People v. Bennett

• Decision Date: 25 April 1973
• Docket Number: No. 1,Docket No. 14395,1
• Citation: 208 N.W.2d 624,46 Mich.App. 598
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen BENNETT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 624

208 N.W.2d 624

46 Mich.App. 598

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Allen BENNETT, Defendant-Appellant.

Docket No. 14395.

Court of Appeals of Michigan, Division No. 1.

April 25, 1973.

Released for Publication June 27, 1973.

Leave to Appeal Granted Sept. 19, 1973.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty. Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros.Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

HOLBROOK, Judge.

DefendantAllen Bennett was convicted of first-degree murder of Jurry Jimerson contrary to M.C.L.A. § 750.316;M.S.A. § 28.548 in a jury trial held May 18, 1971, in Recorder's Court for the City of Detroit, and sentenced to life imprisonment.

Defendant timely filed a notice of an alibi defense, and defendant and several of his witnesses testified in support of his alibi.

The people's medical witness, Dr. Georg Russanow, testified that he performed an autopsy on the body of Jerry Jimerson and determined that: 'The cause of death was shotgun wound of the chest, with laceration of the heart and lungs, and hemorrhage; bleeding'.John Cunningham, ballistics expert with the Detroit police department, testified that it is not possible to match up shotgun pellets with a particular shotgun.

Demarco Hughey, a witness for the people, testified that he and Jerry Jimerson were together on November 16, 1970, just prior to and at the time of the shootng that evening.He testified in part as follows:

'Q.(Mr. Rosen, assistant prosecutor): Okay.And who went up the stairs first?

'A.I did.

'Q.And what happened then?

'A.As I walking up, I got close to the third floor, and Jerry called out my name, and I turned around and looked, and Bennett had a shotgun on him, looked like sawed off, and another dude run upstairs and jumped on my back.

'Q.Now, Allen Bennett, is that someone in the courtroom today?

'A.Yes, sir.

'Q.Willyou point him out, please?

'A.(Indicating).

'Q.What is he wearing?

'A.A suit; a brown suit.

'Mr. Rosen: Let the record indicate that the witness is identifying and referring to the defendantAllen Bennett.

'Q.(by Mr. Rosen): You say you saw him with a shotgun?

'A.Single barreled.

'Q.Yousaw a barrel?

'A.Yes.

'Q.And what happened then?

'A.This other person ran up and jumped on my back, and as we were fighting the shot went off.And I looked down, you know, and Jerry fell.The other dude was on my back.He ran down the stairs, and Allen--him and Allen Bennett left out, you know, went down the next flight of stairs.

'Q.What did you do then?

'A.I ran down to the manager's apartment and told her to call the police.Then I ran around to his brother's house. * * *

'Q.Now, this other man--the man you say that jumped on your back, did you get a look at him?

'A.Slight look.

'Q.All right.Could you identify him again if you saw him?

'A.I'm quite sure I could. * * *

'Q.Do you know of your own knowledge whether or not Jerry Jimerson and the defendantAllen Bennett ever had a fight or an argument?

'A.Yes. * * *

'Q.And what happened during this fight?

'A.I really didn't see, you know, I was in another room, but I broke it up.

'Q.Youbroke it up?

'A.Yeah.And they shook hands and Allen left out.

'Q.What kind of a fight was it?Was it an argument, or was it a right?

'A.It was a small fight.

'Q.It was a small fight.Was anybody throwing any punches?

'A.I believe both of them was.'

Ronald Jimerson, brother of the deceased, testified that he together with his brother Jerry, Alex Jackson, and Demarco Hughey were at his apartment on the evening shortly before the shooting.Ronald Jimerson further testified that Demarco Hughey and his brother Jerry left the apartment together to go to 641 Prentis and shortly thereafter Demarco Hughey returned stating that Jerry had been shot.

Alex Jackson testified that he became acquainted with defendant Bennett about a month before the shooting and that Mr. Bennett showed him a sawed-off shotgun and some shirts.Defendant tried to sell him the shotgun.In describing the gun he said the stock and barrel were both sawed off.Mr. Jackson said he told the defendant at the meeting which took place about a month before the shooting that he was not interested in the gun but that he might be interested in buying a couple shirts.He also testified that he advised others who had been offered the shotgun by the defendant not to buy it.Mr. Jackson further testified in part as follows:

'Q.(Mr. Rosen): On Monday, November 16th, of 1970, did you have occasion to be at Ronald Jimerson's apartment?

'A.Yes.

'Q.And who was there with you?

'A.Well, at first it was Ronald, Demarco Hughey, myself, and someone else might have been there; I'm not sure, but I definitely remember those four people, you know, including myself.

'Q.And was Jerry there?

'A.Yes, and Jerry; yes.

'Q.And--

'A.I thought--did I mention him?He was there.He was definitely there.

