*1 v BERRIER PEOPLE Opinion of the Court Evidence—Hearsay—Res Gestae 1. Criminal Law — Statements— Appeal and Error. testimony Excluding attempted in which he a defendant’s direct going you”, allegedly to kill to relate a statement "He is made immediately prior killing, referring by to a his wife charged, murder defendant homicide victim with whose gestae the statement was admissible as a res was error because statement; however, the error was not reversible error where jury, related the same statement was twice to the once in a taped defendant and once his cross-exami- statement nation. Privilege 2. Law-Evidence —Husband-Wife —Statutes— Criminal Waiver. Determining any privilege that a defendant had waived with particular his to a wife charged immediately prior killing to the for which he was with not error where the statement was introduced in murder was the defendant had evidence at the insistence during cross-examination in volunteered the same statement prosecuting attorney, from the defense violation of admonitions counsel, court, prosecution and the had moved the permission for limited rebut- court for to call defendant’s wife killing testify tal to (MCLA that she had made no statement before 600.2162). Limiting 3. Crimes — Instruc- Criminal Law —Evidence—Other Jury. tions to immediately Failing give instruction as testimony by murder trial that in defendant’s a detective [3, 53 Am [4, [6] [2] [1] 7] 5] 29 Am Jur 29 Am Jur Am Am Jur Jur Jur, 2d, 2d, 2d, 2d, References Trial 800. Evidence 727. Evidence 715. Homicide Appeal § and Error 545 et § § §§ for Points 44-47, 50, § 52. Headnotes seq. against defendant decedent had testified at the latter’s on tried larceny was not error where the as a basis offered and admitted motive. *2 4. Criminal Law —Witnesses—Indorsement—Failure to Produce— Preserving Question.
No a error was shown defendant who claimed that the produce failed all indorsed to witnesses where identify called, defendant failed to the witnesses prejudice any testify, did not indicate from their failure to and objection produce. trial to the failure to no at Discharge Jury Preserving 5. Criminal of Law — — Question. discharge jury presence Failure a trial to a of court in the of the discharge a or to accused after mistrial state reason for the on the record was not reversible error where the defendant object of failed to to the selection a new and indicated selected; point with the satisfaction issue on this preserved for review. Evidence—First-Degree 6. Homicide — Murder —Premeditation— Aforethought Second-Degree Malice — Murder. guilty supported by A verdict of of murder was not the evidence where a review of the record did not disclose premeditation; to a evidence reasonable inference of however, background animosity where of and the reason therefor, surrounding shooting, the circumstances sup- adequately fact that defendant seven shot decedent times port killing, of intentional from which malice afore- inferred, thought may be the defendant was of second- degree murder. by Bronson,
Concurrence J. Limiting 7. Criminal Law —Evidence—Other Crimes — Instruc- Jury. tions to Any give court to failure a trial to instruction as a detective at defend- against ant’s murder trial that decedent had testiñed larceny the latter’s trial on harmless where object the defendant failed admission same evidence brought when out cross-examination of the and where entire cause examination fails demonstrate complained miscarriage errors of resulted in a 769,26). (MCLA justice 768.27, op the Court Washtenaw, Appeal from Ross W. Campbell, 8, 1973, May Submitted Division Lansing. (Docket 14221.) 24, 1973. July No. Decided Leave denied, 390 Mich —. appeal
Harrison Berrier was convicted of first-degree appeals. murder. Defendant Remanded with in- structions to enter a conviction of second-degree murder and resentence. General, Kelley, Attorney
Frank J. Robert A. General, Derengoski, Solicitor William F Delhey, Hensel, and John J. Prosecuting Attorney, First Prosecuting Attorney, Assistant for the people. Sikorski, Jr., D. and Edmund J. Francis Ross defendant. *3 J., P. and
Before: O’Hara,* Quinn, Bronson JJ. P. J. A convicted defendant of first- Quinn, murder,
degree MSA 28.548. He appeals. was sentenced and he The decedent was defendant’s brother-in-law. them, Animosity existed between arising from the fact that decedent against had testified defendant in a prior criminal trial. Defendant testified that 30, 1970, night about 9:30 on the of March dece- dent came to defendant’s home and said to defend- ant that decedent had heard that defendant was kill "looking” replied, him. To this defendant Joe, you’re "No it”. worth Defendant then shortly related that thereafter he and decedent ride, differences, went for a settled their and shook hands.
