*1 8 v GERALD HUGHES
PEOPLE 15, 1978, Lаnsing at June Docket No. 29408. Submitted . Decided 7, 1978. applied August appeal to for. Leave first-degree felony Hughes murder of in W. was convicted Gerald Court, Ager, F. Circuit William J. Defendant the Washtenaw appeals. Held: refusing did not err in to instruct The trial court brought manslaughter forth evidence at since there mitigating of which would reduce of the existence factors first-degreе felony to common-law man- oifense of murder necessarily Manslaughter slaughter. not a included oifense is may an included oifense if the crime of murder but be within support guilty of at trial would verdict the evidence adduced support manslaughter. to If the is such a evidence sufficient of verdict, for the trial court to refuse a it is reversible error manslaughter. did requestеd The defendant not instruction on therefore, regarding given, object the issue to the instructions preserved felony-murder doctrine was not misstatement of regarding motions for a review. A trial court’s decisions for prospective jurors change cause of or to excuse will venue only Appeals if the of finds a clear abuse of be reversed Court read seen media The fact that some had discretion. charged grounds is sufficient for a accounts the crime not venue, showing potential prejudice. change of absent some jurors, proof to burden is on the defendant show cause, sought potentially biased. A excused for be expressed ability prejudice juror’s lack to render an [3] [1] [2, [4] [6] [5] 40 Am Jur 40 Am Jur 3] 47 Am Jur 40 Am Jur 75 Am Jur Am 5 Am Am Jur Am Jur Jur Jur 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, Jury 221. 2d, References Homiсide 204. Homicide §§ Trial 906. Criminal Law §§ Trial Homicide §§ Homicide 500. Appeal § § §§ 919-922. and Error 553. § § for Points 72, 530, 531. 483, § 484. 426-428. Headnotes Gerald required uphold verdict are all that is selection juror. Affirmed. Kelly, J., M. J. holding concurred in that an instruction *2 prosecution felony necessary on malice is not in a for murder.
Opinion of the Court Appeal Homicide—Felony Jury 1. and Error — Murder — Instruc- Manslaughter—Evidence—Mitigаting tions — Factors —In- cluded Offenses —Reversible Error.
A trial court did not commit reversible error in a trial for first- degree felony murder where it to refused instruct the on manslaughter the offense of where there was no evidence of the mitigating existence of factors which would reduce the offense manslaughter; manslaughter to common law is not a necessar- ily may included offense within the crime of murder but be offense if the an included evidence adduced at trial would support guilty manslaughter, a verdict of of and it is reversible requested error to refuse such a instruction if the evidence support been sufficient to a verdict. would have such Appeal Preserving 2. and Error — Error —Misstatements—Homi- Felony Objection cide — to Murder — Instructions —Failure Object. to
Objections felony by to misstatements of the murder doctrine parties, felony trial court and counsel for both wherein murder participating robbery was defined as in the commission of a occurs, during killing preserved which a were not for review felony object a trial for murder where the defendant did not given. the instructions Appeal Homicide—Felony 3. аnd Error —Harmless Error — Mur- Proper der — Instructions. felony by
Misstatements of the murder doctrine the trial court murder, parties felony and counsel for both in a trial for felony participating wherein the murder was defined as in the occurs, robbery during killing commission of a which a any resulting harmless error where defects from such loose phraseology by proper were cured the court’s statement of the rule in its instructions. Appeal Venue—Change 4. and Law Error — of Venue —Criminal —Discretion—Media—Felony Prejudice. Murder — change regarding A trial court’s of venue decision a motion for a Appeals appeal only will be on of reversed where the Court discretion; jurors finds a clear some had abuse of the fact that Opinion of the Court charged in a the incident media accounts of read or seen grounds change felony for a is not sufficient for murder potential prejudice. showing some venue absent Appeal Jury—Disqualification of Juror —Abuse of 5. and Error — of Proof —Bias. Discretion —Burden regarding counsel’s chal- a defense A trial court’s determination appeal lenge prospеctive will be reversed for cause of Appeals only of discre- finds a clear abuse where the Court tion; proof the' defendant to show the is on burden biased, juror’s challenged jurors potentially ex- and ability pressed prejudice an to render lack juror. required uphold selection of the are all that is verdict Kelly, J. M. J.
