People v. Carter

Decision Date04 May 1972
Docket NumberNo. 7,7
Citation387 Mich. 397,197 N.W.2d 57
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey CARTER et al., Defendants-Appellants.
CourtMichigan Supreme Court

James K. Miller, Kent County Pros. Atty. by Donald A. Johnston, III, Chief Appellate Atty., Grand Rapids, for plaintiff-appellee.

State Appellate Defender Office by John Tully, Warner, Norcross & Judd, Carl R. Fleetwood, Varnum, Riddering, Wierengo & Christenson, Sherman H. Cone, Cholette, Perkins & Buchanan, Grand Rapids, for defendants-appellants.

Before the Entire Bench.

ADAMS, Justice.

I. THE CRIME

December 1, 1967 was the last day in the life of Emile Osbeck, a 67-year old self-employed interior decorator. He spent the morning working at his trade, ate a hearty lunch with his wife, and then went to a paint store where he purchased three gallons and four quarts of paint. He first carried the gallon cans, weighing approximately 15 pounds each, out of the store and then returned for the four quarts. He was last seen alive at 12:50 p.m. carrying them out of the store.

Between 1:00 and 1:15 p.m., there was a robbery of a Grand Rapids bank. As the three robbers left the bank, the manager, Roger C. Williamson, followed them to the door. He saw then run across a drive to a parking space and get into a Ford car. He called out the license number and an employee of the bank wrote it down. It proved to be the license number of Emile Osbeck's automobile.

Shortly after the robbery, Osbeck's car was parked in a high school parking lot. Carole Huizenga, a student, saw three men get out of the car, open the trunk, and run off on foot toward a residential section. At about the same time, Gerald Vander Tuig, Director of a Child Guidance Clinic, was conversing with a friend outside the clinic. He observed three men enter a three-apartment building where defendants McCully and Broyles lived. At approximately 1:20 p.m., Richard Plaisure, a Junior College student, came into the high school parking lot with some tires to put into his brother's car. He saw a body in the open trunk of the parked Osbeck automobile and hastily summoned police officers from a nearby intersection. The police saw footprints, apparently made as the result of an overturned can of paint in the front seat of the car. The prints were far apart, indicating to the officer that whoever had made them was running. They led to the three-apartment building. Vander Tuig told the police officers what he had observed.

Mrs. McCully gave the officers permission to look through her apartment. The police did not find the suspects. They then went to the apartment belonging to Broyles where they saw a wet spot by the door, knocked, received no answer, and entered. While searching the apartment for the criminals, they seized a pair of shoes smeared with still-wet white paint, a red-hooded sweat shirt with a hole in the sleeve, and a brown paper sack containing $943 in bills. Having satisfied themselves that there was no one in the Broyles apartment, and upon the arrival of additional police officers, a further search was conducted. The police found a .22 caliber German revolver in a steel cabinet and $1740 in bills, wrapped in a cloth, under a cushion of an overstuffed chair.

On December 1, 1967, Broyles and McCully were due at the Grand Rapids Hall of Justice at 1:30 p.m. to be sentenced on a previous conviction. They put in their appearance at 2:10 p.m. They asked Gilmore Welford to drive McCully's Buick car back to the McCully apartment. Welford was prevented from entering the McCully apartment by the police so he drove to a nearby poolroom. Shortly thereafter, the police took Welford into custody as a material witness and seized the McCully automobile.

Defendant Carter, a known friend of McCully and Broyles, was picked up at McCully's apartment by Carter's brother and sister-in-law shortly after 1:30 p.m. and taken to a cleaning establishment. A few days later he went to Flint Michigan, where he spent a week. Upon his return, he was arrested on December 14, 1967, for another unrelated crime. He was held on that charge, which was later dismissed, until January 11, 1968, when he was charged in this case.

Dr. Gerald Barofsky, Medical Examiner for the County of Kent, was called to the high school parking lot at 1:30 p.m. and arrived at the scene at approximately 1:45 p.m. Dr. Barofsky was able to determine that Emile Osbeck had died within an hour of his arrival. An autopsy disclosed that he had a small laceration on his left ear, a bruised area over the left cheek bone, and a bruised area in the scalp. In the doctor's opinion, death could not be attributed to any of these minor injuries. Osbeck had an enlarged heart. At the trial, Dr. Barofsky testified that, in his opinion, if Osbeck were placed in a trunk of a car, the lid of the trunk closed, the car driven for any distance, that, medically speaking, this would be sufficient to cause a cardiac arrest and death.

