People v. Taylor

• Decision Date: 17 September 1985
• Docket Number: 69627 and 74020,Docket Nos. 64115
• Citation: 422 Mich. 554,375 N.W.2d 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guy David TAYLOR, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin JOHNSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald G. TAYLOR, Defendant-Appellant. 422 Mich. 554, 375 N.W.2d 1
• Court: Michigan Supreme Court

Page 1

375 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guy David TAYLOR, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin JOHNSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald G. TAYLOR, Defendant-Appellant.

Docket Nos. 64115, 69627 and 74020.

422 Mich. 554, 375 N.W.2d 1

Supreme Court of Michigan.

Argued Jan. 9, 1985.

Decided Sept. 17, 1985.

John D. O'Hair, Pros. Atty., County of Wayne, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Timothy A. Baughman, Principal Atty., Research, Training and Appeals, Detroit, for plaintiff-appellee in Nos. 64115 and 69627.

Alan L. Kaufman, Southfield, for defendant-appellant in No. 64115.

State Appellate Defender Office by Peter Jon Van Hoek, Asst. Defender, Detroit, for defendant-appellant in No. 69627.

John D. O'Hair, Pros. Atty., County of Wayne, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Rosemary A. Gordon, Asst. Pros. Atty., Detroit, for plaintiff-appellee in No. 74020.

State Appellate Defender Office by Gail Rodwan, Asst. Defender, Detroit, for defendant-appellant in No. 74020.

PER CURIAM.

The issue in these cases is whether an actual intent to kill is an element of the crime of assault with intent to commit murder. M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. The prosecution concedes that it is, and we therefore address the question whether to reduce these assault convictions.

I

On October 22, 1977, defendant Guy D. Taylor shot a man named Billy Fuller. The shooting occurred during a confrontation that appears to have been the result of some earlier gang-related animosity. At a bench trial in December of 1977, the defendant was found guilty, as charged, of assault with intent to murder, possession of a firearm during the commission of a felony, and possession of a pistol with the intent to use it unlawfully. M.C.L. Secs. 750.83, 750.227b, 750.226; M.S.A. Secs. 28.278, 28.424(2), 28.423. In finding the defendant guilty, the trial court made the following findings:

"The Court having heard the testimony of these various witnesses, I think the testimony is without any contradiction whatsoever, that Mr. Taylor did fire his weapon, this .38 derringer which was introduced into evidence, at Mr. Fuller, striking him in the face with the bullet. This certainly constitutes an assault, no question about that. The next question which this Court would have to make a finding of fact on, is whether this assault was with intent to commit murder. That is probably the most difficult part of the elements that the Court has to consider--an assault is very simple, there is no question about that. The question of intent is one that can be inferred by the acts of the individual himself and as I stated yesterday, the inferences that may be wrought from that is discussed in [People v Johnson, 54 Mich App 303, 304; 220 NW2d 705 (1974) ], where it says, 'The intentional discharge of a firearm at someone within range is an assault. The usual result and purpose of such an assault is death. The unjustified and unexcused intention to kill when committing an assault constitutes the crime charged.'

"Well, if I recall the testimony correctly of at least two of the witnesses, the words might not have been exactly the same, the general context that Mr. Taylor pointed the gun at Mr. Fuller and said, 'I'll show you that this gun isn't shit,' which would indicate certainly an intent to shoot him. There is no question about that as set forth in a great many Michigan cases, one of them [People v Becker, 300 Mich 562; 2 NW2d 503; 139 ALR 1171 (1942) ], which the court said the intent to kill may be evidenced by the nature and the location of the bullet wound in the body of the victim. In this case Mr. Fuller had a bullet wound in his cheek, and of course, if that bullet wound had been three to four inches higher, and a couple of inches to the left, he would have shot him through the forehead. If that would have been the case I think that Mr. Fuller would have been ... dead rather than in this court testifying in this case and as indicated in other Michigan cases, one of those being [Wilson v People, 24 Mich 410 (1872) ], because assault must be under circumstances where death ensued, the crime would have been murder. There is no question that Mr. Fuller, had Mr. Fuller died, Mr. Taylor would have been charged with murder and in all probability at the trial would have been found guilty of murder based upon the testimony we have heard today, and I think this indicates enough of the elements of the crime that we have an assault with intent to commit murder and there is no--the same being done with malice. I see no mitigating circumstances, in fact, the fact they were arguing is one thing, but he was in an automobile. He had the opportunity to leave. He wasn't protecting himself, or anything else, he just stuck his arm out the window and fired it at Mr. Taylor [sic ], obviously with the intent of hitting him with it. I would say that with intent to murder Mr. Taylor [sic ], not to do great bodily harm. A definition of malice as indicated in the jury charges is malice means the defendant intended to kill or the conscious--to create a very high degree of misconduct and knowledge of the probable consequences of his act, he did so under circumstances which do not justify, excuse or mitigate the crime and that is exactly what I find here. He created a very high risk death [sic ] and knowledge of the crime and the consequences of his act, and there are no circumstances which justify, to [sic ] excuse, or mitigate the crime.

