the felony-firearm conviction and placed on probation for two years for the felonious assault convictions, the sentences to run consecutively. Defendant appeals as of right.

Defendant contends that the trial court erred in denying his respect for a full jury instruction on mixed direct and circumstantial evidence, CJI 4:2:02. While the trial court did give most of that instruction, it refused to give subparagraph (7) of the instruction, which reads as follows:

"(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence."

Use of the Michigan Criminal Jury Instructions is not mandatory. ¹ Cautionary instructions need only be given when the circumstantial evidence against the defendant is weak ² and, further, need [176 MICHAPP 557] not be given where there is direct evidence supporting conviction. ³

At trial, the two complainants testified that, during an argument with defendant, defendant pulled out a handgun and pointed it at one of them threatening to "blow [her] so and so head off." ⁴ They further testified that defendant, soon thereafter, fired the gun in the direction of the second complainant. The bullet struck the floor approximately one foot away from the second complainant's feet. A police officer testified that, upon arrival at the scene, examination of defendant's right hand revealed an odor of gunpowder/nitrate--strong circumstantial evidence that defendant had recently fired a gun.

Given the nature of the direct evidence and the strength of the circumstantial evidence, we find no error in this case in the trial court's refusal to give subparagraph (7) of CJI 4:2:02.

Affirmed.

HAMMOND, Judge (concurring).

I concur in the opinion of Judges Beasley and Gillis.

One issue which requires more extended discussion may be referred to as "a tale of two instructions."

The jury in every criminal case must be instructed on the presumption of innocence, the burden of proof on the prosecutor, and the definition of reasonable doubt. Under Administrative Order No. 1977-1, 399 Mich lxxii, members of the bench and bar are "urged," but not required, to use the Michigan Criminal Jury Instructions, which contain proposed instructions on these issues in CJI 3:1:02, 3:1:03, and 3:1:04 or 3:1:05.

[176 MICHAPP 558] Problems arose, among others, with CJI 3:1:12, Witnesses-Conflicting Testimony, and 3:1:10, Mixed Direct and Circumstantial Evidence. As must be obvious, conflicting testimony arises in almost every criminal case, whereas circumstantial evidence is recognized as occurring in a much smaller, though substantial, percentage of the cases.

Former instruction CJI 3:1:12 (since deleted as of July 13, 1984) contained a paragraph 3 which read as follows:

"However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant."

This instruction was based on People v. Crofoot, 254 Mich. 167, 235 N.W. 883 (1931). The Supreme Court declined to reverse for failure to give the Crofoot instruction in People v. Larco, 331 Mich. 420, 49 N.W.2d 358 (1951), since other instructions addressed the presumption of innocence, reasonable doubt, and the tests to be applied in determining witness credibility. Accord, People v. Berry, 36 Mich.App. 1, 193 N.W.2d 401 (1971).

Another case emphasizing the need to read instructions as a whole is People v. Stewart, 126 Mich.App. 374, 376, 337 N.W.2d 68 (1983), where this Court noted the Washtenaw circuit bench's belief that CJI 3:1:12(3) does not accurately state the law. A different panel of this Court was equally forthright in People v. Vernon Johnson, 127 Mich.App. 587, 589-590, 339 N.W.2d 489 (1983), stating as follows:

"Although requested to do so, the trial judge refused to give CJI 3:1:12(3).... We do not believe it accurately states the law. The issue is whether there is reasonable doubt as to the guilt [176 MICHAPP 559] of the defendant, not as to which testimony to believe. Certainly conflicting testimony may create a reasonable doubt but we find no basis for the statement that the jury has a duty to accept any testimony where there is a conflict."

When CJI 3:1:12 was deleted on July 13, 1984, by the Michigan State Bar Special Committee on Standard Criminal Jury Instructions, the committee noted:

"The essence of instructions contained in CJI 3:1:12 has been moved into more general instructions: CJI 3:1:12(2) now appears in CJI 3:1:11(2), and CJI 3:1:12(3) appears in proposed CJI 3:1:03(3)."

