Opinion
Docket No. 47843.
Decided February 2, 1982.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William D. Bond, Assistant Prosecuting Attorney, for the people.
Lander C. McLoyd, Assistant State Appellate Defender, for defendant on appeal.
Defendant was charged with the fatal shooting of Kathleen Perry, who was allegedly shot by the defendant during a motorcycle club party. After a jury trial, defendant was found guilty of first-degree murder, MCL 750.316; MSA 28.548, and sentenced to life imprisonment. He appeals as of right.
Defendant contends that the trial court's instruction to the jury erroneously removed the factual issue of malice aforethought from the jury's consideration.
In its final charge, the trial court instructed the jury on the element of malice aforethought as follows:
"Fifth and last element of second-degree murder: that the killing was done with malice aforethought. More about malice — if one person, without cause inflicts a wrong upon another, we call him malicious, so when one person without legal provocation, justification, excuse or mitigating circumstances, intentionally kills another, we call them a murderer. The law implies from an unprovoked, unjustifiable, inexcusable killing without mitigating circumstances, the existence of that wicked disposition of mind which the law terms malice aforethought. Malice is implied from any deliberate or cruel act against another person however sudden. The time within which the wicked purpose is formed is not material.
"Malice aforethought does not imply deliberation or the lapse of considerable time between the formation and execution of the intent to take life, but rather it denotes purpose and design. It means malice existing at any time before the killing so as to be its moving cause.
"In determining this element, you may consider the manner in which the killing was done, any weapon used, and all other circumstances." (Emphasis added.)
Defendant did not object to this instruction. Therefore, any error in the instruction requires reversal by this Court only if a miscarriage of justice occurred. People v McMaster, 105 Mich. App. 162; 306 N.W.2d 434 (1981).
An identical instruction was found to be erroneous, and to require reversal, by this Court in People v Griffin, 108 Mich. App. 625; 310 N.W.2d 829 (1981). Relying on People v Richardson, 409 Mich. 126, 142-146; 293 N.W.2d 332 (1980), the Court found that "instructions telling the jury that `the law presumes' or `the law implies' facts of significance to the ultimate outcome of the case are erroneous". Griffin, supra, 631.
In Richardson, supra, 143-144, the Supreme Court found:
"The portion of the instruction which stated that the law implies malice `from the unprovoked, unjustifiable, or inexcusable killing' or when `a man kills another suddenly and without provocation' had the effect of withdrawing from the jury the essential factual issue of the existence of malice. The law, of course, does not imply malice from a sudden and unprovoked killing, and it was error to so instruct. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts. Maher v People [ 10 Mich. 212 (1862)], supra, People v Martin [ 392 Mich. 553; 221 N.W.2d 336 (1974)], supra.
Even though the jury instruction was erroneous, on the facts of this case, we find that the error was harmless. An error does not necessitate reversal if it can be said that the erroneous instruction is "harmless beyond a reasonable doubt". People v Wright, 408 Mich. 1; 289 N.W.2d 1 (1980), People v Weaver (On Remand), 98 Mich. App. 589; 296 N.W.2d 205 (1979).
In the present case, the disputed issue was identity and not intent as in Griffin and Richardson. Defendant did not assert a defense and no mitigating circumstances were presented to the jury that would indicate that the death was accidental or in any way unintentional. Richard Turner testified that during the party he accompanied the defendant and Ms. Perry to a field to have sex. He had a change of mind, turned and walked away, and then heard two gunshots. A dark object was allegedly observed in the defendant's hand. Also, another person testified that he overheard the defendant say he had "just wasted some chick out there". A bullet hole was discovered on the left side of the deceased's head and was allegedly the cause of death. Therefore, malice was not the focal point of this case, as it was in Griffin and Richardson. In addition, as previously noted, the defendant did not object to the instruction. We find that the instructional error was harmless.
Defendant also claims that the trial court erred in admitting evidence of a prior similar act. In reviewing questions regarding the admissibility of evidence, the decision of the trial court is not to be disturbed unless clearly erroneous. People v Rojem, 99 Mich. App. 452; 297 N.W.2d 698 (1980), People v McKinney, 88 Mich. App. 715; 278 N.W.2d 728 (1979). A decision is clearly erroneous when the reviewing court is left with a firm conviction that a mistake has been made. People v Goss, 89 Mich. App. 598; 280 N.W.2d 608 (1979).
Vickie Toburen testified that she attended the party with the deceased. Later, she saw the defendant with a gun in his hand. The defendant kneeled over her and placed a handgun to her head. However, he fired the gun into the air after stating that he could not kill her. The act described by Ms. Toburen was similar to the prosecution's version of the act causing the death of Ms. Perry.
MRE 404(b) provides:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged."
Before evidence of similar acts can be admitted, it must be probative of one of the purposes specified in MRE 404(b), and the purpose must be material, i.e., "in issue" in the case. People v Major, 407 Mich. 394, 400; 285 N.W.2d 660 (1979), People v Wagner, 104 Mich. App. 169; 304 N.W.2d 517 (1981). An issue may become material, i.e., in issue, when the defendant disputes the issue by raising it in opening argument, cross-examination of prosecution witnesses, or by presenting affirmative evidence. People v Wilkens, 82 Mich. App. 260; 266 N.W.2d 781 (1978), lv den 406 Mich. 857 (1979), rev'd on other grounds 408 Mich. 69 (1980). The list of permissible purposes for admission of similar acts in MRE 404(b) is not exhaustive. People v Cramer, 97 Mich. App. 148; 293 N.W.2d 744 (1980).
Ms. Toburen's testimony was probative of some of the purposes specified in MRE 404(b). Her testimony tended to show identity, the absence of mistake, and a common scheme. Additionally, the evidence tended to show that the defendant had a handgun capable of firing. The evidence was both relevant and material because the defendant's identity was in issue. Furthermore, the probative value of the testimony was not substantially outweighed by its prejudicial impact. Since identity was in issue, the testimony established that the defendant was at the party and had a handgun capable of firing. People v King, 107 Mich. App. 208; 309 N.W.2d 207 (1981). This Court is not left with a firm conviction that the trial court clearly erred in admitting the similar act testimony.
Moreover, there was no error on the part of the trial court in giving sua sponte the limiting instruction concerning the use of the similar act testimony when the evidence was offered and refusing to renew the instruction in the final charge to the jury. People v Chism, 390 Mich. 104; 211 N.W.2d 193 (1973), People v Kelly, 386 Mich. 330; 192 N.W.2d 494 (1971), People v King, 58 Mich. App. 390; 228 N.W.2d 391, lv den 394 Mich. 761 (1975).
Defendant's other claims of error lack merit.
Affirmed.