PEOPLE OF MI V JOHN ALBERT GILLIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellee,
v
No. 245012
St. Clair Circuit Court
LC No. 02-000601-FC
JOHN ALBERT GILLIS,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Defendant John Albert Gillis appeals as of right his jury trial convictions for two counts
of first-degree felony murder.1 Defendant was sentenced to life imprisonment without the
possibility of parole on each count. We vacate defendant’s convictions and remand for a new
trial consistent with this opinion.
I. Facts
On the afternoon of May 24, 2001, defendant pulled into the driveway of the home of
Steven Albright. Defendant proceeded to break into the home through a steel garage door. Mr.
Albright saw defendant pull into the driveway and was waiting with his dog when defendant
entered the home. Defendant quickly turned around, ran back down the driveway, returned to his
vehicle and drove away. Mr. Albright initially attempted to follow defendant, but returned home
minutes later to call 911 to describe the vehicle and inform the police of its direction.
About fifteen minutes later, State Trooper Steven Kramer received a radio notice to look
for defendant’s white Dodge Shadow while patrolling I-94. A few minutes later, Trooper
Kramer spotted defendant, driving normally, on the other side of the expressway. Trooper
Kramer cut across the median, followed defendant’s vehicle and attempted to effectuate a stop.
Defendant moved onto the shoulder and slowed to thirty miles an hour, but then darted back into
traffic at a high rate of speed and exited the expressway. Other police officers joined the pursuit
as it continued through a neighborhood. Defendant reentered I-94, on an exit ramp, and traveled
eastbound in the westbound lanes. Defendant veered across I-94 and drove against traffic onto
1
MCL 750.316(1)(b).
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the entrance ramp from I-69. On the entrance ramp, defendant collided head-on with another
vehicle traveling around fifty miles an hour. Nicholas and Gayle Ackerman, the occupants of
that vehicle, were killed instantly. Defendant received a closed head injury and claims to have
no memory of that day.
II. Felony Murder
Defendant contends that the trial court improperly denied his motion to quash the
information charging him with felony murder based on the underlying home invasion. We agree,
and therefore, are not required to analyze defendant’s other arguments regarding his felony
murder convictions.2
Generally, we review a circuit court's decision regarding a motion to quash a felony
information de novo to determine if the district court abused its discretion in ordering the
bindover.3 A defendant must be bound over for trial when “the prosecutor presents competent
evidence constituting probable cause to believe that (1) a felony was committed and (2) the
defendant committed that felony.”4 We must defer to the district court’s determination that
probable cause existed unless the decision was “wholly unjustified” on the record.5 Probable
cause requires a reasonable belief that the evidence presented is consistent with the defendant’s
guilt.6
Felony murder is “[m]urder committed in the perpetration of, or attempt to perpetrate, . . .
home invasion in the first or second degree.”7 In order to convict a defendant of felony murder,
there must be a causal connection between the murder and the underlying felony.8
“[I]f a murder is committed while attempting to escape from or prevent detection
of the felony, it is felony murder, but only if it is committed as a part of a
2
Defendant alternatively contended that the trial court erroneously instructed the jury that the
home invasion was immediately connected to the murder, and thereby assured his convictions.
Defendant also contended that there was insufficient evidence to support his convictions and that
the trial court should have granted his motion for a directed verdict.
3
People v Northey, 231 Mich App 568, 574; 591 NW2d 227 (1998). In this case, however, no
preliminary examination was conducted. The trial court took testimony from Mr. Albright and
Trooper Kramer at the hearing on defendant’s motion to quash.
4
Id.
5
Id.
6
Id. at 575.
7
MCL 750.316(1)(b).
8
People v Goddard, 135 Mich App 128, 135; 352 NW2d 367 (1984), rev’d in part on other
grounds 429 Mich 505 (1988).
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continuous transaction with, or is otherwise ‘immediately connected’ with, the
underlying felony.”[9]
When the murder and predicate felony are not contemporaneous, the court must determine if the
two were “‘closely connected in point of time, place and causal relation.’”10 Separation of time
and space between the murder and the felony are proper considerations, although not outcome
determinative.11 The felony must dictate the defendant’s conduct leading to the homicide and
the homicide must be a hazard of the predicate felony.12
In this case, defendant had already escaped from the scene of the home invasion.
