People v. Canter
| Decision Date | 21 December 1992 |
| Docket Number | Docket No. 114315 |
| Citation | 197 Mich.App. 550,496 N.W.2d 336 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark William CANTER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Dennis F. Murphy, Pros. Atty., and Kevin L. Hesselink, Asst. Pros. Atty., for the People.
Ray J. MacNeil, Gaylord, for defendant on appeal.
Before RICHARD ALLEN GRIFFIN, P.J., and NEFF and CORRIGAN, JJ.
Defendant was charged with first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and conspiracy to commit first-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). Also charged were Laurie Moore, Walter Moore, Doug Brinkman, and Donald Heistand, each of whom was prosecuted separately. 1 Following a two-month jury trial in late 1988, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and found not guilty of conspiracy. He was sentenced to life imprisonment and appeals as of right. We affirm in part and remand for further proceedings.
Defendant was charged in connection with the alleged beating death of Jerry Tobias, whose frozen body was discovered on December 8, 1986, in the bed of his pickup truck parked near the Gaylord fire hall. Meat products from Walt's Butcher shop in Gaylord were also discovered in the truck. The subsequent murder investigation involved interviews of more than two hundred witnesses.
At trial, the state's pathologist, Dr. Patricia Newhouse, testified that several portions of Tobias' head were swollen and fluctuant and that circular wounds were found on several areas of his body. The circular wounds could have been caused by a barbecue spindle seized during a search of Walt's Butcher Shop in Gaylord. Newhouse concluded that Tobias died from blunt force trauma to the head. She admitted that she had not originally tested Tobias' blood for the presence of drugs, despite the fact that there were needle marks on Tobias' arms. Subsequent testing revealed the presence of cocaine in Tobias' system. Nevertheless, that finding did not change Newhouse's opinion regarding the cause of death.
Key prosecution witness Debra Parmentier testified that she had been with defendant on the afternoon of December 5, 1986, during which time he picked up a package of cocaine and arranged to meet with Laurie Moore. Parmentier claimed that she, Walter Moore, and defendant drove to Gaylord later that evening. During that time, Moore remarked that Tobias owed him $3,000 and owed his brother Laurie $4,000 for cocaine. The three eventually went to Walt's Butcher Shop and met Laurie Moore, Tobias, and someone named "John," who was later identified as Heistand. Parmentier testified that Laurie Moore asked Tobias for "the stuff." When Tobias responded that he didn't have it, an argument ensued. Walter Moore picked up a butcher's steel and hit Tobias in the head with it, stating, "You b ..., I'm gonna f ... kill you." Defendant, Heistand, and both Laurie and Walter Moore then hit Tobias, while Laurie Moore also struck Tobias with a barbecue spindle. Tobias' body was then placed in a freezer. Defendant and the others, along with Doug Brinkman who arrived later, helped to transfer the body to the back of Tobias' truck, which was then moved near the Gaylord fire hall.
Through extensive cross-examination lasting several days, defendant vigorously attacked Ms. Parmentier's credibility. He attempted to portray her as a person inclined to fabricate bizarre stories.
On October 27, 1988, following the first day of her testimony, Parmentier first disclosed that a witness named Sherry Payton was also present at Walt's Butcher Shop when the alleged offense was committed. Trial was then delayed several days in an unsuccessful attempt to locate Payton. After the trial resumed, on November 10, Payton presented herself to the trial court. The court then ordered that all interviews of Payton be conducted in the presence of defense counsel. That evening, in defense counsel's presence, Payton denied, in a recorded statement, any personal knowledge of the events surrounding Jerry Tobias' death. The following day, in defense counsel's absence, after she was interviewed first by one, then by two Michigan State Police troopers, Payton gave a recorded statement inculpating defendant in Tobias' murder. The initial portion of the second Payton interview was not recorded.
Defendant subsequently moved to dismiss the case, or alternatively to suppress Payton's recorded statements, because the trial court's order regarding interrogation had been violated. Defense counsel acknowledged that he had consented to a one-on-one interview of Payton by a police trooper, but claimed that he did not agree to have more than one officer present. He also objected to the failure to record the initial portion of the second interview. The trial court denied defendant's motion.
