People v. Pepper

194 N.W.2d 67, 36 Mich. App. 437, 1971 Mich. App. LEXIS 1325

• Court: Michigan Court of Appeals
• Decided: October 19, 1971
• Docket: Docket 9895
• Status: Published

Opinions

J. H. Gillis, P. J.

Defendant, Jodie Pepper, was charged with murder in the first degree, MOLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548), and was convicted by a jury of manslaughter, MOLA § 750.321 (Stat Ann 1954 Rev § 28.553). His testimony was that the gun accidentally discharged while being removed from his pocket, but the rebuttal testimony of a police officer from the firearms identification division of the scientific bureau was that a gun such as the one involved herein could not accidentally discharge. With this and other evidence, the jury was instructed as to the applicable law and was requested to render its verdict.

It is as to these instructions that defendant raises 10 of the 11 issues presented on appeal, arguing primarily that the substance and effect of certain supplementary charges were so prejudicial as to deny him a fair trial. Our review goes to the charge in its entirety (People v. Dye [1959], 356 Mich 271), in an effort not so much to determine whether errors were made as to any one isolated issue, but to ascertain if defendant received a fair trial. People v. Mosley (1953), 338 Mich 559; People v. Boyles (1968), 11 Mich App 417. Supplemental charges are considered along with the principal charge (People v. Green [1967], 7 Mich App 346) and are therefore viewed as being a portion thereof.

We do not find the charge here under attack to be riddled with the prejudicial error attributed to it by the defendant. The supplemental charges resulted solely from questions submitted by the jury, and the court, in responding thereto, essentially reiterated the previously enunciated elements of the offense, the lesser offenses included therein and the possible verdicts to be rendered. Having anticipated the jurors’ apparent problem in deliberating (not through any discussion with individual jurors as defendant suggests), the court provided an approved definition of intent (adapted from People v. Carmichael [1858], 5 Mich 10; People v. Scott [1859], 6 Mich 287; People v. Resh [1895], 107 Mich 251; see also 2 Gillespie, Michigan Criminal Law & Procedure [2d ed], §906, p 1244); such served to clarify the initial instruction that specific intent to commit an illegal act must be established beyond a reasonable doubt in order to permit a finding of guilt. It is argued that this definition belonged more appropriately in the principal charge, but we are not convinced, as defendant contends, that the giving of it separately unduly emphasized this element or directed the jurors that they had a duty to infer intent.

The juror’s remaining concern regarding the existence of reasonable doubt was correctly explained by the trial court; defendant admits that a precise and accurate definition of this doctrine had been given previously, and we find no error to have occurred in the court’s additional explanation that such doubt need only exist as to any one of the elements of homicide in order to allow an acquittal.

Finally, the trial court herein cautioned the jurors to deliberate slowly, with an open mind to the arguments of others and a willingness to re-examine personal beliefs, explained to them the time and expense involved in every trial, and encouraged them that no 12 citizens were any better suited to decide the issues presented. We do not find in such pronouncements a suggestion that personal beliefs were to be compromised nor any of the objectionable infirmities found in People v. Engle (1898), 118 Mich 287, or People v. Barmore (1962), 368 Mich 26. Having previously stated that the verdict was the responsibility of each juror, the court nowhere contradicted such statement or coerced a verdict.

In essence, we apply the statement found in People v. Hoffmann (1905), 142 Mich 531, 585, that if a trial court believes “that the instructions he has given a jury should be amended, corrected or enlarged, he ought to give additional instructions” so as to clarify any confusion. That is all the court herein attempted to do and we find no error in his presentation of these supplemental charges.

“If the law is correctly stated, instructions are not to be held erroneous because given at one time rather than at another time. That additional or repeated instructions are given for the purpose of coercing a verdict will not be presumed, nor be found except upon convincing evidence.” People v. Hoffmann, supra, at 585.

The comments by the court that no claim of self-defense appeared on the record were permissible under the authority of MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052), and do not, as suggested, obligate the court to instruct on a defendant’s theory of the case. Such an instruction, if supported by the record, need be given only where a proper request is made; no request was submitted in this matter.

With the evidence before it, we conclude that the trial court precisely charged this jury as to the law applicable to this case. The testimony regarding hostile feelings between decedent and defendant sufficiently supported a charge on the lesser included offense of manslaughter. See People v. Galarno (1966), 3 Mich App 491.

The remaining issue concerns the admissibility of testimony from a police officer concerning the particular propensities of the type of gun which caused decedent’s death. Determination of a witness’s expert qualifications is addressed to the discretion of the trial court (People v. Hawthorne [1940], 293 Mich 15); as it was shown that this witness worked in the area of firearms identification for 17 years whereby he obtained vast knowledge concerning the individual characteristics of such weapons, we find no abuse of discretion in permitting the introduction of his testimony. People v. Charles Wilson (1970), 27 Mich App 171. The opinion offered by such a witness need not be prefaced by the factual data on which it is based unless such inquiry is pursued by the opposing party. People v. John Willie Williams (1970), 26 Mich App 218.

In conclusion, we hold that the trial court nowhere exceeded the bounds of his discretion or erred in his application and pronouncements of the law. On such a record, no error can be found.

Affirmed.

R. B. Burns, J., concurred.