People v. Murphy

• Decision Date: 05 August 1983
• Docket Number: Docket No. 58782
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angerlean MURPHY, Defendant-Appellant. 126 Mich.App. 379, 337 N.W.2d 70
• Court: Court of Appeal of Michigan — District of US

Page 70

337 N.W.2d 70

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angerlean MURPHY, Defendant-Appellant.

Docket No. 58782.

126 Mich.App. 379, 337 N.W.2d 70

Court of Appeals of Michigan.

Submitted Feb. 1, 1983.

Decided June 7, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 380] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, First Asst. Pros. Atty., for the People.

[126 MICHAPP 381] Jean L. King, Ann Arbor, for defendant-appellant.

Before T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.

PER CURIAM.

On February 18, 1981, defendant was convicted by a jury of carrying a concealed weapon. M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Defendant was sentenced to one year and four months to five years in prison. She appeals as of right, claiming error in four respects.

Defendant first argues that the trial judge erred in his instructions to the jury. At trial, defense counsel requested that the judge instruct the jury on mixed direct and circumstantial evidence by giving CJI 3:1:10. The judge agreed to give the instruction except for subparagraph (7) of CJI 3:1:10 which at that time read:

"If the evidence is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence."

Apparently, the Washtenaw circuit bench believes this subparagraph does not correctly state the law of Michigan. The judge instead instructed:

"The Prosecution does not have to specifically disprove every reasonable hypothesis consistent with Defendant's guilt [sic--innocence]. Such an innocent hypothesis must be of a compelling nature that it creates a reasonable doubt in your mind."

Defendant's failure to object to the above instruction will not bar appellate review if a manifest-injustice will result. People v. Wright, 408 Mich. 1, 30 fn. 13, 289 N.W.2d 1 (1980). Under the first prong of the two-pronged harmless error test, [126 MICHAPP 382] see People v. Swan, 56 Mich.App. 22, 223 N.W.2d 346 (1974), lv. den. 395 Mich. 810 (1975), these instructions were not so offensive that they could never be deemed harmless. Under the second prong, the direct evidence that defendant was carrying a .22 caliber pistol and the circumstantial evidence that bullet holes and shell casings were found where the shooting occurred are overwhelming proof that defendant was carrying a weapon. The "reasonable" hypothesis defense counsel put forth was that defendant may have carried a blank starter pistol. Defendant argues that the instructions as given interfered with the jury's duty to properly weigh this hypothesis. In light of the evidence, absence of this instruction would not have raised a reasonable doubt in the mind of a single juror. Any error was, therefore, harmless beyond a reasonable doubt.

Although we consider any error to be harmless in this case, the issue illustrates the danger of ad hoc modification of standard criminal jury instructions. This is not a case where the court simply refused to give a paragraph of the standard instructions which was otherwise amply covered by other instructions to the jury. This case presents an instruction which was itself confusing, even ignoring the judge's accidental use of the word "guilt" instead of "innocence".

Next, it is argued that the prosecutor improperly commented on defendant's failure to take the stand. The comment was a reference to the fact that only defendant would know where the gun was. Again, defendant failed to object. This Court is therefore limited to determining whether a manifest injustice will result. Under the standards of Swan, supra, such an indirect inference that defendant had exercised her right to remain silent, [126 MICHAPP 383] in conjunction with the fact that defense counsel repeatedly mentioned the lack of a weapon at trial, does not amount to such an offensive act that it could never be deemed harmless. Moreover, in light of the overwhelming evidence, i.e., the unrefuted testimony of three witnesses that they saw defendant with a .22-caliber pistol, and the...