People v. Mills

Cavanagh, J.

I respectfully dissent. I disagree that the record was "devoid” of evidence supporting defendant Mills’ theory of accident. A commonsense review of the evidence, including the complainant’s testimony on cross-examination, supported a theory for submission to the jury that the incident may not have been intentional. Therefore, I believe that the trial court improperly refused to give the requested jury instruction that an assault cannot occur accidentally or thoughtlessly. This was error requiring reversal. I also *85 disagree with the majority that all seventeen color slides were relevant and properly admitted.

i

With respect to the requested jury instruction that an assault cannot occur accidentally or thoughtlessly, the majority holds:

We similarly find that the record is devoid of any evidence supporting a jury instruction of accident. The defense did not introduce any evidence that the gasoline was accidentally or inadvertently spilled on Ms. Grauman. There was only evidence that the defendants threw or dumped the gasoline on Ms. Grauman while she tried to escape out the back window. Further, there was no evidence that the cigarette lighter was accidentally lit at the same time as the gasoline spilled. To say that Ms. Grauman was set on fire by a series of accidents is to go against basic logic. [Mallett, J., ante at 82.]

In People v Hoskins, 403 Mich 95, 100 ; 267 NW2d 417 (1978), this Court held: "If supported by the evidence, defendant’s theory of the case must be given.” Here, beginning with defense counsel’s opening statement, continuing throughout the trial, and culminating in the defense counsel’s closing argument, the defense theory was that (1) this incident occurred within a very short period of time, (2) defendant Mills could not have lit the flame because he was simultaneously holding the complainant’s leg with one hand and the bottle of gasoline with the other, (3) the gasoline accidentally spilled on the complainant as defendant Mills tried to prevent her from jumping out the window of the moving vehicle, and (4) defendant Mills did not intend to harm the complainant, especially because he had just met her.

*86 The majority suggests that the defendant could not receive a jury instruction of accident because he did not introduce any evidence of his own. Yet, the only witnesses to the incident were the two defendants and the complainant. In Hoskins , the defendant was charged with murder and the defendant’s theory was self-defense. As in this case, the defendant’s state of mind was the critical issue, the defendant did not testify, and the defendant’s only means of independently proving his defense theory was to take the stand. This Court held:

A defendant need not take the stand and testify in order to merit an instruction on self-defense. Because of the absence of direct evidence, the prosecutor in the instant case was forced to use circumstantial evidence in his attempt to prove that the defendant had the requisite state of mind at the time of the shooting to support a conviction of second-degree murder. Similarly, a defendant may show his state of mind by circumstantial evidence to establish that he acted in self-defense. A ruling to the contrary compromises a defendant’s privilege against self-incrimination and his right to have the prosecutor prove beyond a reasonable doubt that he was not acting in self-defense. See US Const, Am V; CJI 7:9:06. By refusing to instruct the jury on self-defense, the trial court deprived the defendant of his primary defense. [Id. at 100-101.]

Here, the defendant’s accident theory was sufficiently supported by the evidence to justify a jury instruction. Even though defendant Mills did not testify, on cross-examination the complainant testified that she did not see how the flame was lit and that the whole incident, happened very fast. The defendant points out thát there was no conclusive evidence of how the flame was lit. He also points *87 to scientific evidence that indicated that it was the vapors of the gasoline that first ignited. He contends that the circumstantial evidence supported a theory that defendant Camilli, by coincidence, could have lit a cigarette, or could have, been already holding a lit cigarette, which in turn unintentionally ignited the gasoline vapors.

In reversing, the Court of Appeals held:

[A] jury could have inferred accident from the evidence presented, even though defendant Mills did not testify. It could have inferred that, in his attempt to keep her from leaping out of the moving car, defendant Mills held the victim’s ankle with one hand and inadvertently spilled the gasoline on her legs after she kicked or bumped the bottle which was in his other hand. If the other defendant lit a cigarette lighter at the same time the gasoline spilled, flames could have ignited without defendant Mills having intended this.

Moreover, a jury could have inferred accident and intoxication from the proposition that a reasonable person would not endanger his own life and property by deliberately setting someone on fire while inside a moving automobile, owned by his spouse. [Unpublished opinion per curiam, issued June 9, 1994 (Docket Nos. 130332, 130333, slip op at 1).]

I would adopt this analysis. As this Court held in People v Lester, 406 Mich 252, 254-255 ; 277 NW2d 633 (1979):

[W]hen . . . the defense theory is accidental homicide, the defense requests an instruction on the theory, and there is evidence to support the theory, the trial court must properly instruct the jury on the defense theory. [Citation omitted.]

