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Docket Number

Docket No. 54788.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people. Robert E. Slameka, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v. Perry, Docket No. 54788 — Michigan Court of Appeals (Decided Feb. 8, 1982)

Factual and Procedural Background

Defendant was tried by jury and convicted of first-degree murder (MCL 750.316; MSA 28.548) and was sentenced to life imprisonment. The offense occurred in July 1980 at a Detroit residence where defendant and the victim, Betty Goodlow, lived together. The victim suffered extensive burns after a flammable liquid was splashed on her and ignited.

Two emergency medical technicians arrived at the residence at approximately 10:00 p.m.; the house was smoke-filled and smelled of gasoline or paint thinner. The victim was found on the kitchen floor with severe burns but conscious; while being transported to the hospital she told a medical technician that defendant had doused her with turpentine and ignited her with a cigarette lighter. The victim died shortly after arrival at the hospital.

At the scene defendant gave varying statements: he told the technicians he did not know what happened and said, "I told her I was going to leave her, and this is what she did." He also told police that the victim had $50 that belonged to him and that he wanted it back. Officers observed a can of paint thinner on the stairway, a can of gasoline near the door, and a cigarette lighter in the dining room.

Neighbors testified to verbal and physical fighting between defendant and the victim earlier that evening; one witness testified that he heard loud arguing and saw the victim run to the front sidewalk, where defendant caught her and dragged her back into the house.

Defendant testified he previously told the victim to leave, went to sleep, later awoke to hear her yell, found her on fire, extinguished the blaze, and claimed the victim set herself on fire to demonstrate her love and prevent him from forcing her to leave.

Legal Issues Presented

Whether the trial court's jury instructions adequately explained the intent element required for first-degree murder (specifically an intent to kill).
Whether the trial court erred by failing to instruct that, where the prosecution relies on circumstantial evidence, it must negate every reasonable theory consistent with the defendant's innocence.
Whether testimony by a police officer that defendant was arrested and advised of his constitutional rights amounted to an improper comment on defendant's exercise of the right to remain silent.
Whether the trial court erred in failing to define the element of specific intent when it reinstructed the jury on first- and second-degree murder (and whether defendant preserved this issue properly).
Whether defendant was denied effective assistance of counsel.

Arguments of the Parties

Defendant's Arguments

The jury instructions were inadequate because they did not properly instruct that first-degree murder requires an intent to kill.
The court should have instructed that, when conviction is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with the defendant's innocence.
Testimony by a police officer that the defendant was arrested and advised of his rights constituted an improper comment on the defendant's silence and warranted reversal.
The trial court erred in failing to define specific intent when reinstructing the jury; any insufficiency should have been remedied or raised in a motion for a new trial.
The defendant was denied the effective assistance of counsel (claims included counsel's failure to object to particular hearsay testimony and two other instances not supported by specific facts in the record).

People's Position (as reflected in the opinion)

