People v. Todd, Docket Nos. 98203

• Decision Date: 17 December 1990
• Docket Number: Docket Nos. 98203,98575 and 99632
• Citation: 186 Mich.App. 625,465 N.W.2d 380
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Damion Lavoial TODD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernard CARTER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick Tyrone McCLURE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 380

465 N.W.2d 380

186 Mich.App. 625

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Damion Lavoial TODD, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernard CARTER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick Tyrone McCLURE, Defendant-Appellant.

Docket Nos. 98203, 98575 and 99632.

Court of Appeals of Michigan.

Submitted Oct. 4, 1990, at Detroit.

Decided Dec. 17, 1990, at 9:20 a.m.

Released for Publication Feb. 11, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John E. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training, and Appeals, and Jan J. Raven and John P. Puleo, Asst. Pros. Attys., for People.

Kenneth A. Webb, Troy, for defendant-appellant Todd on appeal.

Neil H. Fink and Mark J. Kriger, Detroit, for defendant-appellant Carter.

Daniel J. Rust, Redford, for defendant-appellant McClure.

Before DANHOF, C.J., and CAVANAGH and BEASLEY, ^* JJ.

PER CURIAM.

Defendants Damion Lavoial Todd, Vernard Carter, and Derrick Tyrone McClure were tried jointly in December of 1986 on charges stemming from an August 17, 1986, drive-by shooting in which Melody Rucker, age sixteen, was killed and Vinita Smith, age fifteen, was seriously injured. Rucker and Smith were among at least a dozen teenagers who were standing in front of a house in Detroit when Todd fired several shotgun blasts from the passenger seat of a car being driven by Carter. Todd was apparently firing toward another male teenager who was standing close to Rucker. The shotgun belonged to McClure, who was sitting in the back seat of the car. A fourth young man, Dwayne Smiley, who was also in the back seat, testified for the prosecution.

Todd was tried before a jury and was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He received prison sentences of natural life, one hundred to two hundred years, and two years, respectively. Carter and McClure waived jury trials. Carter was convicted of aiding and abetting Todd, and he received the same sentences as Todd. McClure was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, assault with intent to commit great bodily harm, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and felony-firearm. He received sentences of forty to eighty years, six to ten years, and two years. Defendants appeal as of right, raising several issues. We have consolidated their cases for appeal. We affirm Todd's and McClure's convictions, but remand for resentencing in those cases. We reverse Carter's convictions and remand for a new trial.

People v. Todd

Defendant Todd first argues that in obtaining a statement from him, the police failed to scrupulously honor his right to remain silent as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). We disagree. We note initially that defendant did not raise this argument at the Walker ¹ hearing on his motion to suppress. Rather, he argued that his statement was not voluntary and understanding. Thus, this issue was not preserved. Further, we have held that, because the Miranda rule is only a procedural safeguard to protect constitutional rights, a Miranda argument does not implicate the "important constitutional question" exception to the preservation requirement. People v. Calloway, 169 Mich.App. 810, 818, 427 N.W.2d 194 (1988). Therefore, this issue is waived.

Regardless, we are convinced that defendant's statement was admissible. Defendant did indicate, while en route to the police station with his aunt and Officer Smith, that he did not wish to speak to Officer Smith at that time. However, it is not clear from his statement that he wished to cut off all questioning, or whether he simply did not wish to give a statement to Officer Smith at that time. Defendant's parents arrived at the police station sometime after defendant. Another officer spoke with defendant's parents and his aunt, after which the officer again advised defendant of his rights. Defendant then agreed to give a statement. Since it is not clear that defendant had unequivocally invoked his right to remain silent, we do not believe that the police failed to scrupulously honor defendant's right to cut off questioning. See and compare People v. Catey, 135 Mich.App. 714, 719-726, 356 N.W.2d 241 (1984). Therefore, there was no Miranda or Mosley violation.

Defendant next argues that during his jury trial an officer made a comment which resulted in a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In response to a question by defense counsel regarding how the police investigation focused on defendant Todd, the officer stated, "I had Vernard Carter's statement stating that Damion Todd had pulled the trigger."