Defendant He returned home and watched TV. * Justice, Supreme Appeals by sitting Former Court on the Court of assignment pursuant in 1968. Const art 23 as amended § Opinion of the Court 11:15, when he drowsing about heard ruckus door, and defendant at outside testified that he scream, got wife "Look out he’s a gun heard his or out, kill going you”. look he’s said .22 grabbed against that he a loaded rifle standing him, stepped through the wall next the kitchen door, man, an figure saw the unknown who violent, appeared entering to be the kitchen. That man police. defendant shot the and later called the Decedent was shot seven times.
It is claim defendant’s in his first two issues on appeal that the evidence does not a verdict murder and that such a verdict to law. We contrary consider that this is one it opinion. issue and discuss end this
During defendant’s direct testimony, he at- tempted to relate statement allegedly made by wife, going his "He is to kill you”. The objected on the basis of hearsay and was sustained. On this was reversible error because the statement was admissible as a gestae res statement. agree We with defendant the statement was gestae admissible as a res and that it to exclude it. We not agree do the error was reversible error for the reason that the same statement was twice related to the jury, taped once in a statement by defendant and once his cross-examination.
The only persons present shooting were wife, his and decedent. Defendant claimed he shot in self-defense he but did call *4 his wife as a witness. After the defense rested and in the absence of the jury, prosecution the in- formed the trial judge that it a taped had state- ment from Mrs. Berrier in which she denied mak- ing the statement she said the time of shooting. the prosecutor The moved the 454 Mich
458 the Court Mrs. to call Berrier for lim- permission for court play to the tape. in alternative or the rebuttal ited statement, out, the "Look that The court found his wife defend- attributed got gun”, he’s evidence at the in insistence ant, was introduced further court found that The of the defendant. the same statement defendant volunteered of admonitions from in violation cross-examination counsel, and attorney, defense the prosecuting the supports The record these so. to do court found that defendant had then findings. The court particular with privilege waived In the by the wife. ab- allegedly made that Mrs. to insure Berrier sence expressed by the the limitation within testified required to make an court, was Thereafter, presence of proof. offer Mrs. objection, Berrier and over defendant’s no statement before the she made testified that shooting. was in violation of this 27A.2162. The limited MSA supported by trial found court
waiver
record,
no
on this issue.
and we find
error
this
trial,
permit-
Wayne County
detective
At
had
ted,
decedent
objection,
testify
over
latter’s
trial
against defendant
testified
larceny. Relying on
County on a
Wayne
People Askar,
v
95;
NW2d 888
App
Mich
People
Shaw,
(1967)
v
558;
App
(1968),
it
for
defendant claims was
give immediately
trial
court not
testimony.
this
limiting instruction as to
.
as a
offered and admitted
The
appli-
While we doubt
basis
motive.
situation,
of the Askar doctrine in
this
we
cation
People
White,
Albert
follow
nesses. Defendant fails to identify the witnesses called, nor does he indicate prejudice from failure to their testify. No objection was made at trial to the failure to produce. No is shown. trial, original
At defendant’s motion for a mistrial granted 4, January 1971. The jury not brought back courtroom and for- mally discharged, but granting after mistrial, the trial judge went to the jury room and advised jury they discharged. were That same afternoon a new was selected without objec- tion and both sides indicated their satisfaction with the jury selected.
On defendant claims error because the first was not discharged presence accused and the reason discharge for the was not stated on the record. He further that he neither waived nor consented to the discharge. If defendant has an issue on this point, it was not preserved for review.
With to defendant’s contention that evidence does not verdict of guilty of murder, we agree. Our of review record supports does disclose evidence which reasonable inference premeditation. However, the background of animosity and the reason there- for, surrounding circumstances the shooting, and the fact that defendant shot decedent seven supports times adequately of intentional killing, from which aforethought malice may be People Morrin, inferred, Morrin, On the basis of second-degree defendant murder. judg- Remanded the trial court entry Bronson, Concurrence second-degree mur- convicting ment that conviction. resentencing on der and for O’Hara, J., concurred. *6 Considering the (concurring). entire
Bronson, I in the result. Upon concur in this record instructions after admission of the issue of 768.27; 28.1050, to MCLA MSA pursuant evidence in language found I troubled am somewhat White, Mich v Albert App People (1970). my to rest prefer I conclusion NW2d People Kelly, v II of upon section (1971), 494, 497-498 and the 335-337; 192 NW2d People Guilinger, reasoning analogous further 711, 715; I alleged error on this issue persuaded am object failed to harmless. The brought out evidence when admission of same Exami- defendant. cross-examination cause fails to demonstrate the entire nation in a complained miscarriage of resulted the errors 28.1096. MSA justice.