PEOPLE OF MI V MICHAEL JOHN DELICH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 3, 2002
Plaintiff-Appellee,
v
No. 233016
Van Buren Circuit Court
LC No. 00-011967-FC
MICHAEL JOHN DELICH,
Defendant-Appellant.
Before: Murphy, P.J., and Sawyer and R. J. Danhof*, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree murder, MCL 750.316, and possession
of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced him to
mandatory life imprisonment for the first-degree murder conviction and imprisonment for two
years for the felony-firearm conviction. Defendant appeals as of right. We affirm.
Defendant first argues that the trial court erred in denying his motion for a directed
verdict on the charge of first-degree murder because there was insufficient evidence on the issue
of intent. We review de novo a trial court’s decision on a motion for a directed verdict to
determine whether the evidence presented by the prosecutor, viewed in the light most favorable
to the prosecution, could persuade a rational trier of fact that the essential elements of the
charged crime were proved beyond a reasonable doubt. People v Aldrich, 246 Mich App 101,
122; 631 NW2d 67 (2001). To convict a defendant of first-degree murder, the prosecutor must
prove that the defendant intentionally killed the victim and that the act of killing was
premeditated and deliberate. MCL 750.316; People v Saunders, 189 Mich App 494, 496; 473
NW2d 755 (1991). Premeditation and deliberation can be inferred from the circumstances
surrounding the killing. Id. After reviewing the evidence in a light most favorable to the
prosecution, we conclude that the evidence is sufficient to support the conclusion that defendant
intended to kill his son, the victim. Therefore, the trial court did not err in denying defendant’s
motion for a directed verdict.
Defendant next argues that the trial court erred in refusing to instruct the jury on the
offense of statutory involuntary manslaughter. A trial court is not permitted to give a jury
instruction on a cognate lesser included offense. People v Reese, 466 Mich 440, 446; 647 NW2d
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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498 (2002); People v Cornell, 466 Mich 335, 355; 646 NW2d 127 (2002); People v Pasha, 466
Mich 378, 384, n9; 645 NW2d 275 (2002). Defendant was charged with and tried for the offense
of first-degree murder. Involuntary manslaughter is a cognate lesser included offense of murder.
People v Heflin, 434 Mich 482, 497; 456 NW2d 10 (1990). Therefore, the trial court did not err
in refusing defendant’s request for an instruction on involuntary manslaughter.
Defendant next argues that the trial court abused its discretion in admitting into evidence
a photograph of the victim’s head. According to defendant, the photograph was more prejudicial
than probative and should have been excluded under MRE 403. However, the photograph was
relevant to the issue of defendant’s intent to kill the victim. MRE 401. Evidence of injury is
admissible to show intent to kill. People v Mills, 450 Mich 61, 71; 537 NW2d 909, mod on other
grounds 450 Mich 1212 (1995). In addition, although the photograph is gruesome, photographs
that are pertinent, relevant, competent or material on any issue are not inadmissible merely
because they show gruesome or shocking details of the crime. People v Stewart, 126 Mich App
374, 377-378; 337 NW2d 68 (1983).
Furthermore, the prosecutor was willing to substitute a sketch of the victim’s head for the
actual photograph until the forensic pathologist who performed the autopsy testified that the
photograph more accurately depicted the nature of the injuries to the victim. The photograph
was relevant to the issue of defendant’s intent and accurately depicted the nature, location, and
extent of the victim’s wounds. Therefore, the probative value of the photograph was not
outweighed by the danger of unfair prejudice, and the trial court did not abuse its discretion in
admitting the photograph into evidence.
Defendant finally argues that the trial court abused its discretion in admitting improper
character evidence. At the request of the jury, the trial court questioned defendant’s daughter,
and she testified that defendant had always had an antagonistic relationship with his children and
that he had always been verbally abusive to his children. That testimony concerned the nature of
defendant’s relationship with his children. It did not concern defendant’s character and should
not have been precluded under MRE 404(a). Moreover, the testimony was not elicited to show
that defendant acted in conformity with a bad character trait. The trial court is free to ask
questions of witnesses that assist in the search for truth as long as the questions would be
appropriate if asked by either party and do not give the appearance of partiality. People v Davis,
216 Mich App 47, 53; 549 NW2d 1 (1996). Because the testimony was not improper character
evidence under MRE 404(a) and the trial court’s questions of the witness were appropriate, the
trial court did not abuse its discretion in admitting defendant’s daughter’s testimony.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Robert J. Danhof
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