Defendant was spotted about fifteen to twenty minutes after he left Mr. Albright’s home while he
was driving down the expressway in a normal manner.13 Instead of pulling over, defendant led
the police on a high speed chase against traffic on a busy expressway. Defendant was fleeing
from the police when he collided with the Ackermans’ vehicle, but their deaths were not a part of
the continuous transaction of or immediately connected to the home invasion. Their deaths were
immediately connected with defendant’s act of fleeing and eluding, which is also a felony in this
9
People v Thew, 201 Mich App 78, 85-86; 506 NW2d 547 (1993), quoting People v Smith, 55
Mich App 184, 189; 222 NW2d 172 (1974).
The continuous transaction/immediately connected test for felony-murder is similar to the
same transaction test formerly employed to determine if successive prosecutions amounted to
double jeopardy. In People v White, 390 Mich 245; 212 NW2d 222 (1973), the Michigan
Supreme Court determined that the prosecutor must try in one case all charges arising from a
single criminal transaction. Id. at 257-258. To determine if offenses were part of the same
transaction, the court was required to first determine if all the offenses at issue were specific
intent crimes. If all the offenses were specific intent crimes, the prosecutor was required to join
the charges in one trial if they arose “out of a continuous time sequence and display[ed] a single
intent and goal.” People v Rodriguez, 251 Mich App 10, 17; 650 NW2d 96 (2002), citing People
v Sturgis, 427 Mich 392, 401; 397 NW2d 783 (1986), Crampton v 54-A Dist Judge, 397 Mich
489, 501-502; 245 NW2d 28 (1976). If a charged offense was not a specific intent crime, the
prosecutor was required to join the charges in one trial if “the offenses were part of the same
criminal episode and involve[d] laws intended to prevent the same or a similar harm or evil,
rather than substantially different harms or evils.” Id. at 17 n 1, citing Crampton, supra. The
Michigan Supreme Court recently overruled the long-standing legal precedent of People v White.
People v Nutt, 469 Mich 565; 677 NW2d 1 (2004). However, the Court has not similarly
addressed the felony murder test.
10
Goddard, supra at 136, quoting State v Adams, 98 SW2d 632 (Mo, 1936).
11
Id.
12
Id.
13
See Thew, supra at 88 (upholding a felony murder conviction where the murder occurred
about twenty minutes after the defendant committed first-degree criminal sexual conduct by
engaging in allegedly consensual intercourse with his eleven-year-old victim, as the murder
occurred in the same location as the CSC, following an argument, and apparently to prevent the
victim from telling others of his actions).
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state.14 Fleeing and eluding, however, is not an enumerated felony upon which a conviction for
felony murder may be based.15
As the home invasion and subsequent death of the Ackermans were not connected in
time, place or causal relationship, the trial court should have quashed the information charging
defendant with felony murder. We, therefore, vacate defendant’s convictions and sentences for
felony murder. Defendant should properly have been charged with fleeing and eluding16 and
second-degree murder.17 Defendant was fleeing from the police at the time of the collision
causing the Ackermans’ deaths. The malice necessary to establish a charge of second-degree
murder may be inferred when a defendant uses an automobile in a reckless fashion to evade the
police.18 Accordingly, we remand to the trial court for a new trial on those charges.
III. Lesser Included Offenses
Defendant argues that the trial court erred by denying his request for an instruction on the
lesser offense of involuntary manslaughter. Claims of instructional error are reviewed de novo
on appeal.19 As a general rule, “[w]e review jury instructions in their entirety to determine if
error requiring reversal occurred.”20 It is the function of the trial court to clearly present the case
to the jury and instruct them on the applicable law.21 Even if somewhat imperfect, reversal is not
required where the instructions fairly presented the issues to be tried and sufficiently protected
the defendant’s rights.22
Defendant correctly indicates that involuntary manslaughter is a necessarily included
lesser offense of murder.23 An involuntary manslaughter instruction must, therefore, be given “if
supported by a rational view of the evidence.”24 “‘Involuntary manslaughter is a catch-all
concept including all manslaughter not characterized as voluntary: “Every unintentional killing
of a human being is involuntary manslaughter if it is neither murder nor voluntary manslaughter
nor within the scope of some recognized justification or excuse.”’”25 If the killing was not
14
MCL 257.602(5) (fleeing and eluding resulting in the death of another).
15
MCL 750.316(1)(b).
16
MCL 257.602(5).
17
MCL 750.317.
18
People v Vasquez, 129 Mich App 691, 694; 341 NW2d 873 (1983), citing People v Goodchild,
68 Mich App 226; 242 NW2d 465 (1976).
19
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002).
