PEOPLE OF MI V TIMOTHY ROY NULL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 25, 2008
Plaintiff-Appellee,
v
No. 271597
Wayne Circuit Court
LC No. 05-007927
TIMOTHY ROY NULL,
Defendant-Appellant.
Before: Servitto, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of second-degree murder, MCL
750.317, for which he was sentenced to serve 130 months to 35 years’ imprisonment. Because
we conclude that defendant was not entitled to instruction on the offense of involuntary
manslaughter, and that the admission of testimony concerning prior threats against the victim and
those with which she was involved was not error, we affirm.
I. Basic Facts and Procedural History
This case arises from the death of Alicia Gyomory. At autopsy, the medical examiner
discovered a high level of prescription medication in Gyomory’s system. It was ultimately
concluded, however, that she died of asphyxiation resulting from strangulation. During
questioning by the police defendant acknowledged having choked Gyomory on the day of her
death. However, he denied having done so with any intent to kill or otherwise harm her. Rather,
he asserted that his actions were taken in an effort to cause Gyomory to vomit and thereby
regurgitate an overdose of prescription medication taken by her in an effort to commit suicide.
At defendant’s subsequent trial for first-degree premeditated murder, the trial court denied
defendant’s request for instruction on the lesser offense of involuntary manslaughter. Defendant
was subsequently convicted and sentenced as stated above.
II. Analysis
A. Instruction on Involuntary Manslaughter
Defendant first argues that the trial court erred in failing to instruct the jury on the offense
of involuntary manslaughter. We disagree.
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Common law involuntary manslaughter is a necessarily included lesser offense of
murder, as the sole element distinguishing the two offenses is malice. People v Mendoza, 468
Mich 527, 533, 536, 541; 664 NW2d 685 (2003). “If the homicide was committed with malice,
it is murder. If it was committed with a lesser mens rea of gross negligence or an intent to injure,
and not malice, it is not murder, but only involuntary manslaughter.” People v Holtschlag, 471
Mich 1, 21-22; 684 NW2d 730 (2004). “Consequently, when a defendant is charged with
murder, an instruction for . . . involuntary manslaughter must be given if supported by a rational
view of the evidence.” Mendoza, supra at 541; see also People v Cornell, 466 Mich 335, 357;
646 NW2d 127 (2002).
There are “three different theories giving rise to involuntary manslaughter liability.”
People v Datema, 448 Mich 585, 596; 533 NW2d 272 (1995). As explained by our Supreme
Court, these include “the unintentional killing of another, without malice, during the commission
of an unlawful act . . . not naturally tending to cause great bodily harm; or during the commission
of some lawful act, negligently performed; or in the negligent omission to perform a legal duty.”
Mendoza, supra at 536; see also Holtschlag, supra at 12. Defendant claims that the evidence
supported instruction on involuntary manslaughter under each of these theories. Defendant
argued at trial that instruction on involuntary manslaughter was warranted under the theory that
Gyomory’s death occurred during the commission of a lawful act negligently performed.
Therefore, this portion of his claim of instructional error is preserved and will be reviewed de
novo on appeal. See People v Walls, 265 Mich App 642, 644; 697 NW2d 535 (2005), citing
People v Lowery, 258 Mich App 167, 173; 673 NW2d 107 (2003).1 However, defendant did not
request instruction under the remaining theories. Those portions of his claim of instructional
error are therefore unpreserved and will be reviewed for plain error affecting his substantial
rights. People v Gonzalez, 468 Mich 636, 642-643; 664 NW2d 159 (2003).
1. Negligent Performance of a Lawful Act
Regarding instruction under the theory that the killing occurred during the commission of
a lawful act negligently performed, defendant asserts that the jury could have concluded that
although he did not intend to cause an injury by choking Gyomory, he was grossly negligent in
doing so. However, a rational view of the evidence does not support this conclusion. At the
outset, defendant’s statement that he “tried to choke [Gyomory] to make her puke” is irrational
on its face. Further, no evidence was presented that choking someone could induce vomiting.
