Opinion
No. 103692.
June 7, 1996.
Leave to Appeal Denied June 7, 1996:
Court of Appeals No. 158805.
I would grant leave to appeal to be considered with People v Reed, lv gtd ante, 862.
I
Tom Petiprin was supposed to fight Kevin Dissmore. The putative fighters assembled backup. Petiprin and his friends assembled, and it appears that they had some sort of weapons in their hands.
Dissmore rounded up a group that included defendant, who brought a pistol. The group including defendant was in an automobile when they saw the Petiprin group. There was testimony from Bennett, the driver, that the defendant told him that they ought to do a drive-by. Bennett stopped the vehicle while defendant retrieved his gun from under the hood. He then circled back to the opposing group, turned out the lights, opened the passenger side window for defendant, and drove by slowly while defendant fired six or seven shots at the Petiprin group. The four targets dove for cover, one was hit in the ankle, one in the foot, and one was nicked in the knee.
Defendant was charged with four counts (one for each potential target) of attempted murder and felony-firearm, and was convicted of four counts of assault with intent to do great bodily harm less than murder and four counts of felony-firearm.
At trial, Bennett testified that he had no idea that the defendant had a gun with him and was going to shoot. Bennett maintained that he had stopped the vehicle and opened the hood, circled back to the place of the shooting, turned off the lights, and drove by slowly all without knowing that he was facilitating a shooting.
The prosecutor had promised not to prosecute Bennett if he testified. Critically, Bennett testified that he asked defendant after the shooting why he hadn't shot into the ground, and that the defendant responded "I shoot to kill." None of the other witnesses reported hearing this.
II
The defendant requested that the judge instruct the jury concerning accomplice testimony in accordance with the standard jury instructions.
In People v McCoy, 392 Mich. 231, 240 (1974), this Court said:
For cases tried after the publication of this opinion, it will be deemed reversible error. . . (2) to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge. [Emphasis added.]
The Court of Appeals, citing McCoy, agreed that it was error to refuse the instruction, but found that the error was harmless because Bennett only brought to the prosecution's case evidence of defendant's mental state ("I shoot to kill"). Because the jury rejected the attempted murder charge, the Court of Appeals concluded that the jurors must have discounted Bennett's testimony and, therefore, the outcome was unaffected by the failure to caution the jury.
III
The Court of Appeals conclusion that the error was harmless because Bennett's testimony was apparently discounted by the jury rests on the imperfect logic that the testimony that the defendant said "I shoot to kill" is only relevant to finding whether there was specific intent to kill. A jury would also find such testimony relevant in determining whether the defendant had the specific intent to do great bodily harm — the verdict the jury announced.
The verdict reflects the jury's disbelief that defendant intended to kill. Bennett's testimony was critical. After some hours of deliberation, the jurors asked to hear his testimony. They also addressed three questions to the judge, one of which was "what is a definition of intent." The foregoing evidences that Bennett's testimony was important respecting the question of defendant's intent.
The instruction was requested. Bennett's testimony concerning the defendant's intent was not reported or confirmed by any other witness.
The issue of intent turned on evidence from a witness who was clearly an accomplice, but was not prosecuted in exchange for his testimony. Because this undermines the credibility of Bennett's testimony, because his critical testimony was uncorroborated, and because the defendant requested the instruction, we should grant leave to appeal to be considered with Reed where this Court has recently granted leave to appeal to consider the application of McCoy in a case where the instruction was not requested.