20
People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
21
People v Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001).
22
Aldrich, supra at 124.
23
People v Mendoza, 468 Mich 527, 541; 664 NW2d 685 (2003).
24
Id.
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committed with malice, but rather “with a lesser mens rea of gross negligence or an intent to
injure,” the killing is involuntary manslaughter.26
We find that the evidence would support an instruction for involuntary manslaughter.
Defendant collided with the Ackermans’ vehicle while evading capture by the police and a jury
could find that he did not intend their deaths. It is possible for a rational trier of fact to determine
from the evidence that defendant only possessed the mindset of gross negligence. Therefore, the
trial court must instruct the jury on the lesser offense of involuntary manslaughter.
IV. Evidentiary Issues
Generally, a trial court’s decision to admit evidence will be reversed only for an abuse of
discretion.27 However, when a trial court’s decision regarding the admission of evidence
involves a preliminary question of law, this court reviews the issue de novo.28
A. Prior Bad Acts
Defendant argues that the trial court improperly admitted evidence regarding his
involvement in a prior breaking and entering that also led to a police chase. Evidence of other
crimes, wrongs or acts is inadmissible to show a defendant’s character or propensity to commit
the charged crime.29 Evidence of other bad acts may be admissible if offered to prove the
defendant’s “motive, opportunity, intent, preparation, scheme, plan or system in doing an act,
knowledge, identity, or absence of mistake or accident when the same is material.”30 The trial
court must also determine that the evidence is relevant pursuant to MRE 402 to a material fact,31
and the evidence is more probative than prejudicial pursuant to MRE 403.32 The evidence may
tend to prove the defendant’s propensity to commit the crime, but this may not be the sole
purpose for presenting the evidence.33
The prosecutor in defendant’s current case was required to show that defendant intended
to commit a felony, larceny, or assault when he entered Mr. Albright’s home, or that he actually
committed one of these crimes once inside, in order to establish that he committed the predicate
(…continued)
25
People v Holtschlag, ___ Mich ___; ___ NW2d ___ (Docket No. 123553, decided July 23,
2004), slip op at 27, quoting People v Datema, 448 Mich 585, 594-595; 533 NW2d 272 (1995).
26
Id.
27
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
28
Id.
29
MRE 404(b)(1).
30
Id.; see also People v Sabin (After Remand), 463 Mich 43, 55; 614 NW2d 888 (2000).
31
Sabin, supra at 55.
32
Id. at 55-56, quoting People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993), amended
445 Mich 1205 (1994).
33
People v Martzke, 251 Mich App 282, 289; 651 NW2d 490 (2002).
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felony of first-degree home invasion.34 As defendant did not commit an independent felony,
larceny, or assault, the prosecutor was required to show that defendant intended to do so at the
time he entered the house. Evidence of defendant’s prior involvement in a breaking and entering
is relevant to show “a common plan, scheme, or system” of breaking into people’s homes.35 The
circumstances surrounding defendant’s involvement in the previous breaking and entering,
compared with the circumstances of the present case, suggest that defendant had a common plan,
scheme, or system of breaking into homes, at times when he believed no one was there, in order
to steal property. Thus, the evidence was probative of defendant’s intent to commit a larceny
when he entered Mr. Albright’s home. Furthermore, given the lack of direct evidence of
defendant’s intent, the probative value of the evidence outweighs any potential prejudice.36
However, the trial court did abuse its discretion by admitting evidence of defendant’s
prior involvement in a police pursuit. The evidence that defendant drove in an unlawful and
reckless manner to evade capture by the police was overwhelming. No further evidence was
required to establish defendant’s intent, motive, or any other permissible factor pursuant to MRE
404(b)(1). This evidence was, therefore, more prejudicial than probative. However, in light of
the evidence that defendant engaged in a high speed chase traveling in the wrong direction on a
busy expressway, the evidence was likely not outcome determinative. Accordingly, reversal is
not warranted.
B. Photographs of the Crime Scene
Defendant alleges that the trial court improperly admitted two photographs of the
Ackermans in their vehicle following the collision. However, defendant waived any error in the
admission of the photographs. The photographs were used at trial without objection from
defense counsel. Furthermore, defense counsel affirmatively stated, when asked by the court,
that he had no objection to the admission of certain prosecution exhibits, including the
photographs. In People v Lueth,37 this Court found that the defendant waived appellate review of
a claim of error in jury instructions by stating when asked that he had no objections to the jury
instructions as read. Similarly, defendant waived appellate review regarding the admission of
the photographs.
