328 N.W.2d 380 (Mich.App. 1982), 55779, People v. Brown

Docket Nº:Docket No. 55779.
Citation:328 N.W.2d 380, 120 Mich.App. 765
Opinion Judge:Before MacKENZIEand BRONSON and THOMAS, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jessie Martini BROWN, Defendant-Appellant.
Attorney:[120 Mich.App. 768] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Carolyn Schmidt, Asst. Pros. Atty., for the People. Stone, Richardson & Allen, P.C. by Ralph H. Richardson, Detroit, for defen...
Judge Panel:Before MacKENZIE, P.J., and BRONSON and THOMAS, [*] JJ.
Case Date:November 02, 1982
Court:Court of Appeals of Michigan
 
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Page 380

328 N.W.2d 380 (Mich.App. 1982)

120 Mich.App. 765

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Jessie Martini BROWN, Defendant-Appellant.

Docket No. 55779.

Court of Appeals of Michigan.

November 2, 1982

Page 381

Submitted Feb. 17, 1982.

Released for Publication Jan. 6, 1983.

Page 382

[120 Mich.App. 768] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Stone, Richardson & Allen, P.C. by Ralph H. Richardson, Detroit, for defendant-appellant.

Before MacKENZIE, P.J., and BRONSON and THOMAS, [*] JJ.

BRONSON, Judge.

Defendant and two others, Clayton Wideman, Jr. and Spence Corbin, were charged in the Detroit Recorder's Court with first-degree felony murder. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Corbin ultimately pled guilty to second-degree murder [120 Mich.App. 769] and was sentenced to serve a term of imprisonment of from 5 to 15 years. 1

Defendant and Wideman were jointly tried before a Detroit Recorder's Court jury. Wideman was acquitted, while defendant was convicted of second-degree murder. Defendant was sentenced to life imprisonment, and now appeals as of right.

Spence Corbin's testimony was the sole testimony directly implicating either defendant or Wideman in the killing. Corbin indicated that he was defendant's lover on the date of the killing. On March 4, 1980, he awoke in defendant's flat and heard noises "like somebody tussling". He looked around the flat but failed to locate the source of the noise. After finding nothing, Corbin went downstairs to the lower flat occupied by the deceased, Kenneth Bowers. In this flat, Corbin saw defendant holding some money in her hand which she was counting. Wideman was hitting Bowers on the back of the head and back with his fists. Defendant told Corbin to "help my brother [Wideman]". Corbin consequently picked up an ashtray and hit Bowers in the head with it. Wideman snatched the ashtray away from Corbin and rapped Bowers several times with it. Wideman then dragged Bowers toward the bedroom. Defendant told Corbin to search the flat for money; he complied. After a time, defendant called for Corbin to come to her, and, when he did, she handed him a paring knife and told him to go help her brother. Corbin took the knife. When he entered the bedroom, he stepped in a "puddle of blood" and observed Wideman stabbing Bowers. Feeling nauseous, Corbin turned his head, lunged the knife downward, and stabbed Bowers in the neck. Thereafter,[120 Mich.App. 770] he left the room to avoid vomiting while Wideman continued to stab Bowers. When the killing was completed,

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the knives, Corbin's bloodstained socks and other items of physical evidence were placed in a garbage can far from the scene of the crime. Other facts will be set forth where applicable to specific issues.

I.

Defendant first asserts that the evidence was insufficient to warrant submitting to the jury the first-degree murder charge on an aiding and abetting theory. Alternatively, defendant asserts that her conviction cannot stand because the principal, Wideman, was acquitted of the murder charge.

A jury instruction on aiding and abetting is proper if the evidence tends to establish that more than one person committed the crime, and defendant's role in the incident amounts to something less than the direct commission of the offense. People v. Mann, 395 Mich. 472, 477-478, 236 N.W.2d 509 (1975); People v. Benevides, 71 Mich.App. 168, 172, 247 N.W.2d 341 (1976). To justify giving aiding and abetting instructions there must be evidence of concert of action. People v. Marshall, 53 Mich.App. 181, 186, 218 N.W.2d 847 (1974), and cases cited therein.

In our opinion, the aiding and abetting instructions given here were entirely proper. Corbin testified that while Wideman was hitting the deceased, defendant told him to help. Corbin also searched the deceased's flat for money at defendant's behest. Furthermore, defendant handed Corbin a paring knife and told him to help Wideman. At the time, Wideman was engaged in the stabbing of [120 Mich.App. 771] Bowers. Absolutely no testimony was offered suggesting that defendant was a direct participant in the killing.

Defendant, however, further asserts that, since Wideman, who according to Corbin's testimony was the primary actor in the killing, was acquitted, her conviction cannot stand. We disagree.

