People v. Taylor
| Decision Date | 10 July 1992 |
| Docket Number | Docket No. 127861 |
| Citation | 195 Mich.App. 57,489 N.W.2d 99 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Annette TAYLOR, a/k/a Annette Card, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for the People.
State Appellate Defender by Gail Rodwan, for defendant-appellant on appeal.
Before SHEPHERD, P.J., and SAWYER and CONNOR, JJ.
Defendant pled guilty to being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082, after a jury convicted her of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial court sentenced defendant to 3 1/2 to 6 years for the assault conviction and two years for the felony-firearm conviction. Defendant appeals her convictions as of right. We reverse.
While in the midst of a divorce, defendant shot her husband in the face in February of 1988. He claimed that it was an act of revenge. She claimed that it was self-defense.
Defendant argues that the trial court erred in refusing to question potential jurors about their attitudes toward self- defense and the use of deadly force. We agree.
The scope of voir dire is left to the discretion of the trial court. People v. Harrell, 398 Mich. 384, 388, 247 N.W.2d 829 (1976). However, a trial court may not restrict voir dire in a manner that prevents the development of a factual basis for the exercise of peremptory challenges. People v. Mumford, 183 Mich.App. 149, 155, 455 N.W.2d 51 (1990). In this case, the refusal of the trial court to ask any questions concerning the subject of self-defense and juror attitudes toward the use of deadly force unduly restricted voir dire and was an abuse of discretion.
Defendant did not exhaust her peremptory challenges. Generally, a party must do so to preserve for appeal a question of jury selection. People v. Rose, 268 Mich. 529, 531, 256 N.W. 536 (1934). This is not, however, an absolute requirement. See, e.g., People v. Miller, 411 Mich. 321, 307 N.W.2d 335 (1981), rev'g 88 Mich.App. 210, 276 N.W.2d 558 (1979) (). The purpose of appellate preservation requirements is to induce litigants to do everything they can in the trial court to prevent error, eliminate its prejudice, or at least create a record of the error and its prejudice. In contrast to Rose, supra, defendant refused to express satisfaction with the jury empaneled and repeatedly reminded the trial court that she felt that the voir dire prevented her from intelligently exercising her peremptory challenges. Requiring defendant to unintelligently exercise them would be pointless, because it could not have prevented the error, eliminated its prejudice, or further demonstrated the error and its prejudice.
Defendant contends that the trial court erred in limiting defendant's ability to testify about her husband's prior acts of violence toward her, and erred in allowing a witness to testify about a threat defendant allegedly made months before the shooting.
The decision whether to admit evidence is left to the discretion of the trial court. People v. Milton, 186 Mich.App. 574, 575, 465 N.W.2d 371 (1990), remanded on other grounds 438 Mich. 852, 473 N.W.2d 310 (1991). This Court finds an abuse of discretion only when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. Id., 186 Mich.App. pp. 575-576, 465 N.W.2d 371.
Prior acts of violence by the victim may be relevant to the issue of self-defense. People v. Rockwell, 188 Mich.App. 405, 408-410, 470 N.W.2d 673 (1991). We find the trial court's all-but-total ban to be without justification, because it denied defendant the opportunity to present important evidence relevant to her motive and intent. MRE 404(b). On retrial, defendant should be allowed to present evidence of the victim's prior acts of violence toward her. The trial court may exercise its discretion under MRE 403 in deciding how much of this evidence to admit.
The trial court did not err in admitting the testimony of the victim's mother that, eight months before the shooting, defendant had told her that she had a gun and would shoot the victim. The threat was used to establish that defendant had access to a gun. At the time the trial court was asked to rule, it was the only evidence regarding the issue of access, and the court's decision that the probative value of the evidence outweighed its prejudicial effect was not an abuse of discretion. Because defendant subsequently presented evidence at trial establishing that the weapon had been purchased about a month before the shooting, the lower court should reconsider the relevancy and the remoteness of the evidence upon retrial. People v. DeRushia, 109 Mich.App. 419, 426-428, 311 N.W.2d 374 (1981).
Defendant next contends that the prosecutor made improper arguments concerning her prearrest statements. After review of the record, we find the argument to have been permissible comment about the evidence and reasonable inferences drawn from it. People v. Gaines, 129 Mich.App. 439, 445, 341 N.W.2d 519 (1983). Compare People v. Storch, 176 Mich.App. 414, 422-423, 440 N.W.2d 14 (1989).
Defendant argues that the trial court abused its discretion when it refused to instruct the jury with regard to two lesser-included misdemeanors as she requested. We agree that the jury should have been instructed on one of the misdemeanors.
Defendant was charged with assault with intent to commit murder. M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. The jury was also instructed on assault with intent to do great bodily harm, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Defendant requested, but the trial court refused to give, instructions on reckless use of a firearm with resulting injury, M.C.L. Sec. 752.861; M.S.A. Sec. 28.436(21), and injuring by discharge of a firearm intentionally but without malice pointed at another, M.C.L. Sec. 750.235; M.S.A. Sec. 28.432.
In People v. Stephens, 416 Mich. 252, 261-265, 330 N.W.2d 675 (1982), the Supreme Court decided that, when properly requested, a trial court should instruct a jury on appropriate lesser-included misdemeanors if a rational view of the evidence could support a verdict of guilty of the misdemeanor and not guilty of the felony, the defendant has proper notice or has made the request, and the instruction would not result in confusion or injustice.
Defendant's request for both misdemeanor instructions was properly made. We find each to be appropriate because both protect the same interests protected by the felonies and the evidence used to prove the felonies generally will prove the misdemeanors as well. Neither instruction would have created undue confusion or injustice.
However, while a jury viewing the evidence rationally could have found defendant not guilty of the felonies and guilty of reckless discharge, it could not have found defendant...
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