People v. Turner

• Decision Date: 02 September 1980
• Docket Number: 43316 and 45247,Docket Nos. 78-5202
• Citation: 99 Mich.App. 733,298 N.W.2d 848
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Talmadge TURNER, Willie J. Morgan and Rex Dean Riley, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 848

298 N.W.2d 848

99 Mich.App. 733

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Talmadge TURNER, Willie J. Morgan and Rex Dean Riley Defendants-Appellants.

Docket Nos. 78-5202, 43316 and 45247.

Court of Appeals of Michigan.

Sept. 2, 1980.

Released for Publication Dec. 9, 1980.

Mark R. Bendure, Detroit, for defendant-appellant in No. 78-5202.

James R. Neuhard, State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant in Nos. 43316, 45247.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Timothy L. Cronin, Anne B. Wetherholt, Asst. Pros. Attys., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and V. J. BRENNAN and MILLER, ^* JJ.

J. H. GILLIS, Presiding Judge.

Defendants were charged with first-degree premeditated murder, M.C.L. § 750.316; M.S.A. § 28.548, assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm while in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). They were convicted on October 23, 1978, by a Detroit Recorder's Court jury of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, assault with intent to murder and possession of a firearm while in the commission of a felony. Each defendant was sentenced to concurrent 5- to 10-year sentences for second-degree murder and assault with intent to murder, and to 2 years for possession of a firearm in the commission of a felony. Defendants now appeal as of right.

The case arises out of a shooting incident that occurred in the early morning hours of May 28, 1978. There was testimony that defendants belonged to a group known as "The Enforcers" and that they had a confrontation with another group, the "Fenkell Avenues", the day before. The shooting was alleged to have been in retaliation for the earlier incident. Accomplice testimony was provided by Elzy Jones, a former codefendant who had pled guilty to manslaughter and possession of a firearm in the commission of a felony. Jones testified that he and the defendants spotted persons they thought were Fenkell Avenues on a street corner in the Fenkell-Mendota area of Detroit. Defendant Turner dropped Jones, Morgan and Riley off in an alley behind Mendota. Morgan was armed with Jones's shotgun, while Riley carried Turner's .38-caliber revolver. The three walked around the sides of a house and viewed a group of persons on and around the porch of the house across the street. Although there was apparently some confusion over whether the persons were actually members of the Fenkell Avenues, Morgan and Riley fired in the direction of the porch. John Lathan, Jr., who was standing near the porch, was shot and died as a result of the wound received. A second person, Alex Young, was wounded. Neither the victims nor the other persons near the porch had any association with the Fenkell Avenues.

Defendants' first argument on appeal is that the trial judge shifted the burden of proof by deviating from the standard jury instruction on reasonable doubt. Although CJI 3:1:05 was utilized, two additional sentences were read:

"Reasonable Doubt. A reasonable doubt is a fair doubt growing out of the testimony, the lack of testimony, or the unsatisfactory nature of the testimony in the case. It is not a mere imaginary or possible doubt, but a fair doubt based on reason and common sense. It is such a doubt as to leave your minds after a careful examination of all the evidence in the case in the condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge made against the Defendants. In other words, if you can assign a reason you have a reasonable doubt. If you cannot assign a reason you have no reasonable doubt. " (Emphasis supplied.)

No objection was made to the instruction. Therefore, reversal is precluded absent a showing of manifest injustice. People v. Johnson, 93 Mich.App. 667, 669, 287 N.W.2d 311 (1979).

The reasonable doubt standard is of constitutional dimension. It reduces convictions based on factual errors and effectuates at trial the all-important presumption of innocence. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Although we do not wish to encourage unnecessary variations from the standard jury instructions, it is apparent that the additions here were nonprejudicial and that the reasonable doubt standard remained intact.

The standard instruction warned that a reasonable doubt "is not a mere imaginary or possible doubt, but a fair doubt based on reason and common sense". The additional comments merely reminded that a reasonable doubt must be the product of such a rational thought process. Jury instructions are to be considered as a whole and not in small excerpts. People v. McFadden, 73 Mich.App. 232, 237, 251 N.W.2d 297 (1977). Viewed in context the two additional sentences did not alter the burden of proof. ¹ No manifest injustice is apparent.

