People v. Wofford, Docket No. 120233

• Decision Date: 14 October 1992
• Docket Number: Docket No. 120233
• Citation: 492 N.W.2d 747,196 Mich.App. 275
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick WOFFORD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 747

492 N.W.2d 747

196 Mich.App. 275

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

Docket No. 120233.

Court of Appeals of Michigan.

Submitted May 21, 1992, at Detroit.

Decided July 10, 1992.

Approved for Publication Oct. 14, 1992, at 9:00 a.m.

Released for Publication Dec. 21, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Mark H. Magidson, Detroit, for defendant on appeal.

Before SHEPHERD, P.J., and MURPHY and HOUK, ^* JJ.

PER CURIAM.

Defendant was charged with second-degree murder and possession of a firearm during the commission of a felony as a result of the shooting death of sixteen-year-old Spencer Thomas on the evening of May 24, 1989. Following a bench trial, defendant was found guilty of voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial court sentenced defendant to a term of five to fifteen years for the voluntary manslaughter conviction and to a mandatory two-year term for the felony-firearm conviction. Defendant appeals as of right.

The fatal shooting of Spencer Thomas arose out of an altercation involving the decedent and defendant the previous day. While at work, defendant was informed by Toya Reed, Kevin Lee, and defendant's boss that "a guy was threatening him," apparently because defendant was romantically involved with Toya Reed, who was Kevin Lee's girl friend. Later, while looking for Lee in order to find out more about the threat, defendant encountered the decedent, who was Lee's cousin, and asked him whether he was threatening defendant because of Toya Reed and why. An argument ensued, and the decedent took out a gun. The decedent then fired a shot, missing defendant as he was leaving in his car. On the evening of the following day, May 24, 1989, the decedent was sitting on his porch when defendant and Toya Reed arrived in defendant's car. Defendant got out of his car, took a gun from the back of the vehicle, and confronted the decedent, who also had a gun. Defendant shot the decedent three times, hitting him in the back at least twice. According to the autopsy report, the decedent died of a gunshot wound to the right upper back.

Manslaughter is a common-law crime, not statutorily defined. M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. In People v. Pouncey, 437 Mich. 382, 388, 471 N.W.2d 346 (1991), the Supreme Court remarked:

Murder and manslaughter are both homicides and share the element of being intentional killings. However, the element of provocation which characterizes the offense of manslaughter separates it from murder. Murder and manslaughter are separate offenses, but ... voluntary manslaughter is a cognate lesser included offense of murder.

The Supreme Court then set forth the following test for voluntary manslaughter:

First, the defendant must kill in the heat of passion. Second, the passion must be caused by an adequate provocation. Finally, there cannot be a lapse of time during which a reasonable person could control his passions. [Id. ]

In Michigan, the common-law crime of murder is second-degree murder, whereas first-degree murder is a statutory crime. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). To establish second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, the prosecution must show that defendant caused the death of the victim and that the killing was done with malice and without legal justification or excuse. People v. Harris, 190 Mich.App. 652, 659, 476 N.W.2d 767 (1991). Malice consists of the intent to kill, the intent to do great bodily harm, or the intent to create a high risk of death or great bodily harm with knowledge that either is the probable result, and may be inferred from the facts and circumstances of the killing. Id. To establish first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, the prosecution is required to prove that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate. People v. Saunders, 189 Mich.App. 494, 496, 473 N.W.2d 755 (1991). Premeditation and deliberation may be inferred from the circumstances surrounding the killing. Id.

In the present case, defendant was charged with second-degree murder, but was found guilty of voluntary manslaughter. The trial court specifically found:

... Whether or not [defendant] left home with the intention of shooting or killing anyone over there, I'm not sure and I have to have a reasonable doubt as that particular element of murder.

But, on the other hand, I think the fact ... that he did not go over there to have a normal, reasonable conversation with the deceased, to settle this matter.

I think that he went back over there with his gun, recognizing that [if] trouble arose he would be in a position to handle it. I think that when [he] put himself in the position like that, I don't think that he can come in and say he was threatened, he felt like his life was threatened....

All the testimony shows that Mr. Wofford got out of the car, went to the back of his car and pulled a weapon and fired.

Miss Pearson testified that she never saw a weapon and this defendant testified that he never saw a weapon from Spencer. I believe that Spencer had a weapon on him. I don't think that this defendant ever gave him an opportunity to pull it.

I think that he was still mad about what happened to him before and he did not take it lightly.

I believe beyond any reasonable doubt that the defendant at the time of the act, was disturbed by mental or emotional excitement which make an ordinary person likely to act rationally without due deliberation or reflection and from passion rather than judgment. Secondly, I believe that the killing was a result of provocation or passion and that occurred before reasonable time had elapsed and that this defendant had time to cool, even though 24 hours is a considerable period of time. However, the law does not say how long a reasonable time is and I think that this defendant when he went over there fired at [the] decease[d] three times, hitting him in the back at least twice. This indicates that he was not, his life was not threatened to the point where he had no other alternative but to kill the defendant.

Defendant claims that the trial court committed error requiring reversal in finding that he did not have the requisite intent to kill or to do serious bodily harm. We disagree.

The trial court apparently confused the elements of first- and second-degree murder. In stating a reasonable doubt about whether defendant intended to shoot or kill anyone when he left home, the trial court apparently was considering whether defendant's act of killing was premeditated and deliberate, an essential element of first-degree murder. Notwithstanding this possible confusion, the trial court's findings clearly show that defendant possessed the requisite intent for second -degree murder when he returned to decedent's house with a gun and fired three shots at the decedent.

In finding defendant guilty of voluntary manslaughter, the trial court concluded that the killing occurred in circumstances of passion and provocation before sufficient time had elapsed to enable defendant to control his passions. While the trial court correctly noted that, as a matter of law, no precise time has been established during which passion must subside, the "cooling off" period must be reasonable. Maher v. People, 10 Mich. 212, 219 (1862); Pouncey, supra, 437 Mich. p. 388, 471 N.W.2d 346. Recently, in Pouncey, the Supreme Court reversed this Court's decision and held that the trial court correctly refused the requested jury instruction on voluntary manslaughter where approximately thirty seconds was sufficient to constitute a "cooling off" period....