People v. Browning

Decision Date20 May 1981
Docket NumberDocket No. 51206
Citation308 N.W.2d 264,106 Mich.App. 516
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles BROWNING, Defendant-Appellant. 106 Mich.App. 516, 308 N.W.2d 264
CourtCourt of Appeal of Michigan — District of US

[106 MICHAPP 519] Benjamin F. Blake, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Chief Appellate Asst. Pros. Atty., Robert J. Sheiko, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.

T. M. BURNS, Judge.

Defendant comes before this Court on a delayed appeal and challenges a December 18, 1978, jury verdict convicting him of first-degree felony murder. M.C.L. § 750.316; M.S.A. [106 MICHAPP 520] § 28.548. On January 11, 1979, he was sentenced to a term of life imprisonment. We affirm defendant's conviction.

In the early morning hours of July 3, 1978, firefighters, responding to a fire alarm in a Detroit apartment, discovered the partially burned body of a woman. A subsequent investigation disclosed that her hands and feet had been tied with an electrical cord, that her head had been covered by plastic or pantyhose, and that an electrical cord had been tightly wrapped around her neck. The assistant county medical examiner, who later examined the body of the decedent, listed the cause of her death as "multiple blunt force injury to the head." He testified during trial that the decedent had type "A" negative blood and that a vaginal swab showed the presence of sperm in such a condition as to indicate that she had had sexual intercourse within the 12 hours prior to her death.

Evidence was introduced which indicated that although an odor of gasoline was not detected in the room where the body was discovered, Apartment 109, the smell of gasoline was found in the rear bedroom of Apartment 106, just down the hallway from Apartment 109. The rear bedroom of Apartment 106 had been partially burned, and the fire in that room, as well as the fire in Apartment 109, had been deliberately set.

On the day that the body was found, defendant was taken into custody by police on the pretext that they wanted him to identify some jewelry. He was later charged with the murder of the decedent.

The evidence introduced by the prosecutor at trial primarily consisted of comparisons of blood and hair samplings taken from the decedent and defendant and found in Apartment 106, evidence [106 MICHAPP 521] that defendant lived in Apartment 106 at the time of the trial, evidence that a pair of pants seized by the police from the apartment of defendant's girlfriend contained the presence of gasoline, and circumstantial evidence concerning defendant's whereabouts in a time period surrounding the crime and his access to the stick of wood that the prosecutor claimed was the instrument with which the decedent had been beaten to death.

Defendant interposed an alibi defense at trial. He testified that he first heard of the fire at his apartment and of the death of the decedent in a telephone call from his mother on the morning that the fire was discovered. He had spent the previous night at his girlfriend's apartment. He identified the pair of blue jeans on which the police had found gasoline as his own; however, he stated that the gasoline had gotten on them while he was doing carburetor work on his car. Although the defendant knew the decedent, she lived in the same apartment building as defendant, he denied ever hitting her or sexually assaulting her.

Following his conviction by the jury, defendant filed a motion for a new trial which was denied by the lower court on April 7, 1980. Defendant now appeals, and we affirm.

Defendant first argues that the trial judge improperly exercised her discretion in denying defendant's motion to suppress evidence of his prior misdemeanor convictions that involved theft and dishonesty.

MRE 609 provides that for the purpose of attacking the credibility of any witness, evidence that he has been convicted of a crime may be elicited from him if: (1) the crime was punishable by death or imprisonment in excess of one year or it involved theft, dishonesty, or false statement, [106 MICHAPP 522] regardless of punishment and (2) the trial judge determines that the probative value of the impeaching evidence on the issue of credibility outweighs its prejudicial effect. Defendant's prior two convictions were for unlawfully driving away an automobile and larceny over $100. The prosecutor noted that the trial judge had discretion to admit evidence of these misdemeanors but contended that they were admissible for impeachment purposes because they involved theft and dishonesty. The trial judge agreed and denied defendant's motion to suppress.

We find no error in the trial judge's ruling. The judge recognized her discretion in this matter and found that the prejudicial nature of this evidence did not outweigh its probative effect. Our review of the record does not convince us that the trial judge abused her discretion. People v. Jones, 98 Mich.App. 421, 296 N.W.2d 268 (1980); People v. Worden, 91 Mich.App. 666, 284 N.W.2d 159 (1979); People v. Roberson, 90 Mich.App. 196, 282 N.W.2d 280 (1979). The recent amendment to MRE 609 requiring a trial judge to articulate on the record the factors considered when making a determination as to whether evidence of prior crimes is admissible was not in effect at the time of defendant's trial. Therefore, it is sufficient that the trial judge in this case recognized her discretion to admit the impeaching evidence under the provisions of MRE 609 as it stood on the date of defendant's trial.

Defendant next argues that the trial judge erred in permitting the prosecutor to question his girlfriend regarding whether defendant had assaulted her with the murder weapon on the day before the murder. Although we agree with defendant that this evidence was not admissible under the similar [106 MICHAPP 523] acts Statute, M.C.L. § 768.27; M.S.A. § 28.1050, it was admissible to impeach his girlfriend because she was a res gestae witness whom the prosecutor was obligated to call at trial. M.C.L. § 767.40a; M.S.A. § 28.980(1), MRE 607. Defendant's girlfriend denied during trial that defendant had ever threatened her; therefore, it was proper to impeach her by reference to her prior inconsistent statement.

We are not persuaded by defendant's argument that the trial judge abused her discretion in permitting the prosecutor to introduce at trial certain photographs showing the body of the decedent. The law regarding admission of photographs at criminal trials was summarized by this Court in People v. Sullivan, 97 Mich.App. 488, 492, 296 N.W.2d 81 (1980):

"The admission of photographs of victims of crime is committed to the discretion of the trial court. People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972). The issue to be addressed in the admission of photographic evidence is whether the photograph is substantially necessary or instructive to show material facts or conditions or is merely calculated to excite passion and prejudice. People v. Falkner, 389 Mich. 682, 685, 209 N.W.2d 193 (1973)."

This test, which requires the photographs "to be substantially necessary or instructive" upon a material fact before being admissible, nearly identical to that enunciated by our Supreme Court in People v. Becker, 300 Mich. 562, 565, 2 N.W.2d 503 (1942), where that Court held that, "(t)he general rule upon the admissibility of this kind of evidence is that it is admissible if helpful in throwing light upon any material point in issue".

Defendant argues that the photographs in this case were not used to settle a fact in dispute [106 MICHAPP 524] because defense counsel did not contend that they showed that the victim had pantyhose on her legs. However, our review of the record discloses that defense counsel raised the issue of a prosecution witness's credibility in his questioning of that witness regarding whether the victim was wearing pantyhose. The photographs had bearing on this issue and were properly admitted by the trial judge. Further, inasmuch as defendant made no request for a limiting instruction to the jury on the photographs, his contention that the trial judge erred in failing to give one has not been preserved for our review. People v. Barker, 97 Mich.App. 253, 293 N.W.2d 787 (1980).

Defendant next contends that the trial judge erred in admitting certain expert testimony regarding gas chromatography and vacuum distillation analysis of his clothing and analysis of microscopic hair comparisons because there was no specific showing that these scientific tests were generally recognized. The trial record reflects that defendant did not object in any respect to the testimony of the witness who analyzed his pants and found the presence of gasoline. The record also indicates that defendant's only objection to the witness who testified regarding the hair comparisons was that the witness was not an expert in that field. Thus, the objection that defendant now raises to this testimony, that is, that these tests are not generally recognized in the scientific community, was not asserted below. Therefore,...

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