People v. Perry

• Citation: 218 Mich.App. 520,554 N.W.2d 362
• Decision Date: 30 August 1996
• Docket Number: Docket No. 143422
• Parties: PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Michael Lee PERRY, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 362

554 N.W.2d 362

218 Mich.App. 520

PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Michael Lee PERRY, Defendant-Appellant.

Docket No. 143422.

Court of Appeals of Michigan.

Submitted Nov. 9, 1995, at Grand Rapids.

Decided Aug. 30, 1996, at 9:00 a.m.

Released for Publication Oct. 15, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the People.

State Appellate Defender by Susan M. Meinberg, for the defendant on appeal.

Before O'CONNELL, P.J., and BANDSTRA and J.M. BATZER, ^* JJ.

J.M. BATZER, Judge.

On February 21, 1991, defendant was convicted by a jury in the Saginaw Circuit Court, Judge Leopold P. Borrello presiding, of three counts of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548 (with the underlying felony being arson, M.C.L. § 750.72; M.S.A. § 28.267), and three counts of attempted murder, M.C.L. § 750.91; M.S.A. § 28.286. On June 27, 1991, the circuit court ruled that defendant would be sentenced as an adult. Defendant received life sentences for the murder convictions and sentences of ten to twenty years for the attempted murder convictions. Defendant appeals as of right, and we now affirm.

In June of 1990, thirteen-year-old Jacinto (Jason) Ricco lived in Saginaw, Michigan, with his mother and two sisters, Yolanda and Miriam Amanda Ricco. For a number of years, tense relations had existed between Jason Ricco and the Rollie family, who lived a few houses away from the Ricco's on a different street in the same neighborhood, though Jason's sisters socialized, played, and were friends with the Rollie children. In August of 1989, Jason threatened to kill some members of the Rollie household. On the same occasion, Jason Ricco stood outside the Rollie house and yelled threats involving a firebomb.

During the evening of June 13, 1990, adolescent friends and acquaintances of Jason Ricco, including defendant, gathered at the Ricco home and engaged in various recreational activities, including underage drinking. These young people were left overnight, unsupervised by any adult. Between 4:00 a.m. and 5:00 a.m. on June 14, defendant and Jason Ricco left the house together, after having stated they were going out to "cause trouble." When they ran back into the house a few minutes later, they stated that they had set the Rollie house on fire by throwing a firebomb, which Jason had lit and defendant had held and thrown. Jason Ricco explained that they had thrown the firebomb because of "a feud." Defendant and Jason argued about whether the matches dropped by Jason near the Rollie house should be retrieved and blamed each other for setting the fire. There was testimony that defendant had said he threw the firebomb because Jason told him to throw it and that Jason said he did not think the defendant would actually do it.

The Rollie house was ablaze. Yolanda Ricco had seen the blaze from her bedroom window and heard the screams of her friends, the Rollie children. Yolanda Ricco was very upset about the fire, but "someone," possibly the defendant, prevented her from calling the fire department or leaving the house. After a friend refused to dispose of a gasoline can for them, defendant and Ricco talked in the bathroom about disposing of evidence, and the toilet was flushed several times. Traces of the type of fuel that had started the Rollie house fire were later found in the toilet.

Both Rollie parents and one child escaped from their burning home, but the other three Rollie children were unable to make their way out. They perished in the fire because of smoke inhalation. The house burned to the ground.

Jason Ricco testified that at some time after 4:00 a.m. on June 14, 1990, he and defendant discussed "causing some trouble or something." According to Ricco, the two youths went together to the Ricco garage and retrieved two Molotov cocktail firebombs, with the intention of throwing them somewhere, such as into a yard. Defendant carried both bombs toward the Rollie home and stated that he wanted to light them because of a feud between himself and a neighbor of the Rollies. Jason Ricco was carrying matches, and defendant had a towel so that he "wouldn't get his fingerprints on the bottles." When they reached the Rollie home, defendant set the firebombs down. Jason Ricco lit one of them, defendant said he was going to throw it into the Rollie home, and Ricco told him not to. Ricco turned, ran toward his home, and heard two "whooshes" when the Molotov cocktails ignited, but did not see the bombs being thrown into the Rollie house by the defendant.

