PEOPLE OF MI V MARKETTA RANDLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 27, 2004
Plaintiff-Appellee,
v
No. 246800
Wayne Circuit Court
LC No. 02-008077-01
MARKETTA RANDLE,
Defendant-Appellant.
Before: Owens, P.J. and Kelly and R.S. Gribbs*, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial conviction of second-degree murder,
MCL750.317 for which she was sentenced to sixteen to thirty years’ imprisonment. We affirm.
I. Basic Facts
One summer evening, defendant and the victim, defendant’s boyfriend and the father of
her child, were at home when a fifteen-year-old girl came by and asked defendant for a ride.
This ignited an argument that began on the front porch. Defendant and the victim went into the
house where they shared a room, and continued the argument. Diane Brown, the victim’s aunt,
who also owned the home, overheard defendant say to the victim “don’t play me like that why
you play me like that.” Defendant and the victim continued their argument into the basement.
After some time had passed, Brown heard defendant call for help because the victim was
bleeding. She sent her son to the basement, where the victim was found unconscious laying near
a shovel.
There were no witnesses to the struggle in the basement. Several people who overheard
parts of the argument testified that they called emergency medical services but the 911 tapes
were never produced at the trial. After waiting for several hours for EMS to arrive, defendant
herself took the victim to the hospital. Within a half hour of arriving at the hospital, the victim
died. The cause of death was determined to be a result of a single half-inch wide four-inch deep
chest wound that severed his heart.
Defendant gave two statements to police officers. At the hospital, defendant told a police
officer that she ran upstairs to get away from the victim and later found him in the basement
*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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where he appeared to have fallen on a shovel. But later defendant stated that the victim was
choking and dragging her and she grabbed a nearby steak knife and stabbed him in self-defense.
II. Sufficiency of the Evidence
Defendant first argues that there was insufficient evidence to sustain her conviction of
second-degree murder because the prosecution did not establish beyond a reasonable doubt that
defendant acted with malice. We disagree.
We review claims regarding of insufficient evidence de novo. People v Lueth, 253 Mich
App 670, 680; 660 NW2d 322 (2002). This Court views the evidence in a light most favorable
to the prosecution and must determine whether a rational trier of fact could have found all the
elements of the offense proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515;
489 NW2d 748 (1992). Circumstantial evidence and reasonable inferences therefrom may
constitute sufficient evidence of the elements of a crime, and credibility conflicts are resolved in
favor of the jury's verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
“The elements of second-degree murder are: (1) a death, (2) caused by an act of the
defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457 Mich
442, 463-464; 579 NW2d 868 (1998). “Malice is defined as the intent to kill, the intent to cause
great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that
the natural tendency of such behavior is to cause death or great bodily harm.” Id. at 464.
Defendant argues that the prosecution failed to prove malice beyond a reasonable doubt
because there was evidence that defendant stabbed the victim in self-defense and that she called
EMS and ultimately took defendant to the hospital herself. But the evidence also showed that
defendant stabbed the victim with a steak knife in the chest causing a four-inch deep puncture
wound that cut part of the victim’s heart and caused his death. A rational trier of fact could have
found beyond a reasonable doubt that defendant either intended to cause great bodily harm to the
victim or acted in wanton and willful disregard of the likelihood that the natural tendency of
stabbing a person in the heart with a steak knife is to cause death or great bodily harm. The fact
that there was also evidence showing that defendant acted in self-defense or tried to assist the
victim afterward does not require reversal because questions of credibility are resolved in favor
of the jury verdict. Therefore, we find sufficient evidence to support defendant’s conviction.
III. Jury Instruction
Defendant next argues that the trial court erred in its instruction to the jury that it may
infer from the prosecution’s failure to produce the 911 tape that it would have been unfavorable
to the prosecution adding at the end of the instruction “if you want to.” We disagree.
We review this claim of instructional error de novo. People v Bartlett, 231 Mich App
139, 143; 585 NW2d 341 (1998). A trial court's instructions must include all the elements of the
charged offenses and “must not omit material issues, defenses, and theories if the evidence
supports them.” Id. “Even if somewhat imperfect, instructions do not create error if they fairly
present to the jury the issues tried and sufficiently protect the defendant's rights.” Id. at 143-144.
The trial court instructed the jury as follows:
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Now there’s been testimony regarding a tape who’s [sic] appearance was the
responsibility of the prosecution.
You may infer that that evidence would have been unfavorable to the
prosecutions [sic] case if you want to. The prosecution hasn’t produced evidence
of a statement that it claims the defendant made.
This appears to be a variation on CJI2d 5.12 which reads:
______________ is a missing witness whose appearance was the responsibility of
the prosecution. You may infer that this witness’s testimony would have been
unfavorable to the prosecution’s case.
Defendant argues that the instruction as given was improper because the trial court added
the phrase “if you want to.” But defendant waived this issue by expressly approving the
instructions. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002), citing People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). After the trial court read the jury
instructions, it asked “Are both sides satisfied with the instructions?” In response, defense
counsel stated “Yes, we’re satisfied.” As such, we find that any error is extinguished by
defendant’s waiver.
But even if defendant had not waived the alleged error, defendant has failed to show plain
error affecting her substantial rights. People v Gonzalez, 468 Mich 636, 642-643; 664 NW2d
159 (2003). CJI2d 5.12 states: “You may infer that this witness’s testimony would have been
unfavorable to the prosecution’s case.” The definition of “may” is “To be allowed or permitted
to.” The American Heritage Dictionary (2d college ed). Thus, by stating “if you want to,” the
trial court merely rephrased and reiterated a portion of the standard jury instruction. The trial
court did not add any additional or different meaning nor did it take away the meaning of the
instruction as written. Defendant’s argument is premised on the incorrect assumption that the
instruction as written requires the jury to infer that the testimony would have been unfavorable
to the prosecution. If that were the case, the instruction would have used the word “shall.”
Accordingly, defendant has failed to show plain error in regard to this jury instruction.
Affirmed.
/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
/s/ Roman S. Gribbs
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