People v. Till

• Decision Date: 05 December 1977
• Docket Number: Docket No. 26963
• Citation: 80 Mich.App. 16,263 N.W.2d 586
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel TILL, Defendant-Appellant. 80 Mich.App. 16, 263 N.W.2d 586
• Court: Court of Appeal of Michigan — District of US

Page 586

263 N.W.2d 586

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel TILL, Defendant-Appellant.

Docket No. 26963.

80 Mich.App. 16, 263 N.W.2d 586

Court of Appeals of Michigan.

Dec. 5, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 18] James R. Neuhard, State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Donald W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

[80 MICHAPP 19] Before RILEY, P. J., and BASHARA and MAHINSKE, ^* JJ.

BASHARA, Judge.

Defendant appeals from a jury conviction of first-degree murder. ¹ At trial the prosecution sought to prove that defendant ² killed the victim during the course of robbing him after forcibly gaining entry into the victim's house.

I

During the course of the trial the prosecution was allowed, over defendant's objection, to admit into evidence a photograph of the victim's face taken at the morgue. Defendant argues that the photograph was irrelevant and that its only purpose was to inflame the passion of the jury and prejudice his right to a fair trial.

We must determine whether in admitting the photograph the trial judge erred by allowing irrelevant, prejudicial material into evidence or, if relevant, an abuse of discretion is presented because the probative value of the photograph is substantially outweighed by its prejudicial effect. Our conclusion is that neither form of error was committed.

As proof of the cause of the victim's injuries, the prosecution offered the testimony of three examining physicians. On direct examination each concurred that the injuries were caused by a beating and that the victim died as a result of those injuries. Defense counsel's cross-examination elicited testimony conceding the possibility that the victim's injuries could be sustained from falling down a flight of stairs. An issue of fact was therefore raised as to the cause of the victim's injuries. It [80 MICHAPP 20] was on that issue that the trial judge admitted the photograph, since the evidence presented also showed that the victim was knocked down a flight of stairs by the forced entry of the perpetrators.

Where photographic evidence is relevant to a material issue, it is admissible at the discretion of the trial court, notwithstanding its shocking or gruesome character. People v. Eddington, 387 Mich. 551, 562-563, 198 N.W.2d 297, 301 (1972), People v. Becker, 300 Mich. 562, 2 N.W.2d 503 (1942). We cannot say that the trial judge abused his discretion in permitting the jury to consider the photograph, with the possibly conflicting testimony of the examining physicians, in determining the fact of the injury causation.

II

Prior to instructing the jury, a codefendant requested that a special instruction be given concerning the credibility of accomplice testimony, since the prosecution's only substantial evidence connecting the defendant with the crime was the testimony of an accomplice. Not only was the accomplice implicated in this crime, but he was apparently involved in a number of other crimes for which he received immunity from prosecution or acceptance of a plea to a lesser offense, ³ all in [80 MICHAPP 21] consideration for his testimonial cooperation. No instruction was requested by defendant, nor did he object to its omission or raise it as error in his motion for new trial. Nevertheless, defendant contends that deletion of the instruction was error.

We find it unnecessary to decide whether a codefendant's request for an instruction is operative as to all defendants. Rather, it is our conclusion that even if requested, under the circumstances in this case the trial judge properly denied the request.

Our Supreme Court recently considered the trial court's obligation to give an instruction on accomplice testimony in People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974), and People v. Atkins, 397 Mich. 163, 243 N.W.2d 292 (1976). The circumstances presented and emphasized by the Court in McCoy disclose the policy and application of its principles.

As in the case under review, in McCoy the prosecution offered the testimony of an accomplice. This was the only substantive evidence linking the defendant with the crime. In response, the defendant offered the testimony of an alibi witness as a defense. At the conclusion of the case, the trial judge in his instructions tended to disparage the value of the alibi defense while omitting any cautionary instruction concerning the credibility of the accomplice. Although no special instruction was requested, the McCoy Court reversed the defendant's conviction, concluding that the imbalance in the instructions deprived defendant of a fair trial.

