*1 Stegall 1980]
PEOPLE v STEGALL 1980, 2, Lansing. Docket No. Submitted June at 78-4212. Decided 2, 1980. December felony W. was convicted of murder and robbery following to commit armed trial in Genesee Court, Philip Elliot, prior appeal C. Circuit J. In a from those convictions raised the of defendant sole issue whether the trial by denying discretion court abused its a defense motion to preclude prosecutor cross-examining the from regarding prior felony convictions in the event the defendant Appeals took the stand. Court of the affirmed convictions (Docket per unpublished 77-14, in an curiam No. re- 1978). April 6, leased Defendant thereafter filed the circuit trial, delayed court a motion for a new which was denied the application delayed tried court. Defendant filed a for leave to appeal Appeals, granted. Court of the which was In this alleges appeal, counsel, prej- defendant ineffective assistance flowing prosecution udice witness indicat- that defendant had crime committed a and had been imprisoned, error in the trial court’s instructions on murder. Held: support 1. The does not record that the defendant was denied at effective assistance of counsel trial. nonresponsive 2. The of the answer proper question by witness to a counsel defense cross- examination did not mandate the of the defense mistrial, prejudicial motion for a since the effect of that answer injustice did not result in manifest could not be cured cautionary against instruction. Since the evidence defendant overwhelming, nonresponsive effect [1] [2] [3, [4, [5] Application 6] 5 Am Jur 76 Am Jur 21 Am Jur is an 75 Am Jur 40 Am Jur includible offense 2d, Appeal 2d, 2d, References 2d, 2d, Trial Criminal Homicide Trial §§ murder doctrine and Error 776. §§ 1080-1082. 8.§Law with §§ Points in § homicide. 498-500. where Headnotes 40 ALR3d 1341. relied upon influencing had little answer would have deny proper jury’s for the It was verdict. give instruction to a corrective and instead motion for mistrial *2 jury. the charge, may Malice, purpose felony murder of a for the is engages of an act which in the commission where one found disregard of the dangerous and wilful human life in wanton to may bodily harm or serious risk that death unreasonable which, encompass- result, of mind while malice is a state since kill, may intent. The trial absent such to exist an intent must, they to jury in order the that instruction to court’s murder, felony defendant intended to find that the convict for high knowingly death or created a risk of or kill the deceased felony resulted in consciously commit the which intended to jury question adequately of malice. the on the instructed death engaged conspiracy in a that the defendant 4. Since a supporting robbery was a element to commit armed murder, felony for the defendant’s conviction robbery conspiracy must be to commit armed for conviction vacated. part. part, in in vacated Affirmed Danhof, C.J., the trial He would hold since dissented. jury that the defendant cannot be the
court did not instruct the acted with reversal of murder unless he liable for felony He is mandated. conviction for defendant’s manslaughter. entry for order of a conviction would Opinion of the Court — — — Answer Mistrial Volunteered 1. Criminal Law Evidence Cautionary Prejudice — — Instructions. question proper nonresponsive is not answer to a prejudicial effect of a mistrial unless the cause for injustice be cured manifest which cannot that answer results in judge. cautionary by the trial a instruction — — — — Motions Mistrial Prior 2. Criminal Law Evidence Prejudice. Jury — — Crimes Instructions upon nonresponsive answer elicited mistrial based A motion for indicating witness cross-examination of a in a murder of the defendant crime and incarceration gives properly a corrective the trial trial is denied where against is so over- instruction and the evidence whelming would effect of that that the influencing jury’s verdict. the have little Opinion op the Court Jury— 3. Trial Instructions. is instructions which are not
An accused entitled to errone- misleading, objection no the ous or even where to trial court’s instructions is made at trial. Jury — — Felony — — Malice