The jury instructions, read as a whole and in substantial compliance with the applicable model instruction (CJI 16:2:01), adequately conveyed the "intent to kill" element for first-degree murder.
The prosecutor need only prove the prosecution's theory beyond a reasonable doubt and is not required to eliminate every reasonable hypothesis consistent with innocence (relying on controlling case law).
The officer's testimony merely stated that Miranda warnings were given after arrest; that statement was not elicited by the prosecutor, was not argued in closing, and any error was harmless beyond a reasonable doubt.
The extent of supplemental instructions is within the trial court's discretion; objections to reinstruction must be raised in a motion for a new trial under GCR 1963, 516.4, which defendant failed to do.
The record does not support a claim of ineffective assistance of counsel under the Ginther standard; the challenged hearsay was admissible as a dying declaration under MRE 804(b)(2), and the remaining claims lack factual support in the trial or appellate record.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Ritsema, 105 Mich. App. 602; 307 N.W.2d 380 (1981)	Jury instructions must be read as a whole when reviewed on appeal.	The court relied on this principle in evaluating whether the trial court's instructions adequately explained intent for first-degree murder.
People v Johnson, 93 Mich. App. 667; 287 N.W.2d 311 (1979)	Support for the proposition that, when read as a whole and in substantial compliance with model instructions, jury instructions on intent may be adequate.	The court cited Johnson to conclude that the unobjected-to jury instructions here were not erroneous regarding intent.
People v Edgar, 75 Mich. App. 467; 255 N.W.2d 648 (1977)	When a conviction rests on circumstantial evidence, the prosecutor need only prove his theory beyond a reasonable doubt and is not required to negate every reasonable hypothesis consistent with innocence.	The court relied on Edgar to reject defendant's proposed circumstantial-evidence instruction requiring negation of every reasonable theory of innocence.
People v McWilson, 104 Mich. App. 550; 305 N.W.2d 536 (1981)	Authority in accord with the principle set out in Edgar regarding circumstantial evidence.	Cited as supporting authority ("accord") for the court's position that the prosecutor need not negate every reasonable theory consistent with innocence.
People v Barnard, 93 Mich. App. 590; 286 N.W.2d 870 (1979)	Authority in accord with Edgar on the proper burden regarding circumstantial evidence.	Cited as additional authority to support the court's rejection of the defendant's requested circumstantial-evidence instruction.
People v Walker, 93 Mich. App. 189; 285 N.W.2d 812 (1979)	Authority in accord with Edgar on the circumstantial-evidence burden question.	Referenced as another case consistent with the court's ruling on circumstantial-evidence instructions.
People v Featherstone, 93 Mich. App. 541; 286 N.W.2d 907 (1979)	Principle that admission of certain unobjected-to testimony concerning Miranda warnings may be harmless error beyond a reasonable doubt.	The court applied Featherstone to find that any possible error from the officer's statement that Miranda warnings were given was harmless beyond a reasonable doubt.
Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966)	Requirement to advise an arrested person of constitutional rights (Miranda warnings).	Cited in a note to identify the Miranda warnings referenced by the officer's testimony; used to contextualize the officer's statement that defendant had been advised of rights.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973)	Standard and procedure for evaluating claims of ineffective assistance of counsel on the record.	The court invoked Ginther to state that nothing in the record supported defendant's ineffective assistance claim and to justify denial of that claim.

Court's Reasoning and Analysis

The court addressed each of defendant's claims in turn, grounding its analysis in the record and cited authorities.

Jury instructions on intent for first-degree murder: The court emphasized the controlling principle that jury instructions must be read as a whole (citing People v Ritsema). It quoted the trial court's instructions, which distinguished first- and second-degree murder, expressly stated that first-degree murder requires premeditation and deliberation, and repeatedly tied the first-degree element to an intent to kill (defining "wilful" as intentional and instructing that deliberation requires time to think about purpose and intent). After reviewing the instructions in their entirety, the court concluded they adequately explained the "intent to kill" element and cited People v Johnson to support that conclusion; because the instructions were unobjected-to and in substantial compliance with CJI 16:2:01, they were not erroneous.

Circumstantial-evidence instruction: Defendant sought an instruction that the prosecution must negate every reasonable theory consistent with innocence when relying on circumstantial evidence. The court rejected this, explaining that the prosecutor need only prove the prosecution's theory beyond a reasonable doubt notwithstanding the defendant's evidence. The court relied principally on People v Edgar and cited several other Michigan Court of Appeals decisions (People v McWilson, People v Barnard, People v Walker) as accordant authority supporting this view.

Officer's testimony and comment on silence/Miranda: The court reviewed the officer's testimony, noting that the officer stated he arrested defendant and advised him of his constitutional rights. The court found no reversible error because (1) the officer did not state that defendant refused to speak; (2) the prosecutor did not elicit this testimony; (3) it was not mentioned in closing argument; and (4) the admission was unobjected-to. Even if error had occurred, the court held the error harmless beyond a reasonable doubt, citing People v Featherstone.