"Based upon those findings, I find Mr. Taylor guilty of Count 1, the charge, assault with intent to commit murder and there is no question as to Count No. 2 that he had the weapon in his hands, he committed a felony while in the possession of a firearm and based upon the testimony, it is uncontradicted in this case, therefore I find him guilty of [C]ount 2, possession of a firearm in the commission of a felony. And Count 3, the carrying of a firearm with unlawful intent. There is no question about that. The elements in this crime are that he was armed with a pistol, and second, at the time he was so armed the defendant intended to use this weapon, and third, he intended to use the weapon unlawfully against the person of another. And the testimony in this matter clearly indicates that all three of those elements are present.

"The Court will find him, also, guilty of Count 3 in this matter."

The defendant was sentenced to a term of from fifteen to twenty-five years in prison for assault with intent to murder, two years in prison for felony-firearm, and from two to five years in prison for possession of a pistol with the intent to use it unlawfully.

The Court of Appeals affirmed. ¹ The defendant then filed a letter request for review pursuant to Administrative Order No. 1977-4, 400 Mich. lxvii (1977). ² This Court directed that counsel be appointed for the defendant. After he filed a delayed application for leave to appeal, we granted leave to appeal. ³ People v. Guy Taylor, 419 Mich. 879 (1984).

II

On May 19, 1978, Andre Witcher was shot, receiving injuries that have since confined him to a wheelchair. Defendant Marvin Johnson was part of a group of people involved in the melee in which Witcher was shot. Johnson was charged with assault with intent to murder. ⁴ M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. The defendant was tried before a jury in June of 1979, and was found guilty as charged. The jury was given the following instructions concerning the intent needed to commit the crime of assault with intent to murder: ⁵

"The defendant is charged with the crime of assault with intent to murder. Any person who shall assault another with intent to commit the crime of murder is guilty of this crime.

"The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:

"First, that the defendant, Marvin Johnson, assaulted Andre Witcher, the complainant in this case. An assault, ladies and gentlemen of the jury, is an attempt or threat, with force and violence, to do some immediate bodily harm to another by one who has the present means of doing such harm.

"Second, that at the time of committing such an assault the defendant intended to murder the complainant.

"Murder, ladies and gentlemen of the jury, is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he consciously created a very high degree of risk of death with knowledge of the probable consequences of his act and that he did so under circumstances which did not justify, excuse or mitigate the crime.

"Those are the elements, ladies and gentlemen, that the People must show to prove the crime of assault with intent to commit murder.

* * *

"Ladies and gentlemen of the jury, the first two charges that I've charged you on; that is, assault with intent to commit murder and assault with intent to commit great bodily harm or do great bodily harm less than murder, are what we call specific intent crimes, and I will now define for you, under the law, what is specific intent.

"Beginning: When a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.

"Intent is a decision of the mind to knowingly do an act with a conscious, fully formed objective of accomplishing a certain specific result.

"There can be no crime of assault with intent to commit murder, or assault with intent to do great bodily harm less than murder, under our law where, in the case of assault with intent to murder, there is no intent to murder, and the burden rests upon the prosecution to show beyond a reasonable doubt that the defendant at the time of doing the alleged act had that wrongful...