Summary
In Bryant, we affirmed the trial court's finding that there was no factual basis to support defendant's plea under GCR 1963, 785.7(3)(a).
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Docket No. 57473.
Decided October 11, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Bennett S. Engelman, for defendant on appeal.
On February 13, 1981, defendant was convicted after a jury trial of manslaughter, MCL 750.321; MSA 28.553, and was subsequently sentenced to 8 to 15 years imprisonment. He appeals as of right.
Defendant's first two issues involve an unaccepted guilty plea and his actual sentence. He was originally charged with second-degree murder, MCL 750.317; MSA 28.549, for killing the woman with whom he had been living. On November 13, 1980, he attempted to plead guilty to manslaughter. In return, the prosecution agreed to recommend 4 to 15 years imprisonment. In trying to establish the factual basis, defendant stated that on September 14, 1979, he had fought with and struck the deceased a large number of times. However, when asked how he killed her, he replied that he did not know. The trial court then refused to accept the plea. In fact, even after reading the pathologist's report (given at the preliminary examination) which stated that the deceased had died of a fractured cervical vertebra caused by a blow to the neck, the trial court still refused to accept the plea.
Defendant now argues that the trial court abused its discretion by refusing to accept his proffered guilty plea and that he was therefore prejudiced because he received a sentence of 8 to 15 years imprisonment rather than 4 to 15 years. He argues that a sufficient factual basis was established and that the trial court therefore should have accepted the plea.
We agree with defendant that an inculpatory inference could have been drawn. See People v Haack, 396 Mich. 367; 240 N.W.2d 704 (1976); Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975), cert den 429 U.S. 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977). Defendant admitted striking the deceased numerous times over a number of hours. This, combined with the pathologist's statement of the cause of death and the fact that no one else had struck the deceased, convinces us that defendant's guilt reasonably could have been inferred.
In the present situation, the trial court properly looked at the preliminary examination transcript. People v Martinez, 123 Mich. App. 145; 333 N.W.2d 199 (1983).
However, merely because the factual basis could have been inferred does not mean that the trial court must therefore accept the plea. No one has a constitutional right to have his plea accepted. Lynch v Overholser, 369 U.S. 705, 719; 82 S Ct 1063, 1072; 8 L Ed 2d 211, 220 (1962). The decision to accept or reject a plea is within the trial court's discretion. People v Banning, 329 Mich. 1; 44 N.W.2d 841 (1950); People v Linscott,
14 Mich App 334; 165 N.W.2d 514 (1968), lv den 381 Mich. 807 (1969). Such discretion at least implies that the trial court is to be given some leeway where the inculpatory inference is doubtful. We will not force the trial court to walk a tightrope with possible reversal on either side.
See People v Stewart, 126 Mich. App. 374; 337 N.W.2d 68 (1983); People v Stanford, 68 Mich. App. 168, 173; 242 N.W.2d 56 (1976).
In addition, defendant has not shown that he was prejudiced by the trial court's failure to accept the plea. While he received 8 to 15 years rather than the "bargained for" 4 to 15 years, the bargain is more aptly described as a promise that defendant would be allowed to withdraw his guilty plea if the trial court decided not to abide by the recommended sentence.
Defendant also argues that the trial court punished him for not pleading guilty by increasing his sentence. People v Snow, 386 Mich. 586; 194 N.W.2d 314 (1972). Just before trial, defendant was again offered a 4- to 15-year recommended sentence if he pled guilty. This time, however, he refused and went to trial instead.
We find no evidence to support this contention. The sentence bargain was never anything but a prosecution recommendation. Nothing in the record indicates that the trial court aggravated the sentence because defendant failed to plead guilty.