This question was first addressed in this jurisdiction in People v. Mangiapane, 219 Mich. 62, 188 N.W. 401 (1922). Discussing M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, which abolishes the common-law distinction between accessories and principals, the Court concluded that this statute abrogated the common-law rule requiring the conviction of the principal as a prerequisite to a valid conviction of the aider and abettor. See, also, F.W. Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); People v. Smith, 271 Mich. 553, 561, 260 N.W. 911 (1935); People v. Miniear, 8 Mich.App. 591, 596-597, 155 N.W.2d 222 (1967), lv. den. 380 Mich. 758 (1968).

Both Standefer and Mangiapane involved separate trials where the alleged principal was found not guilty but the aiding and abetting defendant was convicted in a different trial. Here, however, defendant points out that the alleged principal, Wideman, was acquitted in the very same trial by the very same jury which convicted her as an aider and abettor. We uncovered no cases from this state involving the same factual scenario. Relying on the rule that, although conviction of the principal is no longer necessary to convict the accessory, the guilt of a principal must still be shown, People v. DeBolt, 269 Mich. 39, 45, 256 N.W. 615 (1934); People v. Williams # 1, 45 Mich.App. [120 Mich.App. 772] 623, 628-629, 207 N.W.2d 176 (1973), defendant asserts that the acquittal of Wideman compels the reversal of her conviction. We disagree because, quite apart from the sufficiency of the evidence tending to show that Wideman was a principal, Corbin's testimony clearly establishes his direct participation in the killing. Without regard to Wideman, then, a guilty principal was shown, to-wit: Corbin.

Even were we to conclude that only Wideman could be deemed a principal in the killing, reversal would not be necessary. The prosecution did, indeed, introduce legally sufficient evidence tending to show that Wideman was a principal and that defendant aided and abetted his commission of a felony murder. In our opinion, the rule prohibiting the conviction of one as an accessory where no guilty principal has been shown only applies to those cases in which legally insufficient evidence is adduced to permit the conclusion that there was a

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guilty principal. It is now beyond peradventure that juries are not held accountable to rules of logic. People v. Vaughn, 409 Mich. 463, 466, 295 N.W.2d 354 (1980). As such, a jury's decision to acquit the apparent principal while convicting the accessory is not grounds for reversal of the accomplice's conviction. 2

[120 Mich.App. 773] II.

Defendant next asserts that the trial court improperly refused to conduct a hearing on her motion to suppress various statements. Midway through trial, Detroit Police Officer Daniel Gossard stated that he arrested defendant for "homicide investigation". At this point, defense counsel asked for a hearing in regard to the arrest and the suppression of various statements made by defendant. The trial court responded:

"If your position is, and as we all know, arrest for homicide investigation is unlawful and the fruits thereof are to be suppressed, that's a matter for pre-trial. I'm willing to deal with Miranda [384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966) ] and whether or not Miranda's been complied with, but if the claim is that the fruits, be it evidence or statements or confessions or admissions, were the result of unlawful arrest, that's a matter for pre-trial. And I'm not going to open up that Pandora's box at this time."

The trial court's reference to the motion to suppress being a pretrial matter was apparently based on Detroit Recorder's Court Rule 18.1 governing felony motion practice. This rule provides:

"Pre-Trial Motions. All Motions must be filed with the Clerk of the Court; with praecipe for hearing upon four (4) days notice to all counsel of record; and proof of service of notice upon opposing counsel must be presented to the Pre-Trial Judge within thirty (30) days after the Arraignment on the Information or within such extended time as shall be fixed by the Pre-Trial Judge.

[120 Mich.App. 774] "Any defense or objection, which is capable of determination without trial of the general issue, may be raised before trial by motion. Defenses and objections based on defects in the institution of the prosecution or in the Information, other than that it fails to show jurisdiction in the Court or to charge an offense, may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the Court for good cause shown may grant relief from the waiver."

A number of decisions from this Court have held that, where a proper pretrial motion to suppress evidence has not been made, the trial court has discretion to consider the issue but need not do so. Inter alia: People v. Paffhousen, 20 Mich.App. 346, 351-352, 174 N.W.2d 69 (1969), lv. den. 383 Mich. 825 (1970); People v. Wilder, 51 Mich.App. 280, 285, 214 N.W.2d 749 (1974), lv. den. 394 Mich. 774 (1975); People v. Soltis, 104 Mich.App. 53, 55-56, 304 N.W.2d 811 (1981), aff'd as modified on other grounds 411 Mich. 1037, 309 N.W.2d 186 (1981). Indeed, in People v. Greer, 91 Mich.App.

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