4. Homicide Murder Intent In- structions.
Malice, charge, purpose may be found engages dangerous commission act where one of an to wilful human life wanton and unreasonable result, bodily may risk death or serious harm since malice which, kill, encompassing of mind an a state while intent to intent; accordingly, may an exist absent such an also instruc- they tion in a murder trial to must find knowingly that the defendant intended kill the deceased high consciously created risk of death or intended commit proper. the death is resulted in Felony Underlying Felony Conspir- — — — 5. Homicide Murder acy Necessary — Element. A defendant’s conviction for commit *3 robbery must set aside where the defendant was convicted of first-degree felony conspiracy charge and consti- charge. tutes a element of the by Danhop, Dissent C.J. Felony Jury — — —
6. Homicide Malice Murder Instructions. malice, separate indicating they instruction on ñnding cannot convict without that the defendant acted with given charge must be in on a trial murder. Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Weiss, Solicitor E. Robert Prosecuting Attorney, Kuebler, and A. Donald Appellate people. Division, Chief for Coulter, Dolores M. defendant. for Kelly Danhof, C.J., Before: and M. J. and G. R. JJ. Corsiglia,* assignment. judge, sitting Appeals by
Circuit on the Court of Opinion op the Couet 16, 1976, September M. J. J. On Kelly, Wayne Stegall dant was convicted by murder, of first-degree contrary to MCL 28.548, 750.316; MSA and to commit 750.157(a), contrary to MCL robbery, 28.354(1), 750.529; MCL MSA MSA 28.797. There- after, defendant was sentenced life for imprisonment terms of each offense.
In a previous proceeding appealed defendant as right, raising single review a issue of whether the trial court abused its discretion in denying preclude prosecutor a motion to cross-examining regarding prior the defendant fel- ony convictions the event took the stand. This Court affirmed the convictions (Docket unpublished per curiam No. 77- 1978). 6, 30, 1978, April released On June filed a pro se defendant delayed motion for a new in the circuit court. The motion was denied September 11, the circuit on judge 1978. The pro se delayed application defendant then filed a for leave to appeal, granted this Court on June appeal, this defendant contends that the trial in denying erred his motion for a delayed
new trial.
In support
allegation,
of this
defendant
first asserts that he was denied the effective assis-
tance of
Upon
counsel at trial.
examination
record, however, we find that defense counsel met
the standards
for effective
forth in
assistance
set
Garcia,
reh
den
Defendant’s second claim of error asserts revers- prejudice prose- ible a arising response from the cross-examination, cution witness 151 Opinion of the Court exposed to the imprisonment term possible committed defendant: ”Q [by Jerry defense Did ever talk to you counsel]: Flint; about his did he life former or his life before he came to brag you happened? about to that —what ”A [by the He once a talked little bit about witness]: coming from North Carolina.
”Q. bragger? Jerry appear you Did to be a really. 'A. Not really. Not He had mentioned about prison before, when he inwas but other than very quiet. He never said too awful much. He say did was—that he he had killed a guy or something in North Carolina or in that area wherever was; I he do not remember it.” where he did remark, In response to this defense counsel re- quested or, a mistrial alternatively, corrective jury instruction. trial court chose admonish response. unsolicited If such a could response reasonably anticipated have counsel, been by defense we agree would tend to with the defendant required mistrial was and that the defendant’s delayed motion for a new trial should have been granted. e.g., People See Greenway, 547; 114 (1962), People McGee, (1979). However, witness’s prejudicial response was clearly unantici- pated. A nonresponsive answer to a proper question is not cause for a mis- trial. Kelsey, 303 Mich 7 NW2d (On Remand) (On People v Yarbrough Rehearing), NW2d 345 Fleish, NW2d 700 the Court refused to find grounds reversal conviction defendant’s when one witness referred at to the defen- dant’s incarceration at Alcatraz. The Court stated: *5 Opinion op the Court irregularities "Inadvertent of this character are prolonged, bound to occur the course of hotly-con- trials, when, case, tested as in the instant objectionable testimony purged from the record court, the constitute reversible error in sive the irregularity should not be held to persua-
the absence of a showing prejudice.”
See also People McQueen, for a similar conclusion regard- effect of an unresponsive an- swer.
