People v. Calloway

Decision Date11 August 1988
Docket NumberNo. 87249,87249
Citation427 N.W.2d 194,169 Mich.App. 810
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard Everett CALLOWAY, a/k/a Charles Arthur Calloway, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and James J. Lait, Asst. Pros. Atty., for people.

Marovich & Stroba by Milton J. Marovich, and Howard Everett Calloway, Kalamazoo, in pro. per., for defendant on appeal.

Before CYNAR, P.J., and WEAVER and PAJTAS, * JJ.

CYNAR, Presiding Judge.

Defendant was convicted by a jury of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to life imprisonment for the murder conviction and two years for the felony-firearm conviction. The convictions followed an earlier jury trial in which the jury was unable to reach a unanimous verdict. Defendant appeals as of right. We reverse.

The second trial commenced on October 25, 1983. The instant charges arose out of the shooting death of Johnnie Lee Reed (also known as Johnny). Reed was shot on September 17, 1982, as he stood on the front porch of his residence at 606 Florence Street in Kalamazoo, Michigan. The shooting occurred sometime around noon.

Robert Lee Jones, a witness for the prosecution, placed defendant at the scene of the crime. Jones' testimony was offered as part of a plea-bargain agreement between Jones and the prosecutor. In exchange for testifying against defendant, Jones received immunity from prosecution for any involvement in the instant case.

On September 17, 1982, at about 11:00 a.m., Jones was at the Polar Bear store with his brother Jimmy Lee Jones when they saw defendant drive a blue van onto the store's parking lot. Defendant told them that he had a gun and he was "hunting" for Reed. The Jones brothers left the store. Sometime later, defendant went by Jones' house and motioned him over to the van. Jones got into defendant's van after they decided to commit a breaking and entering.

They drove to a house, but did not break and enter since the resident was at home. While defendant and Jones were driving around, defendant saw Reed walking up Florence Street. Defendant circled another block, stopped, told Jones to drive and park across from Reed's house. After they waited five to fifteen minutes, Reed came out of his house. Defendant reached out of the passenger window and shot Reed with a rifle as Reed was coming off the porch. Defendant fired five shots, three of which were fired before defendant told Jones to drive off.

Fifteen-year-old Ella Thompson was living with Reed before he was killed. She began living with Reed in October, 1981. Previously, Reed and his wife, Ola Mae Reed, had argued about Reed and Thompson living together. Reed told Ola that he was going to stay with Thompson rather than return to Ola. Afterwards, Ola used to come by and sit on the front steps of Reed's house at different times during the day.

On the day of the shooting, Thompson was sweeping the floor in the apartment and Reed was on the front porch when Thompson heard shots. She went outside and saw Reed lying face down on the porch. Thompson had seen a blue van, but she could not identify it as the one belonging to defendant. Thompson also stated that Reed and Ola had argued on the morning he was killed.

Kalamazoo Police Officer Jack Orr testified that, about twenty-five minutes after hearing a police dispatch of the shooting and that a light blue van was a suspect vehicle, Orr spotted the van on North Westnedge Street. Orr felt the engine hood, which was very warm. He also saw ammunition on the dash tray. The van belonged to defendant.

Ola stated that she saw Reed at her home around 9:00 a.m. They argued and she told him to leave. Later in the day, Ola was in a blue van belonging to the Lively Stone Church, of which she was a member. Pastor Eldon Mitchell, who was driving, had picked up Ola "around noon" and she went to a downtown hospital. The prosecutor then asked Ola if she was a religious person and how long she has belonged to the church she attends.

Several Florence Street residents heard the shots and saw the blue van. However, none of the residents identified the van as belonging to defendant.

Officers Robert McFletcher and Thomas Martin testified that they arrested defendant on February 6, 1983. Martin related, without objection, defendant's statement in the booking area:

"He and I had been speaking and I asked him to remove his prosthesis--he has got a wooden leg--so that I could examine it to make sure there was [sic] no weapons concealed in it or anything like that. As he did that, I asked him how he lost his leg, and he told me that he--he said to me, 'That guy on the paper that I killed ran over me on a motorcycle.' I asked him to repeat himself and he said, 'That guy you say I killed on that paper ran over me on a motorcycle.' "

On cross-examination, Martin acknowledged that he may have misheard defendant, even though he thought that he had heard defendant's first statement very clearly.

