PEOPLE OF MI V CARLOS DON PONCE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 4, 2000
Plaintiff-Appellee,
v
No. 200612
Recorder’s Court
LC No. 95-000940
CARLOS DON PONCE,
Defendant-Appellant.
Before: Cavanagh, P.J. and White and Talbot
PER CURIAM.
White, J. (dissenting).
I agree with the majority’s recitation of the law, but respectfully come to a different conclusion
regarding its application to the instant case. I conclude that defendant was entitled to the lesser offense
instructions and that the failure to give the instructions cannot be regarded as harmless. The
prosecution’s theory was that defendant was attempting to rob the victim when the victim attempted an
escape and defendant then shot him. While defendant’s basic theory was accident, he acknowledged
that he was carrying a loaded gun that was accessible to others. He asserted that the victim called him
over to his car, and that when he approached, the victim grabbed his gun. A struggle ensued inside the
car, one or the other of them hit the gear shift, the car lurched backwards, and the gun discharged,
causing the victim’s death.
The jury apparently rejected the prosecution’s theory, because defendant was convicted of
second-degree, rather than felony, murder. Neither side’s version of the events was consistent with the
lesser charge of voluntary manslaughter, which was given. The jury may have believed defendant’s
testimony but nevertheless have been reluctant to acquit on the basis of accident, where defendant was
the one who created the situation by approaching a stranger with a visible, accessible and loaded gun,
albeit at the stranger’s request,1 and then engaging in a physical
-1
struggle over the gun in close quarters. Had the jury been given the option of convicting defendant of a
lesser charge consistent with his theory of the case, it might have done so. People v Richardson, 409
Mich 126; 293 NW2d 332 (1980).
/s/ Helene N. White
1
While subject to different interpretations, part of the prosecutor’s argument could have been
understood to urge that the requisite mental state for murder, including “creating a risk of death or great
bodily harm” could be supported by defendant’s having carried a loaded gun to the bar with him. The
prosecutor argued:
. . . We know that the Defendant had been of those three state [sic] of mind, either the
intent to do great bodily harm or attempt to create a risk of death or great bodily harm
because the Defendant told us that he had a deadly and dangerous weapon that he
carried with him to the bar. That deadly and dangerous weapon was pulled with one in
the chamber and in addition to that the Defendant had ammunition to back him up in the
event he ran out of ammunition already loaded in the firearm.
To the extent such an argument was implied, it supported giving the lesser offense instructions.
-2
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