Concurrence Felony Jury 6. Homicide — Murder — Instructions —Malice. prosecution necessary in a instruction on malice is not An felony murder. A. General, Robert Kelley, Attorney Frank J. *3 F. Delhey, General, William Derengoski, Solicitor Sexsmith, and James S. Prosecuting Attorney, for the Prosecuting Attorney, Senior Assistant people.
John A. Appellate State De- Lydick, Assistant fender, appeal. for defendant on Kelly J., D. E. P. and M. J.
Bеfore: Holbrook, J. Marutiak,* and P. JJ. defendant-appellant
D. E. P. J. The Holbrook, charged and two with first- persons other murder, 750.316; MSA degree under MCL felony 28.548, shooting Ypsilanti the death of an of a branch police during robbery officer the armed 11, on Ypsilanti July of the National Bank of 14, 1975, arraigned July 1975. Defendant was assignment. judge, sitting Appeals by * Circuit on the Court of v Gerald Opinion op thе Court began and trial April 1976. Defendant submit- pretrial venue, ted a motion for change alleging pretrial adverse publicity, and after denial pend- dire, ing voir renewed this motion orally court after voir dire examination potential jurors. The trial court postponed decision on defendant’s mo- dire, tion pending the voir in order to determine whether or not an imрartial jury impan- could be eled.
Thirteen jurors were eventually excused for cause. The court denied challenges three for cause asserted defense counsel. Defense counsel then utilized peremptory challenges to excuse each of the challenged jurors; abuse of alleged discretion is respect with to the court’s failurе to excuse two of for cause. dire, After the voir court considered the jury selected to be impartial request defendant’s was denied.
Following presentation evidence, but be- fore argument, final defense counsel requested the court include in its instructions to the jury an instruction on manslaughter. This request, renewed, later was also denied. instructing
While the jury people’s on the theory case, of the suggested first-degree murder felony would lie if prosecutor were to show that a "killing” during occurred the course of a robbery. This same phraseology mistaken used infrequently by prosecutor and defendant throughout the trial. The court did affirmatively instruct the jury on the necessity showing malice: it did not instruct could they *4 impute malice from the defendant’s participation in the robbery. Defense counsel did not to object given the instructions the court. by The jury returned a verdict of of first- guilty degree murder and defendant sentenced to life was Opinion Court of the right, alleging of four He as appeals imprisonment. errors. separate error in alleges reversible
The defendant
first
on the
jury
refusal
to instruct
thе court’s
defend-
argued by
It was
manslaughter.
offense of
lesser
in-
manslaughter
is
a
necessarily
ant
that
charged.
is
The con-
when murder
cluded offense
resolved
regard
recently
in this
troversy
Wyck,
v Van
Court
in
Supreme
268,
269-270;
"We hold within of that it the crime murder but included offense if the evidence included offense be may nonetheless an guilty support a of at trial would verdict adducеd that crime. not be mitigating circumstances need
"The absence one second- in order convict of first- or established it Consequently, cannot be said degree murder. of- manslaughter necessarily a included is voluntary murder; it is to state incorrect fense within crime second-degree first- impossible it is to commit or manslaughter. having first committed murder without cases, howevеr, to be in "It remains decided have been whether the evidence adduced at would support guilty of the jury sufficient verdict of manslaughter. would have was offense of been sufficient to If the evidence verdict, support reversi- such a court, request, to refuse ble error for the trial added.) (Emphasis requested instruction.” the in- placed in The evidence beforе a verdict of common- support stant case would not presented manslaughter. law No evidence was shot police to show officer was tending Wyck, Van passion. the heat accidentally supra, at 269. of the existence Since evidence *5 People v Gerald Opinion op the Court mitigating factors which would reduce the offense to common-law manslaughter was brought forth at trial, it was unnecessary for the court to instruct the on jury that offense. 750.329; 28.561,
Under MCL MSA a separate manslaughter offense of is statutorily defined as causing death the by intentional discharge of a firearm without malice. Since the jury was twice instructed it must find malice in order convict the murder, defendant of felony and since the jury did find the defendant guilty оf felony murder, it is clear that the charge of manslaugh- ter would not lie under Therefore, this section. it was not error for the court to refuse to instruct the on jury manslaughter.
