People v. Pearson

• Decision Date: 25 September 1968
• Docket Number: Docket No. 2813,No. 2,2
• Citation: 164 N.W.2d 568,13 Mich.App. 371
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan Ross PEARSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 568

164 N.W.2d 568

13 Mich.App. 371

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan Ross PEARSON, Defendant-Appellant.

Docket No. 2813.

Court of Appeals of Michigan, Division No. 2.

Sept. 25, 1968.

Released for Publication Feb. 14, 1969.

Charles J. Porter, Bloomfield Hills, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for appellee.

Before QUINN, P.J., and T. G. KAVANAGH and CORKIN, ^* JJ.

CORKIN, Judge.

On January 19, 1966 the defendant was found guilty of second-degree murder ¹ after trial by jury. It is claimed on appeal that the trial court committed reversible error when in reading the information as part of the instruction he also read the prosecutor's verification contained therein, and that further error was committed by the court in refusing to instruct the jury that they must be convinced beyond a reasonable doubt that the defendant did not act in self-defense. The defendant further contends that he was denied a fair trial because of news items that appeared before and during the trial in the newspaper of general circulation in the area from which the jurors were drawn.

The record shows that the trial commenced on January 11, 1966, and on January 18, 1966, following closing arguments and the court's instructions, the case was submitted to the jury. In the initial stage of the instructions, the court read the information to the jury, including the verification of the prosecutor. Later in the afternoon of the samd day, the jury asked for further instructions and the trial court repeated the entire instruction, again reading the information as above noted. No objection was made to the reading of the verification following either charge.

Defendant contends that in reading the verification the trial judge seemingly transmits his sanction to the sworn statement of the prosecutor that he believes the charge set forth in the iformation. This is grounded on the proposition that the Michigan Supreme Court has found prejudicial error where the prosecutor has made statements to the jury indicating his personal belief in the guilt of the accused; see People v. Quick (1885), 58 Mich. 321, 25 N.W. 302, and People v. Hill (1932), 258 Mich. 79, 241 N.W. 873.

In People v. Clark (1954), 340 Mich. 411, 65 N.W.2d 717, in the course of his charge to the jury, the trial judge referred to the information, indicating the general nature of the various counts. He further stated that he would not read the information in full, but permitted the jury to take 3 copies of the information to the jury room without objection by defendant. In answer to the claim of prejudicial error or appeal, the Court said (pp. 415, 416, 65 N.W.2d p. 719):

'Obviously, even if the judge in his charge had read the entire information, it would have been an impossibility for the jurors to have kept in mind all the provisions of each count. Undoubtedly the members of the jury understood the purpose for which they were supplied with the copies. It may be assumed that they understood that the information was merely a statement of the formal charge, and that it was necessary for them to consider the different counts in determining the guilt or innocence of the defendants thereunder. It is scarcely conceivable that any juror considered the copies furnished as evidence of defendants' guilt. The omission to charge specifically with reference to the matter, particularly in the absence of a request therefor, did not constitute error.'

Under the circumstances of this case, nothing leads us to believe that the jurors did not understand the information as merely a statement of the formal charge. The record shows that after the usual preliminary remarks the court stated that he would read the information filed in the case and proceeded to do so concluding with the simple statement 'That is the information', and then continued the instructions without reference or comment in regard to the information. To paraphrase the court in Clark, supra, it is scarcely conceivable that any juror considered the reading of the entire information as an Imprimatur by the trial court of the prosecutor's verification of the information.

Although it might be better practice not to read the prosecutor's verification when reading an information to a jury as it would not appear to serve any useful purpose, in our opinion in considering the entire charge, it can be fairly said that it is not reasonable to suppose that the jury was misled in any manner that would have affected their verdict.

Secondly, the defendant contends that the trial court erred in refusing to instruct the jury that they must be convinced beyond a reasonable doubt that the defendant did not act in self-defense in order to convict the defendant.