Because accident was a plausible defense theory that was supported by the evidence, it was error *88 requiring reversal for the trial court to refuse to give the defendant’s requested instruction.

The intoxication jury instruction issue is closer, but certainly plausible when considered with the accident theory. There was ample testimony that the defendants appeared drunk. When viewed in conjunction with the accident theory, there was at least enough evidence for the jury to hear an additional instruction on intoxication as a mitigating consideration in deciding whether defendant Mills possessed an intent to kill.

ii

The majority also holds that the color slides were properly admitted. They find that the extent and the nature of the burns over the complainant’s body and the "splattering” nature of the burns were probative of an intent to kill. They further find that the slides depicted the above purposes of the evidence, and were consequently properly admitted.

I disagree. I concede that in many situations the nature and the extent of the victim’s wounds could indicate the state of mind of the defendant when the defendant’s intent is a material issue. For instance, multiple knife or gunshot wounds could indicate an intentional act as opposed to an accident or a mistake. 1 Likewise, a wound to the head could indicate an intent to inflict a greater degree of harm than a wound elsewhere might indicate. Similarly, a wound in the back could refute a self-defense theory. 2

*89 Such probative value evaporates when the defendant’s theory of the case and the prosecutor’s theory of the case would have produced identical injuries. In such a case, the evidence of the injuries is only probative of the fact of the injuries themselves and not of the state of mind of the defendant. At oral argument, the prosecutor admitted that the extent of the injuries, in and of itself, is irrelevant because the extent of the injuries is not an element of the prosecutor’s burden of proof. Only the fact that there were injuries is relevant in and of itself, which in this case was the fact that the complainant was burned. The extent of the injuries only becomes relevant when it is probative of another issue in the case.

Here, the nature and the extent of the complainant’s burn injuries would have been identical whether the fire was intentional or accidental. 3 Additionally, because such a small amount of gasoline was involved, 4 it is difficult to believe that intentionally throwing the gasoline would have dramatically altered the result in comparison with an accidental spill. Moreover, the slides have no probative value regarding whether the ñame was purposely or merely coincidentally lit.

Even assuming arguendo that the fact that the complainant was burned over sixty percent of her body was probative of defendant Mills intentionally throwing the gasoline on her, the color slides that were admitted showed far more than the extent of the burns over the body. 5 One of the *90 treating physicians, Dr. Garner, introduced the slides as he graphically described the treatment that the complainant had received. 6 On cross-examination, Dr. Garner testified that photographs of burns as they initially appear could be deceptive to a layperson, and that even medical personnel trained -in other fields may not understand the severity of the burns, because the true nature of the burns is not always immediately revealed. 7 He indicated that photographs taken at a subsequent time were necessary to accurately depict the seriousness of the injuries. 8

The majority holds that the photographs were "accurate factual representations of the injuries . . . .” Mallett, J., ante at 77. Indeed, one of the fundamental evidentiary requirements of photographs is that they accurately reflect what they purportedly represent. However, even conceding that initial photographs of the burns may not have depicted the true nature of the injuries, here the slides did not show unaltered pictures of the burns as they were discovered or as they later developed on their own. 9 Instead, they were photographs taken over the subsequent eight months depicting *91 the healing process, after surgical intervention and other medical treatment. Medical intervention was not probative of any material issue.

An analogous case is People v Turner, 17 Mich App 123, 132-133 ; 169 NW2d 330 (1969). There, the photographs were taken during the course of the autopsy of the child victim. The panel properly noted that the photographs did not depict the corpse as left by the assailant, but as left "by the probing instruments and procedures of the medical examiner.” Id. at 132 . Here, the color, slides were not of the burns as left by the incident, but as altered by the instruments and procedures of medical treatment. 10 Similarly, in Turner , the Court of Appeals based reversal on the fact that the photographs depicted more than simply the wounds of the child victim’s skull, even though the autopsy was necessary to expose the internal injuries of the skull that were not observable by casual inspection. The panel reasoned:

Where an autopsy is necessary to expose a sub-dermal injury the nature or extent of which is relevant to a material point in issue and where a photograph of the injury has essential evidentiary value, fairness to an accused demands that the photograph be restricted to that which is reasonably necessary to furnish visual aid to the jury in determining the question of fact presented. If this photograph was helpful to the doctor’s testimony it is only because of the skull itself, and not because of the laboratory pan, the surgical instruments, the open chest cavity, the tangled mass of bloody hair or the bloody scalp. These were áll totally irrelevant and highly inflammatory. [Id. at 133.]

