People v. Bennett

• Decision Date: 30 April 1974
• Docket Number: Docket No. 16148,No. 1,1
• Citation: 218 N.W.2d 407,52 Mich.App. 742
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Leroy BENNETT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 407

218 N.W.2d 407

52 Mich.App. 742

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

Docket No. 16148.

Court of Appeals of Michigan, Division No. 1.

April 30, 1974.

Released for Publication June 4, 1974.

Leave to Appeal Denied Aug. 14, 1974.

Daniel A. Burress, Livonia, for defendant-appellant.

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

Before HOLBROOK, P.J., and ALLEN and VanVALKENBURG,* JJ.

ALLEN, Judge.

October 20, 1972, defendant, age 17, was found guilty by a jury of murder in the first degree. He was sentenced to mandatory life imprisonment and appeals.

On the afternoon of May 9, 1972, the Wayne County Sheriff's Department was called to the residence of Michael Berry in Plymouth Township where they observed the body of Vivian Berry lying on the garage floor clad only in an open blouse and one socklet. The body had been stabbed repeatedly. The other socklet was found in the living room and an empty wallet and a pair of women's shoes in the dining room. The telephone book in the home was found opened to automobile repairs.

Earlier the same day the sheriff's office had received a telephone call from a citizen who lived 4 miles from the Berry residence, reporting that a boy about 17--18 years old had stopped his car in the caller's driveway and had asked to come in to phone a car dealer because he was having car trouble. Being suspicious, the citizen refused the request but wrote down the license number. The sheriff's office in turn relayed the information to detectives investigating the crime at the Berry residence. The car was found to be registered in the name of Bennett who lived within three-quarters of a mile of the citizen making the telephone call. The Bennetts informed investigating officers they had loaned the car to their nephew, the defendant, who returned the car that afternoon. The officers found defendant attending a night typing class at Plymouth Central Junior High School. Noticing what appeared to be blood on the buckle of one of his shoes, defendant was placed under arrest and taken across the street to the Michigan crime laboratory where his clothing was seized, fingerprints taken, and fingernails clipped and scraped. Blood matching the blood of the deceased was found on the clothing, and the prints matched those found in the Berry garage.

At the conclusion of the people's proofs, counsel for defendant raised the defense of insanity and offered expert testimony of two psychiatrists. In rebuttal, the people called on a psychiatrist and a clinical psychologist. Testimony of all expert witnesses contained inculpatory statements made by defendant during clinical examination but the trial court's instructions advised the jury to exclude from the determination of guilt any testimony pertaining to commission.

It is argued that a number of items taken from defendant while he was at the state police crime laboratory were not properly traced to the defendant and should have been excluded. At trial, defense counsel said 'I do object to the admission of those items in evidence until such time as proper tracing has been made'. James D. Hauncher, a civilian employee at the Michigan State Police scientific laboratory, was questioned by both the prosecutor and defense counsel regarding the chain of possession of the items at issue. At the conclusion of said questioning, prosecutor and defense counsel approached the bench, the trial court and counsel 'had a side bar discussion off the record', and the trial court, pursuant to the prosecutor's motion, received the exhibits at issue. No objection by defense counsel was made at that time, but a motion to suppress was made at the conclusion of the people's case.

We hold that error was not committed when the trial court admitted the exhibits at issue. People's exhibits no. 38, a right boot; no. 39, a left boot; no. 40, a T-shirt; no. 41, a gold shirt; no. 44, a belt and trousers; and no. 46, a pair of jockey undershorts, each with the initials 'J.D.H.' thereon, were shown to have been connected with the crime and with defendant. The items were taken from defendant the evening of May 9 at the State Police Crime Laboratory by Sergeant Nasser who testified he placed them on Hauncher's workbench for laboratory examination the next morning. Hauncher testified he found the clothing when he arrived for work shortly after 8 a.m., at which time he placed his initials 'J.D.H.' on each item. He further testified the witness Nasser was present and informed him the clothing had been placed on the workbench the night before.

A chain of custody was established, and a proper foundation was laid for the admission of the above exhibits. People v. Mitchell, 37 Mich.App. 351, 356--357, 194 N.W.2d 514 (1971), lv. to app. den., 387 Mich. 751 (1972). See also People v. Beamon, 50 Mich.App. 395, 398--399, 213 N.W.2d 314 (1973). Even though Nasser did not mark the items and an overnight period elapsed before the clothing was examined, there was 'some evidence' presented to establish the proper foundation for the admission of this evidence, and defendant's objections are properly directed to the weight to be afforded such evidence rather than to its admissibility. People v. Burrell, 21 Mich.App. 451, 456--457, 175 N.W.2d 513 (1970), lv. to app. den., 383 Mich. 807 (1970).

During the course of trial, the prosecutor told the trial court that two women spectators had gone into the jury room to use the ladies' room. Both of the women and the sheriff's deputy who supposedly gave them permission to enter the room were promptly brought before the trial court. One of the women had been in the jury room previously while the jury was in the courtroom. However, the event at issue transpired when some members of the jury were in the jury room but not deliberating. Both of the women stated that they did not talk to any of the jurors. At the conclusion of the trial court's questioning, defense counsel moved for a mistrial. Further questioning of the women took place and the trial court took defense counsel's motion under advisement.

The trial court then conducted a voir dire of the jury. The jurors 'responded negatively' when faced with the court's inquiry as to whether any of the words exchanged related to the case at hand. Juror number 3 said that a painter had also been in the jury room, but that she did not discuss the case with him. Another juror said that he had seen a painter in the room, although he did not see the two ladies. Other jurors were questioned, and all of them said that no discussion about the case occurred between themselves and the two women. The trial court then spent approximately 30 more pages of the trial transcript questioning each individual juror regarding the event at issue. None of the jurors felt that the appearance of the two women in the jury room would affect them in any way. Any conversation with the painter concerned only the painting he was doing in the jury room. The jurors said that they had complained to him about the fumes, and that they had never talked to him about the case. The painter was also questioned and stated that he did not discuss the case with any of the jury members.

One of the women testified that she was a former employee of the Wayne County Friend of the Court and had retired some 2 to 3 months before the beginning of the instant trial. The other woman was a friend of hers interested in visiting a court. Each woman knew the victim's husband.

Defense counsel stated that while the incident had caused him 'a little distress', he then stated he was 'satisfied that it was completely innocent'. Both women said that no one has asked them to go into the room, in response to counsel's question. At the conclusion of said questioning, the trial court felt that this was a 'completely innocent incident', felt that there was not any 'mischief by the remotest guess', and denied defense counsel's motion for a mistrial. The trial court then directed a sheriff's deputy to insure that such an incident did not reoccur. Counsel renewed his motion for a mistrial, and the same was denied.

Relying primarily upon former Justice Black's opinion in Zaitzeff v. Raschke, 387 Mich. 577, 579, 198 N.W.2d 309 (1972), defendant has argued that the trial court committed reversible error when it failed to grant the above motion for mistrial. It is alleged that the court should conclude that defendant was not afforded the 'appearance of a fair trial'.

It is, of course, true that 'a trial must be free not only from prejudice, but from the appearance thereof.' People v. Harris, 43 Mich.App. 746, 751, 204 N.W.2d 734, 736 (1972). Justice Campbell once said 'If a single juror is improperly influenced, the verdict is as unfair as if all were'. Churchill v. Alpena Circuit Judge, 56 Mich. 536, 539, 23 N.W. 211, 212 (1885). Churchill involves a situation in which, in the course of their deliberations, the jury went to a nearby hotel, made conversation with some people there, made known their current position as far as the verdict was concerned, and one of the jury's members...