Nevertheless,
this Court must decide whether
the prejudicial effect of the incompetent
has resulted in manifest
injustice. People v Cham-
#1,
bers
(1974), and whether the prejudicial effect of the incompetent testimony could have been cured aby cautionary instruction by the trial judge. People v #1, Chambers supra, citing United States v Smith, (CA 1968). 403 F2d 74
We find the trial court’s corrective instruction to the jury cured any prejudice resulting from the witness’s comments. There was overwhelming evi- dence implicating the defendant. find We little the remarks were so strong effect as to influence the outcome of the jury verdict. We decline to reverse conviction on this basis.
Defendant next contends the trial court’s effectively removed from the jury’s consideration the element of malice and improp- erly imputed the required malice mur- der from the commission of the felony. underlying The trial court’s instructions included the follow- ing: Opinion op the Court guilt prove "To establish his must following beyond
each of the doubt. third, elements a reasonable One, that died April Robert Jarvais on or about two, seventy-six; nineteen that his death was caused that his death occurred as a direct result sion of the crime of robbery, armed commis- defendant; robbery by *6 three, that at the time robbery which resulted in death, the Jarvais or the defendant either to kill intended Mr. degree knowingly very high created a of risk consciously of or his death intended to commit death; robbery resulting crime of armed in the and four, Jarvais (Emphasis defendant caused the death of Robert excuse, justification, mitigation.” or without added.) no objection Defense counsel made to this in- Nevertheless, struction at trial. an accused is enti- tled to are instructions which not erroneous misleading. People Liggett, 706; v 378 Mich 148 (1967), Ross, 784 v People App 705; NW2d 69 Mich 245 335 NW2d
The
of Appeals
Court
on
presently divided
issue of whether
jury
charge
on a
of
murder must
include a
discussion
The
malice.
issue remains before the Supreme
Court for ultimate resolution. See
v
People Wright,
80
262
(1977),
gtd
NW2d 917
lv
402
(1978),
Wilder,
Mich 938
People
82 Mich App
358;
(1978),
In support of his on argument this dant principally relies on this decision in Court’s People Fountain, 71 Mich 248 NW2d Supreme Aaron, People The Court has addressed this issue in v 24, (1980), 409 Mich released on November not, however, applicable Aaron decision was made to trials concluded to the date of that decision. App 147 op Opinion the Court (1976), reversible error in the which found to instruct on the trial court’s failure murder. See also element of malice The Fountain Court con- Wright, supra. attending the intent commission cluded imputed satisfy could not be underlying felony mur- requirement first-degree felony the malice However, supporting der. we find the decision and Till, App expressed rationale Judge Kaufman’s NW2d Wilson, 84 dissenting 636, 639-655; 270 to be the Till, the Court held: persuasive. more to in Fountain establish that it is "The cases alluded killing determine whether a results from for the the commission link between the so as to form the essential killing and the malice associated with felony. finding may the commission of the be made without of malice intention to kill. encompassing Malice is a while an intent state of mind kill, may may also exist absent such an intent. It exist *7 engages danger- where one in the commission of an act ous to human life in and wilful wanton bodily unreasonable risk that death or serious harm Hansen, 344, 350; People may result. v (1962).” Till, supra, People v case, Applying present the above rationale to the apparent it is that no error from the trial occurred court’s instructions.
Finally, we address an issue not raised
parties. The defendant was convicted of both first-
degree felony
conspiracy
murder
to commit
armed robbery.
Because the
constitutes
charge,
element of
must neces-
conspiracy conviction
Hicks,
App
sarily
People
vacated.
Wilder,
People
supra.
Danhof, (dissenting). C.J. I must respectfully dissent majority’s disposition of defen- dant’s claim the felony must include a discussion of malice be- Fountain, I cause followed 71 Mich App Langston, Since the trial court failed instruct dant cannot be liable for murder he unless acted with I would reverse defendant’s convic- tion for first-degree felony murder but would order entry conviction for manslaughter with the people having option of retrying defendant first-degree felony murder.