Michigan Court of Appeals Holds Error Harmless In Murder Case

On December 2nd, 2014, the Michigan Court of Appeals held in a criminal case that the trial court's refusal to instruct the jury on second-degree child abuse was harmless error despite the existence of evidence at trial that would have supported such an instruction. Following trial, a jury convicted defendant of felony murder and first-degree child abuse.

In People v Burks, Docket No. 314579, the Michigan Court of Appeals addressed the issue of whether the trial court's refusal to give a requested, lesser-offense instruction constituted a miscarriage of justice requiring a new trial.

The Court first recited the facts of the case.

The evidence at trial demonstrated that defendant had been feeling stress and frustration because he could not find a job that would provide for his family. Sheretta Lee, who is defendant’s ex-wife and Antonio’s mother, testified that several weeks before Antonio’s death, when defendant drove her to work with two of their children, he threatened to drop her and the children off and then drive off a cliff. Lee was frightened because of his statements and his erratic driving, and when she got to work, defendant drove away with the children at such a high rate of speed that the tires on the car left skid marks. Lee called the police, who later confirmed the children were not harmed. While Lee never saw defendant slap or punch Antonio, when Antonio was three months old, defendant began giving the baby hickies on his cheeks. Lee also testified that Antonio cried a lot and that defendant would get frustrated trying to calm the baby down.

Lee further testified that, on the morning of March 24, 2011, defendant expressed frustration with his temporary employment agency, punched several holes in the walls, and told her “that could have been you.” When Lee thought that defendant had calmed down, she left to take the couple’s two older children to daycare and to go to work, leaving Antonio in defendant’s sole care and custody.

Travis Parris, defendant’s friend and neighbor, testified that defendant came over to play video games at around 5:00 p.m. A few hours later, Parris told defendant to go home and check on Antonio. Parris called defendant several times after he left, but defendant did not answer. When Lee returned home with the older children around midnight, defendant put one of the children to bed while the child was still fully clothed with his coat and shoes. Defendant also instructed Lee not to wake Antonio.

Lee testified that she went to bed, while Parris testified that defendant again visited his house. However, Parris said that on this visit, instead of playing video games, defendant just sat on the couch, which was not normal for him. Lee testified that she woke up at around 3:00 a.m., when she heard defendant pacing the room, and again, at around 10:00 a.m., when she got up for the day. When she touched Antonio, she discovered that he was very cold, and that he had bruising all over his body that had not been there the previous day. Lee called 911, and relayed instructions to defendant on how to perform CPR on a baby by using only two fingers.

Upon arriving on the scene, the police found defendant performing adult CPR on the infant. A responding officer pulled defendant off the baby so that he could perform infant CPR, but the baby was cold and lifeless. Officer Scott Sexton observed injuries on the baby’s body, but significantly, there was no bruising in the area where defendant was performing CPR. A firefighter who had responded to the scene testified that, when he removed the baby’s diaper, he noticed that the diaper was dry and the baby had been freshly powdered. He found this unusual because the bowels and bladder release upon death. In the aftermath of the police arrival at the scene, defendant was observed punching holes in the drywall.

The baby was then taken to the hospital by paramedics. The treating emergency physician, Dr. Martin Romero, declared the baby dead and opined that he had been dead for between 4 and 24 hours. Dr. Romero observed multiple bruises and abrasions on the baby’s face, abdomen, and legs, healing bruises on his arms, a torn frenulum,2 and “Cullen’s sign,” a purple discoloration of the abdomen that indicates internal bleeding. Dr. Romero also observed that Antonio’s diaper was clean and testified that stool and urine are expelled at the time of death . . .

