People v. Vicuna

• Decision Date: 22 May 1985
• Docket Number: Docket No. 77635
• Citation: 367 N.W.2d 887,141 Mich.App. 486
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George VICUNA, Defendant-Appellant. 141 Mich.App. 486, 367 N.W.2d 887
• Court: Court of Appeal of Michigan — District of US

Page 887

367 N.W.2d 887

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George VICUNA, Defendant-Appellant.

Docket No. 77635.

141 Mich.App. 486, 367 N.W.2d 887

Court of Appeals of Michigan.

Submitted Jan. 15, 1985.

Decided March 18, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 489] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the people.

John C. Mouradian, Farmington Hills, for defendant-appellant on appeal.

Before T.M. BURNS, P.J., and V.J. BRENNAN and PORTER, ^* JJ.

PER CURIAM.

Defendant was charged with two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and one count of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On March 24, 1982, following a four-day jury trial, defendant was convicted on all three charges. On April 5, 1982, defendant was sentenced to serve life in prison for each murder conviction and to the mandatory two-year term for the felony-firearm conviction.

Defendant appealed as of right to this Court and filed a motion to remand to the trial court so that he could pursue his ineffective assistance of counsel claim and file a motion for new trial. On February 24, 1983, this Court denied defendant's motion. On March 28, 1983, defendant filed a delayed application for leave to appeal with the Supreme Court. On June 8, 1983, this Court dismissed defendant's appeal for lack of progress. On March 29, 1984, the Supreme Court remanded the case to this Court for reinstatement of defendant's appeal as of right. 419 Mich. 860, 345 N.W.2d 201 (1984).

Defendant was charged with the murders of [141 MICHAPP 490] Adel Berry and Mohammed Hazime which occurred on May 24, 1981, at approximately 3 a.m. in the parking lot of the Pompei Lounge in the City of Dearborn. Louisa Mendoza testified that she accompanied her roommate Katrina Perez and defendant, Katrina's boyfriend, to the Pompei Lounge on May 23, 1981, shortly before midnight. As the evening progressed, the three did some drinking and dancing after which Mendoza went to the restroom. Upon her return, Mendoza was told by Perez and defendant that they had gotten into an argument with "30 Arabs" who "jumped" defendant and tried to take his seat. Shortly thereafter, the three decided to leave and were escorted to their car by the bar's bouncer. While they drove to the womens' home, defendant said "he was going to get them". When they arrived, defendant left both women in the car while he went into their house. After a few minutes, he exited from the house and went two houses down where he spoke briefly to two friends, Clifton Toland and Santos Burger.

Mendoza further testified that the three men joined the two women in the car and they drove back to the Pompei Lounge. Defendant pulled the car into the bar parking lot, blocking a car occupied by two men who defendant said were the ones that jumped him in the bar. Defendant, Toland and Burger got out of the car. Mendoza testified that defendant went to the driver's side of the car and asked "are you the one that hit me?". One of the men in the car replied "yes, sorry", to which defendant replied "I'm sorry too" and then immediately fired his gun. Defendant, Toland and Burger ran back to the car. Mendoza testified that the man who was sitting in the driver's seat (Hazime) got out and ran towards the front door of the lounge. In a prior statement to police, Mendoza[141 MICHAPP 491] stated that: 1) defendant said he shot a man (Berry), and 2) Toland said he stabbed one of the men (Hazime).

Defendant took the stand and testified that on the morning of the 24th, he and Mendoza were dancing when Mendoza noticed that two men were hassling Katrina Perez at the table. While Mendoza went to the restroom, defendant went to the table and asked the two men to leave. Defendant said that "two Arabs" called him a "Spic" and slapped him twice. The bouncer walked over to the table and cooled things down, but five to eight men returned to the table and "jumped him", giving defendant blows to the back and head. As the bouncer escorted them out of the bar, defendant offered to fight them "one-on-one" in the parking lot.

Defendant further testified that he returned home to get his friends Toland and Burger. Defendant brought along a gun in case his attackers had a weapon. He testified that as he pulled into the bar parking lot he saw two of the men who had hit him. Defendant claimed that he got out of the car and approached the passenger side of the car. Defendant retreated when he saw one of the men (Berry) bend down as if reaching for a weapon under the seat. As Berry started to sit back up, defendant panicked and fired the gun, because he thought his life was in danger. Defendant claimed that he did not bring the gun with the intent to kill, and only fired the gun with the intent to wound.

