*1 1982] v Jones
PEOPLE v JONES 10, 1981, Docket No. 51792. Submitted June at Detroit. Decided 22, appeal applied April 1982. Leave to for. charged first-degree Jones was Arthur Woodie with murder and felony-firearm in Recorder’s Court of Detroit. He was convicted second-degree felony-firearm, Hobson, Donald L. appealed by granted. connecting J. He leave Evidence defen- testimony by dant with the offered at trial included gunshot beyond door, witness who heard the from a locked by "Art, followed the statement of an unidentified declarant: you done, you what have done? What have Art?” Another pointing witness testified that a rifle barrel was out from the doorway apartment wall near the in which defendant be, thought testimony and there was that defendant was hysterical shooting, declaring, accident, after the "It was an you knows, know. It was an accident. God it was an accident. It just went off.”Held: properly 1. The trial court testify allowed two witnesses to concerning prior they inconsistent statements had made to the police. prosecutor may impeach gestae A res witnesses use of prior inconsistent statements even when those statements were involuntary police or coerced and even when the state- acknowledged by ments are not the witnesses. 2. No gives reversible error occurs where the trial court cautioning impeachment instruction testimony cannot be considered as substantive evidence. The court [1] [2] [3] [4] [5] [6] [7] [8, 81 Am Jur Witnesses 40 Am Jur 52 Am Jur Malice 1.§ 21 Am Jur 40 Am Jur 75 Am Jur 29 Am Jur 63 Am Jur 75 Am Jur 5 Am Jur 40 Am Jur 2d, Appeal 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, Prosecuting References 2d, Homicide 50.§ Trial Trial Criminal Homicide § Evidence Homicide §§ §§ and Error 682, 550, Law 134. §§ §§ for Points in Headnotes 52. 521, 708, Attorneys §§ 860. 552. § 56, 70, 499, 525, 596. 731. § 706. §§ 26, 27. 533. charge rather than at the give in its the instruction testimony is admitted. impeachment time the prosecutor allowing the err in 3. trial court did *2 anything they were afraid of witnesses whether ask two testimony’s possible for their attempt a motive establish to they previously police. to had made statements
deviation from may evidence under the be admitted into A4. statement following prong hearsay rule of the where utterance excited (1) occasion, startling there is a conditions are satisfied three startling enough produce excitement and render the to nervous (2) unreflecting, spontaneous the statement was and utterance misrepresent, and and before there was time to contrive made (3) of the occurrence the statement relates to the circumstances preceding identified for an excited it. The declarant need not be admissible. utterance to be acquit- ruling for a directed verdict of 5. on a motion When tal, pre- evidence which had been a court must consider the made, by prosecution up to the time the motion is sented light prosecu- in the most favorable to view that evidence tion, a rational trier of fact could have and determine whether proven of the crime were
found that the essential elements denying beyond The court did not err in a reasonable doubt. charge. verdict on the murder There was defendant a directed jury from which the could have inferred sufficient evidence malice, premeditation and deliberation. power questions Appeals has limited to raise 6. The Court of on its own. jury involuntary instruct the on man- 7. A trial court must well, evidence, supported by slaughter as if where the charged is with murder and the court instructs the manslaughter. failing jury voluntary The court erred in on involuntary manslaughter. sponte instruct the on sua Reversed. Gage, J., part. disagreed H. R. dissented in She that the court failing give involuntary man- erred in an instruction on
slaughter. justice require She further felt that did not having already majority’s raising sponte, noted the issue sua that the evidence was sufficient to a conviction of even first-degree murder. She would affirm.
Opinion of the Court Impeach- — — — 1. Law Witnesses Res Gestae Witnesses Criminal ment. gestae prosecutor may impeach prior res witnesses use of A v Jones even when those statements statements inconsistent were in- police voluntary and or coerced even when the state- acknowledged by are the witnesses. ments — Impeachment Jury — — 2. Law Evidence Criminal Instruc- tions. impeachment testimony error occurs No where is reversible gives cautioning and the trial court admitted an instruction testimony jury that cannot be considered as substantive evidence; may give charge the court the instruction in its impeachment testimony than rather at time the
admitted. Hearsay — —
3. Excited Evidence Utterances. A statement be admitted into evidence under the excited prong hearsay following utterance rule where the three (1) occasion, startling conditions are satisfied there is star- tling enough produce nervous excitement and render the (2) spontaneous unreflecting, utterance the statement was misrepresent, made before there time to contrive and (3) the statement relates to the circumstances of the occurrence *3 (MRE 803[2]). preceding it — — Acquittal.