Defendants' second claim on appeal is that the murder verdict was coerced by the court's instructions. Defendants initially argue that the instructions overemphasized murder over the lesser offenses. The trial court, in reading the first-degree murder statute to the jury, included that portion dealing with felony murder. ² At one point, the trial judge lost his place and began to reread the murder instruction but was promptly halted by the prosecution. Subsequently, when the jury requested reinstruction on second-degree murder and manslaughter by intentional aiming of a firearm without malice, M.C.L. § 750.329; M.S.A. § 28.561, the court reread that portion of CJI 16:2:01 concerning second-degree murder but had to be halted to prevent continuation into the elements of first-degree murder. In contrast, the instructions on the lesser included offenses consisted primarily of a reading of the applicable statutes. The jury was twice given the definitions of manslaughter by intentional aiming of a firearm without malice and careless, reckless or negligent use of a firearm. M.C.L. § 752.861; M.S.A. § 28.436(21). In addition, an instruction on involuntary manslaughter was read. CJI 16:4:04.

Defendants argue that the inadvertent reading of the felony-murder portion of the statute constituted an instruction on an offense neither charged nor supported by the evidence. People v. Milton, 81 Mich.App. 515, 519, 265 N.W.2d 397 (1978). However, the jury was immediately informed that the law, as it applied to the case, made "wilful, deliberate and premeditated murder" murder in the first degree, and they received detailed instructions only on premeditated first-degree murder. Neither the prosecution nor defense mentioned felony murder in their arguments. In any event, the defendants were not convicted of first-degree murder, so no harm occurred. Further, there was no undue emphasis on the murder instructions as a whole. The court was prevented from initially repeating the instructions. The subsequent reinstruction on second-degree murder was proper since it was only in response to the jurors' request. People v. McGuire, 39 Mich.App. 308, 319-320, 197 N.W.2d 469 (1972). Finally, the statutory definitions of the lesser included offenses were adequate instruction on those crimes. Although the statutory definition of manslaughter by intentional aiming of a firearm without malice was not accompanied by the specific jury instruction, the general instruction in involuntary manslaughter was read. CJI 16:4:04. Since counsel did not object to the substitution and request a more detailed instruction, no reversible error exists. People v. Manchester, 235 Mich. 594, 209 N.W. 815 (1926). ³

Defendants also argue that the verdict was coerced by the instruction that malice could be inferred from the use of a dangerous weapon. This contention is without merit. Although it is error to instruct that the law implies malice from certain circumstances or that malice is presumed, malice may be inferred from other facts and circumstances. Cf. People v. Richardson, 409 Mich. 126, 293 N.W.2d 332 (1980). The instruction did not prevent consideration of defendants' accident theory.

Defendants' third claim on appeal is that reversible error took place when both the prosecutor and trial court noted that one of the lesser included offenses was a misdemeanor. Defendants argue that this improperly focused juror attention upon the possible disposition of the defendants.

During rebuttal, the prosecutor claimed that Morgan sought conviction "of the lowest possible charge that you could convict him of in this state", and he reminded the jurors that "careless and reckless use of a firearm * * * isn't even a felony". The instructions later confirmed that the charge was a misdemeanor.

The general rule is that neither counsel nor the court should address the question of disposition upon conviction. People v. Szczytko, 390 Mich. 278, 285, 212 N.W.2d 211 (1973). However, the prosecutor's remarks were in direct response to the arguments of defense counsel. The jury had previously been urged to consider the young age of the defendants and to make "the punishment * * * fit the crime". The prosecutor's comments were proper rebuttal. People v. Hall, 83 Mich.App. 632, 269 N.W.2d 476 (1978); People v. Ashford, 91 Mich.App. 693, 283 N.W.2d 830 (1979). The jury was ultimately instructed not to be concerned with what penalties might be imposed, eliminating any prejudicial impact. See People v. Szczytko, supra, 390 Mich. 290, 212 N.W.2d 211.

The trial court's comments were made in the context of reading the applicable statutes. Such remarks are permissible where the classification appears in the statute itself. People v. Nichols, 391 Mich. 813 (1974); People v. Ritchie, 52 Mich.App. 380, 217 N.W.2d 439 (1974). No error is apparent.

Defendants' fourth claim on appeal involves a variety of alleged prosecutorial misconduct. Defendants contend the...