People v. Alsteens

• Court: Court of Appeal of Michigan
• Writing for the Court: FITZGERALD; O'HARA
• Citation: People v. Alsteens, 212 N.W.2d 243, 49 Mich.App. 467 (Mich. App. 1973)
• Decision Date: 24 September 1973
• Docket Number: Docket No. 13491,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward J. ALSTEENS, Jr., Defendant-Appellant

Page 243

212 N.W.2d 243

49 Mich.App. 467

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward J. ALSTEENS, Jr., Defendant-Appellant.

Docket No. 13491.

Court of Appeals of Michigan, Division No. 3.

Sept. 24, 1973.

Released for Publication Nov. 27, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Francis D. Brouillette, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and O'HARA,* JJ.

FITZGERALD, Judge.

Defendant appeals from a jury conviction of second-degree murder ¹ for which he received a sentence of life imprisonment. The facts and circumstances involved will be presented, followed by a Seriatim discussion of the four issues raised on appeal.

Defendant testified to events leading up to and following the shooting death of Police Officer Kenneth Koraska in Norway, Michigan during the early hours of Sunday, May 23, 1971. His testimony revealed the difficulties he had encountered in holding a job, the strained relationship with his wife, and his previous experiences and hallucinations from drug use. Between the hours of 6 o'clock p.m. Saturday, and 2 o'clock a.m. Sunday, defendant visited several drinking establishments and consumed a substantial amount of beer. Upon returning to his home at approximately 2 o'clock a.m. on Sunday, he phoned the police station requesting that Officer Moraska come to the house. Defendant remembered loading his father's rifle, hearing a loud noise, and standing over the body of Officer Moraska. This recollection was substantiated by what were termed as flashbacks, that is, experiences in which neither defendant's presence nor the occurrence itself are recalled with any degree of certainty, yet they have been impressed upon his memory to the extent that he is able to describe them. These flashbacks include observing Moraska enter the driveway, exit the patrol car, and walk up to the house. During an interrogation conducted subsequent to his eventual apprehension, defendant stated he was outside the house when Officer Moraska arrived. He admitted to firing two shots, the first from a distance and the second at point-blank range.

Defendant further testified to the events following the shooting. He drove the patrol car seven miles to Benton Lake, returned to Norway, proceeded to Felch, and then on to Escanaba where he purchased gasoline for the patrol car. From there he backtracked through Felch, gaining entrance to a nearby cabin by shooting the lock off the door. Defendant remained in the cabin for the rest of the evening. At about noon on Sunday, the owners of the cabin, Mr. and Mrs. William Frazer, together with their three children, approached the cabin in their car. As two of the children walked toward the cabin on foot, defendant opened the cabin door and emerged, pointing both his rifle and Officer Moraska's pistol at the Frazers. He instructed them to stand behind an old truck, and ordered them to throw the car keys into the woods. After they complied with his request, defendant then turned and ran up the road. Soon after, he was apprehended by the State Police a short distance away.

A typed statement prepared from an interrogation session was signed by the defendant. He stated he did not like the deceased, blaming Moraska's arrest of defendant for disorderly conduct as the reason he and his wife were unable to reconcile their separation. Though his original plan was merely to hit Officer Moraska, he had decided that evening to kill him.

At trial, four witnesses testified to defendant's appearance and demeanor during the night of the shooting. Ronald Orler, chaperoning a dance held at the Norway Teen Center, observed defendant at various times between 9:30 and 11 p.m. and noticed nothing unusual. He described defendant as being 'sober and normal, well-behaved', although he had not personally known or talked with defendant previously. Marvin Hanson testified that he played at least two games of pool with defendant at the Norway Hotel between the hours of 1 a.m. and 2 a.m. Sunday morning. He drove the defendant to his home following the pool games and noticed nothing unusual. Gordon Wills, Jr., had known defendant since childhood and had seen him once a month during the past year. He was with defendant at the Teen Center and later accompanied him to defendant's house. While outside the Teen Center, Wills and defendant observed Officer Moraska drive by, at which time defendant stated he was going to kill Moraska. On cross-examination, Wills testified that this expression was a manner of speech among their friends. Wills noticed nothing unusual in defendant's manner of speech, attitude, or appearance. William Zanona, bartender at the Norway Hotel on the night in question, observed defendant playing pool and spoke briefly to him. Zanona saw defendant once or twice a week and knew him quite well. He noticed nothing unusual except for the fact that defendant appeared 'generally quieter'.

