People v. Moss

• Citation: 245 N.W.2d 389,70 Mich.App. 18
• Decision Date: 19 July 1976
• Docket Number: 20315,Docket Nos. 19796
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen MOSS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Edwin TILLEY, Defendant-Appellant. 70 Mich.App. 18, 245 N.W.2d 389
• Court: Court of Appeal of Michigan — District of US

Page 389

245 N.W.2d 389

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Allen MOSS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Edwin TILLEY, Defendant-Appellant.

Docket Nos. 19796, 20315.

70 Mich.App. 18, 245 N.W.2d 389

Court of Appeals of Michigan.

July 19, 1976.

Rehearing Denied Aug. 26 and Sept. 13, 1976.

Released for Publication Sept. 15, 1976.

[70 MICHAPP 20] Liberson, Fink, Feiler, Crystal & Burdick, by Neil H. Fink, Detroit, for moss.

Fenton, Nederlander, Dodge, Barris, Gribbs, Ritchie & Crehan, P.C., by Alexander B. Ritchie, Detroit, F. Lee Bailey (cocounsel), Boston, Mass., for Tilley.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate

Chief Asst. Pros. Atty. (in 20315), Dominick R. Carnovale, Appellate Chief Asst. Pros. Atty. (in 19796), Ronald P. Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

[70 MICHAPP 21] Before D. E. HOLBROOK, P.J., and J. H. GILLIS and KELLY, JJ.

D. E. HOLBROOK, Presiding Judge.

This opinion is written after Judge Kelly wrote his opinion affirming the conviction of Dennis Edwin Tilley for first-degree murder, and reversing the conviction of David Allen Moss for manslaughter. These cases had previously been consolidated for hearing on appeal.

We agree with Judge Kelly in his opinion as to defendant Tilley, affirming the conviction. We are constrained to write this opinion for affirmance of the conviction of defendant Moss.

We are convinced that the evidence was sufficient for the jury to find defendant Moss guilty of manslaughter. The court below gave the following jury instructions regarding 'independent intervening cause':

'The People allege that the decedent's death was brought about because of an unlawful act, resisting arrest and assault and battery by defendant Moss.

'With regard to the unlawful act, there must be such a relation between the commission of the unlawful act and the killing that it logically follows that the killing occurred as a part of the preparation of, or attempt to commit the unlawful act. The death must be due to the unlawful act of the accused and not due to the intervening act or negligence of a third person, which was unforeseeable, or to an independent intervening cause in which the accused did not participate and which he could not foresee; and the death must have been the natural and probable consequence of the unlawful act, and the act the proximate cause of the death.

'If you find that the defendant Moss is guilty of resisting arrest or assault and battery, you also find that the killing was the direct and proximate result of the commission of an unlawful act, you will find defendant Moss guilty of manslaughter. However, if you find [70 MICHAPP 22] that defendant Moss was not guilty of either resisting arrest or assault and battery, or if you find that the killing was not the direct and proximate cause of the commission of either of these acts or if the killing resulted from the intervening act of a third person or some independent intervening cause, then you must find defendant Moss not guilty of manslaughter.'

Apparently the jury felt that the unlawful acts of defendant Moss were the proximate cause of the death of the two victims in this case, and that the acts of defendant Tilley did not constitute an independent intervening cause, for the jury found defendant Moss guilty as charged. Of course, the determination of proximate causation or of the existence of an independent intervening cause is one to be answered by a properly instructed jury. See, E.g., People v. Flenon, 42 Mich.App. 457, 202 N.W.2d 471 (1972), Lv. den. 388 Mich. 801 (1972). Nevertheless, the opinion for reversal concludes that defendant Tilley's intervention was an independent intervening cause of death and that the acts of defendant Moss were not the proximate cause of the deaths in question. The opinion for reversal states: 'In the instant case, the evidence does not show that defendant's behavior in fighting with Officer Mickel and resisting arrest directly caused death.' Thus, it becomes obvious that the opinion for reversal takes a view of the facts in evidence in this case which is in opposition to that taken by the jury which convicted defendant Moss. It is stated at p. 3 of the opinion for reversal: 'It is a fair inference that Moss fled during the shooting.' It is respectfully submitted that the transcript in this case contradicts the quoted statement from the opinion for reversal, and that it would be an unfair inference to conclude that defendant Moss was fleeing during the [70 MICHAPP 23] shooting. It is true that many of the witnesses stated that they did not know where defendant Moss was at the precise instant the shots were being fired. But this was generally explained by the 'Q. (Mr. Boak, assistant prosecutor): Who was fighting at that time?

witnesses as a result of the fact that they were watching the shooting itself, and not looking for defendant Moss. However, the following testimony was given at trial:

'A. (Mr. Staake, witness): All three.