Defense counsel did not object to the officer's statement, so this issue is waived absent manifest injustice. M.C.L. 769.26; M.S.A. 28.1096; People v. Rau, 174 Mich.App. 339, 341, 436 N.W.2d 409 (1989). Since we find that defendant clearly was not prejudiced by the officer's statement, we need not decide whether the officer's statement resulted in a Bruton violation. Defendant took the stand and admitted that he shot the gun from the passenger seat of the moving car. The dispute centered on defendant's intent, not whether he "pulled the trigger." In light of defendant's own testimony, he clearly was not prejudiced by the officer's comment, and any error that may have occurred did not rise to the level of manifest injustice.

As his next issue, defendant claims that the trial court erred by refusing to permit defense counsel to verbally describe, for the record, a witness' nonverbal indication of the angle at which defendant was holding the gun when he shot toward the people congregated in front of the house. Our examination of the record reveals that defense counsel actually described the witness' actions quite fully. The trial court then declined to confirm that counsel's description was accurate, saying that the angle of the gun was for the jury to decide. We are aware of no authority that would require the trial court to ratify a party's verbal description of nonverbal evidence. The record was not so incomplete as to jeopardize defendant's appeal. People v. Wilson (On Rehearing), 96 Mich.App. 792, 797, 293 N.W.2d 710 (1980). Defendant's argument is without merit.

Next, defendant claims that the court committed error requiring reversal by refusing defense counsel's request for an instruction regarding the charge of involuntary manslaughter and by failing to instruct sua sponte regarding the charge of reckless discharge of a firearm. We disagree.

The trial court is generally required to give instructions that comport with the theories of the parties if they are requested and are supported by some evidence. People v. Benson, 180 Mich.App. 433, 439, 447 N.W.2d 755 (1989). Regarding lesser included offenses, unless a party informs the trial court of the exact lesser included offenses for which instructions are being requested, the issue is not preserved for review. People v. Beach, 429 Mich. 450, 482, 418 N.W.2d 861 (1988); People v. Herbert Smith, 396 Mich. 362, 240 N.W.2d 245 (1976).

Our review of the record reveals that defense counsel expressly requested, in writing and verbally, an instruction regarding voluntary manslaughter. The trial court refused to give the instruction. On appeal, defendant does not argue that the trial court erred in failing to instruct regarding voluntary manslaughter. Instead, he argues that the court should have instructed the jury regarding involuntary manslaughter. Since defendant did not request this exact instruction, this issue is waived. Beach, supra; Herbert Smith, supra.

In any event, we believe that an instruction regarding involuntary manslaughter was inappropriate here. The only form of involuntary manslaughter that was arguably applicable here was the one that defines the offense as an unintentional killing of another without malice in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm. See People v. Beach, supra, 429 Mich. p. 477, 418 N.W.2d 861; People v. Daniels, 172 Mich.App. 374, 379, 431 N.W.2d 846 (1988). Defendant admitted that he repeatedly fired the shotgun from a moving car in the direction of the people in the front yard of the house. We believe that this was an unlawful act that naturally tended to cause death or great bodily harm. Therefore, an involuntary manslaughter instruction was inappropriate. This conclusion is not affected by defendant's claims that he did not aim at anyone and that he did not intend to kill anyone, or by one witness' ambiguous testimony that defendant may have been shooting high. It was the act of shooting the gun from a moving car toward a group of people which precluded an involuntary manslaughter instruction. Compare People v. Beach, supra 29 Mich. pp. 475-480, 418 N.W.2d 861. Since the instruction was not appropriate, there would have been no error even if the instruction had been requested and refused. We also disagree that an instruction regarding reckless discharge of a firearm was appropriate here.

Defendant next raises two more jury instruction issues. He first claims that reversal is required because the trial court erred in making the following statement before instructing the jury on second-degree murder: "The law in Michigan also requires that in every case where first-degree murder is charged, I must also instruct you on second-degree murder." Defendant argues that by this statement the court indicated to the jury its belief that the law,...