Dr. Emery E. Ulrich, defendant's psychiatrist, testified that defendant was suffering from acute brain syndrome due to the combined effect of alcohol and LSD. This was described as a reversible disorder in the nature of a toxic illness affecting one's ability to integrate perceptions. He stated that defendant would be incapable of forming the intent to kill and exhibited an unawareness of any object in carrying out a planned activity. He appeared to be under considerable stress because of his loneliness, his wife's absence, and his perceived rejection.

The people's psychiatrist, Dr. Leon J. Quinn, described defendant as one suffering from 'delirium', the symptoms of which would be obvious to a layman. He considered defendant to be suffering from a character or personality disorder and not an acute brain syndrome at the time of the killing. This diagnosis is not considered a mental illness and does not impair one's ability to distinguish right from wrong. Nor does it affect the ability to resist acting upon impulse.

It is first alleged by defendant that it was error to admit testimony of lay witnesses concerning the sanity of defendant without an adequate foundation indicating their acquaintance with and close observation of defendant. He argues that the failure of the people to lay a proper foundation by sufficiently establishing each witness's relationship to the defendant which would enable them to testify to defendant's mental condition on a comparative basis renders their testimony inadmissible. People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969). The people contend that its witnesses did not provide opinion testimony as to defendant's sanity. Rather, they offered fact testimony material to rebut the inference of intoxication which may have precipitated the alleged insanity.

We note at the outset that defendant's reliance upon People v. Cole, Supra, ignores the fact that no controlling majority opinion was rendered in that case. Justices Kavanagh, Dethmers, and Brennan concurred upon the necessity to lay a foundation for lay witnesses' opinion evidence of sanity or insanity, requiring that the witness have the opportunity to observe the speech, manner, habits, or conduct of the person in addition to establishing sufficient acquaintance with the defendant so as to be able to testify on a comparative basis. Justice Adams concurred in the result, but relied upon the rule stated in People v. Zabijak, 285 Mich. 164, 185, 280 N.W. 149, 157 (1938), that '(a) nonexpert witness who has had ample means to observe and form conclusions as to the mental condition of a person and who testifies to pertinent facts on which his conclusions are based may state his conclusions as to the insanity of a person'. Justice Kelly concurred specially, stating that insufficient evidence was introduced to prove defendant's sanity. Reversal in Cole, then, was based upon either the lack of opportunity to compare the witness's conduct on different occasions, the lack of ample means to observe, form conclusions, or testify to the facts upon which the conclusions were based, or the insufficiency of evidence to outweigh that which casts a reasonable doubt as to defendant's sanity. Failing to arrive at a majority opinion on this issue, Cole is of limited precedential value.

We are persuaded that the testimony adduced from lay witnesses on the basis of their opportunity to observe defendant is admissible. In People v. Hannum, 362 Mich. 660, 665, 107 N.W.2d 894, 896 (1961), the Court defined the question of admissibility of lay witness testimony regarding the sanity of defendant as being one of weight and not admissibility. There, objection was made to the testimony of three police officers who had observed the defendant for a short period of time prior to her arraignment in the shooting death of her husband. Each officer testified that defendant was sane. Defendant argued that the lack of proper foundation in addition to the lack of sufficient opportunity to observe the defendant rendered the testimony incompetent, citing People v. Zabijak, Supra. The Hannum court distinguished Zabijak in stating that the latter testimony did not consist of lay witnesses' opinions of defendant's insanity, but rather their conclusions as to what facts there were about defendant from which insanity might be inferred. The instant case does not fall within either category. Each witness responded negatively when asked if defendant's conduct was unusual or any degree of intoxication existed. The nature of the testimony in each case confirmed defendant's sobriety and sanity rather than revealing any unnatural conduct or language. This distinction is made clear in People v. Hannum, Supra, 362 Mich. at 663--664, 107 N.W.2d at 896:

'Defendant says the officers in the instant case did not have ample means to observe and form conclusions. In Zabijak, however, the testimony held properly excluded...