Rather, defendant’s own expert explained that a chokehold would be used as a mechanism for
strangulation. Thus, defendant’s own words conflict with his conduct.
1
We disagree with the prosecution’s assertion that the question whether a rational view of the
evidence supports a requested instruction on a necessarily lesser included offense is a matter left
to the discretion of the trial court. To the contrary, the trial court has a duty to instruct the jury
on the law applicable to the case, MCL 768.29, and an alleged error in failing to do so is a
question of law reviewed de novo on appeal, see People v Riddle, 467 Mich 116, 124; 649
NW2d 30 (2002). See also Black’s Law Dictionary (7th ed) (defining a “question of law” as
“[a]n issue that, although it may turn on a factual point, is reserved for the court . . . .”).
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Regardless, even accepting that choking could induce vomiting, there is no evidence of
gross negligence. Holtschlag, supra at 21-22. A defendant is grossly negligent where “he
realizes the risk of his behavior and consciously decides to create that risk. As with negligence,
however, the actor does not seek to cause harm, but is simply recklessly or wantonly indifferent
to the results.” Datema, supra at 604 (citation and internal quotation marks omitted). Here, if
defendant’s statement is believed, he was not recklessly or wantonly indifferent to the result of
his action and did not consciously decide to create a risk of death. Rather, defendant intended
the opposite result of what actually occurred, i.e., to prevent Gyomory from dying.
Consequently, a rational view of the evidence does support an instruction under this theory and
the trial court did not, therefore, abuse its discretion in refusing to so instruct the jury.
2. Unlawful Act Not Naturally Tending to Cause Great Bodily Harm
Defendant also asserts that a rational view of the evidence supports that he merely
assaulted and battered Gyomory, and thereby “hastened her unconsciousness and the operation
of the drugs she had taken.” However, even if Gyomory were not strangled and defendant’s
actions amounted to only an assault and battery, no evidence was presented supporting the
inference defendant asserts. To the contrary, defendant’s own expert concluded that any choking
did not affect the cause of death, which the expert asserted was “a result of [a] self-inflicted
overdose of . . . the drugs [Gyomory] took.” Further, no evidence was presented indicating that
any external force affected Gyomory’s consciousness or the effects of the drugs in her system.
Consequently, the evidence does not support an instruction for involuntary manslaughter under
this theory. Defendant has thus failed to establish plain error warranting relief.
3. Negligent Failure to Perform a Legal Duty
Defendant additionally argues that an involuntary manslaughter instruction was
appropriate because defendant breached a duty to Gyomory created by the circumstances
preceding Gyomory’s death. As support for a such a duty, defendant relies on the fact that he
and Gyomory were in a sexual relationship, that it was through him that Gyomory gained access
to the prescription medication used in her suicide attempt, that he exerted control over the
situation by initially notifying emergency services personnel of the suicide attempt, and that he
returned to the house after emergency personnel could not help Gyomory. As defendant admits,
however, no Michigan case law creates a duty under these circumstances. Thus, the general
principle that the duty to protect against a wrong is a moral obligation rather than a legal duty is
applicable here and the failure to provide an instruction for involuntary manslaughter under this
theory was not error. People v Kevorkian, 447 Mich 436, 473; 527 NW2d 714 (1994).2
2
In reaching this conclusion, we reject defendant’s reliance on the California Court of Appeals
decision in People v Oliver, 210 Cal App 3d 138, 143-144; 258 Cal Rptr 138 (1989).
