People v. Richardson

Decision Date24 June 1980
Docket NumberNo. 4,Docket No. 60406,4
Citation293 N.W.2d 332,409 Mich. 126
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse J. RICHARDSON, Jr., Defendant-Appellant. Calendar 409 Mich. 126, 293 N.W.2d 332
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Detroit, Frank J. Bernacki, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Peter Jon Van Hoek, Barbara Levine, Asst. State Appellate Defenders, Detroit, for defendant-appellant.

RYAN, Justice.

We granted leave to appeal in this case to consider a number of issues, including whether a trial judge's refusal to give a properly requested lesser included offense instruction is harmless error in a case where the jury was instructed on some other lesser offenses and returned a verdict of guilty on a higher, charged offense.

Our review of the record reveals two errors which require reversal of the defendant's conviction and remand for a new trial. First, on the record evidence in this case, the defendant was entitled to have the jury instructed on the lesser offenses of involuntary manslaughter 1 and reckless use of a firearm causing death or injury. 2 The refusal to give instructions on those properly requested and applicable lesser offenses was, in this case, prejudicial error. Second, the trial judge's instructions on the element of malice, in stating that the law implies malice from a sudden, unprovoked killing and that in the absence of contrary evidence malice may be inferred from use of a deadly weapon, had the reversibly erroneous effect of suggesting to the jury that the prosecution need not establish the necessary factual element of malice beyond a reasonable doubt. See People v. Wright, 408 Mich. 1, 289 N.W.2d 1 (1980). In view of the record evidence and the defendant's theory of the case, these instructional errors were prejudicial and likewise require reversal.

I

Defendant Jesse James Richarson, Jr. was convicted of first-degree murder 3 by a City of Detroit Recorder's Court jury on June 13, 1975. The Court of Appeals affirmed the conviction. 4 On reconsideration of an earlier order denying leave to appeal, 5 we granted leave to consider whether the trial judge's refusal of the defendant's request for certain lesser included offense instructions required reversal where the jury was instructed on other lesser offenses and returned a verdict of guilty on the highest, charged offense. 6

The Court of Appeals summarized the testimony which was offered at the defendant's trial:

"On April 23, 1975, defendant was at the residence of Charles Johnson when an altercation arose between defendant and Marshall Cook, the brother of the decedent, Paul Cook. Marshall Cook testified that he beat defendant about the head with a brick in order to stop defendant from fighting another man. Defendant was cut badly and was bleeding profusely from two head wounds which ultimately required 22 stitches.

"Charles Johnson testified that he asked defendant if he could take him to a clinic for treatment. Johnson states he took defendant to the clinic but the defendant refused to stay long enough for medical treatment. Johnson then took defendant home. Johnson states than when they arrived at defendant's home defendant got a box of shells and two rifles. Johnson observed defendant loading both rifles and getting a knife from a drawer. Linda Steen, defendant's common-law wife, then called defendant's father to request his assistance in taking defendant to the hospital. According to Johnson, defendant got on the phone and said to his father: 'I'm going to kill this mother fucker'. At this point Johnson left and told Marshall Cook to get off the street.

"At approximately 5:30 p. m., Miss Steen, her ten-year-old daughter Sonja, defendant and his father left for Deaconess Hospital. Defendant's father was driving. Defendant gave some amount of direction. Defendant had placed a rifle under the front seat of the car before leaving the house. His wife and father described him as being 'agitated' and uncommunicative.

"At approximately 6 p. m., as the car rounded a corner, defendant spotted Paul Cook brother of his assailant Marshall Cook, and asked his father to stop the car. Paul was walking down the street, drinking a can of beer, in the company of one Glenn Spencer.