On December 2, 1967, the police returned to the apartment building with a search warrant. They seized from McCully's apartment $1500, a .25 caliber pistol, and .22 caliber ammunition.

On December 4, 1967, three days after the McCully automobile had been impounded, the police, without a warrant, searched the car. They found several .22 and .25 caliber cartridges in the glove compartment.

At the conclusion on the ensuing trial of defendants, after the jury had begun its deliberations on a verdict, there was a request from it for a timetable of the tragic events of December 1, 1967. The attorneys went over a time schedule which the judge read to the jury as follows:

'11:30, three men go in McCully's car to Bi-Lo Market.

'12:00 o'clock Mr. Osbeck is home for lunch.

'Approximately 12:40 Mrs. Osbeck testified Mr. Osbeck left his home after lunch.

'12:30 to 12:35 Mr. Schindler from the paint store testified that Osbeck came into the store.

'12:50 Schindler testified that Osbeck left with four quarts of paint, that is the second batch of paint.

'1:15 is the bank robbery.

'1:15 to approximately 1:20 school girls at Christian High see the car come into the lot at Madison and Franklin or Prospect and Franklin.

'1:22 police arrive at car in the lot.

'1:20 to 1:25 Mr. Vander Tuig sees from the Child Guidance Home sees three men run into and enter 648 Prospect.

'1:40 is the first word over the TV broadcast that there was a body in the trunk.

'Approximately 1:40 to 1:55 Jeffrey Carter is at the cleaners at the corner of Division and Hall according to the testimony of Mrs. Bright.

'Approximately 1:40 to 1:50 Gilmore Welford was picked up by McCully and Broyles on Cottage Grove at Doehler Jarvis.

'Police arrive at the residence area of 648 Prospect around approximately 1:50 to 1:55 according to the testimony of Captain Pierce.'

II. THE TRIAL

The defendants were charged 1) with first degree felony murder committed in the course of a robbery of an automobile; 2) second degree murder with no specification as to how committed; and 3) kidnapping.

The defendants' requests for separate trials were denied. The joint trial which resulted presented difficulties both for the prosecution and for the defense.

The People were faced with two main problems: 1) establishing the identity of the felons; and 2) establishing the cause of Osbeck's death.

As for McCully, they established that on the morning of the bank robbery, McCully, with two unidentified men, drove to downtown Grand Rapids at about 11:30; that the money found wrapped in a towel under the bathtub in the McCully apartment came from the bank; and that a .25 caliber pistol and .22 caliber ammunition were found in his apartment.

Regarding Broyles, the People established that a red sweat shirt with a hole in it, similar to the one worn by one of the robbers, was found in his apartment; that shoes smeared with still-wet white paint were in the apartment; that money found in a bag in the attic came from the bank; and, finally, that a ten dollar bill found in Broyles' wallet, when his personal effects were inventoried after he was arrested at the Hall of Justice, was also part of the marked money coming from the bank.

As for Carter, the People introduced evidence of a somewhat equivocal statement made by him that could be interpreted as inculpating; that he was with McCully and Broyles, as well as with some other Negro men, until late the night before; that accounts of his whereabouts on the morning of December 1 were conflicting; that he was picked up by his brother and sister-in-law at McCully's apartment at 1:30 p.m. on December 1; that his response to the news of the crime, when his brother and sister-in-law took him to the cleaning establishment, could be interpreted as showing prior knowledge of it; that he went to Flint for a week shortly after the crime; and, finally, that, by process of elimination of other possibilities as to who else could have been with McCully and Broyles during the limited time, it must be deduced that the third party was Carter.

Concerning the cause of Osbeck's death, the People produced medical testimony to show that he had a moderately enlarged heart and could have died of natural causes at any time, but that a sudden cardiac arrest, absent a precipitating factor, would be unlikely for a person of his age and condition. Such a precipitating factor could be fear when he was robbed of his car or when he was kidnapped and locked in the trunk. The three small lacerations on his body, too minor to have caused death, may have been caused by some physical force used to rob or kidnap him.

For the defense, the evidence against McCully and Broyles was so incriminating as to the bank robbery that their defense was concentrated primarily on the issue as to how Osbeck died. It was contended that Osbeck could have died at any time as a part of the normal aging process; that carrying the paint out of the store could have been the precipitating factor;...

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