Notwithstanding that cases from foreign jurisdictions are not binding on this Court, People v
Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007), the facts of this case are distinguishable
from those in Oliver, where the defendant removed the victim “from a public place where others
might have taken care to prevent him from injuring himself to a private place . . . where only she
could provide such care,” then failed to provide or seek out such care. Here, defendant exerted
(continued…)
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B. Evidentiary Claims
Defendant next argues that he was denied a fair trial and his right to due process by the
admission of “other acts” and hearsay testimony from witnesses Eric Beavers and Eric Smith,
both of whom briefly dated Gyomory before her death. Although defendant preserved this issue
on hearsay grounds below, he failed to raise this issue in the context of MRE 404(b). Therefore,
we review the trial court’s decision to admit evidence over a hearsay objection for an abuse of
discretion, but review defendant’s remaining assignment of error for plain error affecting his
substantial rights. People v Stampler, 480 Mich 1, 4; 742 NW2d 607 (2007); People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).
On the first day of trial the prosecution noted its intention to present evidence that while
Gyomory was with Beavers, defendant made threats and also grabbed Gyomory’s purse, dragged
her down the street, punched her in the head, and told her that she was a “dead bitch.” The trial
court ruled that although MRE 404(b) prohibited testimony that defendant assaulted Gyomory,
defendant’s threats were relevant and admissible. Beavers subsequently testified that defendant
had not only threatened to kill Beavers and Gyomory, but that he also told Beavers to stay away
from Gyomory and that he wanted to hurt Beavers because he was with her. On appeal,
defendant argues that Beavers’ testimony regarding these threats should also have been excluded
under MRE 404 as improper character evidence. Defendant similarly asserts that Smith’s
testimony that defendant threatened to poison Gyomory’s dog also violated MRE 404. We
disagree.
MRE 404(b) generally precludes parties from introducing evidence of a person’s bad
character if offered to prove action in conformity with such character. However, a statement is
not a prior bad act subject to analysis under MRE 404(b). People v Goddard, 429 Mich 505,
514-515; 418 NW2d 881 (1988). Rather, its admissibility is gauged by the traditional inquiries
of relevance and prejudicial effect. Id. at 515. To this end, defendant claims that evidence of his
threats toward Gyomory and the others was substantially more prejudicial than probative, and
thus should have been excluded because they created the inference that defendant had a
propensity for bad conduct. See MRE 403. However, defendant’s intent in strangling Gyomory
was material to the charge of first-degree premeditated murder, and his threats toward her were
highly relevant and probative of such intent. Proof of motive is also generally relevant as
probative of the intent necessary for murder. See People v Herndon, 246 Mich App 371, 412413; 633 NW2d 376 (2001); see also People v Williams, 143 Mich App 574, 585; 374 NW2d
158 (1985) (“[w]hen a defendant claims lack of intent or accident, proof of motive is material to
the case”). Here, the probative value of defendant’s jealous contempt of Gyomory and those
with whom she was involved or appeared to care for was similarly high in light of his statement
that he loved Gyomory and merely sought to thwart her attempt at suicide by choking her. Thus,
although damaging to the theory of defense offered at trial, the evidence challenged on appeal
did not unfairly inject considerations extraneous to the merits of the case. Accordingly, we find
no error in the admission of this evidence, plain or otherwise.
(…continued)
no similar control over Gyomory and, at the outset, attempted to garner emergency medical
services for her. Thus, even accepting Oliver as persuasive, the facts of this case created no
duty.
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Defendant also asserts that Smith’s testimony that defendant threatened to poison
Gyomory’s dog was inadmissible hearsay. This argument is without merit. Hearsay is defined
as an out-of-court statement offered in court to prove the truth of the matter asserted. MRE
801(c); People v Harris, 201 Mich App 147, 150-151; 505 NW2d 889 (1993). Here, Gyomory’s
statement that defendant threatened to poison her dog was not admitted to show that defendant,
in fact, poisoned her dog. Rather, it was admitted to show that defendant threatened Gyomory.
Consequently, the statement was not offered for its truth, and therefore, did not constitute
hearsay.
Affirmed.
/s/ Deborah A. Servitto
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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