Defendant next argues that the trial court erred in failing to suppress evidence of the victim's body and various witnesses' observations that the victim was dead. After defendant discovered that the victim was dead, he called the fire department. At 6:15 a.m., the police received a radio call from the fire department about a DOA. After the police arrived at the apartment, they saw the victim on the bathroom floor, five or six firefighters, and the defendant. Eventually, defendant filed a motion to suppress the physical evidence seized from his apartment by the police. The trial court granted the motion concerning most of the items but refused to suppress evidence regarding the police officers' and the firefighters' observations that the victim was dead. It also refused to suppress evidence of the victim's body.
Defendant argues that the trial court's refusal to suppress evidence concerning the victim's body and the witnesses' observations violates this Court's decision in People v Nash, 110 Mich. App. 428; 313 N.W.2d 307 (1981), lv gtd 414 Mich. 869 (1982). In Nash, the defendant's landlady saw a partially decomposed body in a box on defendant's property. Later, she returned with the sheriff and, while trespassing, the two of them looked in the box. This Court suppressed evidence of the body as a fruit of an illegal search.
The facts of this case are distinguishable from those in Nash. Defendant voluntarily called the fire department when he discovered that the victim was dead and consented to the firefighters' entry into his apartment. By this action, defendant was clearly seeking the official intervention of the firefighters to deal with the body. Part of this official intervention necessarily entailed the firefighters' subsequent call to the police when they discovered that the deceased had not died by natural causes. The police officers' entry was, in essence, a continuation of the firefighters' entry and was, thus, in response to defendant's call. State v Mincey, 130 Ariz. 389; 636 P.2d 637 (1981), cert den 455 U.S. 1003; 102 S Ct 1638; 71 L Ed 2d 871 (1982); State v Johnson, 413 A.2d 931 (Me, 1980); State v Anderson, 42 Or. App. 29; 599 P.2d 1225 (1979), cert den 446 U.S. 920; 100 S Ct 1857; 64 L Ed 2d 275 (1980). See also People v Chapman, 73 Mich. App. 547; 252 N.W.2d 511 (1977), lv den 400 Mich. 835 (1977), cert den 434 U.S. 956; 98 S Ct 482; 54 L Ed 2d 314 (1977); Michigan v Tyler, 436 U.S. 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978).
Defendant next argues that the trial court erred in instructing the jury, over his objection, on the lesser included offense of assault with intent to murder, MCL 750.83; MSA 28.278. However, even assuming that the trial court erred, the error would be harmless. Assault with intent to murder has a maximum penalty of life imprisonment. Defendant was instead convicted of manslaughter, a 15-year felony. The jury obviously believed that defendant (1) killed the victim but (2) did not intend to murder her. Neither conclusion would have been possible had the jury instead convicted defendant of assault with intent to murder. See People v Rochowiak, 416 Mich. 235; 330 N.W.2d 669 (1982); People v Cavanaugh, 127 Mich. App. 632; 339 N.W.2d 509 (1983).
Defendant next argues that the trial court abused its discretion in admitting pictures of the victim's nude and beaten body. On the trial's second day, the prosecution offered seven such photographs. The trial court refused to admit three but admitted the other four.
The decision to admit or exclude such evidence is within the trial court's discretion. People v Duby, 120 Mich. App. 241, 256-257; 327 N.W.2d 455 (1982). While the trial court need not require that the prosecution exhaust all alternative forms of proof, the trial court must determine whether or not the photographs are substantially necessary or instructive on a material issue before they may be admitted. People v Falkner, 389 Mich. 682, 685; 209 N.W.2d 193 (1973).
At one time this Court adopted this requirement. People v Myers, 30 Mich. App. 409, 429; 186 N.W.2d 381 (1971); People v Turner, 17 Mich. App. 123, 131; 169 N.W.2d 330 (1969); People v Brannon, 14 Mich. App. 690; 165 N.W.2d 903 (1968); People v Rogers, 14 Mich. App. 207; 165 N.W.2d 337 (1968) (KAVANAGH, J., concurring). However, this standard was rejected in People v Eddington, 387 Mich. 551, 562-563; 198 N.W.2d 297 (1972).