On Friday, January 14, 1966, both the prosecution and defense rested their cases. On Monday, January 17, 1966, both sides discussed with the court, in chambers, the charge in its entirety although the discussion is not a matter of record. On Tuesday, January 18, 1966, the charge was given to the jury initially and again, with every comma and period in place, later in the afternoon when further instructions were requested by the jury. Following the second reading of the instructions, defense counsel made objection that there had been no instruction stating that the prosecution had the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

It is noted that neither the prosecution nor the defense filed requests that the court instruct the jury on the law in any specific area (GCR 1963, 516.1). Also, following the first delivery of the charge, both prosecution and defense expressed themselves as satisfied, and it was only after the jury had retired to deliberate and following repetition of the charge that the objection was made. Were GCR 1963, 516.2 ² completely controlling, the objection would not have been timely made and that would be an end to the matter.

However, we think it is well-settled law in this state that it is the duty of the trial court, in criminal cases, to instruct the jury as to general features of the case, define the offense, and indicate that which it is essential to prove to establish the offense even in the absence of request. See People v. Liggett (1967), 378 Mich. 706, 148 N.W.2d 784. We must therefore consider the charge in its entirety to determine whether it was substantially correct and not prejudicial to the rights of defendant; People v. Haggai (1952), 332 Mich. 467, 52 N.W.2d 186, and People v. Serra (1942), 301 Mich. 124, 3 N.W.2d 35.

Defendant bases his claim of error on the well settled law of this state that in criminal cases where the issue of self-defense has been raised, the burden of proof, beyond a reasonable doubt, still rests with the people, and that the burden is not on defendant to satisfy the jury that he acted in self-defense, but rather the people have the burden of showing facts that would convince a jury beyond a reasonable doubt that defendant did not act in self-defense. People v. Statkiewicz (1929), 247 Mich. 260, 225 N.W. 540, and People v. Asbury (1932), 257 Mich. 297, 241 N.W. 144.

In People v. Hunley (1946), 313 Mich. 688, 21 N.W.2d 923, the request to instruct the jury that the burden was on the people to prove the defendant did not act in self-defense was refused by the trial judge. The appellate court commented that the judge outlined a 'fair charge' making it clear that the presumption of innocence prevailed throughout the case. The court held that the judge was not obliged to charge specifically that the burden was on the peopel to prove that the killing was not done in self-defense, and that the charge that the burden of proof was placed on the prosecution to establish the guilt of the defendant beyond a reasonable doubt was sufficient in that it embodied a fair charge to the jury.

In People v. Asbury, supra, the outlining of the elements of self-defense seemingly put the burden on the defendant to satisfy the jury that he killed in self-defense. The holding in this case was that the erroneous implication generated could not be excused since proper instruction on the burden of proof was omitted. The holding in People v. Statkiewicz, supra, points out that the court cleared up the erroneous implication by the general instructions to the jury, so that they could not be misled.

In reviewing the charge to the jury in this case, we note that the court in its two complete instructions to the jury explained the function of the jury and the purpose of the charge, outlined the burden of proof, the presumption of innocence, and defined reasonable doubt. After pointing out that the jury was the sole judge of the credibility of the witnesses, the court discussed the offenses embraced in the information.

In discussing the claim of self-defense, the court properly outlined the law of assault, resistance, protection, force, justification, and belief in danger and the immediate necessity to act. The defendant argues that to approach the problem of self-defense from this angle places, of necessity, the burden of proof on the defendant. In considering the whole charge, we are not led to this conclusion.

After the instruction on the proper weight to be given to defendant's testimony, the court again directed the jury that they must be satisfied beyond a reasonable doubt and to a moral certainty that the prosecution had proved its case. Under the facts, as disclosed by the record, we are convinced that the charge was a fair one and is not susceptible of an interpretation that the burden of proof was placed on defendant to prove the claim of self-defense.

Defendant's claim that he was denied a fair trial because of news stories that appeared in a local newspaper before and during trial is documented by various newspaper clippings made part of the record on...