Reinstruction on specific intent: The court observed that the scope of supplemental jury instructions is within the trial court's discretion and that objections to reinstruction must be raised in a motion for a new trial under GCR 1963, 516.4. Because defendant did not raise the matter in a timely motion for new trial, and because the court had adequately instructed the jury on specific intent earlier and reiterated the intent element when reinstructing (and the jury did not request a repeat), the court found no abuse of discretion.

Ineffective assistance of counsel: Applying the Ginther standard, the court found no record support for defendant's claim. The court explained that defense counsel's failure to object to certain hearsay statements did not constitute ineffective assistance because the victim's statements were admissible as a dying declaration under MRE 804(b)(2). The court also noted that defendant's remaining allegations of ineffective assistance lacked specific factual support in the trial or appellate record.

Holding and Implications

Holding: The court affirmed defendant's conviction. CONVICTION AFFIRMED.

Implications: The direct consequence of the decision is that defendant's conviction for first-degree murder and life sentence remain affirmed by the Michigan Court of Appeals. The opinion finds no reversible error in the jury instructions, circumstantial-evidence charge, the officer's testimony regarding Miranda warnings (or deems any error harmless), the trial court's reinstruction practices, or the adequacy of trial counsel's representation under the record. The opinion does not announce or purport to create a new legal precedent beyond applying existing authorities to the facts of this case.

Panel: R.M. Maher, P.J., and D.F. Walsh and D.C. Riley, JJ. (Maher, P.J., concurred in the result only). Counsel of record are listed in the opinion.

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PEOPLE v PERRY

PER CURIAM.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment.

The offense occurred in July, 1980, at a Detroit residence where defendant and the victim, Betty Goodlow, lived together. The victim's death was caused by extensive burns which resulted when a flammable liquid was splashed on her body and ignited.

Two emergency medical technicians arrived at the residence at approximately 10 p.m. on the night of the incident. Defendant admitted them into the house, which was smoke-filled and smelled of gasoline or paint thinner. The technicians found Goodlow lying on the kitchen floor with severe burns over most of her body. The victim was conscious, however. While being transported to the hospital, Goodlow told one of the medical technicians that defendant had doused her with turpentine and ignited her with a cigarette lighter. Goodlow died at the hospital a short time later.

At the residence, defendant told the medical technicians that he did not know what happened. Defendant also stated "I told her I was going to leave her, and this is what she did."

Two police officers also arrived at the residence. Defendant told an officer that Goodlow had $50 that belonged to him and that he wanted to get the money back. The officers observed a can of paint thinner on the stairway, a can of gasoline near the door and a cigarette lighter in the dining room near the kitchen entrance.

Several of defendant's neighbors testified that defendant and the victim had been fighting, both verbally and physically, during the evening hours of July 9, 1980. One neighbor testified that approximately 15 minutes before an ambulance arrived, he heard loud arguing and things being thrown around inside the residence. At one point, the victim was observed running to the front sidewalk of the house. Defendant caught her and dragged her back into the house.

Defendant testified that on the afternoon on July 9, 1980, he and Goodlow had an argument about money that was owed him. After he told Goodlow to remove her belongings from the house and to leave the premises, defendant went to sleep. When he awoke several hours later, he heard Goodlow in the kitchen and he again told her to get ready to leave. A short while later, defendant heard her yell and then found her on fire in the kitchen. Defendant extinguished the blaze and called the emergency medical service. It was defendant's contention that the victim set herself on fire in order to show her love for him and to prevent him from forcing her to leave.

Defendant initially argues that the trial court erred in its jury instructions with regard to the intent element of first-degree murder. Defendant claims that the court failed to instruct the jury adequately that first-degree murder requires an intent to kill. We find no error.

When reviewing jury instructions, they must be read as a whole. People v Ritsema, 105 Mich. App. 602, 609; 307 N.W.2d 380 (1981).

In the instant case, the court commenced its instructions concerning the elements of first- and second-degree murder as follows:

"There are two kinds of murder, first degree and second degree, and you will be instructed on both, as to both. First-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation; that is, the defendant must have premeditated and deliberated his intent to kill. You will first be instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder." (Emphasis supplied.)