On the fourth day of trial, the prosecutor informed the trial court of his intention to endorse Ethel Phillips, defendant's mother-in-law, as a witness, but the police could not serve her a subpoena because she would not come out of her house. The prosecutor claimed that Phillips was afraid because of threats made against her by defendant's family. The prosecutor asked the court to issue a capias writ in order for the officers to go into her house and bring her to court. The court issued the writ.

Afterwards, the prosecutor sought to endorse Phillips as a witness. The court denied the prosecutor's request for a late endorsement. However, the court permitted Phillips to testify as a rebuttal witness. Defense counsel vigorously objected to Phillips' testimony, claiming that defendant had not opened the door during his case which would entitle the prosecutor to call a rebuttal witness. The trial court ruled in favor of the prosecutor.

Phillips testified that, on the day Reed was killed, defendant came to her home between 12:10 p.m. and 12:20 p.m. to use the telephone. Phillips and defendant had the following conversation:

"He come [sic] to my house to use the phone, and then he said, 'I think I got myself into a little trouble.'

"Q. (By Mr. Christopherson, continuing) Did you say anything to him, then?

"A. I said, 'I won't ask what kind.'

"Q. What did he say, then?

"A. He said, 'Well, that one guy that caused me to lose my leg, I think I got him.'

"Q. After he stated--you know--'The one guy that caused me to lose my leg, I think I got him,' what did you say after that?

"A. 'Yes, was it bad?'

"Q. What did he say after that?

"A. He didn't know, but he found out later on."

Following his convictions, defendant moved to set aside the jury verdict and dismiss the charges due to the prosecutor's misconduct involving Phillips. The trial court denied defendant's motions.

Defendant raises numerous issues on appeal. First, he claims that he was denied a fair trial due to pretrial and trial publicity of his case. We first note that defendant has failed to provide an adequate record for us to review this issue by not supplying this Court with a transcript of the jury voir dire. This alone requires us to affirm. People v. Coons, 158 Mich. 735, 740, 405 N.W.2d 153 (1987), lv. den. 428 Mich. 900 (1987). Having failed to provide this Court with the jury voir dire transcript and having failed to move for a change of venue, defendant has not met his burden of showing that the publicity deprived him of a fair trial.

Next, defendant claims that the inculpatory statement he made to Officer Martin should have been excluded since he was not given the Miranda 1 warnings. In addition, defendant alleges that the trial court, on its own motion, should have conducted a Walker 2 hearing so as to test the voluntariness of defendant's statements.

Initially, we note that the issue of whether these statements were taken in violation of Miranda was not raised in the proceedings below. As a general rule, this Court will not review an issue raised for the first time on appeal. People v. Davis, 122 Mich.App. 597, 333 N.W.2d 99 (1983). However, where an important constitutional question is raised regarding the admissibility of the evidence and is decisive of the outcome of the case, appellate review is appropriate. People v. Catey, 135 Mich.App. 714, 722, 356 N.W.2d 241 (1984), lv. den. 422 Mich. 940 (1985).

In this case, defendant has failed to meet either requirement so as to warrant appellate review of this issue. The Miranda rule is not in itself a constitutional right. Rather, it is only a procedural safeguard designed to protect an individual's Fifth Amendment privilege against self-incrimination. People v. Godboldo, 158 Mich.App. 603, 605, 405 N.W.2d 114 (1986). Secondly, the statements testified to by Martin were not outcome-determinative due to the equivocal nature of Martin's testimony. Martin testified that he may have misheard defendant's statements. Thus, we decline to review this claim.

In addition, we reject defendant's assertion that the trial court should have sua sponte conducted a Walker hearing to determine if defendant's statements were voluntarily made. In People v. Hooks, 112 Mich.App. 477, 480, 316 N.W.2d 245 (1982), lv. den. 413 Mich. 902 (1982), citing United States v. Powe, 192 U.S.App.D.C. 224, 591 F.2d 833 (1978), this Court set forth the rule regarding when a trial judge must sua sponte test the voluntariness of a confession:

"In Powe, the defendant was convicted by a jury of distributing a controlled substance. That defendant stated that her confession was made in response to offers of leniency and, therefore,...

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