Next,
alleges
defendant
repeated misstate-
ments of
felony-murder
the
doctrine
the
court
and by both counsel
"removed the essential
ele-
ment of malice
from the jury’s
consideration”
Fountain,
under
People v
the
authority
71 Mich
(1976).
506;
Since the defendant did not object to the instruc- given, tions this issue preserved was not for review Hall, under People v 650, 657; 242 NW2d Nevertheless, we wish to add that at most, this loose phraseology bandied about the courtroom was merely harmless error. It appears was used primarily to characterize people’s case, theory and all parties care- App 8 Opinion of Cоurt that counsels’ statements jury instructed the fully Furthermore, fact or law. did not constitute Michigan Crimi- the Standard gave murder, including felony Instructions Jury nal At finding malice. requiring instruction instructions particular request, the jury’s resulting from the fact defects repeated. Any *6 parties the trial the course of during that by this rule were cured to paraphrase tended in of the rule its instruc- statement proрer court’s tions. in the trial alleges error also
The defendant
change
for
motion
a
of defendant’s
court’s denial
venue,
publicity precluded
arguing
pretrial
of
trial
in
County.
Washtenaw
a fair
change
for a
of
762.7;
provides
MSA 28.850
MCL
in
discretion
such circumstances
venue under
decision on such a
The court’s
of the trial court.
if
finds
this Court
only
will be reversed
question
Swift, 172
People v
of such discretion.
clear abuse
Kochan,
v
(1912),
People
55
473;
NW 662
138
Mich
326;
sively case, and the facts as set forth in Mr. Justice discussion of Levin’s leave, petition Collins’ 806-807 (1974), Collins, all 126 poten- In illuminating. are tial had heard jurors prospec- about case. Sixty tive admitted they give could not the de- fendant the benefit of the presumption inno- cence. The defense exercised 19 peremptory chal- *7 lenges. Collins,
The Court of in Appeals’ opinion 43 262-267, App Mich at indicated following that factors were relevant to denial of his motion for change of venue:
1) elapsed Several months prepon- between the coverage derance of media and selection. 2) The voir dire was conducted "meticulously” with individual questioning. At its conclusion de- fense counsel stated "We have a jury”.
3) Adverse publicity did not continue to and up through the actual trial.
4) The trial "strong found community feeling” "pattern and deep prejudice bitter against defendant”.
5) The record did not the jury indicate that was App 8 Mich 16 85 Opinion of the Court was convicted on the defendant or that biased extrinsic evidence. to the case equally applies of these factors
Each of Collins’ counsel’s bar, exception at with the selected, with the jury of satisfaction expression remaining un- challenges peremptory with three above, discussion, noted Mr. used. Justice Levin’s did not constitute that counsel’s remark suggested 806; 391 Mich at priоr objections, of his a waiver compared on an therefore, may be these two cases transcript anything, If equal basis. case, compared with in this when
proceedings Collins, was less pretrial publicity indicates in Col- case than in the instant extensive examined lins. prospective Fewer of the to trial prior with the case familiar incapable оf render- considered themselves fewer in a importantly, verdict. Most ing impartial an nature, selected juror finally this each case of render fair and ability an indicated People v the evidence. See upon verdict based 126 468; Mich 257 NW2d Wyskochil, App 76 Moore, 51 48; (1977), People v 214 App Mich O’Guin, v People (1974), App NW2d Bloom, (1970), 305; NW2d (1969), 768.10; MCL 463; 166 NW2d in the discretion 28.1033. We find no abuse of MSA changе for a of defendant’s motion court’s denial whole, light in especially of venue. Taken as a Collins, trial court was say we cannot likelihood” wrong finding in no "reasonable clearly deep-seated community prejudice. the court defendant claims Finally, defense counsel’s abused denying its discretion since prospective jurors, challenge for cаuse two *8 required peremp- to utilize thereby defendant was the from these challenges remove tory v Herald op Opinion the Court panel. Defendant used his final peremptory chal- lenge to excuse a third but juror, allege does not regard error with to the court’s denial of defend- challenge ant’s of this juror for cause.