Ronald Donnelly, bouncer at the Pompei Lounge, corroborated defendant's claim that the men hassled defendant and hit him in the bar. He admitted that defendant vowed to return and "get the Arabs". Later, Donnelly found Hazime's body near the front door of the lounge, and found [141 MICHAPP 492] Berry's body in a car in the parking lot. He testified that while both men had been inside the bar, neither was involved in the earlier altercation with the defendant.

Both men were pronounced dead upon arrival at Oakwood Hospital. Medical Examiner Werner Spitz, M.D., conducted the autopsies on the two men. Adel Berry received a gunshot wound to the left arm and chest. The path of the bullet discredited defendant's testimony that he approached the passenger side of the car. Mohammed Hazime suffered a single stab wound to the left chest which penetrated the heart. Based upon the nature of the wound, Dr. Spitz opined that it was a sudden, spontaneous and surprise stabbing. He found no trace of alcohol or drugs on either victim. This confirmed the testimony of the family members of the victims that neither Berry nor Hazime drank alcohol because it was against their religion. The testimony of the investigative officers and hospital personnel revealed that no weapons were found in the victims' car or on their bodies.

Neither Toland nor Burger testified at the trial. They were also separately charged in the murders of Berry and Hazime. During one of those trials, Katrina Perez was determined to be an accomplice, thus she did not testify.

Defendant's first claim is that the trial court erred by failing to instruct the jury that there is an "imperfect" defense to first-degree murder.

In the instant case, defendant neither requested an instruction on the qualified right to self-defense nor did he object to the instructions as given. A failure to object to a jury instruction will not preclude appellate review if a manifest injustice will result. People v. Murphy, 126 Mich.App. 379, 381, 337 N.W.2d 70 (1983). As explained in People v. [141 MICHAPP 493] Delaughter, 124 Mich.App. 356, 359-360, 335 N.W.2d 37 (1983):

"Pursuant to court rule, no party may assign as error the failure to give an instruction unless he specifically objects at trial thereto. GCR 1963, 516.2. The failure of a court to instruct on any point of law in a criminal trial is not a ground for setting aside a guilty verdict unless the instruction was requested by defendant or his counsel. MCL 768.29; MSA 28.1052. Nevertheless, to assure that an accused will not be erroneously convicted of crimes, this Court has developed the policy of reviewing jury instructions in their entirety to prevent any manifest injustice." (Citations omitted.)

Our review of the jury instructions reveals that the court properly instructed the jury on self-defense. We have considered the evidence presented at trial in light of defendant's claim and, in our opinion, defendant would not have been entitled to an instruction on the qualified right to self-defense. It was defendant's position at trial that the men in the automobile were the initial aggressors and defendant fired in self-defense while retreating from the car because he thought one of the victims had a weapon and, thus, defendant's life was in danger. The qualified right to self-defense focuses upon whether the defendant would have had a right to self-defense but for his actions as the initial aggressor. See People v. Springer, 100 Mich.App. 418, 298 N.W.2d 750 (1980), remanded on other grounds, 411 Mich. 867, 306 N.W.2d 100 (1981), rev'd on other grounds 417 Mich. 1060, 335 N.W.2d 906 (1983).

Defendant's next claim is that the trial court erred in failing to instruct the jury that manslaughter is an intentional killing.

The trial court instructed the jury on the elements of first and second-degree murder and voluntary[141 MICHAPP 494] manslaughter. The jury was also instructed that specific intent was required to commit first-degree murder, but was not necessary for second-degree murder or voluntary manslaughter. The court did not, however, instruct the jury that "general intent" is required for second-degree murder and manslaughter.

No objection was raised to the trial court's instructions. Nevertheless, we will review the instructions to determine if there was error requiring reversal because an erroneous "intent" instruction may result in a miscarriage of justice. People v. Doss, 122 Mich.App. 571, 332 N.W.2d 541 (1983), lv. den. 417 Mich. 1100.16 (1983); People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974).

An essential element of voluntary manslaughter is that the defendant must have had the intent to either kill or commit serious bodily harm. Delaughter, supra; Townes, supra. In the instant case, the jury was instructed on first and second-degree murder, pursuant to CJI 16:2:01 and 16:3:01. The instructions on voluntary manslaughter were given as a lesser-included offense, pursuant to CJI 16:4:02. The Delaughter Court held:

"When...