Inspector Joseph Dziuban, an arson investigator for the Saginaw Fire Department working with the Saginaw Police, opined on the basis of burn patterns, traces of accelerants, and the location of glass fragments from the bottles found at the scene that two firebombs had been thrown through two different living room windows, causing the conflagration.

Jason Ricco was tried in juvenile court and was acquitted of murder, but was found guilty of arson.

I

Defendant first argues that the trial court erred in failing to give the proper instruction concerning the testimony of an undisputed accomplice. Defendant contends that the jury was thereby grossly misled with respect to an issue crucial to its deliberations. Defendant contends that the issue of defendant's guilt was closely drawn, because defendant and Jason Ricco were the only two people who knew what happened with the two firebombs immediately before they were thrown into the Rollie house. The jury had to decide whether the defendant's presumption of innocence had been overcome by the testimony of the accomplice. Defendant, however, failed to raise or preserve at trial this jury instruction issue concerning the evaluation of accomplice testimony.

The determination whether a jury instruction is accurate and applicable in view of all the factors present in a particular case lies within the sound discretion of the trial court. Williams v. Coleman, 194 Mich.App. 606, 623, 488 N.W.2d 464 (1992). This Court reads jury instructions in their entirety to determine whether error requiring reversal of the conviction occurred. Instructions that are somewhat imperfect are acceptable, as long as they fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant. People v. Gaydosh, 203 Mich.App. 235, 237, 512 N.W.2d 65 (1994).

In my opinion, the trial court did not abuse its discretion in failing to instruct the jury pursuant to CJI2d 5.4 that Jason Ricco was an undisputed accomplice.

Rather, the trial court pursuant to CJI2d 5.5 gave the jury the following instructions concerning a disputed accomplice:

Before you may consider what Jacinto [Jason] Ricco said in court, you must decide whether he took part in the crime the defendant is charged with committing. Jacinto Ricco has not admitted taking part in the crime, but there is evidence to lead you to think that he did. A person who knowingly and willingly accepts or cooperates with someone else in committing the crime is called an accomplice.

When you think about Jacinto Ricco's testimony, first decide if he was an accomplice. If, after thinking about all the evidence, you decide that he did not take part in this crime, judge his testimony as you judge that of any other witness. But if you decide that Jacinto Ricco was an accomplice, then you must consider his testimony in the following way:

The court then gave the standard instruction concerning accomplice testimony, CJI2d 5.6, with which the defendant does not take issue. The prosecutor later placed on the record an unsuccessful objection to these instructions, arguing that because Ricco had not admitted participating in the crime with which the defendant was charged, an instruction to use extra caution in considering his testimony was inappropriate. Defendant now claims that giving the jury the option to find that Ricco was not an accomplice, and thus to disregard the cautionary instruction regarding accomplice testimony, was an error requiring reversal of the convictions.

In People v. Jensen, 162 Mich.App. 171, 412 N.W.2d 681 (1987), the defendant purchased an automobile from David Bart. In applying to the Secretary of State for a transfer of the automobile's title, the defendant presented a title certificate that falsely stated that no liens with respect to the vehicle were outstanding. Before the defendant's trial for making a false application for an automobile title, Bart was charged with forging a title and knowingly possessing a forged title. Bart was offered an opportunity to plead to the misdemeanor of possession of an altered title in exchange for his testimony at the defendant's trial. At trial, Bart testified that the false statement was not on the title certificate when he transferred it to the defendant. The defendant testified to the contrary that when he received the title from Bart, it had indicated that the lien had been discharged. In Jensen, as in the instant case, the court gave the standard criminal jury instructions concerning the testimony of a disputed accomplice. The defendant made no objection. This Court reversed the defendant's conviction, reasoning as follows:

The trial court erred in instructing the jurors that they were to make a factual determination of whether Bart was an accomplice. Bart admitted on direct examination that he was originally charged with forging a certificate of title and knowingly possessing a forged title. He also testified that he pled guilty to possession of a false or altered title in exchange for his testimony against defendant, but had not yet been sentenced. Through Bart's own admissions and his guilty plea to a reduced charge arising from the incident, his status as an accomplice was beyond dispute.... Proper instruction was especially necessary in the instant case,...