Payton then testified that Tobias picked her up from her home shortly after 2:00 a.m. on the morning of December 6, 1986, and then drove to Walt's Butcher Shop, where defendant, Parmentier, Walter Moore, and Laurie Moore were already present. Doug Brinkman walked in a few minutes later. Defendant and Tobias began arguing, and then defendant hit Tobias. When the others joined the argument, Payton left the butcher shop and walked home.
On cross-examination, Payton was questioned regarding her recent contradictory statements and also regarding a statement she made shortly after Tobias' death in which she had denied any knowledge of the events surrounding his death. Payton also admitted that she was then presently incarcerated and was facing four unrelated felony charges, which, pursuant to an agreement, were to be dismissed in exchange for her truthful testimony.
Defendant's former girl friend, Wendy Brock, testified that defendant came home between 6:00 and 7:00 a.m. on December 6, 1986. His hands were cut up and his mouth was bloody. She overheard a conversation between defendant and Doug Brinkman in January 1987 in which defendant stated, "He was dead when we put him in the truck." Additionally, in March 1987, Brock overheard Brinkman tell defendant that he was going to "get busted" for murder, to which defendant responded, "You are too."
Defendant presented a multifaceted defense. Not only did he offer an alibi, he affirmatively attacked the credibility and motives of Parmentier, Payton, and Brock through several witnesses. For example, forensic psychiatrist Dr. Emanual Tanay examined Debra Parmentier shortly before trial. He testified that Parmentier had been hospitalized in various psychiatric institutions and suffered from an antisocial personality disorder that caused her to engage in habitual lying. Other witnesses also testified about Parmentier's reputation for "telling strange stories" and her propensity for not telling the truth.
Still another defense witness testified that Sherry Payton had recently contacted her from the county jail, stating she felt she was being forced into testifying despite her assertions that she had not been present.
The defense presented its own pathologist who criticized Dr. Newhouse's autopsy procedures. He also disagreed that death was caused by blunt force trauma to the head. Finally, defendant himself denied ever meeting Tobias, denied being present in the back of Walt's Butcher Shop, denied knowing Parmentier in December 1986, and denied having made any incriminating statements to Wendy Brock.
While his appeal was pending, defendant sought a remand on grounds that Sherry Payton had recanted her trial testimony. This Court granted defendant's motion to remand pursuant to MCR 7.211(C)(1) to permit him to file a motion for a new trial that was limited to the issue whether Sherry Payton's testimony constituted newly discovered evidence. After conducting an evidentiary hearing on terms ordered by this court, the trial court on November 1, 1990, denied defendant's motion in a thorough opinion and order.
Defendant raises fifteen issues, which we have rearranged and consolidated. In support of several of the issues raised, defendant has improperly submitted affidavits and other documentary evidence not presented in the trial court. Because this Court's review is limited to the lower court record, those documents will not be considered. People v. Taylor, 383 Mich. 338, 362, 175 N.W.2d 715 (1970); Nationwide Mutual Ins. Co. v. Quality Builders, Inc., 192 Mich.App. 643, 648, 482 N.W.2d 474 (1992).
Defendant's first set of issues relate to his claim of entitlement to a new trial on the basis of Sherry Payton's recanting testimony.
At the postconviction evidentiary hearing, an investigator with the Michigan Attorney General's office testified that in a recorded statement on January 10, 1990, Sherry Payton recanted her trial testimony after being offered immunity for perjury. Defendant sought to admit a transcript of the recorded statement into evidence, but the trial court sustained the prosecutor's hearsay objection and denied its admission.
Payton then testified pursuant to a grant of transactional immunity. 2 She again stated that she had perjured herself at defendant's trial. Payton, who was pregnant and facing other criminal charges at the time of defendant's trial, claimed that the police had told her that they had proof she was present at Walt's Butcher Shop on the evening of the alleged offense and also informed her that she was facing fifteen years in jail and, thus, would not see her baby. Payton explained that she felt threatened by the prospect of going to jail and not seeing her baby. She decided to accept an offer whereby her pending criminal charges would be dismissed in exchange for her "truthful" testimony. Her trial testimony was based on her familiarity with the...
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