'Q.And what time did Jerry arrive, if you know?

'A.I don't remember the exact time, but he came with Demarco, and he and Demarco were together.

'Q.And how long did he stay there?

'A.It wasn't too long; he didn't stay too long, you know.We talked, you know, and, you know, joked around, and he and Demarco left together.And it seemed like it was only a few minutes, you know, when Demarco was back knocking on the window, and, you know, we got mad.We said who's knocking on the window, like this, you know, and we jumped up.It was Demarco.We let him in.

'He said, 'Come right away, Jerry's been shot.'And we all rushed around, and, you know, Jerry was laying there in the hallway.* * *

'Q.Do you know of your own knowledge whether or not the defendantAllen Bennett and Jerry Jimerson ever had an argument or a fight?

'A.Yes, I--you know, I remember they had a fight, but, everybody was under the opinion that they had made up.You know, before they separated, you know, Jerry had apologized and Allen had apologized too, at first, you know.

'Q.When was this?Before the shooting, now long?

'A.Seemed like it was just a couple days, you know.'

John Alvin, a casual friend of defendant Bennett, testified in part as follows:

'Q.(Mr. Rosen): And did the defendant ever try to sell you anything?

'A.Yes, he tried to sell me a sawedoff shotgun.It had been sawed off at the barrel and at the butt; he had a ball of big black tape around the butt of it.

'Q.And when did you see this gun?

'A.Oh, I saw it on several occasions.

'Q.And where at?

'A.I saw it down at this apartment 107, and then went out to his house out in Highland Park and he showed it to me out there.

'Q.The defendant's house?

'A.Yes.

'Q.And how much was he asking for it, do you know?

'A.No.

'Q.And at th time that he showed it to you in the apartment on Prentis, did he have it in a bag or what?

'A.No, he had it down in his pants; up under his coat.

'Q.Down in his pants, under his coat?

'A.Yes.It was a Levi outfit.'

Mrs. Jessie Steele, a resident of apartment 303 at 641 Prentis, testified in part as follows:

'Q.(Mr. Rosen): Mrs. Steele, on Monday, November the 16th of 1970, were you living at 641 Prentis?

'A.Yes.

'Q.What apartment?

'A. 303.

'Q.And were you home at approximately 5 or 5:30 in the evening?

'A.I was coming home.

'Q.Youwere coming home?

'A.Yes.

'Q.And what, if anything, happened that you saw?

'A.Well, when I passed I seen this man sitting on the bannister.

'Q.By this man, are you referring to someone who is present in court?

'A.Yes.

'Q.Would you point him out, please?

'A.This man here (indicating).

'Mr. Rosen: Let the record indicate the witness is referring to and identifying the defendantAllen Bennett.

'The Witness: Yes. * * *

'Q.(Mr. Rosen): Now, you saw him sitting on the bannister, you say?

'A.Yes.

'Q.Where was this?

'A.On the third floor landing.

'Q.On the third floor landing?

'A.Yes.

'Q.Was he with someone, or was he alone?

'A.It was someone with him, but I couldn't tell who it was, because he was standing further back on the steps, so I couldn't see.

'Q.And what happened then?

'A.Well, I heard some tussling after that, but I got my door open and went on inside, so I didn't see what happened.

'Q.Youheard some tussling?

'A.Yes.

'Q.But you didn't see what happened?

'A.No, I didn't.

'Q.Did you hear any shots?

'A.Well, I heard a shot after I got inside of my place, but I didn't come back out then.

'Q.Did you notice if the defendant was wearing any--was carrying anything?

'A.No, he didn't have anything in his hand when I seen him; he was just sitting there.'

Mr. William Blocker testified that he saw the defendant at apartment 308 of 641 Prentis on the evening of November 16, 1970, and further testified in part as follows:

'Q.(Mr. Rosen): Was it just getting dark out?

'A.No, it had gotten dark.

'Q.It had gotten dark.And did Allen Bennett say anything to you about Jerry Jimerson at that time?

'A.Yes.When I saw him he told me that--he asked me had I--did I know anything about the fight that he and Jerry had had.And I told him no.

'And he told me that Jerry and them had jumped on him.

'So I said, 'When did this happen?Because I hadn't seen Jerry and Demarco, I hadn't seen them in about two or three days.So I asked him, 'When did this happen?'

'He told me, he said, 'It happened a few days ago.'And he said, like, Jerry jumped on him; he was talking to Demarco in an argument about some money and something like this, and that Jerry took it up, you know, and that he told Jerry, he says, 'Jerry, if you jump on me, man,'he said, 'you are going to have to kill me, because if you don't, I'm going to get you back,' you know.

'So, he just, you know--we talked for a minute, and then like he said, 'Okay, I'll see you later.'Because Jerry and them had left.He...