People v. Richardson

• Citation: 258 N.W.2d 741,77 Mich.App. 411
• Decision Date: 22 August 1977
• Docket Number: Docket No. 25340
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse James RICHARDSON, Defendant-Appellant. 77 Mich.App. 411, 258 N.W.2d 741
• Court: Court of Appeal of Michigan (US)

Page 741

258 N.W.2d 741

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse James RICHARDSON, Defendant-Appellant.

Docket No. 25340.

77 Mich.App. 411, 258 N.W.2d 741

Court of Appeals of Michigan.

Aug. 22, 1977.

Released for Publication Oct. 27, 1977.

[77 MICHAPP 413] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Robert H. Butler, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and WALSH and O'BRIEN, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant Jesse James Richardson, Jr., was charged with first-degree murder contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. On June 13, 1975, defendant was convicted by a jury in Recorder's Court for the City of Detroit. Defendant was sentenced to life imprisonment on July 1, 1975. Claim of appeal was filed on August 15, [77 MICHAPP 414] 1975. Defendant appeals as a matter of right under GCR 1963, 806.1.

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 that 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 [77 MICHAPP 415] 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.

[77 MICHAPP 416] 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.

At the close of proofs, defense counsel moved for a directed verdict on the ground that the evidence was insufficient to show premeditation. The trial court denied the motion.

Prior to the trial court's instructions to the jury, defense counsel requested the court to instruct them on only first-degree murder. The trial court declined to require an all-or-nothing verdict. Counsel then requested instructions on the lesser included offenses of manslaughter and reckless discharge of a firearm on the ground that the elements of those offenses were consistent with the proofs in the case. The court declined to instruct on reckless use because the information had not included such a count.

[77 MICHAPP 417] However, the court did instruct the jury on the offenses of first-degree murder, second-degree murder and voluntary manslaughter. At the conclusion of its instructions, the court asked defense counsel whether they had any objections. Defense counsel objected to the court's failure to charge the jury regarding accidental death and the court suggested defense counsel write an appropriate additional instruction on this defense theory. With the jury waiting to begin deliberation, defense counsel wrote an instruction. The court then recalled the jury and charged them thusly:

"Ladies and Gentlemen, I'm going to reiterate, you should consider all the various possible verdicts, consider them at the same time. In considering the elements of the various crimes as I've described them to you in your deliberations. You may find the defendant guilty of murder in the first degree, or you may find him guilty of murder in the second degree, or you may find him guilty of manslaughter, or you may find that the resulting death was the result of an accidental discharge of the gun without any intent to kill or to inflict any serious injury; then, of course, you must then find the defendant not guilty."

Shortly afterward, the jury requested additional clarification as to whether the bullet entered the decedent from the front or back. Consequently, those portions of the medical testimony of Dr. Satish Shah regarding the autopsy were reread to the jury. The record does not indicate which portion was actually read. The court then turned to the foreman and inquired:

"Your deliberations was based on the point of entry and is it cleared up well enough? Is that what you said?

"JUROR MAYS: That's correct.

[77 MICHAPP 418] "THE COURT: All right. You may resume your deliberations."

The jury resumed deliberations and defense counsel objected that material points had been omitted when the testimony was read back and expressed the fear that the jury had been misled. He noted that the testimony about the fragmentation of one bullet and resulting multiple points of entry were clarified on cross-examination. He insisted that the portion reread to the jury had been taken out of context. The judge replied that the testimony read had satisfied the jury and that was enough. At 3:36 p.m. on June 13, 1975, the jury returned a verdict of guilty of first-degree murder. Defense counsel reacted with the following motion:

"Your Honor, can I move for a directed verdict of not at this time I don't believe the facts would sustain a verdict of first degree murder and I move for a mistrial based on the fact that the testimony as read back to the jury indicated he was shot in the back and the fact of the fragmentation of the bullet was not brought out."

The motion was denied by the court.

On appeal, defendant brings several allegations of error. We will discuss each one in order.

Defendant first argues the trial court committed reversible error by denying defendant's motion for a directed verdict because insufficient evidence existed on the elements of premeditation and deliberation to warrant a conviction of first-degree murder.

In order to sustain a conviction for first-degree murder, evidence must be adduced to prove the existence of the statutory elements of premeditation and deliberation in addition to the elements of common-law murder. People v. Vail, 393 Mich. [77 MICHAPP 419] 460, 468-469, 227 N.W.2d 535 (1975), People v. Morrin, 31 Mich.App. 301, 328-330, 187 N.W.2d 434 (1971).

In Morrin, we stated with regard to premeditation and deliberation:

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed...