People v. Williams

• Decision Date: 29 August 1985
• Docket Number: Docket No. 71597
• Citation: 143 Mich.App. 574,374 N.W.2d 158
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph WILLIAMS, Defendant-Appellant. 143 Mich.App. 574, 374 N.W.2d 158
• Court: Court of Appeal of Michigan — District of US

Page 158

374 N.W.2d 158

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Joseph WILLIAMS, Defendant-Appellant.

Docket No. 71597.

143 Mich.App. 574, 374 N.W.2d 158

Court of Appeals of Michigan.

Submitted May 2, 1984.

Decided June 18, 1985.

Rehearing Denied Aug. 28, 1985.

Released for Publication Aug. 29, 1985.

[143 MICHAPP 576] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Annette M. Gray, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender, by Stuart B. Lev, Detroit, for defendant-appellant.

Before SHEPHERD, P.J., and CYNAR, and BORMAN ^*, JJ.

BORMAN, Judge.

On February 18, 1983, a Saginaw County jury found defendant guilty of first-degree murder in the shooting death of Joseph Cannon. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. He was sentenced to life imprisonment and now appeals as of right. ¹

The homicide occurred on February 28, 1979. Defendant was driving aimlessly through the streets of Saginaw when, near the intersection of 12th and Janes Streets, he came upon an automobile and pedestrian blocking the highway before him. Willie Beatrice Choice was the driver of the automobile and Joseph Cannon was the pedestrian. Mr. Cannon and Ms. Choice were discussing a possible loan when defendant pulled up behind them. Standing on the sidewalk nearby was Cannon's[143 MICHAPP 577] friend, James Chapman. Defendant was quite perturbed by what he perceived to be Cannon's and Choice's inconsiderate behavior. At that moment, Cannon signaled to defendant to back up. While defendant was doing so, Ms. Choice pulled her automobile to the shoulder of the road and defendant proceeded to pass by them. As defendant was passing by, defendant thought he heard laughter coming from the two men and he saw them give each other the "high five", i.e., slap each other's hands in a congratulatory manner. At this point, defendant exchanged an obscene gesture with Cannon and Chapman. Fifteen minutes later, defendant returned to the 12th and Janes Street intersection and again exchanged obscene gestures with both Cannon and Chapman. In defendant's words, he was "pretty angry and very humiliated by the occurrence". Consequently, defendant drove his van to the house of a friend, Donald Anderson, with the thought of getting even. Defendant was at Anderson's home only a few minutes and, during that time, managed to borrow Anderson's .30-caliber M-1 carbine. Approximately thirty minutes after last seeing Cannon and Chapman, defendant returned to the 12th and Janes Street intersection. Defendant parked his van approximately 260 feet away and on the opposite side of the street from where the two men stood. Next, he removed the borrowed weapon from its protective case, loaded it, rolled down the driver's side window, briefly aimed the rifle at Joseph Cannon and fired two shots. Cannon dropped to the ground, and the carbine jammed. Within seconds, defendant was able to fix the carbine and placed a third cartridge into the weapon's chamber. He then fired one more shot. At trial, defendant testified that he fired this third shot into the base of a snow bank behind which he [143 MICHAPP 578] claimed Cannon was hiding. Defendant believed that "that was a fairly safe place to put [the bullet]". Other witnesses, however, testified that Cannon fell on or near the sidewalk when the first two shots were fired. Defendant also testified that he did not believe that he would come close to hitting anyone. His friend, Anderson, testified that defendant was a poor marksman based upon their previous experiences at the target range. Nevertheless, one of the bullets from Anderson's rifle struck Joseph Cannon in the upper mid-right chest and exited from Cannon's arm and a second bullet struck Cannon in the mid-part of the inner portion of his right thigh and exited just over his right hip. According to expert testimony, this second bullet was administered while Cannon was lying on the ground. The bullet wound to the thigh area severed Cannon's femoral artery and was listed as the cause of Joseph Cannon's death.

On appeal, defendant raises three issues: (1) Did the trial court erroneously refuse to give defendant's requested instructions on various assault offenses? (2) Did the trial court erroneously allow the prosecutor to delve into defendant's alleged dislike of black people? and (3) Did the trial court erroneously refuse to dismiss a juror for cause because of her professional relationship with the prosecutor's office? Other facts will be highlighted where relevant to a discussion of these three issues.

I. DID THE COURT ERR SO AS TO REQUIRE REVERSAL WHEN IT REFUSED TO GIVE THE JURY DEFENDANT'S REQUESTED INSTRUCTIONS ON ASSAULT WITH INTENT TO MURDER, ASSAULT WITH INTENT TO DO GREAT BODILY HARM LESS THAN MURDER, AND ASSAULT WITH A DANGEROUS WEAPON?

At the conclusion of defendant's trial, the trial judge instructed the jury that it could find defendant[143 MICHAPP 579] either guilty of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, voluntary or involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, or careless, negligent or reckless discharge of a firearm resulting in the death of another living person, M.C.L. Sec. 752.861; M.S.A. Sec. 28.436(21), or not guilty. Defendant's requested instructions on assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279 and assault with a dangerous weapon (felonious assault), M.C.L. Sec. 750.82; M.S.A. Sec. 28.277, were not given to the jury. Defendant argues that the trial judge's refusal to give these requested instructions was error and that this error was not harmless because the requested instructions would have concisely and concretely presented defendant's theory of the case to the jury.

The rules which govern a trial court's obligation to instruct a jury on lesser included offenses are established and explained in People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), reh. den. 396 Mich. 976 (1976); People v. Ora Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), reh. den. 396 Mich. 976 (1976); and People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971).

Generally, the trial court's duty to instruct on lesser included offenses is determined by the evidence. Phillips, supra, p. 36, 187 N.W.2d 211. However, if the offense is truly a necessarily included lesser offense to the greater offense, then the trial judge must give the lesser offense instruction, if requested, because "the evidence will always support the lesser if it supports the greater". Ora Jones, supra, 395 Mich. p. 390, 236 N.W.2d 461. On the other hand, if the lesser offense is a "cognate", related, or allied offense to the higher offense, then the trial court only must give the requested instruction[143 MICHAPP 580] when it determines that the evidence presented would support a conviction of the lesser offense. Id.

A "necessarily included lesser offense" is one which has to be committed in order to complete the greater offense; viz., it is impossible to commit the greater offense without first having committed the lesser offense. Ora Jones, supra, p. 387, 236 N.W.2d 461. A "cognate lesser offense", on the other hand, is one which shares several, but not all, of the elements of the originally charged higher offense and which is of the same class or category as the higher offense. Id.

The question on appeal is whether defendant was entitled to the requested jury instructions on each of the assault offenses and, if so, whether the trial court's erroneous refusal to give the instructions was harmless.

The assault offenses herein involved are not necessarily included lesser offenses to the crime of first-degree murder. Criminal assault is defined as either (1) an attempt to commit a battery, or (2) an unlawful act which places another person in reasonable apprehension of receiving an immediate battery. People v. Sanford, 402 Mich. 460, 479, 265 N.W.2d 1 (1978). Murder, on the other hand, is the unlawful killing of another living person with malice aforethought, either express or implied. Under this definition, murder contains an element which is not included within the concept of an assault, namely, malice, that is the wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm. See, generally, People v. Aaron, 409 Mich. 672, 714, 728, 745, 299 N.W.2d 304, 13 A.L.R.4th 1180 (1980). Accordingly, if defendant's requested assault instructions involve lesser offenses to the crime of first-degree murder, they [143 MICHAPP 581] must be construed as cognate lesser offenses, rather than necessarily included lesser offenses.

From my review of the elements of each of the assault offenses presented here, I conclude that they are indeed cognate offenses to first-degree murder. Each of the assault instructions requested contain common elements with first-degree murder and, also, have the common statutory purpose of protecting against killing or injury of the person. Cf. Ora Jones, supra, 395 Mich. p. 401, 236 N.W.2d 461 (Coleman, J., dissenting), where former Justice Coleman notes various possible cognate lesser included offenses to murder. Thus, if the evidence adduced at trial would have supported a guilty verdict on the offenses for which instructions were requested, the trial judge erred by not acceding to defendant's request.

The evidence shows that defendant went to a friend's house, borrowed an M-1 rifle, returned to where he knew the victim was standing, loaded the weapon, pointed it at the victim and fired it twice. When the victim fell or jumped behind a snow bank, defendant fired again. This third shot was directed into the base of the snow bank and eventually caused the victim's...