People v. King

296 N.W.2d 211, 98 Mich. App. 146, 1980 Mich. App. LEXIS 2733

• Court: Michigan Court of Appeals
• Decided: June 16, 1980
• Docket: Docket 77-1690
• Status: Published

Opinions

E. A. Quinnell, J.

We are all agreed that the evidence was sufficient to justify the binding over of the defendant for trial on the charge of first-degree murder and for the submission of that issue to the jury. We are also agreed that the trial court did not err by admitting the knife into evidence and are further agreed that the prosecutor’s violation of the discovery order requires us to reverse the convictions and remand for a new trial. However, the majority votes to remand for a new trial on the manslaughter charge as well as the assault charge.

A. There was record evidence from which a rational jury could find beyond a reasonable doubt that the defendant participated in this killing with malice and with premeditation. Thus, as to first-degree murder, the requirements of People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), have been met.

Analysis of voluntary manslaughter as a lesser included offense involves the application of somewhat different standards. The Supreme Court has wrestled with this concept previously.

"Part of the confusion concerning lesser included offenses appears to result from analysis which treats as positive elements of a crime such negative concepts as 'unarmed’. Considered in the context of lesser included offenses, 'unarmed’ is the absence of the element of use of a weapon. It is not a distinct, separate element. Elements are, by definition, positive. A negative element of a crime is a contradiction in terms. Adding the description 'unarmed’ to robbery adds nothing. 'Robbery’ and 'unarmed robbery’ are the same offense.” People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975). .

In People v Doss, 406 Mich 90, 96-99; 276 NW2d 9 (1979), the Supreme Court considered the meaning of "without malice” in involuntary manslaughter. The Court held that there is no such thing as a "negative element”. The prosecution does not have to present proof of the absence of malice to establish the elements of involuntary manslaughter. The Court noted:

"While the absence of malice is fundamental to manslaughter in a general definitional sense, it is not an actual element of the crime itself which the people must establish beyond a reasonable doubt.” Doss, supra, 99.

By the same reasoning, provocation is not an element of voluntary manslaughter; provocation negates malice and reduces a killing that would otherwise be murder to manslaughter. The Supreme Court discussed it in terms of reducing murder in People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974):

"It requires that a defendant be found to have had an intent to kill or an intent to do serious bodily harm to the deceased. To this extent the offense parallels the crime of murder; but, as noted above, it is distinguished from murder by an absence of malice. To reduce a homicide to voluntary manslaughter the fact finder must determine from an examination of all of the circumstances surrounding the killing that malice was negated by provocation and the homicide committed in the heat of passion. People v Scott, 6 Mich 287, 295 (1859).”

The Supreme Court’s holding of voluntary manslaughter to be a cognate — rather than necessarily included — lesser offense of murder does not alter this analysis. The Court reasoned:

"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.” People v Van Wyck, 402 Mich 266, 269; 262 NW2d 638 (1978).

Provocation, in its role in distinguishing manslaughter from murder, may be totally lacking in some cases. A homicide, for example, may be unquestionably murder, but the defendant may assert an alibi, in which case there would be no room for voluntary manslaughter as an included offense.

B. However, voluntary manslaughter may be a lesser included offense if the evidence presented at trial would have supported a verdict of guilty of voluntary manslaughter. People v Van Wyck, supra, People v West, 408 Mich 332; 291 NW2d 48 (1980). Moreover, a conviction for voluntary manslaughter does not necessarily require that the prosecution establish by credible evidence beyond a reasonable doubt that the defendant was provoked, for such a requirement would be inconsistent with the theory of lesser included offenses.

The underlying premise of lesser included offense analysis is that a jury is free to disregard any of the proof presented by the prosecution. People v Chamblis, supra, 419-425. Thus, in this case, the jury was perfectly within its proper sphere in determining that the prosecution’s proofs did not establish malice (or premeditation) because the defendant was provoked, despite strong prosecution proofs to the contrary.

C. Therefore, once the Hampton, supra, requirements had been met as to the charge of murder, permitting the jury to consider a lesser included offense of voluntary manslaughter must proceed under a Chamblis analysis, and such consideration requires only a modicum of evidence of provocation.

In People v Van Wyck (On Remand), 83 Mich App 581, 583, 582; 269 NW2d 233 (1978), this Court noted tersely: "While the record does not conclusively establish mitigating circumstances, it does not clearly establish a lack of passion”, and "The record contains slight but sufficient evidence to present a jury question.” The factual situation in People v West, supra, is also illustrative.

The record in the instant case also presented "slight but sufficient” evidence of provocation. Defendant King and his cohorts encountered the victim’s group. There had been bad blood between codefendant Houston and Kevin White, the deceased. Knives were brandished at the first confrontation. After this subsided temporarily, White’s group followed Houston’s and were said to have been carrying bricks. Dogs belonging to White and Silver began barking at Houston’s group and Houston threatened to stab the dogs. Silver then stated that although the dogs were not attack dogs, they would protect the family if needed. The fracas continued to escalate. Defendant King pointed a gun at Silver and demanded that he call off the dogs. Houston and White approached each other in the street, each carrying a weapon. There seemed to be a momentary truce as White dropped his brick and Houston put away his knife. Silver then attempted to enter the fray; but defendant, still holding him at gunpoint, ordered him back. Houston then pulled his knife out again and stabbed White, inflicting the fatal blow on the second try. Houston then turned his attention to Silver and stabbed him. King then hit Silver in the eye with the gun. From this evidence of a gang confrontation escalating into a homicide, the jury could have concluded that the circumstances created a reasonable provocation sufficient to negate malice. See Hurd v The People, 25 Mich 405 (1872), People v Milhem, 350 Mich 497; 87 NW2d 151 (1957).

D. Defendant objected to the inclusion of voluntary manslaughter as a lesser offense; the prosecution requested the instruction. The prosecution, as well as the defendant, has the option of precluding "all or nothing” verdict choices as long as the inclusion of the lesser offense does not create notice problems and is supported by the evidence. People v Chamblis, supra.

Reversed and remanded for a new trial as to both manslaughter and assault with intent to do great bodily harm less than the crime of murder.

Bronson, P.J., concurred.