People v. Martin

• Decision Date: 18 April 1977
• Docket Number: Docket No. 24572,24749
• Citation: 254 N.W.2d 628,75 Mich.App. 6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myron John MARTIN and Baris D. Perry, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 628

254 N.W.2d 628

75 Mich.App. 6

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myron John MARTIN and Baris D. Perry, Defendants-Appellants.

Docket No. 24572, 24749.

Court of Appeals of Michigan.

April 18, 1977.

Rehearing Denied June 13, 1977.

Released for Publication June 22, 1977.

David W. Sinclair, Detroit, for Martin.

Theodore B. Sallen, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Maura D. Corrigan, Ronald P. Weitzman, Asst. Pros. Attys., Detroit, for plaintiff-appellee.

Before HOLBROOK, P. J., and BASHARA and HOOD, ^* JJ.

D. E. HOLBROOK, Presiding Judge.

Once again we are faced with a case involving numerous issues relating to a first-degree felony murder, M.C.L.A. § 750.316; M.S.A. § 28.548. Defendants herein were charged with and convicted of that offense after an incident which occurred in the City of Detroit at an apartment in the late evening hours on December 11, 1974. As a result of this incident one of the occupants of the apartment was fatally wounded. The other occupants maintain that in addition approximately $50 was taken, a fact which defendants dispute. The prosecution's theory was that defendants went to the apartment with the intent to rob the occupants. Defendants admitted their presence on the scene, but denied the robbery. Apparently once again heroin was involved in a homicide. Defendants appealed their convictions as of right.

Defendant Martin argues that Michigan's felony-murder statute is in violation of due process because it permits conviction of first-degree murder without proof of wilfulness, deliberation and premeditation. Defendant's arguments are based on recent Supreme Court cases which hold that the due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 375, 90 S.Ct. 1068, 1078, 25 L.Ed.2d 368, 381-382 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Defendant's fundamental mistake is the failure to recognize that he was convicted upon proof beyond a reasonable doubt of every element necessary to constitute first-degree murder. The Michigan Supreme Court recently rejected the view that premeditation is conclusively presumed by proof of perpetration or attempt to perpetrate a specific felony under the felony-murder rule. People v. Carter, 395 Mich. 434, 236 N.W.2d 500 (1975). See also, People v. Fountain, 71 Mich.App. 491, 248 N.W.2d 589 (1976). Premeditated murder requires that the murder be wilful, deliberate and premeditated. Felony murder requires that the wrongful murder be committed during the course of one of the enumerated felonies. People v. Fountain, supra. Premeditated murder and felony murder are separate crimes within the same statute.

All murder, other than premeditated or felony murder, is murder in the second degree. M.C.L.A. § 750.317; M.S.A. § 28.549. The Legislature has determined that a murder committed in the course of perpetrating one of the enumerated felonies is deserving of a higher degree of culpability. In premeditated murder it is the act of premeditation and deliberation that elevates the crime to first degree, while in felony murder it is the act of committing the murder during perpetration of a felony that aggravates the nature of the offense. All murder shares this common base of criminal responsibility which must be shown beyond a reasonable doubt. This element is malice aforethought, that is, " '(m)urder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought' ". People v. Fountain, supra, 71 Mich.App. at 499, 248 N.W.2d at 593, quoting People v. Potter, 5 Mich. 1, 5 (1858). Therefore, conviction of first-degree felony murder, a separate offense from first-degree premeditated murder, requires that the prosecution must prove either an intent to kill or a wanton act and that the death resulted from the commission of one of the enumerated felonies. Malice must still be found in a felony-murder prosecution, however, it may be inferred from the nature of the underlying felony and the circumstances surrounding its commission. However, the presence or absence of malice in each case remains a question for the jury which must find its existence beyond a reasonable doubt. Fountain, supra. There is no constitutional infirmity in this legislative plan. Contrary to defendant's claim, there has been no reduction in the prosecution's burden of proof nor has the burden of proof been shifted impermissibly to the defendant. All that has occurred is that different elements must be shown in order to elevate a second-degree murder to first-degree murder. Compare Mullaney v. Wilbur, supra, where the burden of proof was impermissibly shifted to defendant. Defendant Martin in his well-written and scholarly brief makes strong arguments against maintaining a higher degree of culpability for felony murder. However, such arguments address the wisdom of such rule and are not properly directed to the courts but should be made to the Legislature.