It is worth noting that proposed CJI 3:1:03(3) was never adopted.

An instruction paralleling the late and unlamented former CJI 3:1:12(3) appeared in CJI 3:1:10(6) and (7).

Judge Learned Hand in United States v. Becker, 62 F.2d 1007, 1010 (CA 2, 1933), described a cautionary circumstantial evidence charge as "a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial."

The United States Supreme Court has abolished the requirement of any such cautionary charge in the federal courts. See Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150, 166 (1954). The United States Supreme Court found an admonishment unnecessary because it considered circumstantial evidence the probative equivalent of direct evidence and because reasonable doubt instructions adequately protected a defendant from a poorly proven case. Numerous states have followed Holland. See, Note, The circumstantial evidence charge in Texas criminal [176 MICHAPP 560] cases: a retrograde doctrine, 55 Tex L R 1255 (1977).

In this country, the case of Commonwealth v. Webster, 59 Mass. 295 (1850), achieved great popularity and the jury instruction repeated therein by the author, Chief Justice Shaw of Massachusetts, sounding as it did terribly learned, was picked up and quoted all across the country. Because Justice Shaw's words, having been repeated time and again by judges repeating them because some other judge had used them, have become very familiar to lawyers, they have therefore become as comforting as litanies repeated in other contexts.

The difference is, jury instructions are theoretically intended to be heard by lay people, to whom Chief Justice Shaw's 1850 lecture is just so much mumbo jumbo. For an entertaining and downright devastating dismemberment of Justice Shaw's recommended jury charge, see People v. Brigham, 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 100 (1979), especially the concurring opinion of Justice Mosk, 25 Cal.3d at 292-316, 157 Cal.Rptr. at 911-927, 599 P.2d at 106-121. Not many of us will seriously claim to be able to unscramble the idea that "a moral certainty" can arise only from consideration of "moral evidence" which must be totally distinguished from "physical evidence."

Justice Shaw's words were picked up in the Michigan case of People v. Foley, 64 Mich. 148, 31 N.W. 94 (1887). In People v. Dellabonda, 265 Mich. 486, 513, 251 N.W. 594 (1933), our Supreme Court held that cautionary instructions on circumstantial evidence should be given "in all cases where the guilt or innocence of the defendant depends entirely upon circumstantial evidence."

The real problem with the cautionary instruction originally found in CJI 3:1:10(7), now CJI 4:2:02(7), like the instruction formerly found in [176 MICHAPP 561] CJI 3:1:12(3), is that it requires the prosecution to prove its case to a higher degree of certainty than the already-high standard of proof of guilt beyond a reasonable doubt, in order to convict.

Even worse, it tells the jury that it is their "duty" to accept the construction indicating innocence. That is wrong. It is wrong to tell the jurors that they have a duty to acquit, even though they find that the people have established the guilt of the defendant beyond a reasonable doubt, just as it would be wrong to tell jurors that they may convict even if they do have a reasonable doubt as to the guilt of the defendant. The test of guilt has been, and hopefully will continue to be, whether or not the prosecution has proven the defendant's guilt beyond a reasonable doubt.

A defendant may come forth with a reasonable sounding story. A jury may find that this version of the facts is "reasonable." Nevertheless, if the jurors do not believe this "reasonable" story, and are convinced that the prosecution has proven the defendant guilty beyond a reasonable doubt, they should be allowed to convict.

I have searched the records of the Michigan Court of Appeals and the Michigan Supreme Court for every reported case in which CJI 3:1:10 or 4:2:02 has been cited. I have found no reported case in which 3:1:10(7) or 4:2:02(7) has been given after being requested by counsel. Yet, in every single case, on that issue at least, the Michigan Court of Appeals has affirmed. Over and over again, judges writing in the Court of Appeals have found some smidgen of evidence which is not circumstantial evidence (it is really extremely difficult to imagine any sort of case in...