GCR 511.4 sets forth permissible the grounds a uрon challenge which may for cause Among rest. these are: "(3) person the is against party biased for or a
attorney; "(4) person that the shows a state of mind which will verdict, prevent rendering just him from a or has positive opinion formed a to on the facts of the case or as
what the outcome should be.” One of the veniremen whom defendant claims should bеen have excused for cause under provisions was only marginally acquainted with the facts the crime. He stated that he knew that a had shooting following occurred robbery. bank He had read "no more than two” articles relating crime and remembered no details at trial, time of more than eight months later. Coun- sel for the defendant was more concerned over the fact that the juror serving had two sons as deputy sheriffs in Washtenaw County. prospective second juror whom defendant
claims should have been excused had driven by scene the crime a few moments after occurred, seeing only a fol- crowd. He apparently subsequent lowed closely paper events in the thought recognized that he the dеfendant’s name. acquainted He was (who with prosecutor an assistant case), would not be involved in the and may also have known two who witnesses prosecutor’s listed information.
Each of these gentlemen questioned closely. Voir dire juror first ran in the pages ten *9 App 8 18 Opinion of the Court second, juror 16 Each pages. the transcript, of impartial rendering an professed capable to be and the law alone. evidence upon based the verdict trial court’s determination again, Once this Court only reversed where this matter will be Rice v Winkelman of discretion. finds a clear abuse Apparel, Inc, 281, 287; 164 Brothers (1968). on de- proof burden of is NW2d potentially jurors that these fendant to show lack of biased, expressed prejudice juror’s and a are all impartial verdict render an ability to juror. selection of uphold to required that is supra. People Moore, each above, v As noted they could render an felt verdict. venireman, we find the to the first respect
With
challenge
clearly
for cause
trial court’s denial
Cf. United
not to have
of discretion.
been an аbuse
Caldwell,
20; 543 F2d
States
App DC
178 US
(1974).
juror
to excuse
second
Refusal
discretion under
the court’s
to be within
seems
768.10;
28.1033.
MCL
MSA
511 and
GCR
considered this
Michigan
court has
Although
that
a
issue,
holds
even
system
the Federal
attorney
prosecuting
friendship with
juror’s
him. Lane
necessarily disqualify
not
the case need
States,
cert den
(CA 5,1963),
v United
321 F2d 573
920;
1551; 14 L Ed 2d
381 US
85 S Ct
friendship
Similarly, other courts have considered
disqualify
to be sufficiеnt
to
with a witness not
Dodson,
(Mo
State v
App,
Affirmed. v Gerald Kelly, Concurrence M. J. J. Marutiak, J.,
P. J.
concurred.
Kelly,
M. J.
(concurring).
J.
I
concur
in affirm-
ance and take this
opportunity
again suggest
an instruction
ought
malice
not
to be
in a
necessary
prosecution
I
felony murder.
this,
take
first
my
opportunity
endorse
opinion of
dissenting
my
brother,
learned
Judge
*10
Kaufman,
J.
the case of People v
Nathan
Wilson,
636;