People v. KingPeople v. King
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Defendant was tried before a jury on a charge of first-degree murder,
On September 21, 1972, at approximately 10 a.m. Ceola Webster was visited by the defendant at an apartment she shared with Elzra Johnson and another couple. Defendant accompanied her to a nearby market to cash a check. The market employed an armed security guard, one Ulysses Toney, who stopped them to ascertain if they had paid for their purchases. Upon leaving the store, the defendant asked Ceola Webster what time the store closed, and stated that he wanted the guard’s gun.
Defendant returned to the apartment in the company of one Amos Grady at about 6 p.m. that evening carrying a rifle that he had obtained from Elzra Johnson’s brother. He wiped the rifle and bullets clean of fingerprints. At about 7 p.m.,
Shortly after closing at 8 p.m. Ulysses Toney left the market wearing his guard uniform and proceeded up the street on foot. He had walked a short distance when he was shot numerous times by two men. As he lay on the sidewalk, his hat and handgun were taken. Two men were seen running from the area, one of them carrying a rifle, and the other a hat. Detroit police officers, who arrived at the scene at approximately 8:30 p.m., were given descriptions of the two assailants and discovered seven spent shell casings in the immediate area. Later comparison indicated that these casings had been fired from the rifle given to the defendant by Elzra Johnson’s brother.
About 8:15 p.m. the defendant returned to the apartment breathing hard and exclaiming, “I got him, I got him, I hit him eight times”. He was in the company of another person known as “Texas Slim”. He was still carrying the rifle. Texas Slim had a guard’s hat and a .38 caliber pistol. The occupant’s of the apartment asked them to leave and they did so taking the weapons, but leaving the hat as a “souvenir”. Ceola Webster put the hat in a garbage can.
At trial, the defense rested without offering any evidence, relying on the theory that the defendant was not one of the two men involved in the murder. The jury was instructed on second-degree murder as a lesser included offense, and they returned a verdict of guilty of that offense. The issues advanced by the defendant will be considered in the order raised.
I
At trial, a police officer was permitted to testify
This testimony comes within the res gestae exception to the hearsay rule. People v Solomon, 47 Mich App 208, 213-214; 209 NW2d 257 (1973), remanded on other grounds, 391 Mich 767 (1974), citing People v Ivory Thomas, 14 Mich App 642; 165 NW2d 879 (1968). Moreover, any possible error is rendered harmless and moot by the fact that the eyewitness personally testified and was subject to cross-examination. People v Rea, 38 Mich App 141; 195 NW2d 809 (1972), lv den, 388 Mich 795 (1972).
II
The prosecution called Elzra Johnson who had been present in the apartment at all relevant times, whose brother gave defendant the rifle, and who left the apartment with the defendant on the night in question. He admitted making and signing a statement to the police shortly after the shooting, but claimed that he did not recall making many of the statements contained therein. The prosecution offered to let him examine the statement to refresh his memory; he replied that he could not read. Over objection, the prosecution was thereupon allowed to use, for purposes of impeachment, the witness’s prior inconsistent statement to the police in which he stated that the defendant told him that he had shot the security guard. Most of the witness’s statement was read for this purpose, and the defense moved for a mistrial, which was denied. Defendant argues that this was error. We disagree.
Because the prosecution was under an obligation to call him, the prosecution had the right to impeach this witness.
Ill
Defense counsel requested an instruction during the examination of witness Johnson cautioning the jury that the prior statement could be considered for purposes of impeachment only, and not as substantive evidence. The trial judge declined to give such an instruction at that time, but he did give a thorough and careful limiting instruction at
A similar argument was made in
People v Kelly,
386 Mich 330; 192 NW2d 494 (1971). In that case, it was concluded that the failure of the trial court to immediately give a limiting instruction when the evidence was introduced, where the instruction was given as part of the final charge to the jury, did not constitute reversible error in the absence of a timely request or the miscarriage of justice. In so holding, the Supreme Court did not intend to promulgate a rule to the effect that reversible error results where an immediate cautionary instruction is requested, but not given. On the contrary, the Supreme Court in
Kelly
affirmed this Court’s decision in which Judge O’Hara stated “We hold failure in this case to give instruction immediately upon admission of the testimony was not reversible error”.
People v Kelly,
26 Mich App 148, 159; 182 NW2d 8 (1970). This language appears in
People v Chism,
390 Mich 104, 120; 211 NW2d 193 (1973), in which failure to give a limiting instruction at any time was held not to constitute reversible error where such an instruction was not requested. Therefore, while the better practice would be to give the limiting instruction immediately upon request of the defense, any error in the present case is harmless beyond a reasonable doubt in view of the fact that a proper instruction was given later, the evidence of defendant’s guilt was overwhelming, and defendant is unable to show how he was prejudiced by the delay. The error complained of here has not resulted in a miscarriage of justice.
IV
Testimony of the other couple sharing the apart
Testimony taken at a preliminary examination, “may be used by the prosecution whenever the witness giving such testimony cannot, for any reason, be produced at the trial”.
V
Defendant objected to the admission into evidence of the seven shell casings found at the scene of the crime. He based his objection on the contention that a proper chain of custody had not been sufficiently established. He also argues that proof that the area had not been disturbed before the police arrived was inadequate to permit admission of the shell casings into evidence. He now contends that the trial court committed reversible error by not excluding the casings upon timely motion.