4. Law Criminal Directed Verdict ruling acquittal, on a When motion for a directed verdict of a presented court must by consider the evidence had which been prosecution up made, the to the time the motion is view that light prosecution, evidence the most favorable the and determine whether a rational of trier fact could have found proven beyond the essential elements of the crime were reasonable doubt. — 5. Homicide Premeditation and Deliberation. proven first-degree
Premeditation and deliberation in a by evidence of facts about the manner of the killing jury preconceived plan from which a could infer a kill. — 6. Homicide Malice. requires very involved
Malice in murder intent an to cause nature, general harm results or some harm of the same or disregard plain an act done in wanton or wilful and strong likelihood that some such harm will result any justification, excuse, recog- absence circumstance of or mitigation. nized 115 Court Appeal — V. Not Raised. Issues power questions its own. raise on Appeals has limited The Court of Jury— Manslaughter — Instructions. 8. Homicide manslaughter involuntary jury instruct on must A trial court evidence, the defendant is supported where well, if as jury on instructs murder and the court charged with manslaughter. voluntary Gage, H. R. J. Dissent and Partial Concurrence Partial Jury Manslaughter — — Instructions. 9. Homicide involuntary on instruct the sponte not sua trial court need A murder, charged manslaughter with where the defendant request manslaughter for voluntary no and on court instructs involuntary manslaughter is made. instruction General, Louis J. Kelley, Frank J. Attorney Cabalan, L. William General, Caruso, Solicitor Wilson, Prin- Reilly Edward Prosecuting Attorney, M. Joyce, and Janice Appeals, Attorney, cipal people. for the Prosecuting Attorney, Assistant Grove, De- Appellate Assistant State Chari fender, appeal. on for defendant H. R. P.J., and Cynar D. C.
Before: Riley, JJ. Gage,* charged with Defendant was Per Curiam. murder, 750.316; MSA MCL first-degree
offenses during 28.548, of a firearm possession 750.227b; MSA of a MCL felony, commission 28.424(2). 28, 1980, found February On *4 murder, MCL second-degree guilty defendant 28.549, on the 750.317; guilty charged as MSA during the com- of a firearm possession count of 1980, 11, March felony. On mission mandatory years to serve the was sentenced * by assignment. sitting Appeals judge, on the Court of Circuit v Jones Court prison felony-firearm on the count and to serve a years years to a minimum of 15 maximum of 40 second-degree prison on count, consecutively. sentences to run shooting Defendant’s conviction arises out of a during early morning Sep- incident hours of 1979, 29, tember which the victim was shot in weapon a small the face with caliber and subse- quently died from shock and loss of blood due to injury artery. to the left carotid At trial no wit- they testified nesses had seen defendant shoot although victim, statements to that effect had given police been before trial. Evidence connecting defendant with the offered at testimony by included a witness who heard gunshot beyond door, from a locked followed by the statement of an unidentified declarant: you you "Art, what have done? done, What have Art?” Another witness testified that a rifle barrel pointing doorway was out from the wall near the apartment thought in which defendant was testimony be, and there that defendant was hysterical shooting, declaring, after the "It was an you accident, know. It was an accident. God just knows, it was an accident. It went off.” allegation Defendant’s first of error is without properly merit. The trial court allowed two wit- testify concerning prior nesses to inconsistent they police. statements had made to the Defen- argument dant’s that the statements were involun- tary bearing and coerced has no on their admissi- bility. authority personal There is no to extend right against of a defendant coerced self-inerimina- tion to include statements made In witnesses.. standing addition, defendant had no to raise the rights parties. issue of violation of the of third See Wong Sun States, v United 371 US 83 S Ct *5 115 Mich Opinion op the Court (1963); People Portman, 73 v
407;
to
hearing
the
for a
to determine
Walker
dant’s call
the
statements
is an
witnesses’
voluntariness
empty
(On
People
request.
