Opinion
Docket No. 58396.
Decided April 6, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Brian E. Thiede, Chief Appellate Attorney, for the people.
State Appellate Defender (by Derrick A. Carter), for defendant on appeal.
Before: T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.
On March 11, 1981, defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and felony murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 28.424(2), and was sentenced to concurrent terms of from 25 to 50 years and life consecutive to 2 years imprisonment. He appeals as of right.
On appeal, defendant argues that the evidence establishing malice was insufficient to allow the jury to convict him of felony murder. On June 3, 1980, defendant and James Russell entered the condominium of Emma Dalrymple after she had opened the door to their knock. They immediately pinned her to the wall and placed a gun to her head telling her to be quiet or they would shoot her. After taking a number of items, they forced her to knock on the door of the resident across the hall. When that resident, Bernice Sill, answered the door, they entered and stole a number of items from there. During this robbery, defendant hit Sill in the back and on the head with his gun. Sill's son (a probate court judge) testified that she had told him that defendant had hit her because she had not been moving fast enough. Sill, 72 years old at the time, died about six weeks later.
Dr. Ahronheim, who conducted the autopsy, testified that he found two fractured vertebrae in the small of Sill's back which he concluded to be the cause of death. Apparently, severe hemorrhaging had occurred and, though the injuries remained relatively silent for a while, death had occurred because the surrounding tissues had become acutely inflamed and the esophagus perforated. He testified that great pressure was necessary to break the vertebrae even though an older woman's bones would be more brittle.
Willard Wilson, defendant's cell mate, testified that defendant had told him that "he beat the judge's mammy to death with a pistol butt" and that the beating "turned him on. He got his rocks off doing it".
Malice has been defined as:
"[T]he intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm." People v Aaron, 409 Mich. 672, 728; 299 N.W.2d 304; 13 ALR4th 1180 (1980). In fact, "malice is an essential element of murder that cannot be inferred solely from the intent to commit the underlying felony". People v Brady Smith, 108 Mich. App. 338, 342; 310 N.W.2d 235 (1981).
Yet, the fact that a death has occurred in the course of a felony is still relevant:
"A jury can properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. * * * Thus, whenever a killing occurs in the perpetration or attempted perpetration of an inherently dangerous felony, * * * in order to establish malice the jury may consider the `nature of the underlying felony and the circumstances surrounding its commission' * * *. If the jury concludes that malice existed, they can find murder and, if they determine that the murder occurred in the perpetration or attempted perpetration of one of the enumerated felonies, by statute the murder would become first-degree murder." Aaron, supra, 409 Mich. 729-730. (Emphasis and citations omitted.)
We agree with defendant that the evidence does not show that he intended to kill Sill. However, we do not agree that the death was merely accidental. Convicting a person of felony murder where the death was purely accidental is unfair. Aaron, supra, 409 Mich. 731. Although the issue is close, we believe that the record sufficiently shows that defendant displayed wanton and wilful disregard of the likelihood that the natural tendency of his behavior would cause great bodily harm. Hitting an old woman with a gun both on the head and then on the back sufficiently hard enough to fracture two vertebrae constitutes in our opinion wanton and wilful disregard for the likelihood that the natural tendency of the action would cause great bodily harm. Overall, the circumstances surrounding the underlying felony sufficiently showed malice. Therefore, viewing the evidence in the light most favorable to the prosecution, as is required by People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979), cert den 449 U.S. 885; 101 S Ct 239; 66 L Ed 2d 110 (1980), we find that the prosecution sufficiently established the malice element.
Affirmed.