The Supreme Court applied the McCoy rule under similar circumstances in Atkins. However, Atkins resulted in affirmance of the defendant's [80 MICHAPP 22] conviction. The Court emphasized that McCoy was based primarily upon the imbalance in jury instructions, stating:

"In McCoy, error was found in the trial court's failure to balance care and caution language actually used in the instruction on alibi with similar language relating to the accomplice who testified against the defendant. Third, the jury in the case at bar was fully apprised of the criminal past, and possible motivation of witness Nero (the accomplice). It would not be an unfair assessment of the record herein to say that as much testimony was elicited on the issue of Nero's credibility as on that of defendant's guilt or innocence." Id. at 171, 243 N.W.2d at 295.

We cannot conclude that the McCoy decision was intended to preclude all discretion of the trial judge in assessing the necessity of giving a special instruction on accomplice credibility. Although in both McCoy and Atkins no request was made for an instruction, that factor is not of itself determinative, as indicated in the opening paragraph of the Court's conclusion in McCoy :

"The combination of an erroneous alibi instruction, failure to balance the defendant-denigrating alibi instruction with an appropriate instruction on the credibility of an accomplice's testimony, plus improper closing remarks of the prosecutor are convincing that the defendant did not receive a fair and balanced trial." Id., 392 Mich. at 240, 220 N.W.2d at 460.

The instant case presents no instructional imbalance. No alibi defense was offered by the defendants. During the accomplice's testimony, the trial [80 MICHAPP 23] judge interjected a special instruction to the jury that the accomplice's involvement in other crimes and the consideration given for his testimony were to be considered by the jury in assessing credibility. As in Atkins, the jury was fully apprised of the accomplice's criminal background. Again in the jury instructions, the trial judge gave a general instruction on factors to be considered in evaluating the witnesses' credibility.

Under the circumstances, it is our conclusion that it was within the trial judge's discretion to deny a request for a further instruction aimed at the accomplice's credibility. A contrary conclusion would be tantamount to ruling that, in the face of a request for a special instruction, the trial court has no discretion to deny the request, notwithstanding the trial circumstances. Such a rule would create a substantial risk of an imbalance diametric to that in McCoy, destroying the balanced trial presentation that was the objective of that decision.

III

Defendant also contends that the trial court's instruction on felony murder was erroneous. It is argued that error was committed by instructing the jury that any killing, even if accidental, attributable to the act or acts of the defendant occurring during the perpetration of, or attempt to perpetrate, a felony enumerated by statute, ⁴ constitutes first-degree murder. This instruction, according to defendant, eliminated the element of malice from [80 MICHAPP 24] the jury's consideration ⁵, citing People v. Fountain, [80 MICHAPP 25] 71 Mich.App. 491, 248 N.W.2d 589 (1976).

In Fountain, another panel of this Court concluded that Michigan has neither a statutory nor common law felony-murder rule. Therefore, it was opined that malice must be found, as to a killing occurring during the course of a felony, as a separate element from the malice associated with the felony itself. Were that decision controlling, we would be compelled to accede to defendant's claim. However, we decline, with due deference to that panel, to follow the Fountain decision.

As the Fountain Court correctly noted, the Michigan statute is a verbatim duplicate of the Pennsylvania provision. In that regard, the Pennsylvania caselaw becomes illustrative of the statute's intended application. See, e. g., Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. den. 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972), Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). See also, Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50 (1956).

In Redline the defendant was convicted of first-degree felony murder for the death of his co-felon caused by police gunfire occurring during their efforts to apprehend the felons. The defendant's conviction was reversed. Reversal was based not upon the absence of an intent to kill, for clearly the facts disclosed the absence of defendant's intent to kill his accomplice, but because the killing was justifiable and therefore not murder at common law.

However, in its reassessment of the felony-murder[80 MICHAPP 26] doctrine the Pennsylvania Court spoke at length about the interrelationship of the act of killing, malice, and the perpetration of an enumerated felony, stating:

"All felony-murder in Pennsylvania other than such as is committed in the perpetration of one of the common law felonies specified in our...