The rule of
v Walker
(1965),
Rehearing.),
331; 132
374 Mich
applies
whose confessions
to criminal defendants
illegally
involuntarily
obtained.
or
have been
not included under
Statements of witnesses are
reliance on the decision
rule. Defendant’s
Higdon Kelley,
209;
The allowing prior statements to be inconsistent substantively no used lacks merit. Defendant offers proof prior , inconsistent statements substantively. two used Defendant witnesses were supports this with no more evidence than claim impeachment Contrary that the occurred. defen- impeaching contention, did dant’s statements only trial at link- contain the evidence offered ing shooting. defendant to authority provided has no
Defendant case judge his contention that the trial should impeachment evi- have instructed on use of impeachment at the time the occurred. dence v Jones Opinion of the Court Michigan standard is that reversible error will give found where the court fails to cautioning impeachment instruction testimony cannot be considered as substantive Durkee, evidence. *6 (1963).
NW2d case, 729 In the instant the proper received the instruction on the use of im- peachment testimony in the trial final court’s jury. Consequently, there instructions was impeachment no error involved in the use of the testimony at trial. prosecutor
It for was not reversible error the they to ask two allowed witnesses whether were anything establishing afraid of a without factual questions. prosecutor’s ques basis for The the brief tioning of two witnesses was allowed to establish possible prior for motive the deviation from their police. made statements These references were specific enough not tory to rise to the level of inflamma prejudice necessary
insinuation and for rever sal Dorrikas, under our cases. v See 354 (1958);People 303; Mich 92 Marchese, NW2d 305 v App (1978); People 775; Mich (1980). App Rohn, 98 593; Mich 296 NW2d 315 The prosecutor allege did not that defendant had at tempted frighten witnesses; he not did ask they approached anyone; whether were he only very general question. asked He also question abandoned it when was answered negative. ques circumstances, Under these prejudicial judge tions were not not err in and the trial did allowing purposes revealing them for instructing motive as to the supporting lack of evidence. admission the statement of an unidenti-
fied declarant was not erroneous. The statement qualified as excited utterance under MRE 115 the Court
803(2) hearsay excep- a was admissible as thus Carson, tion. See of its admissibil- A determination NW2d ity depend upon that the declar- the fact does not upon determination of unidentified but a ant was involved the circumstances the statement whether shooting. that, because of the We find startling building apartment a was such closely fol- the utterance so event and because event, inferential that there was sufficient lowed to the circumstances link to relate the declaration despite event, fact the declarant thus, unidentified, and, was the statement was properly Furthermore, the admission admitted. * * *” which that "it was an accident brought testimony of another wit- out in the any error. renders harmless ness court should Defendant contends granted for a directed motion have defendant’s *7 charge. on the murder verdict ruling for court, on a motion The trial acquittal, must consider the verdict of directed up presented prosecution to the evidence made, Garcia, v the motion is time (1976), 250, 256; view 247 NW2d that prosecu- light in a most favorable evidence 460, 463; tion, Vail, 393 Mich NW2d (1975), rational trier and whether a determine ele- of fact could have found essential proved beyond of the a reason- ments crime were People Hampton, doubt, able find that there was sufificient evidence to We of existence each element establish beyond a reasonable doubt. crime Having previously "Art, found the statement you as an excited have done” admissible what People v Jones Opinion op the Court immediately utterance, statement, we find such a following gunshot coupled did, it as with the evidence of the defendant’s statement to a witness that it accident, was an to be sufficient to establish beyond a reasonable doubt defendant was the man who shot deceased.
