People v. Gerald Hughes

270 N.W.2d 692, 85 Mich. App. 8
CourtMichigan Court of Appeals
DecidedAugust 7, 1978
DocketDocket 29408
StatusPublished
Cited by21 cases

This text of 270 N.W.2d 692 (People v. Gerald Hughes) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gerald Hughes, 270 N.W.2d 692, 85 Mich. App. 8 (Mich. Ct. App. 1978).

Opinions

D. E. Holbrook, P. J.

The defendant-appellant and two other persons were charged with first-degree felony murder, under MCL 750.316; MSA 28.548, for the shooting death of an Ypsilanti police officer during the armed robbery of a branch of the National Bank of Ypsilanti on July 11, 1975. Defendant was arraigned on July 14, 1975, [11]*11and trial began April 19, 1976. Defendant submitted a pretrial motion for change of venue, alleging adverse pretrial publicity, and after denial pending voir dire, renewed this motion orally in court after voir dire examination of potential jurors. The trial court postponed decision on defendant’s motion pending the voir dire, in order to determine whether or not an impartial jury could be impaneled.

Thirteen jurors were eventually excused for cause. The court denied three challenges for cause asserted by defense counsel. Defense counsel then utilized peremptory challenges to excuse each of the challenged jurors; abuse of discretion is alleged with respect to the court’s failure to excuse two of these jurors for cause. After the voir dire, the court considered the jury selected to be impartial and defendant’s request was denied.

Following the presentation of evidence, but before final argument, defense counsel requested that the court include in its instructions to the jury an instruction on manslaughter. This request, later renewed, was also denied.

While instructing the jury on the people’s theory of the case, the court suggested that first-degree felony murder would lie if the prosecutor were to show that a "killing” occurred during the course of a robbery. This same mistaken phraseology was used infrequently by the prosecutor and defendant throughout the trial. The court did affirmatively instruct the jury on the necessity of a showing of malice: it did not instruct the jury that they could impute malice from the defendant’s participation in the robbery. Defense counsel did not object to the instructions given by the court.

The jury returned a verdict of guilty of first-degree murder and defendant was sentenced to life [12]*12imprisonment. He appeals as of right, alleging four separate errors.

The defendant first alleges reversible error in the court’s refusal to instruct the jury on the offense of manslaughter. It was argued by defendant that manslaughter is necessarily a lesser included offense when murder is charged. The controversy in this regard was recently resolved by the Supreme Court in People v Van Wyck, 402 Mich 266, 268, 269-270; 262 NW2d 638 (1978). The Court stated:

"We hold that manslaughter is not a necessarily included offense within the crime of murder but that it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of that crime.
"The absence of mitigating circumstances need not be established in order to convict one of first- or second-degree murder. Consequently, it cannot be said that voluntary manslaughter is a necessarily included offense within the crime of murder; it is incorrect to state that it is impossible to commit first- or second-degree murder without having first committed manslaughter.
"It remains to be decided in these cases, however, whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter. If the evidence would have been sufficient to support such a verdict, it was reversible error for the trial court, on request, to refuse the requested instruction.” (Emphasis added.)

The evidence placed before the jury in the instant case would not support a verdict of common-law manslaughter. No evidence was presented tending to show that the police officer was shot accidentally or in the heat of passion. Van Wyck, supra, at 269. Since no evidence of the existence of [13]*13mitigating factors which would reduce the offense to common-law manslaughter was brought forth at trial, it was unnecessary for the court to instruct the jury on that offense.

Under MCL 750.329; MSA 28.561, a separate offense of manslaughter is statutorily defined as causing death by the intentional discharge of a firearm without malice. Since the jury was twice instructed that it must find malice in order to convict the defendant of felony murder, and since the jury did find the defendant guilty of felony murder, it is clear that the charge of manslaughter would not lie under this section. Therefore, it was not error for the court to refuse to instruct the jury on manslaughter.

Next, defendant alleges that repeated misstatements of the felony-murder doctrine by the court and by both counsel "removed the essential element of malice from the jury’s consideration” under the authority of People v Fountain, 71 Mich App 491, 506; 248 NW2d 589 (1976). Regardless of whether Fountain or People v Till, 80 Mich App 16; 263 NW2d 586 (1977), correctly states the Michigan law of felony murder, the trial court’s instructions to the jury met even the more stringent requirements. The misstatements to which the defendant refers consisted of defining felony murder as participating in the commission of a robbery during which a "killing” occurs.

Since the defendant did not object to the instructions given, this issue was not preserved for review under People v Hall, 396 Mich 650, 657; 242 NW2d 377 (1976). Nevertheless, we wish to add that at most, this loose phraseology bandied about the courtroom was merely harmless error. It appears that it was used primarily to characterize the people’s theory of the case, and all parties care[14]*14fully instructed the jury that counsels’ statements did not constitute fact or law. Furthermore, the court gave the jury the Standard Michigan Criminal Jury Instructions on felony murder, including the instruction requiring a finding of malice. At the jury’s request, these particular instructions were repeated. Any defects resulting from the fact that during the course of the trial the parties tended to paraphrase this rule were cured by the court’s proper statement of the rule in its instructions.

The defendant also alleges error in the trial court’s denial of defendant’s motion for a change of venue, arguing that pretrial publicity precluded a fair and impartial trial in Washtenaw County. MCL 762.7; MSA 28.850 provides for a change of venue under such circumstances in the discretion of the trial court. The court’s decision on such a question will be reversed only if this Court finds a clear abuse of such discretion. People v Swift, 172 Mich 473; 138 NW 662 (1912), People v Kochan, 55 Mich App 326; 222 NW2d 317 (1974).

In reliance on Swift, supra, the trial court delayed decision on this matter pending voir dire examination of prospective jurors. The jury finally impaneled consisted of three persons who had heard no media accounts of the case, two persons who had probably heard something but could remember no details, and seven other persons who vaguely remembered the media accounts of the crime but who remembered few, if any, details. All stated unequivocally that their verdict would be unaffected by any matter extraneous to the evidence adduced at trial. That some jurors had read or seen media accounts of the incident is not sufficient grounds for a change of venue, absent some showing of potential prejudice. See Murphy v [15]*15Florida,

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People v. Gerald Hughes
270 N.W.2d 692 (Michigan Court of Appeals, 1978)

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Bluebook (online)
270 N.W.2d 692, 85 Mich. App. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gerald-hughes-michctapp-1978.