This test balances the concern that exposure to vivid and gruesome images of the victim will cause a juror to forget that the defendant may not be responsible for the outrage against the need to arrive at the truth of how and at whose hands the victim died. Given these competing concerns, the more gruesome (and therefore prejudicial) the picture, the more necessary it must be to proving the prosecution's case.
Therefore, the trial court will not as likely abuse its discretion if the photographs are not that particularly gruesome. People v Nard, 78 Mich. App. 365; 260 N.W.2d 98 (1977), lv den 408 Mich. 916 (1980); People v Ernest Green, 74 Mich. App. 351; 253 N.W.2d 763 (1977), aff'd 405 Mich. 273; 274 N.W.2d 448 (1979); People v Olsson, 56 Mich. App. 500; 224 N.W.2d 691 (1974), lv den 394 Mich. 772 (1975). On the other hand, where the fact to be proven is not at issue, any type of shocking picture should be excluded. Falkner, supra; People v Jerry Smith, 122 Mich. App. 106; 332 N.W.2d 428 (1982); People v Murphy, 100 Mich. App. 413; 299 N.W.2d 51 (1980), aff'd 416 Mich. 453; 331 N.W.2d 152 (1982); People v Alsteens, 49 Mich. App. 467; 212 N.W.2d 243 (1973), lv den 391 Mich. 826 (1974). See People v Golochowicz, 413 Mich. 298, 316; 319 N.W.2d 518 (1982), for guidance in determining when a trial court can safely conclude that an issue is material.
Applying this sliding-scale standard to the present case's facts reveals reasons to be concerned. The four photographs are in color. See People v Wallach, 110 Mich. App. 37, 67; 312 N.W.2d 387 (1981). The victim was photographed nude. See People v Reed, 393 Mich. 342, 366; 224 N.W.2d 867 (1975), cert den 422 U.S. 1048; 95 S Ct 2665; 45 L Ed 2d 701 (1975). The pictures, rather than showing the victim as found, show her after her body had been taken out of the apartment. Despite these factors, however, we do not find an abuse of discretion. First, the injuries shown make it more likely than otherwise that the victim was killed after being struck by defendant rather than by falling in the bathtub as defendant argued. Second, even if she in fact died slipping and hitting her head on the bathtub, the pictures show that she might have fallen because of the injuries. The four photographs entered in the present case show numerous cuts and bruises all over the victim's body. The most serious injuries shown were on her neck and head. See People v Thomas, 126 Mich. App. 611; 337 N.W.2d 598 (1983); People v Till, 80 Mich. App. 16; 263 N.W.2d 586 (1977), modified on other grounds 411 Mich. 982; 308 N.W.2d 110 (1981); People v Ranes, 58 Mich. App. 268; 227 N.W.2d 312 (1975). The extent of the injuries was thus critical to the prosecution's case.
Defendant next argues that he was deprived of the effective assistance of counsel. This Court will not reverse on this issue unless (1) defense counsel failed to perform at least as well as a lawyer with ordinary training and skill in the criminal law, or (2) defendant would have had a reasonably likely chance of acquittal but for a serious mistake of counsel. People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976).
Defendant argues that defense counsel should have argued self-defense. Self-defense in the defendant's home is established if the defendant was not an aggressor and acted in fear of imminent danger of losing his life or of suffering grievous bodily harm. Pond v People, 8 Mich. 150 (1860); People v Crow, 128 Mich. App. 477; 340 N.W.2d 838 (1983). In the present case, the record presents no evidence to support such a theory. Therefore, defense counsel did not act ineffectively by failing to request a self-defense jury instruction.
Defendant last argues that the prosecution failed to sufficiently establish the corpus delicti before his confessions were admitted as evidence. The corpus delicti for manslaughter "consists of evidence of a death and of a criminal agency as its cause". People v Neal, 83 Mich. App. 102, 105; 268 N.W.2d 303 (1978). After reviewing the record in this case, we conclude that the corpus delicti was adequately established. See People v Conklin, 118 Mich. App. 90; 324 N.W.2d 537 (1982).
Affirmed.