People v. Berthiaume

• Citation: 59 Mich.App. 451,229 N.W.2d 497
• Decision Date: 11 March 1975
• Docket Number: Docket No. 19403,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BERTHIAUME, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 497

229 N.W.2d 497

59 Mich.App. 451

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BERTHIAUME, Defendant-Appellant.

Docket No. 19403.

Court of Appeals of Michigan, Division No. 2.

March 11, 1975.

Released for Publication June 4, 1975.

Leave to Appeal Denied June 19, 1975.

Liberson, Fink, Feiler, Crystal & Burdick by N. C. Deday, LaRene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and WALSH, JJ.

WALSH, Judge.

The defendant Joseph Berthiaume was tried on an open charge of murder for the killing of Ronald Poczik. The case was submitted to a jury with instructions allowing a verdict of murder in the first degree ¹, second degree ², manslaughter ³ or not guilty.

On January 15, 1973, the jury found the defendant guilty of second-degree murder, and he was sentenced to a term in prison of from 30 to 60 years. This appeal is by leave granted from the trial court's denial of a motion for a new trial.

The facts stated in a light most favorable to the state ⁴ are these. On November 6, 1972, the deceased Ronald Poczik was cooperating with the Federal Bureau of Investigation in setting up a weapons exchange between himself and defendant. ⁵ The two men had been co-workers, acquainted for about a year, and had discussed the subject of weapons on several occasions while at work.

During one such conversation Poczik indicated that he had ready access to a variety of automatic weapons. The defendant testified that Poczik's touting of his own ability to secure weapons led him to fabricate the existence of a cache of buried hand grenades which could be traded for Poczik's weapons.

The weapons transfer was to take place on November 6, 1972, and on that afternoon defendant and Poczik each drove their vehicles to a shopping center parking lot in the Southfield area and from there left in defendant's VW Camper for the Bald Mountain Recreation Area. Poczik had met earlier that afternoon with an FBI agent who had searched him and followed him as far as the shopping center. Both defendant and Poczik were under FBI surveillance as they entered the organizational campsite area at Bald Mountain at approximately 4:40 p.m.

The events from that point up until the arrest of the defendant were recounted solely by the defendant himself, who testified in his own behalf. The defense was self-defense. According to that testimony defendant and Poczik hiked into the woods, taking a 20-gauge shotgun, skeet thrower, and a bag of shotgun shells as a kind of 'cover', in case their presence was questioned by officials. Defendant went through the motions of looking for the grenades for a while but did not disclose to Poczik that there were no grenades until they had given up the search and were returning to the car.

According to defendant, Poczik became furious upon learning he had been the butt of a practical joke and began kicking the defendant, who turned away and ran toward the van. The shotgun was slung over defendant's shoulder. It was unloaded. After Poczik caught up with him and continued hitting him, the defendant, still on the run toward the van, unslung the shotgun and loaded it.

While the two men wrestled momentarily for the shotgun, the defendant was struck again and knocked down. He got back on his feet and tried to avert further physical contact by pointing the gun at Poczik and warning him not to move any closer. While Poczik was in a crouched position approximately 5 to 10 feet away from the defendant he made a lateral movement, which was his last, because at that instant the defendant pulled the trigger twice. Poczik's death was immediate--caused by a large would to the right side of the face.

Defendant then dragged the deceased's body a short distance into the brush, removed a shovel from the van and partially covered a pool of blood with dirt.

Special Agent Robert N. Fitzpatrick testified that the defendant was spotted at about 8:30 that evening driving his van in an erratic fashion and in a southerly direction from the park. He pulled over on a side street in Birmingham--on his own accord--and was seen by FBI agents moving things about the interior of the van.

Fitzpatrick then exited his vehicle, approached the van and opened the front door on the passenger's side. He identified himself, ordered the defendant out of the van and asked him his name. Special Agent Roach testified that he immediately inquired of Berthiaume: 'Where's your buddy?' The defendant replied: 'I hurt him bad. He's in the park. He's in the woods. I shot him.'