34
MCL 750.110a(2).
35
People v Ackerman, 257 Mich App 434, 440; 669 NW2d 818 (2003), quoting Sabin, supra at
63 (finding evidence of uncharged misconduct that was similar to the current charges could
support an inference of a common plan, scheme, or system).
36
MRE 403. We reject defendant’s contention that the evidence was overly prejudicial based on
his concession of the facts of the home invasion. Defense counsel clearly refuted the charge in
opening argument by noting that defendant did not take any property from Mr. Albright’s home
and by stating that the prosecution had “to prove the intent in the home invasion.” Defense
counsel strictly held the prosecution to its obligation to prove that defendant intended to commit
a felony, larceny, or assault inside the home.
37
People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002).
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V. Competency to Stand Trial
Defendant claims that the trial court abused its discretion by determining that he was
competent to stand trial despite his apparent lack of memory regarding the incident.38 We
disagree.
MCL 330.2020(1) governs the determination of a criminal defendant’s competency to
stand trial as follows:
A defendant to a criminal charge shall be presumed competent to stand trial. He
shall be determined incompetent to stand trial only if he is incapable because of
his mental condition of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational manner. The court shall
determine the capacity of a defendant to assist in his defense by his ability to
perform the tasks reasonably necessary for him to perform in the preparation of
his defense and during his trial.[39]
In People v Stolze,40 this Court considered the application of MCL 330.2020(1) where the
defendant apparently suffered amnesia in connection with the charged incident. As in the
present case, expert testimony indicated that the defendant could not recall the events of the day
of the incident, but could understand the charges against him and the consequences of his acts.41
This Court found the defendant competent to stand trial because he “was able to consult with and
assist his lawyer subject to the limitation imposed by the amnesia.”42 Furthermore, as the
evidence against the defendant was overwhelming, the defendant’s “testimony would have been
largely cumulative.”43
In this case, defendant, who undisputedly understood the nature and object of the
proceedings, could consult with and assist his lawyer. Defendant could discuss and have input
on matters of trial strategy, albeit with limitations imposed by his apparent amnesia. Although
we conclude that defendant’s convictions for felony murder were improper, the evidence of
defendant’s wrongdoing was overwhelming. Evidence of the high-speed pursuit and defendant’s
deadly manner of driving was established by the testimony of Trooper Kramer, a motorist who
was in the vicinity of the collision, and an accident reconstructionist. In these circumstances,
defendant could not plausibly have denied his responsibility for the collision or that his conduct
involved the requisite intent for either murder or involuntary manslaughter. Thus, in light of
38
People v Newton (After Remand), 179 Mich App 484, 488; 446 NW2d 487 (1989).
39
MCL 330.2020(1).
40
People v Stolze, 100 Mich App 511; 299 NW2d 61 (1980).
41
Id. at 513.
42
Id. at 516.
43
Id.
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Stolze, the trial court did not abuse its discretion by determining that defendant was competent to
stand trial.44
We vacate defendant’s convictions and remand for a new trial consistent with this
opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
44
Defendant points out that this Court in Stolze stated that “[p]erhaps a case could arise where an
amnesiac condition seriously prejudices a defendant and renders him incompetent to stand trial.”
Stolze, supra at 515. However, this is not such a case. Defendant also refers to the test from
Judge J. Skelly Wright’s lead opinion in Wilson v United States, 129 US App DC 107; 391 F2d
460, 463-464 (1968), in support of his claim that he was incompetent to stand trial. Even if
application of that test would be consistent with Michigan law, we conclude that it does not
support a conclusion that defendant was incompetent to stand trial in light of the limited
impairment to his defense from his apparent lack of recollection and the overwhelming evidence
of his guilt.
Defendant also summarily contends, without citing any supporting case law, that the trial
court’s holding that he was competent to stand trial violated the Confrontation Clauses of the
federal and state constitutions. US Cont, Am VI; Const 1963, art 1, § 20. The court’s ruling did
not preclude defendant from cross-examining or confronting any witness. Therefore, it did not
violate or impair any rights protected by the Confrontation Clause. Thus, we conclude that
defendant has abandoned this argument by failing to sufficiently argue its merits. See People v
Hicks, 259 Mich App 518, 532; 675 NW2d 599 (2003).
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