The court went on to state:

"For murder of the first degree, the prosecutor must prove beyond a reasonable doubt the four elements of second-degree murder which I have described to you, and in addition, he must prove beyond a reasonable doubt the fifth element, which raises the crime to first-degree murder.

"Fifth, that the defendant, that the death rather, was the wilful result of a premeditated, deliberate intent to kill." (Emphasis supplied.)

The court then defined wilful as intentional. Further, the court stated "[f]or first-degree murder, there must be such a lapse of time that would give the mind time to think about the purpose and intent of the killing". (Emphasis supplied.) The court also instructed that if the evidence did not establish that defendant "intended to kill", then the jurors must consider whether defendant acted with an unreasonable disregard for human life, the alternative malice requirement necessary for second-degree murder.

After reviewing all of the instructions, we are convinced that the court adequately explained to the jury the "intent to kill" element of first-degree murder. See People v Johnson, 93 Mich. App. 667; 287 N.W.2d 311 (1979). When read as a whole, the unobjected-to jury instructions (in substantial compliance with CJI 16:2:01) were not erroneous.

Defendant next argues that the trial court erred in failing to instruct the jury that in order to find him guilty on the strength of circumstantial evidence, the prosecution must negate every reasonable theory consistent with defendant's innocence. We reject this argument. The prosecutor need only prove his own theory beyond a reasonable doubt notwithstanding the evidence offered by defendant. People v Edgar, 75 Mich. App. 467; 255 N.W.2d 648 (1977). Accord, People v McWilson, 104 Mich. App. 550; 305 N.W.2d 536 (1981), People v Barnard, 93 Mich. App. 590; 286 N.W.2d 870 (1979), and People v Walker, 93 Mich. App. 189; 285 N.W.2d 812 (1979).

Defendant further contends that his conviction should be reversed because the testimony of a police officer amounted to an improper comment on defendant's exercise of his right to remain silent. We do not agree.

During the direct examination of Officer Gary Bessinger, the following colloquy occurred:

"Q. Did you at that point arrest Mr. Perry?

"A. Yes, I did and advised him of his constitutional rights.

"Q. Okay. Did you take Mr. Perry somewhere then?

"A. Yes. We conveyed him to homicide, first precinct."

We find no reversible error. The officer never stated that defendant refused to speak to him. The officer merely mentioned that defendant was given Miranda warnings after the arrest. Contrary to the cases cited by defendant, the prosecutor here did not elicit this testimony and it was never mentioned in closing argument. The unobjected-to admission of this statement by the officer does not require reversal. If any error occurred, it was harmless beyond a reasonable doubt. People v Featherstone, 93 Mich. App. 541, 546-547; 286 N.W.2d 907 (1979).

Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

Defendant also claims that the trial court erred in failing to define the element of specific intent when it reinstructed the jury on first- and second-degree murder. The extent of additional instructions to the jury is within the discretion of the trial court. Any objections to reinstruction shall be made in a motion for a new trial. GCR 1963, 516.4.

In the present case, defendant failed to raise this issue in his motion for a new trial, as required by the court rule. Upon reviewing the instructions that were given to the jury, we cannot say that the trial court abused its discretion with regard to the supplemental instructions. The court adequately informed the jurors about specific intent when it initially instructed them. When reinstructing the jury, the court reiterated the intent element of the crimes charged. Further, the jury did not request that the instructions with regard to specific intent be given again. Under such circumstances, we find no abuse of discretion by the trial court in refusing to reinstruct the jury on specific intent.

Finally, defendant argues that he was denied the effective assistance of counsel. There is nothing in the record to support defendant's contention. People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). Defense counsel's failure to object to certain hearsay remarks by the victim does not amount to ineffective assistance since the testimony was admissible as a dying declaration. MRE 804(b)(2). Defendant's two remaining instances of ineffective assistance of counsel are not supported by any specific facts, either at the trial level or on appeal.

Defendant's conviction is affirmed.

R.M. MAHER, P.J., concurs in the result only.

PEOPLE v. PERRY