People v. Boose

• Citation: 311 N.W.2d 390,109 Mich.App. 455
• Decision Date: 10 September 1981
• Docket Number: Docket No. 52764
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Minnie BOOSE, Defendant-Appellant. 109 Mich.App. 455, 311 N.W.2d 390
• Court: Court of Appeal of Michigan (US)

Page 390

311 N.W.2d 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Minnie BOOSE, Defendant-Appellant.

Docket No. 52764.

109 Mich.App. 455, 311 N.W.2d 390

Court of Appeals of Michigan.

Sept. 10, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 458] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., Appellate Division, and Edwin R. Brown, Asst. Pros. Atty., for the people.

Bell & Hudson, P.C., Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and ALLEN and CYNAR, JJ.

CYNAR, Judge.

Although a timely claim of appeal was not filed, this matter is before us on a delayed application for appeal which was granted.

Defendant was charged in a two-count complaint. In count I she was charged with conspiracy to commit murder in violation of M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 750.316; M.S.A. § 28.548, and in count II she was charged with first-degree murder in violation of M.C.L. § 750.316; M.S.A. § 28.548. She was convicted on both counts on November 20, 1979, after a jury trial. Defendant was sentenced to serve a life term in prison. We affirm defendant's convictions.

On the evening of June 9, 1979, Clarence Boose, Sr., was shot to death in the upstairs of his home at 316 Pierson Road, Flint. The deceased was the spouse of the defendant. Testimony of a neighbor, Nancy Cowens, indicated that she had been present in the Boose home at the time of the shooting. She went there to use the telephone. As she approached the Boose house, the defendant was getting out of a car which was parked in front of the [109 MICHAPP 459] house. Defendant was accompanied by her 11-year-old mentally retarded daughter. As this was taking place, two men dressed in green approached the house from the opposite direction. These men were later identified by Cowens at police line-ups held on June 12, 1979, and June 13, 1979, as being Henry Hurt and Clifford Kerse. Cowens followed the defendant into the house and she was followed by the two men. After they entered the house, the defendant directed the two men to go upstairs. Mr. Boose was not present at that time.

After Cowens used the phone, she was offered a soft drink by defendant. Defendant then stated that she was going to another part of the house to bathe her daughter. Cowens remained in the kitchen. Shortly thereafter Mr. Boose came home, and when he entered the kitchen he asked Cowens where his wife was. Cowens told him that defendant was bathing their daughter in another room. Mr. Boose then went back outside. Defendant then entered the kitchen, and as she did so she leaned back toward the stairway located in the room from which she had entered and said, "Are you guys still up there". Cowens heard a response but she could not understand it.

Cowens testified that a short time later Mr. Boose came back into the house. Defendant asked him to go upstairs to change some lightbulbs. He went upstairs and came back with a sack containing some bulbs, took one out and went back upstairs. Cowens then heard several shots. Mr. Boose came running down the stairs with blood about his shoulder and told Cowens that he had been shot and asked her to call the police. He then ran outside. As Cowens picked up the phone, Hurt and Kerse entered the kitchen, each holding a gun. One of them pointed a gun at Cowens and told her [109 MICHAPP 460] to put the phone down. They then went out the same door from which Mr. Boose had exited.

Cowens stated that defendant then entered the kitchen and asked Cowens what had happened. Cowens told her that her husband had been shot and asked defendant if she wanted Cowens to call the police. Defendant told Cowens that she would give her some "change" if she did not call the police. Defendant also told Cowens that she knew that the men who had shot her husband would be able to recognize Cowens.

Cowens testified that shortly thereafter she left the Boose house to return to her home located next door. When she got to her house, she saw a pool of blood on her porch and went back to the Boose house. She again asked defendant if she should call the police and again defendant told her that she would give her "some change" if she did not do so.

A few minutes later defendant told Cowens to call the police from a downstairs phone. Defendant then made several other phone calls from the phone located in the kitchen. After the police arrived, their investigation disclosed the body of Mr. Boose in the Cowens home. He had been shot a total of six times.

Defendant told an investigating officer that she did not know what had happened, for she had been in another room bathing her child when these events took place. Neither Cowens nor the defendant told the police of the presence of the two men. Cowens eventually did come forth with that information on June 11, 1979. She stated that she did not do so earlier because she was afraid.

There was testimony by Sheila Jones, another daughter of defendant, that several meetings had taken place between Hurt, Kerse and defendant. [109 MICHAPP 461] Jones also testified that defendant had asked her on several occasions to find someone to kill the deceased. She stated that defendant had told her shortly after her first meeting with Hurt that Hurt had agreed to kill "Ronnie". Ronnie was the defendant's boyfriend. Jones testified that three days prior to the murder, defendant had asked her in the presence of Hurt and Kerse to take Hurt and Kerse to Detroit to get some guns.

On cross-examination, Jones admitted having been convicted of a felony. She also admitted that she had attempted to forge a check in the name of the defendant while the defendant was in jail on the present charges.

A defense witness testified that during the period of time that both defendant and Jones were in jail on these charges, Jones had passed the defendant a note which stated that if the defendant did not help her get out of jail, Jones would "make it bad for her".

Jones did not tell the police of these events until sometime in the fall of 1979. She testified that she did not do so earlier because she was confused and did not know whether she should tell. She stated that she finally decided to come forth because she had been "seeking the Lord".

Clarence Boose, Jr., son of the deceased and the defendant, testified that he had seen the defendant in the presence of Kerse and Hurt on at least three occasions during the week of the murder. He also said that the defendant asked him three days prior to the murder if he knew where she could get an unregistered handgun.

Prior to the presentation of evidence, the court had ordered that the witnesses be sequestered. On at least four occasions Clarence Boose, Jr., had entered the courtroom during the course of trial. [109 MICHAPP 462] Officer Buszek stated that the entries involved no more than Boose sticking his head in the courtroom whereupon the officer would point outside and Boose then went right out of the courtroom. Defendant moved that the witness be disqualified from testifying for having violated the sequestration order. The court ruled that defendant could bring the fact that the witness had violated the order out on cross-examination but did not order that the witness be precluded from testifying. The cross-examination relating to the witness's entry into the courtroom during trial was scant.

The remainder of the evidence presented dealing with the events leading up to and including the day of the murder are presented in greater detail in the discussion of the first issue.

I. Was the evidence legally sufficient to support a conviction of either conspiracy to commit murder or first-degree murder?

Defendant claims that the evidence was insufficient to enable the jury to find that the elements of the respective offenses were proven beyond a reasonable doubt. The people contend that this issue has not been properly preserved for appeal by a motion for a new trial. People v. Cage, 83 Mich.App. 534, 269 N.W.2d 213 (1978); People v. Mattison, 26 Mich.App. 453, 182 N.W.2d 604 (1970). Cage and Mattison both involve claims that the verdict was against the great weight of the evidence, not that the evidence was insufficient to support the verdict. Here, there is no claim relating to the great weight of the evidence. It was not necessary for the defendant to move for a new trial to preserve this issue for appeal.

With respect to the sufficiency issue, the controlling statutes are:

"Sec. 157a. Any person who conspires together with 1 [109 MICHAPP 463] or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:

"(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed." M.C.L. § 750.157a; M.S.A. § 28.354(1).

"Sec. 316. All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life." M.C.L. § 750.316; M.S.A. § 28.548.

In determining whether there is sufficient evidence to support a conviction, the Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of...