People v. Ray

• Decision Date: 26 November 1974
• Docket Number: No. 1,Docket No. 17110--1,1
• Citation: People v. Ray, 224 N.W.2d 735, 56 Mich.App. 610 (Mich. App. 1974)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George RAY, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 735

224 N.W.2d 735

56 Mich.App. 610

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.George RAY, Defendant-Appellant.

Docket No. 17110--1.

Court of Appeals of Michigan, Division No. 1.

Nov. 26, 1974.

Released for Publication Jan. 17, 1975.

Gerald M. Lorence, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros.Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and ALLEN and PETERSON,* JJ.

J. H. GILLIS, Presiding Judge.

Defendant was charged with first-degree murder ¹ and found guilty of manslaughter.²On a second count, he was charged with assault with intent to murder, ³ and found guilty of felonious assault.⁴Defendant was sentenced to 10 to 15 years imprisonment on the manslaughter conviction and 2 to 4 years on the felonious assault conviction.He appeals as of right.

Defendant first contends that there was no evidence of either premeditation or malice here, and thus it was error for the trial judge to instruct the jury on both first and second-degree murder.If these contentions are correct, there was reversible error committed even though defendant was convicted of the lesser included offense of manslaughter.The possibility of a compromise verdict cannot be excluded.People v. Hansen, 368 Mich. 344, 118[56 Mich.App. 613] N.W.2d 422 (1962).However, the record reveals sufficient evidence of both malice and premeditation to warrant jury instructions on first and second-degree murder.

The issue of defendant's premeditation is a jury question.If there is no evidence from which the jury could draw a reasonable inference of premeditation, there should be no charge on first-degree murder.People v. Meier, 47 Mich.App. 179, 209 N.W.2d 311(1973).The question we must first deal with, then, is whether there was sufficient evidence introduced at trial to fairly support an inference of premeditation and deliberation.People v. Morrin, 31 Mich.App. 301, 331, 187 N.W.2d 434, 450(1971).

The evidence most favorable to the prosecution showed the following.At 2 p.m. on July 31, 1972, four plainclothed policemen came to defendant's apartment looking for a man named Eric.The police testified that they knocked at the door, announced themselves to be 'police', and requested entry.Obtaining no response, they repeated their actions some 10--30 seconds later.Between the first and second series of knocks, one of the policemen held up his police identification card so that it could be seen through the apartment door peephole.After the second series of knocks, the police turned to leave.At that point, the apartment door opened approximately two inches.Assuming that the occupant was allowing them to enter, one of the officers pushed the door open a total of four inches.He saw defendant inside.At that instant, defendant fired five shots at the police, killing one and wounding another.

We hold that this evidence was sufficient to support an inference of premeditation.If believed, it meets the requirement that 'the interval between the initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look."Morrin, supra, at 31 Mich.App. 330, 187 N.W.2d 449.⁵The evidence most favorable to the state shows that defendant had sufficient time for orderly reflection.

In this case, defendant ofered testimony to show that the police did not identify themselves as such, that they did not show any identification, that his apartment had been robbed by armed men a month earlier, and that the police kicked his door down to gain entrance.The jury obviously considered this testimony, as evidenced by their return of a manslaughter verdict.They ultimately found no premeditation.Nonetheless, there was competent evidence introduced to infer premeditation, and thus the instruction on first degree murder was appropriate.

Defendant further argues that there was insufficient evidence presented at the trial to show malice aforethought.If this contention is true, both the first and second-degree murder charges to the jury were inappropriate.

Malice aforethought is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter.⁶This intent need not be proved by direct positive evidence, it may also be shown by inference.Roberts v. People, 19 Mich. 401(1870).The use of a lethal weapon will support an inference of an intent to kill.People v. Garcia, 36 Mich.App. 141, 193 N.W.2d 187(1971);People v. McKeller, 30 Mich.App. 135, 185 N.W.2d 905(1971).In this casethe prosecution's testimony that defendant fired five shots at the police officers from close range supports the inference of an intent to kill from these facts and warranted the instructions given.

Defendant also argues that the failure of the trial judge to give instructions on simple assault and assault and battery as lesser included offenses of assault with intent to murder requires reversal on that count.Assault with intent to murder does not include the offense of assault and battery.People v. Stram, 40 Mich.App. 249, 198 N.W.2d 753(1972).A trial judge should refuse a requested instruction when no evidence has been introduced to support a conviction on a lesser included offense.People v. Hearn, 354 Mich. 468, 93 N.W.2d 302(1958).In this case, there is no evidence to support a charge of simple assault.It is uncontroverted that defendant shot and killed the police officer.The trial judge correctly refused to give the requested instruction.

Affirmed.

* WILLIAM R....