At trial, defendant admitted that he had not been completely truthful in his interviews with the police, but asserted that his third statement to the police had been the most truthful. Defendant testified that around 10:00 p.m., he lay down on the bed with Antonio to take a nap and that he rolled over onto Antonio for a roughly a minute. When he awoke, Antonio was having difficulty breathing. Defendant testified that he performed CPR on Antonio, who appeared to be alright afterward. Defendant further testified that he then gave Antonio a bath, and that he stepped out of the bathroom momentarily, at which time Antonio became partially submerged in the bathtub. Defendant claimed he pulled Antonio out of the water and again successfully performed CPR. But defendant also admitted that he had struck Antonio while performing CPR to get the baby to breathe. Defendant testified that Antonio appeared to be breathing fine and went to sleep. Defendant further testified that he went to bed around 3:00 a.m. When he woke up in the morning, he learned that his son had died. Defendant denied that he had intended to hurt or to harm Antonio, or that he knew his actions would harm Antonio.

After the close of the proofs, defense counsel requested that the jury be instructed on the offense of second-degree child abuse, arguing that the jury could find defendant’s actions had only been reckless. The trial court denied the request, finding that, according to the pathologist’s testimony, blunt force trauma caused Antonio’s death, that defendant admitted intentionally striking the baby, and that therefore, defendant’s act resulting in death was intentional. The trial court further concluded that, given these findings, there was no evidence that any reckless act by defendant resulted in serious injury to Antonio, and that, therefore, the jury should not be instructed on second-degree child abuse. The jury subsequently convicted defendant of felony murder and first-degree child abuse . . .

The Court's analysis of whether the trial court erred in refusing to instruct the jury on the offense of second-degree child abuse followed.

Defendant next argues that the trial court committed error requiring reversal when it refused to instruct the jury on second-degree child abuse. Although we agree that the trial court erred by refusing to provide the instruction, we conclude that the error does not require reversal . . .

As we noted earlier, the trial court reasoned when it declined to grant defendant’s request to instruct the jury regarding second-degree child abuse that it was undisputed that defendant acted intentionally and that defendant’s intentional act resulted in Antonio’s death. But defendant’s statements to the police and his testimony at trial that the baby was fine after defendant rolled over him while they were sleeping, and after defendant had momentarily left the baby alone in the bath, were evidence that, if believed, could have supported a jury verdict finding defendant guilty of second-degree child abuse under MCL 750.136b(3)(b). Likewise, defendant’s testimony that he struck Antonio while performing CPR to try to get him to breathe, if believed by the jury, could have supported a jury verdict finding defendant guilty of second-degree child abuse under MCL 750.136b(3)(a). Thus, the trial court erred by not instructing the jury on second-degree child abuse as requested by defendant.

Despite the trial court’s error, however, reversal is not warranted. Defendant has not sustained his burden of demonstrating that, properly instructed, it was more probable than not that the jury would have convicted him of second-degree child abuse under MCL 750.136b(3)(b) rather than first-degree child abuse. None of defendant’s inconsistent depictions of his care of Antonio before his death explain the injuries Antonio sustained. In particular, Dr. Bechinski opined Antonio’s injuries were caused by squeezing, punching, shaking, or being struck against a wall, and that some of the injuries would have required the force comparable to a high-speed vehicle collision. In addition, contrary to defendant’s testimony, the baby was not fine after being in defendant’s care. Antonio’s injuries after being in defendant’s care were extensive, as he was covered with bruises and abrasions and had internal injuries described as “textbook” for battered children.

Similarly, defendant has not sustained his burden of demonstrating that it was more probable than not that the jury would have convicted him of second-degree child abuse under MCL 750.136b(3)(a) rather than first-degree child abuse. Despite defendant’s testimony that he struck Antonio while performing CPR merely to try to get him to breathe, the evidence demonstrated the baby’s injuries were inconsistent with improper CPR. Further, the jury was unlikely to believe defendant’s inconsistent explanations for the baby’s injuries in light of defendant’s history of violence, the anger and violence he exhibited on the morning before he was entrusted to care for Antonio, and evidence that defendant grew frustrated when attempting to calm the baby who cried often.

A review of the entire cause does not show that defendant merely committed an act likely to cause serious harm, regardless of actual harm, or that defendant acted recklessly, not knowingly, in causing injury Antonio. As such, the trial court’s failure to instruct the jury on the necessarily included lesser offense of second-degree child abuse did not undermine the reliability of the verdict, and that failure was harmless.