Having finding established sufficient for gunman, only to be the other seri- question ous is whether the element of intent supported by evidence sufficient to establish its beyond existence a reasonable doubt. testimony describing
A review of the shoot- ing gone victim, Stanford, is in order. The had apartment building crime, scene of Gary purpose Detroit, with Watson for the buying pills”. "some Watson testified that he and men, the victim talked to two David Merrill and building pills York, Fred outside the about pills were told that be had could inside. Merrill apartment building and York entered the followed by the victim and Watson. Watson testified that he building could not follow the three men into the past the second door entrance because it waiting locked in front of outside, him. While gunshot, Watson heard one then he heard a fe- say, you "Art, male voice what have done. What you done, have Art.” Watson testified that he then by way saw Merrill and York run downstairs police the back staircase. Watson called the jail questioning was arrested and taken to for after they arrived. Watson testified that he did not see night defendant on the of the incident. apartment building
David Merrill entered the *8 just that, ahead the victim. He testified when he only person floor, reached the second the he could hallway York, see the was Fred was fur- who ther down the hall. Merrill Then heard a shot as op the Court immediately He door. aon to knock
he was about time to see the turned hall but ran down landing the stairs down victim fall back he did that Merrill testified floor. below the second called after Merrill until defendant see standing police he saw defendant time which at building. apartment in the downstairs preceded Merrill and he that York testified Fred up floor and to the second the stairs victim stairs down the fall back Stanford he saw that that he further testified York he shot. was after anyone nor did he see Stanford shoot not see did any hallway. weapon testified York then in the signed police in his the truth told that he saying that he denied he to them but statement standing by the stairs. a rifle a man with had seen testify point, rifle he saw York did At this "pointing the wall” but the side of from out rifle or who was who shot not see he did holding sticking testified, was rifle, York it. This apartment right door next to out of the wall his sister, Linda Williams. liv- was that defendant testified
Linda Williams apartment ing the second floor on her in the with time that she At the the incident. the time of at thought in the was shot, defendant she heard apartment. that she testified She bedroom hallway she in the when not see did hearing opened Williams the shot. the door after hysterical testify that defendant was did police apartment had left. after bedroom kept mum- that defendant further testified She you bling, It accident, know. was "It was an just It knows, it an accident. was God accident. off.” went
Contrary
assertions,
there
to defendant’s
establishing
testimony by
that he saw
witness
one
*9
People
553
Jones
v
Opinion
the Court
of
protruding
immediately
a rifle
into the hall
after
standing
victim
the shot
hallway
The
was
was fired.
in the
top
of
stairs
at the
when he was shot
gunman
in
clear that
the face. It is
aimed a
victim from
firearm at the
(inside
a concealed location
apartment),
people
since none of the
present
hallway
presence
were aware of his
until
the shot
fired. Factors to be considered
determining
premeditation
existence of
include
deliberation
facts about the manner of the
killing
precon-
from which a
could infer a
plan
People
App
to kill.
Gill,
ceived
v
598,
43 Mich
(1972).
602-603; 204
699
Defendant relies on a number of cases where the
question
premeditation
of deliberation and
con-
is
struggle.
e.g.,
sidered in the context
See,
of a
id.,
People
App
Morrin,
v
301;
Mich
took
is sufficient when
with
beyond
the use of a firearm to establish
a reason-
premeditated
able doubt a
intention to kill. See
Vinunzo,
Mich
NW
(1920).
We note that a
could choose to disbe-
gun
lieve defendant’s
statement
dis-
charged accidentally
accepting
even while
the fact
jury’s
that he made that statement.
It is the
task
weigh
testimony
the evidence and decide which
Smalls,
believe. See
53,
57-58;
We next address defendant’s contention that support there was no evidence sufficient to a find- Court of the second-degree ing necessary malice, element aspects shooting in which murder. same premeditation we find for deliberation necessarily supply of malice. the element to kill is an essential
The actual intent second-degree element Michigan. crime of killing essential isWhat *10 People Davis, 76 Mich done v with malice. (1977). This Court 187, 189; 576 256 NW2d People supra, malice is Morrin, 323 stated that v present kill to is no actual intent even where there great bodily is inflict harm if the intent to actual tendency engage natural of to the or behavior great bodily The harm. which is cause death or Supreme has held that: Court harm very to cause the requires "Malice intent nature, general harm of the same that results or some the disregard wilful of or an act done in wanton or strong that some such harm will plain and likelihood negative It also on the side the absence requires result. excuse, recog- justification, or any of circumstance of 344, Hansen, People 368 350- mitigation.” Mich nized v (1962). 351; 118 422 NW2d concept malice, In the of a recent articulation of Supreme People Mich Aaron, 409 the Court v (1980), 672, 728; stated that: NW2d is the today that malice "Accordingly, we hold harm, great bodily kill, do intention the intention to disregard of the likelihood or the wanton and willful tois tendency of defendant’s behavior natural bodily great death harm.” cause or second-degree person of While accused decedent, of must prosecution death have caused only that the defendant establish need Jones op the Court very high degree disregarded a of risk created death-causing his of activities. of death at the time 777, 781; Hill, 94 NW2d (1979); Guilty Cases, 96, 131; Plea testimony pro- that a rifle barrel was seen immediately truding hall after the shot into allowed the reasonable conclusion that heard intentionally gunman aimed and fired the rifle at the victim. This establishes loaded disregard high degree requisite creation and of death risk at the time which necessary Thus, for the to find malice. justify submitting there was sufficient evidence to question second-degree the manslaughter murder as well as jury. response argument In to defendant’s equally circumstantial evidence is consistent with guilt disagree. innocence, or we must Under the case, of this we that a rea- circumstances believe reject theory sonable trier of fact could defendant’s Again, of accident as unreasonable. the manner of *11 theory a If belies of accident. defen- handling gun apartment, dant had been in his perhaps cleaning discharge might it, an accidental explanation, a reasonable but the fact that the weapon projecting hallway into the and at the certainly compelling enough victim is a circum- outweigh negate theory stance to and of acci- dent.