The objections raised by the defendant go to the weight of the evidence and not to its admissibility.
VI
A police ballistics expert testified that in his opinion the seven shell casings found at the scene were fired from the same rifle as were comparison casings given to the police by Elzra Johnson’s sister-in-law. Defendant alleges that the officer was not properly qualified as an expert, and that the facts upon which he based his opinion were not detailed for the jury’s evaluation. Therefore, defendant maintains that the trial court was in reversible error when ruling that the testimony was admissible.
Determination of the qualifications of an expert witness is made by the trial court, and this determination will be reversed only for an abuse of discretion. People v June, 34 Mich App 313; 191 NW2d 52 (1971). “One does not have to have formal education to be an expert, but may have acquired special knowledge concerning a subject by reason of his employment.” People v Charles Wilson, 27 Mich App 171, 177; 183 NW2d 368 (1970), lv den, 384 Mich 840 (1971). The trial court did not abuse its discretion in allowing the officer’s expert testimony.
The factual data upon which the expert based his opinion could have been brought out on cross-examination; it was not essential that this information be presented by the prosecution. GCR 1963, 605;
People v John Willie Williams,
26 Mich App
VII
Having rested without presenting any evidence, defendant moved for a directed verdict of acquittal claiming that the evidence was insufficient to permit reasonable minds to find the defendant guilty beyond a reasonable doubt. The defendant now contends that the trial court erred in denying this motion.
The sufficiency of the evidence is for the jury to evaluate. The prosecution presented evidence of each element of the crime. The trial court properly denied the motion. “A motion for a directed verdict of acquittal may only be granted where there is no evidence at all, either direct or circumstantial, on each” material element of the offense charged. In the event the requisite evidence is presented, it is submitted to the trier of fact for a determination of whether such evidence established guilt beyond a reasonable doubt.” (Citations omitted.) People v Hodo, 51 Mich App 628, 639; 215 NW2d 733 (1974).
VIII
The trial court instructed the jury on second-degree murder over the defendant’s request that such an instruction not be included, and that an instruction on manslaughter be given instead. Defendant argues that the trial court committed reversible error by giving this instruction. We disagree.
Defendant was charged under
“All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, * * * shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” (Emphasis supplied.)
First-degree murder is a statutory crime. Dissenting opinion of Judge Levin (now Justice), People v Allen, 39 Mich App 483; 197 NW2d 874 (1972); opinion adopted by Supreme Court, People v Allen, 390 Mich 383; 212 NW2d 21 (1973). The statute states “all murder”; yet murder is not defined. Consequently, we must look to the common-law definition under which “Murder is criminal homicide committed with malice aforethought”. Footnote 17, dissenting opinion, Judge Levin, People v Allen, supra, 39 Mich App 501; 197 NW2d 884. As Judge Levin stated:
“First-degree murder is a statutory crime; it is the common-law crime of murder with an added element. In order to aggravate the offense from second-degree (common-law) murder to first-degree (statutory) murder the murder must be ‘perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or * * * be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping’.MCLA 750.316 ; MSA 28.548.” People v Allen, 39 Mich App 501-502; 197 NW2d 884.
Thus, the statutory crime of first-degree murder is a combination of common-law murder (or in Michigan second-degree murder) plus one of the added components. Therefore, since the people must first prove common-law or second-degree murder, it is obvious that second-degree murder is an included
IX
Two paragraphs concerning circumstantial evidence are extracted from the trial court’s instruction and urged upon us as reversible error. The first paragraph is taken from 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 906, p 1216, Form No. 287. The second paragraph, almost identical to the first, is taken verbatim from People v Foley, 64 Mich 148, 160; 31 NW 94 (1887). Reading these paragraphs in context with the entire charge to the jury, we find no error.
X
The jury was instructed that they must “be satisfied beyond a reasonable doubt as to the accuracy of the identification made by any witness” before the testimony is accepted. Defendant’s objection to this instruction “indicates that he misunderstood it. The extremely high standard imposed by the trial court on the identification testimony could only have been to defendant’s advantage. Again, taking the charge as a whole, the Court’s instruction was not erroneous. People v McLott, 55 Mich App 198; 222 NW2d 178 (1974).
XI
Defendant objects to the trial court’s refusal to give the last two paragraphs of defendant’s requested instruction, claiming that in so doing, the court refused to instruct on his theory of the case. This argument is of no merit. The excluded para
XII
The trial court neglected to instruct the jury that their verdict must be unanimous. This instruction should have been given. However, defense counsel made neither a request for such an instruction, nor an objection to its absence. Therefore, we decline to find reversible error inasmuch as the balance of the instruction satisfied the standard set forth in People v King, 51 Mich App 788, 792-793; 216 NW2d 76 (1974).
XIII
Lastly, defendant argues that the trial court improperly excluded from the jury’s consideration any included offenses less than second-degree murder. The facts of this case did not warrant an instruction on any lesser offense. There was no evidence that the defendant acted in response to a sudden provocation.
People v Vail,
49 Mich App 578, 591-592; 212 NW2d 268 (1973). Defendant’s theory of the case was that he was not the person who shot decedent. The prosecution argued that he had done so with premeditation and deliberation. Thus, there was no question of fact with regard to any element of first-degree murder that is not an
Affirmed.
Notes
The defendant was charged with “deliberate and premeditated killing”, , not with felony murder under the statute.