Defendant Martin also contends that the prosecution's cross-examination of him regarding his poverty and unemployment constituted reversible error. Defendant relies upon People v. Johnson, 393 Mich. 488, 498, 227 N.W.2d 523, 527 (1975), wherein the Court held: "Whether defendant was rich or poor, employed or unemployed, has nothing to do with guilt in the instant case." However, in the instant case the crucial fact was whether or not defendants committed a robbery, the enumerated felony necessary for a first-degree felony-murder conviction. Defendant was found with over $50 in his possession, approximately the amount alleged to have been stolen. Defendant maintained that it was his own money, while the prosecution challenged that fact by showing defendant had not been employed for some time. In this case the background of defendant was relevant. Furthermore, defendant did not object to this line of questioning on cross-examination. ¹ In the absence of manifest injustice it is beyond appellate review. People v. Kincade, 61 Mich.App. 498, 506, 233 N.W.2d 54 (1975). The prosecution did not mention defendant's unemployment or station in life during closing argument and the brief reference to this fact in this lengthy trial was not prejudicial.

Both defendants argue that the trial court reversibly erred by failing to give sua sponte a cautionary instruction on the proper use of an alleged extrajudicial statement made by defendant Martin to several witnesses. On cross-examination of witness Douglas Pace, he was asked whether he remembered defendant Martin mentioning anything about a stickup to him immediately following the alleged robbery and murder. The witness said that Martin did not. The prosecution then asked the witness whether he remembered making a statement to police on December 12, 1974, at the homicide bureau at or about 10 in the evening. The witness denied remembering this occurrence. He was then shown the statement with his signature on it and asked if that was his signature. He recognized his signature, but indicated that he did not remember this statement in which he said defendant Martin mentioned a stickup and a shooting. The matter was then dropped. However, later upon redirect examination of a police officer, the prosecutor asked the officer the contents of the conversation he had with this witness. The officer indicated that this witness told him that defendants had robbed and shot someone. Still later upon redirect examination of another police officer the prosecutor again asked this officer about this conversation. The officer indicated that this witness had told him that defendants admitted committing a holdup and shooting. There were no objections to this questioning by the prosecutor, nor was there a request for a cautionary instruction on the proper use of this evidence.

Defendants contend that the trial court had a duty to sua sponte instruct on the limited use of the statement signed by this witness. The statement, however, was never introduced into evidence, the foundation was laid but the prosecution went no further.

Traditionally, proper foundation for impeaching a witness by extrinsic evidence consists of calling the attention of that witness, at the time of cross-examination, to what was said, to whom, when and where. As Justice Black noted, concurring in Henson v. Veterans Cab Co. of Flint, 384 Mich. 486, 499, 185 N.W.2d 383, 389 (1971): "The language which it is claimed the witness used must be given, and he asked if he used it", quoting Rice v. Rice, 104 Mich. 371, 378-379, 62 N.W. 833 (1895). See also, People v. Dozier, 22 Mich.App. 528, 177 N.W.2d 694 (1970). The rationale for this is to give the witness the chance to "straighten things out" on the spot. If the witness denies or does not recall the prior inconsistent statement, then proof of the prior inconsistent statement may be made. Dozier, supra, at 532, 177 N.W.2d 694.

In a minority of states, including Michigan, if impeachment is to be made by a statement previously written by the witness one additional foundational step must be taken. The witness must be shown the document before being questioned about it. See Justice Black's concurring opinion in Henson v. Veterans Cab Co. of Flint, supra, 384 Mich. at 498, 185 N.W.2d 383, quoting People v. Dellabonda, 265 Mich. 486, 508, 251 N.W. 594 (1933). See McCormick, Evidence (2d ed.), § 28, p. 55, criticizing the rule in Queen Caroline's Case, followed in Michigan.

In the instant case the foundation was laid. The witness's attention was directed to what was said, to whom, when and where. Pace did not recall the prior inconsistent statement which then...