People v. Jones

• Decision Date: 21 July 1982
• Docket Number: Docket No. 51792
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Woodie JONES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 723

321 N.W.2d 723

115 Mich.App. 543

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Woodie JONES, Defendant-Appellant.

Docket No. 51792.

Court of Appeals of Michigan.

Submitted June 10, 1981.

Decided April 22, 1982.

Rehearing Denied June 8, 1982.

Released for Publication July 21, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce, Asst. Pros. Atty., for the People.

Chari Grove, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before RILEY, P. J., and CYNAR and GAGE, ^* JJ.

PER CURIAM.

Defendant was charged with the offenses of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L Sec. 750.227b; M.S.A. Sec. 28.424(2). On February 28, 1980, the jury found defendant guilty of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and guilty as charged on the count of possession of a firearm during the commission of a felony. On March 11, 1980, defendant was sentenced to serve the mandatory two years in prison on the felony-firearm count and to serve a minimum of 15 years to a maximum of 40 years in prison on the second-degree murder count, the sentences to run consecutively.

Defendant's conviction arises out of a shooting incident during the early morning hours of September 29, 1979, in which the victim was shot in the face with a small caliber weapon and subsequently died from shock and loss of blood due to injury to the left carotid artery. At trial no witnesses testified that they had seen defendant shoot the victim, although statements to that effect had been given to the police before trial. Evidence connecting defendant with the shooting offered at trial included testimony by a witness who heard the gunshot from beyond a locked door, followed by the statement of an unidentified declarant: "Art, what have you done? What have you done, Art?" Another witness testified that a rifle barrel was pointing out from the wall near the doorway of the apartment in which defendant was thought to be, and there was testimony that defendant was hysterical after the shooting, declaring, "It was an accident, you know. It was an accident. God knows, it was an accident. It just went off."

Defendant's first allegation of error is without merit. The trial court properly allowed two witnesses to testify concerning prior inconsistent statements they had made to the police. Defendant's argument that the statements were involuntary and coerced has no bearing on their admissibility. There is no authority to extend the personal right of a defendant against coerced self-incrimination to include statements made by witnesses. In addition, defendant had no standing to raise the issue of violation of the rights of third parties. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Portman, 73 Mich.App. 366, 251 N.W.2d 589 (1977). Exclusion of the prior statements would have interfered with the prosecutor's right under statute, M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1), and under judicial rule, M.R.E. 607(2)(A), to impeach witnesses at trial. Defendant's call for a Walker hearing to determine the voluntariness of the witnesses' statements is an empty request. The rule of People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965), applies to criminal defendants whose confessions may have been illegally or involuntarily obtained. Statements of witnesses are not included under the rule. Defendant's reliance on the decision in Higdon v. Kelley, 339 Mich. 209, 63 N.W.2d 592 (1954), is misplaced. The Higdon Court applied its decision to the problem of impeachment of one's own witness in civil cases; the Court specifically articulated the statutory right of the prosecutor in criminal cases to impeach his own res gestae witnesses by use of prior inconsistent statements without those witnesses acknowledging the statements.

The further claim that the trial court erred in allowing the prior inconsistent statements to be used substantively lacks merit. Defendant offers no proof that the prior inconsistent statements of the two witnesses were used substantively. Defendant supports this claim with no more evidence than that the impeachment occurred. Contrary to defendant's contention, the impeaching statements did not contain the only evidence offered at trial linking defendant to the shooting.

Defendant has provided no case authority to support his contention that the trial judge should have instructed on the use of impeachment evidence at the time the impeachment occurred. The standard in Michigan is that reversible error will be found where the trial court fails to give an instruction cautioning the jury that impeachment testimony cannot be considered as substantive evidence. People v. Durkee, 369 Mich. 618, 120 N.W.2d 729 (1963). In the instant case, the jury received the proper instruction on the use of impeachment testimony in the trial court's final instructions to the jury. Consequently, there was no error involved in the use of the impeachment testimony at trial.

It was not reversible error for the prosecutor to be allowed to ask two witnesses whether they were afraid of anything without establishing a factual basis for the questions. The prosecutor's brief questioning of two witnesses was allowed to establish possible motive for the deviation from their prior statements made to police. These references were not specific enough to rise to the level of inflammatory insinuation and prejudice necessary for reversal under our cases. See People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958); People v. Marchese, 84 Mich.App. 775, 270 N.W.2d 687 (1978); People v. Rohn, 98 Mich.App. 593, 296 N.W.2d 315 (1980). The prosecutor did not allege that defendant had attempted to frighten the witnesses; he did not ask whether they were approached by anyone; he asked only the very general question. He also abandoned the question when it was answered in the negative. Under these circumstances, the questions were not prejudicial and the trial judge did not err in allowing them for purposes of revealing motive and in not instructing the jury as to the lack of supporting evidence.

The admission of the statement of an unidentified declarant was not erroneous. The statement qualified as an excited utterance under MRE 803(2) and was thus admissible as a hearsay exception. See People v. Carson, 87 Mich.App. 163, 274 N.W.2d 3 (1978). A determination of its admissibility does not depend upon the fact that the declarant was unidentified but upon a determination of whether the statement involved the circumstances of the shooting. We find that, because the shooting in the apartment building was such a startling event and because the utterance so closely followed that event, there was a sufficient inferential link to relate the declaration to the circumstances of the event, despite the fact that the declarant was unidentified, and, thus, the statement was properly admitted. Furthermore, the admission by defendant that "it was an accident * * * " which was brought out in the testimony of another witness renders harmless any error.

Defendant contends that the trial court should have granted defendant's motion for a directed verdict on the murder charge.

The trial court, in ruling on a motion for a directed verdict of acquittal, must consider the evidence presented by the prosecution up to the time the motion is made, People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547 (1976); view that evidence in a light most favorable to the prosecution, People v. Vail, 393 Mich. 460, 463, 227 N.W.2d 535 (1975); and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt, People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979).

We find that there was sufficient evidence to establish the existence of each element of the crime beyond a reasonable doubt.

Having previously found the statement "Art, what have you done" admissible as an excited utterance, we find such a statement, immediately following the gunshot as it did, coupled with the evidence of the defendant's statement to a witness that it was an accident, to be sufficient to establish beyond a reasonable doubt that defendant was the man who shot the deceased.

Having established sufficient support for finding defendant to be the gunman, the only other serious question is whether the element of intent is supported by evidence sufficient to establish its existence beyond a reasonable doubt.

A review of the testimony describing the shooting is in order. The victim, Stanford, had gone to the scene of the crime, an apartment building in Detroit, with one Gary Watson for the purpose of buying "some pills". Watson testified that he and the victim talked to two men, David Merrill and Fred York, outside the building about pills and were told that pills could be had inside. Merrill and York entered the apartment building followed by the victim and Watson. Watson testified that he could not follow the three men into the building past the second door of the entrance because it locked in front of him. While waiting outside, Watson heard one gunshot, then he heard a female voice say, "Art, what have you done. What have you done, Art." Watson testified that he then saw Merrill and York run downstairs by way of the back staircase. Watson called the police and was arrested and taken to jail for questioning after they arrived. Watson testified that he did not see defendant on the night of the incident.

David Merrill entered the apartment building just ahead of the victim. He testified that, when he reached the second floor, the only person he could see in the hallway was Fred York, who was further down the hall. Then Merrill heard a shot as ...