Here, the slides also depicted surgical incisions *92 to relieve swelling, drainage tubes, intervening skin grafts, endotracheal breathing tubes, debrided flesh, a catheter, et cetera. Again, the medical treatment procedures were irrelevant and highly inflammatory.

Therefore, even if the slides were relevant, I agree with the Court of Appeals that the prejudicial effect outweighed any probative value. There was ample other evidence about the extent of the injuries. The complainant herself revealed her scars to the jury. There was no dispute that the complainant received serious burns; the dispute was over why she was burned. 11 Indeed, the defendants offered to stipulate the extent of the injuries. 12

In any event, I do not believe that all seventeen color slides were probative of an intent to kill, because an accidental burning could have produced injuries identical to an intentional burning. Even conceding that the extent of the injuries might, in a marginal way, be probative of an intent to kill, these slides depicted far more than mere unaltered burn injuries. The only purpose of using these "gruesome” color slides was to impassion the jury and to appeal to its sympathy. 13

*93 Therefore, I believe that it was prejudicial error requiring reversal to admit some, if not. all, of the seventeen color slides. However, there were over one hundred slides taken. Some may be relevant and admissible if they accurately depicted the complainant as she appeared at the time of the incident, or as the burns developed on their own over time, and are limited to revealing the burn injuries. I would remand for a new trial and allow the prosecution an opportunity to produce other color slides that may be properly admissible.

hi

Therefore, for the reasons stated above, I would affirm the decision of the Court of Appeals.

Levin, J., concurred with Cavanagh,

See, e.g., People v Coddington, 188 Mich App 584, 598-599 ; 470 NW2d 478 (1991), in which autopsy photographs of stippling on victim’s head and face indicated the relative location of the gun at the time of the shooting, which in turn was probative of premeditation and deliberation.

People v Curry, 175 Mich App 33, 46 ; 437 NW2d 310 (1989).

For instance, the bums would have appeared "splattered,” regardless of whether the defendants’ combined acts were intentional or unintentional.

See Mallett, J., ante at 64: "one of [the defendants] filled an empty soda bottle with a few cents worth of gasoline.” The bottle still contained some amount of liquid when, .it was recovered near the scene.

See People v Turner, 17 Mich App 123, 132 ; 169 NW2d 330 (1969).

It is worth noting that the incident occurred on June 23, 1989, and yet this particular doctor first saw the complainant on August 1.

He testified:

Part of the reason the initial pictures are deceptive is that the skin does not look abnormal to a first appearance, and since all of us have had bums, we think of them as relatively minor importance, and until you see something that looks distinctively abnormal, it is hard to appreciate that as something bad.

However, the defendants argue that if normal people would not understand that the nature and extent of these burns were life-threatening, then the slides were not probative of an intent to kill.

Compare with People v McCord, 167 Mich App 365, 370 ; 421 NW2d 692 (1988): "The photographs in the instant case were taken prior to the autopsy and, although gruesome, merely depicted the nature, extent and location of the wounds inflicted by defendant on his unarmed victim.”

Compare People v Eddington, 387 Mich 551, 562 ; 198 NW2d 297 (1972) (the photographs depicted "the victims as they were found”).

See People v Falkner, 389 Mich 682, 685-686 ; 209 NW2d 193 (1973). The Court held that photographs were improperly admitted when there was no dispute about how the victim was killed, and the photographs merely depicted how the victim died. The defendant’s theory was alibi, which was consistent with the nature of the death. The Court found "no other reason for their use than to excite passion and prejudice.” Id. at 685 .

Compare with People v Zeitler, 183 Mich App 68, 70 ; 454 NW2d 192 (1990), in which there was no stipulation regarding the nature and extent of the injuries.

The majority also finds that the photographs were necessary to assist the jury in assessing the credibility of Dr. Garner and to corroborate the complainant’s testimony. Mallett, J., ante at 72-73. Again this goes to relevance. A similar argument was rejected in Turner, supra at 132 . The panel noted the "clear and cogent testimony” of the medical examiner. It stated:

Since the cause of death was undisputed, the only material *93 points in issue were the severity of the skull fracture and the amount of force necessary to inflict such a wound. ... Although an autopsy was required for [the medical examiner] to ascertain the nature and extent of the injury a photograph was not required for him to adequately and effectively describe his findings to the jury. [Id.]

Here, Dr. Gamer’s clear and cogent testimony fully conveyed to the jury that the complainant sustained life-threatening injuries. Further, he could have used diagrams or sketches to show the location and extent of the bums on her body. These alternate means of proof elevate the prejudicial significance under MRE 403. Even if photographs remained necessary, they should have been limited in scope to the wounds, and views of medical instruments and the like should have been omitted.