'Q. All three people?

'A. Right.

'Q. The man who had been holding the gun?

'A. Right.

'Q. And the two defendants?

'A. Right.

'Q. Where were they at that time?

'A. They were right in the parking lot, right there, right outside the window.

'Q. Were they standing or were they on the ground?

'A. They were standing.

'Q. Where was the gun at that time, if you know?

'A. I didn't see the gun.

'Q. What happened after that?

'A. Well, after that it was just so quick. I seen the gun fell (sic) two or three times, as far as I know.

'Q. Did you see who picked it up on those occasions?

'A. Right, I can't be sure, but if I remember correctly, Moss picked it up once and didn't use it, and then it was just more shuffling. Then it fell again, and I think the policeman held the gun and I think it dropped from him and then the other fellow picked it up.

'Q. Mr. Tilley?

'A. Right.

'Q. What happened then?

'A. Well, there was about maybe three seconds, four seconds and then he just started firing.

[70 MICHAPP 24] 'Q. In what direction was he firing?

'A. At the policeman.

'Q. The other person that was out there?

'A. Right.

'Q. Where was he in relation to Mr. Tilley, the man who was firing the gun, how far away?

'A. It couldn't have been more than three feet, three, four feet.

'Q. Was he facing him?

'A. Yes.

'Q. What was the person who did not have the gun doing at that time?

'A. Which one is that?

'Q. The person who did not have the gun.

'A. There was two.

'Q. Did you see Mr. Moss?

'A. Yes.

'Q. What was he doing?

'A. Well, he was there, but I don't know. I guess he was just standing there.'

It is apparent from the above-quoted testimony that the witness saw defendant Moss after defendant Tilley had obtained the deceased deputy's gun.

'Q. (Mr. Ritchie, for defendant Tilley): Thank you. All right. You remember the men were struggling. The weapon was dropped on several occasions as you described and then what happened?

'A. (Mr. Staake): Well, the party Tilley picked up the gun when it was dropped and pointed it for three seconds or so and then began shooting at the officer.

'Q. (Mr. Wisok, for defendant Moss): Now, where were these people, the other people, when you say Mr. Tilley pointed the gun at the decedent?

'A. (Mr. Staake): I think they were still on him.'

The jury could have certainly found from the above testimony that defendant Moss did something[70 MICHAPP 25] more than simply disarm the officer and flee the scene. Another witness testified as to the events which occurred when one of the bouncers in the restaurant approached the deceased officer who had placed defendant Moss in a spread eagle position against a car in the parking lot:

'A. (Miss Primm, witness): The man said, 'I do not believe you're a policeman.'

'Q. (Mr. Boak): What happened then?

'A. Mr. Mickel pulled in his wallet back here and he took out and he showed the man his I.D. He said, 'Will you please call the police?' And the guy walked back inside.

'Q. What happened after the man walked back inside?

'A. Then Moss started to get away. He started pushing, you now, (sic) trying to get away and that, and he started to get away.

'Well, before he did start to get away, Tilley was standing behind the police officer, Mr. Mickel, and he started to say, 'Shoot me, cop, shoot me, kill me. Put the gun on me.'

'And Mr. Mickel said, 'Just go away. You're not under arrest. Just leave.'

'And he kept saying this and saying this and Mickel kept looking back. This is when Moss started to get away and they started fighting.

'Q. Who started fighting?

'A. Mr. Mickel and Mr. Moss. Then Mr. Mickel hit Mr. Moss on the head back here a couple of times trying to stop him.

'Q. What was Mr. Moss doing at that time when he got hit?

'A. He was still fighting.

'Q. Where was Mr. Tilley?

'A. He was still standing where he was. Then they came like near Mr. Tilley, and then Mr. Tilley started getting into it.

'Q. What happened at that point?

[70 MICHAPP 26] 'A. The next thing I seen, I seen Mr. Tilley have the gun, waving it up in the air.

'Q. You're indicating. Is your finger sort of the barrel of the gun?

'A. Right. It was like this.

'Q. He was waving it up in the air?

'A. Right.

'Q. What happened then?

'A. Then they took the police officer and put him spread-eagle against the car. That was right in front of the door of the restaurant, the entrance going into the restaurant.

'Q. What happened then?

'A. Well, they had him there, both of them were holding him. Tilley was on the this (sic) side and Mr. Moss was on this side. He started to get away. And I seen Mr. Tilley and Mr. Mickel by the door, the entrance to the Nugget. I seen them starting to go by there because Mr. Mickel started getting away from him, From both of them, and I seen backfires of a gun. I heard shots three times.

'A. Well, he still kept, he started fighting. He turned around and h...