Defendant was placed in a Bureau vehicle and advised of his rights. His van was then searched for weapons. Agent Fitzpatrick recovered an unloaded double barrel shotgun from behind the passenger's seat. He removed the weapon from its case, examined the breech, broke it, and detected a strong odor of gun powder, indicating that the weapon had been recently fired. One of the other agents searched the defendant and recovered the victim's operators license, car keys, and two spent 20-gauge shotgun shells.

The first, and most critical issue, raised by defendant is whether there was sufficient evidence presented on the element of premedication to justify submitting the case to the jury with instructions on first-degree murder. This issue has been considered by this Court and by the Michigan Supreme Court on numerous occasions in recent years. ⁶ Emerging from these cases is a reaffirmation of the following well established principles:

'(1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;

'(2) A defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, I.e., one cannot instantaneously premeditate a murder:

'(3) A sufficient time lapse to provide an opportunity for a 'second look' may be merely seconds or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;

'(4) Where it is factually clear that there is No evidence of premeditation, the trier of fact may not consider a charge of first degree murder.' People v. Meier, 47 Mich.App. 179, 191--192, 209 N.W.2d 311, 318 (1973). (Emphasis in original.)

In light of these principles we must determine (1) whether taking the evidence in a light most favorable to the state, there was Any evidence from which a jury would reasonably infer premeditation and (2) whether there was sufficient time to allow the defendant an opportunity for a 'second look' prior to the shooting.

Relative to the first inquiry we point out the following uncontroverted facts: The defendant drove the victim in his own (defendant's) vehicle to a secluded spot in a state park shortly before nightfall. He brought along a 20-gauge shotgun and ammunition which he took with him when he entered the woods with the victim. While in the woods the defendant shot the victim in the head causing his death and then dragged the body into the brush and attempted to cover the blood with dirt. When arrested, the defendant had in his possession the victim's car keys and operators license.

It is our opinion that these are facts from which premeditation can reasonably be inferred.

The defendant had his own exculpatory explanations for this entire chain of circumstances; but a jury is not obligated to believe a witness's testimony In toto. '(T)hey may give whatever weight to any particular testimony they desire.' People v. Renno, 392 Mich. 45, 60, 219 N.W.2d 422, 428 (1974). Cf. People v. Ballenberger, 51 Mich.App. 353, 356, 214 N.W.2d 742 (1974); People v. Gray, 23 Mich.App. 139, 178 N.W.2d 172 (1970). ⁷

The question of the sufficiency of the time lapse required for premeditation could have been resolved by considering the defendant's own testimony. The time sequence established therein could suggest to a jury that Berthiaume had sufficient time during the quarrel to take a second look, consider his alternative and premeditate the killing of the deceased. There were three separate confrontations, according to the defendant, and enough time between the first two to unsling, load and release the safety on his shotgun. ⁸ Moreover, the defendant--at two distinct times during the affray--warned his victim 'not to come near me, to attempt to touch me, or come any closer'. ⁹ At one point the defendant candidly stated that Poczik 'didn't believe I was going to shoot him'. We find that a jury could have determined the defendant had time to 'think about beforehand' the shooting of the deceased. See People v. Meier, Supra. See also People v. Vertin, 56 Mich.App. 669, 679, 224 N.W.2d 705, 709 (1974), upholding a first-degree murder conviction where the court found 'there was adequate time, even before, and certainly between the blows to the head and the gunshot wounds, for the defendant to premediate, deliberate and take a second look'.

The cases of People v. Gill, 43 Mich.App. 598, 204 N.W.2d 699 (1972), and People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), are relied on heavily by defendant in advancing his view that evidence of premeditation was lacking in the instant case. He argues that the proofs submitted at trial were similar in kind to those in Morrin and similar in quantity to those presented in Gill.

The Morrin case is instructive in explicating the types of evidence from which premeditation and deliberation may be inferred. Considerations include the prior relationship between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing and the defendant's post-homicide conduct.

Morrin's first-degree murder conviction was reversed because a panel of this court found there was no evidence of premeditation. The victim in that case was a hitchhiker...