"Glenn Spencer, a good friend of the Cook family and a stranger to defendant, testified that defendant got out of the car and said to Paul, 'your brother just busted my mother fucking head'. Defendant then reached in the car for the rifle. Paul said he knew nothing about the beating. Defendant cocked the rifle and ejected an empty shell. Paul again said he had nothing to do with the beating. Defendant bent down to pick up the empty shell. As he arose he pushed Paul, who had approached him with his arms extended. Defendant then rapidly shot him twice. According to Spencer, Paul was facing the defendant when the first shot was fired. After the shot was fired, Paul fell backwards and was lying partially on his side when the second shot was fired. At no time did Paul turn his back on defendant. Spencer claimed to have seen the entire incident, although he began moving away as soon as he saw the rifle. By the time he heard the first shot he was two or three houses down the street. He said he never turned his back on the two men, but watched them as he trotted backwards down the street. He said the whole incident occurred in half a minute or less. Further, just before the shots were fired Spencer heard someone in the car say, 'Jesse don't do that'.

"After the shooting, defendant got back in the car and left the scene. He proceeded to the hospital where he remained for several hours while his head wounds were treated. He then returned home. Defendant was arrested while cleaning up the dried blood from his own injuries.

"Defendant testified in his own behalf. His theory was that the shooting had been accidental. He testified that he had stopped to speak to Paul Cook because, although he and Marshall had never gotten along well, he and Paul were good friends. He wanted to tell Paul that he didn't intend to press charges, but that he wanted to talk to Marshall after they had 'gotten themselves together' about why Marshall would want to 'mess him up like that'. Defendant said that when he exited the car he and Paul got into an argument because Paul laughed about the head injuries as if they were a 'big joke'. The argument escalated into cursing and pushing. When Paul shoved him back towards the car the defendant pulled the gun out, butt end first. As he swung the rifle around Paul grabbed the barrel. The two men wrestled and the gun went off. Paul fell to the ground still holding onto the gun. Defendant pulled the gun away, got back in the car and left. He said he did not stop to check on Paul's injuries because he did not believe Paul had been shot. He also said that Glenn Spencer 'took off' when the gun first appeared." 77 Mich.App. 414-416, 258 N.W.2d 743.

To the foregoing account we would add that there was testimony that on the day of the killing, the defendant, while enroute to the local employment security commission office and some time before his altercation with Marshall Cook, encountered the decedent Paul Cook and another man named Curt. A conversation occurred at that meeting, during which it was suggested that some beer he obtained for consumption by the three men. The defendant told his two companions that he could not then indulge in any beer drinking because he was on his way to the "unemployment office". Later in the day, the defendant joined a group of persons at Johnson's house who were periodically pooling funds in order to purchase wine for the group's consumption. The defendant testified that after a while he decided to leave Johnson's, and after declaring that intention, he refused to contribute more change to the wine fund. It was then that Marshall Cook, after expressing a belief that the defendant had obtained some money at the "unemployment office", became agitated and beat the defendant. Defendant's testimony indicated that Marshall's belief that the defendant had some money was based on information obtained from Paul Cook. The prosecutor argues that the defendant apparently believed that Paul Cook had thus "set him up" for the beating administered by Marshall.

At the conclusion of the proofs, defense counsel requested the court to instruct the jury on the charged offense of first-degree murder only. The trial judge denied the request, and stated that he would instruct on first and second-degree murder, at least. 7 Defense counsel then requested the court to instruct on the additional lesser offenses of manslaughter 8 and reckless use of a firearm causing death or injury. The trial judge refused to instruct on reckless use of a firearm causing death or injury because he interpreted the information as not encompassing that offense. He did instruct the jury on the offenses of first- and second-degree murder and voluntary manslaughter.

The jury returned a verdict of guilty of first-degree murder.

II

The rule in Michigan has long been:

"Where a request has been made to charge the jury on a lesser included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser offense, refusal to give the requested instruction is reversible error but, in the absence of such a request, the trial court does not err by failing to instruct on the included offenses. People v. Jones, 273 Mich. 430, 263 N.W. 417 (1935)." People v. Phillips, 385 Mich. 30, 36, 187 N.W.2d 211, 214 (1971).

Because the lesser offenses of involuntary manslaughter 9 and reckless use of firearms are not necessarily included lesser offenses, the rule of People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975), requiring instructions on all necessarily...

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