Although by none of the issues raised defendant necessary reversal, mandate it is to address party issue which was not raised either on appeal. Generally, the Court will not address such dispense justice, However, in an effort to issues. the Court has limited power People to do so. (1979). App Noel, 88 Mich 115 H.R. J. Gage, Partial Concurrence issue is court whether the trial erred in not in- structing involuntary manslaughter. on
Manslaughter, necessarily not a while included murder, offense of well anbe included offense support if the adduced at evidence trial would a manslaughter. People Wyck, verdict of Mich v Van 266, 269; Further, NW2d 638 it is error reversible for the court to fail to in- manslaughter struct on when there is evidence to theory proper request such a a where for such an instruction is made. Id. requested case,
In the instant an in- manslaughter, struction on and the trial court did voluntary manslaughter neglected instruct on but involuntary manslaughter. to instruct on Jones, In v Ora 379, 395 Mich 393; 236 (1975), Supreme NW2d 461 Court found revers- ible manslaughter involuntary error for failure to instruct on although requested
where, to do only so, voluntary the trial court instructed on manslaughter. Citing Jones, Court, Ora this Heard, 571, 576; 303 NW2d (1981), stated that the trial court’s undertak- ing voluntary manslaughter to instruct on created duty cognate to instruct on the included offense involuntary manslaughter sup- if the evidence ports such an instruction. In case, this the trial court involuntary should have instructed on man- slaughter.
Reversed. (concurring part dissenting
H. Gage, R. J. part). respectfully I portion dissent from that majority opinion reversing defendant’s convic- tion for the trial court’s failure to instruct the involuntary manslaughter. on Defendant never *12 requested object such an instruction and failed to v Jones Gage, H. R. J. Partial Concurrence given. when was He has no instruction not even appeal. raised the issue on theory of the case
Defendant’s was that Although shooting accidental. this defense charges to the would be successful of first- and second-degree manslaugh- voluntary murder and charge involuntary ter, not be to it would manslaughter. request Counsel’s failure to an in- involuntary manslaughter may on struction have attempt possibil- conscious been a to foreclose the any ity jury conviction should the believe that shooting was an accident. In the absence of a the request instruction,
for an
the trial court should
inject
usually
itself into what
amounts to
legitimate
strategy
part
trial
on the
of either the
prosecutor. People
defendant or the
v Herbert Van
App
Smith, Jr,
384, 388;
30 Mich
I also with the sponte justice issue sua requires. because of its belief that so jury
The trial court
instructed the
on
second-degree
voluntary
first- and
murder manslaughter.
theory
Defendant’s
was that
jury
was accidental. The
could have be-
theory
acquitted
lieved defendant’s
him on all
charges.
jury
It did not. The
could have believed
killing
was intentional but without mal-
1Although
Supreme
the defendant’s conviction was reversed
Court, only
justices joined
opinion.
justices
two
in the Court’s
Three
dissented,
only,
stating:
concurred in the result
and Justice Brennan
'right’
"I must dissent. The notion that
has
properly
altogether
instructed is
A
novel.
criminal
is concerned
rights
with the
of the defendant
If the defendant for tactical or other
permit
go
principal
reasons chooses to
the case on the
offense,
charged
offenses, that, too,
without mention of lesser included
right.” People
Smith, Jr,
457, 462-463;
is his
v Herbert Van
388 Mich
(1972) (T. Brennan,
J., dissenting).
ice. It second-degree Its conviction did not. although that, demonstrates doubt to whether as it a reasonable had have premeditation delibera- with acted he with doubt that acted tion, no such it had majority has accident. malice and specifically evidence was sufficient noted findings. Under these circum- both I can conclude fail to see how one stances dispensed. justice was not majority’s of each resolution
I concur with affirm the con- defendant. I would issue raised viction.