People v. Charles

• Decision Date: 10 February 1975
• Docket Number: Docket No. 18248,No. 2,2
• Citation: 58 Mich.App. 371,227 N.W.2d 348
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glen CHARLES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 348

227 N.W.2d 348

58 Mich.App. 371

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glen CHARLES, Defendant-Appellant.

Docket No. 18248.

Court of Appeals of Michigan, Division No. 2.

Feb. 10, 1975.

Released for Publication April 4, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and WALSH, JJ.

DANHOF, Presiding Judge.

Defendant was convicted of first degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and given the mandatory sentence of life imprisonment. One year later, his application for delayed appeal was granted. He raises numerous issues, the merits of which vary greatly, but none of which necessitate reversal.

On July 26, 1971 the body of Mr. Theodore Ziefle was discovered in the foyer of his home by his half brother and members of the Ann Arbor Police Department. The body, clad only in a pair of trousers, was found in the front hallway at the foot of the stairs leading to the second floor. Decedent's head had been badly battered and he was lying on his back in a pool of blood. A lamp from which the electrical cord had been removed was found near the body, as were parts of a wooden clothes hanger. The electrical cord itself was wrapped and knotted around the decedent's neck.

The bedroom was in disarray, and a collection of silver coins totalling at least $100 in face value was missing from the closet. Five bank passbooks and an old style camera were also taken. The decedent's automobile, a Buick Skylark, was not in the garage.

Medical examination of the body disclosed that Mr. Ziefle had died on July 24 or 25, 1971. Death was caused by strangulation resulting from the knotting and twisting of the electrical cord around decedent's neck so tightly that it was buried in the layers of skin which were swollen and discolored. Clotted blood and mucus material filled the mouth and nasal passages, and the decedent's tongue was engorged and protruding. A bone located in the throat just above the voice box called the hyoide was fractured at three places. The body showed evidence of a severe beating including abrasions and contusions around the eyes and nose, and an area of thickening and swelling in the back of the head.

An alert to watch for Mr. Ziefle's 1965 Buick automobile was teletyped to the police agencies in Michigan. Mr. Ziefle's house was examined by technical experts who discovered blood of decedent's type in the bathroom sink, and hair samples matching his on the banister leading to the second floor. No unaccounted for latent fingerprints were found. Photographs of the entire area were taken, including the front porch where two newspapers were still lying.

On July 30, 1971 two Grand Rapids police officers on patrol noticed a 1965 Buick which conformed to the description sent out by the Ann Arbor police department. They were able to apprehend the driver, who was later identified as the defendant, after a chase by automobile and on foot. Two women were in the car with the defendant when he was arrested.

The women had come to know the defendant through a meeting in a Grand Rapids park. The defendant told a number of people in the park that he was driving a 'hot car', and that its owner was dead. He went on to inform them that he murdered a man in Ann Arbor, took his car, and that the man was a sexual deviate. He explained how long it takes to strangle a person, boasting that his hands were deadly weapons, and listing the items, including old silver coins, that he had stolen. Some of the items given by the defendant to the women were later identified as having belonged to decedent.

Defendant testified that he was a prison escapee, and that on the night of July 24, 1971 he went to a movie in an Ann Arbor theater. Later that night, he stated that he discovered the decedent's automobile in a parking lot behind a tire store with the keys in the ignition. He took the car and went directly to Grand Rapids where he subsequently discovered the various possessions of the decedent in the trunk.

I

Near the midpoint in the trial, an unidentified member of the jury sent a note to the trial judge inquiring whether or not they could ask a question of two of the witnesses. The juror was interested in knowing the dates of the two newspapers found on the porch of the decedent's house. The question was to be directed to a police officer who took the photographs of the scene, or to decedent's brother who was with the police officers when the body was discovered. In response to this inquiry, the trial court gave the following instruction to the jury:

'Again, as I told you yesterday, don't talk about the case with anyone, don't discuss it with each other until you've heard all the testimony. I might state this in answer to a question the jury can't ask questions. Some jurisdictions maybe they permit the jury to ask questions but we can't permit the jury to ask questions. If you have a question in your mind we can't help you under our system in Michigan. A jury is not permitted to ask questions. But if you don't hear anything of course then you stand up or shout or raise your hand, let us know about it if you don't hear something, but not to ask questions. Alright, tomorrow morning, 9:00, don't read the paper anything like that, that has anything to do with this case.'

This instruction was erroneous. The propriety of permitting jurors to question witnesses was characterized by our Supreme Court in People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972) as an issue of first impression in the State of Michigan. After analyzing the resolution of this issue in other jurisdictions, the Court decided the question for this State:

'We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions.' People v. Heard, Supra, 388 Mich. 188, 200 N.W.2d 76.

Although the error in the trial court's instruction is now manifest, it was not at all evident at the time of trial. The Heard case was decided on August 30, 1972. The advance sheets containing this opinion were mailed on or about October 3, 1972. Trial in the present case began on September 25, and the complained of instruction was given to the jury by the learned trial judge on September 26, 1972. Thus, while technically there is no problem with retroactivity in that this case was tried after the date of the decision in Heard, the trial judge had no way of knowing that the instruction he gave was no longer an accurate statement of the law.

An analogous problem was presented to this Court in People v. Glover, 47 Mich.App. 454, 209 N.W.2d 533 (1973). In that case, the prosecution's chief witness was a 16-year-old boy whose credibility defense counsel sought to impeach by use of his juvenile record. The trial court gave both parties 15 minutes to research the law on this point. Relying on what the trial court, defense counsel, and the prosecutor conceived to be the current state of the law, the trial court refused to permit the juvenile records to be used for impeachment purposes and instructed the jury not to consider any of the previously permitted testimony having to do with the witness's juvenile court record. On appeal, this Court discussed the practical difficulties inherent in a situation of this kind:

'The law at the time of defendant's trial clearly permitted the use of a juvenile record for the impeachment of a witness who, as here, was not himself a defendant. People v. Davies, 34 Mich.App. 19, 190 N.W.2d 694 (1971); People v. Basemore, 36 Mich.App. 256, 193 N.W.2d 335 (1971). Davies and Basemore were printed in the advance sheets approximately three months and two weeks respectively before the start of defendant's trial. These cases represented a shift of the law, and we do not deem either the prosecutor or the defense counsel negligent in failing to discover them within the 15 minutes allocated to research the impeachment question. However, the trial court was bound to follow the law notwithstanding the fact that it was not called to the court's attention.' People v. Glover, Supra, 47 Mich.App. 457, 458, 209 N.W.2d 535.

Concluding that the trial court erred, the opinion points out that no objection to the ruling and instruction was made at trial, and that review must be confined to ascertaining whether or not a miscarriage of justice has occurred. This is the standard generally applicable to issues raised for the first time on appeal without benefit of preservation by timely objection in the lower court, and to allegations of instructional error in particular. GCR 1963, 516.2, M.C.L.A. § 769.26; M.S.A. § 28.1096, People v. Mitten, 44 Mich.App. 64, 205 N.W.2d 47 (1972), People v. Bradley, 54 Mich.App. 89, 220 N.W.2d 305 (1974), People v. Adams, 4, Mich.App. 595, 210 N.W.2d 888 (1973). It has been held that, in the absence of a timely objection or request, this standard must be satisfied to invoke the rule in Heard. People v. Justice, 50 Mich.App. 55, 212 N.W.2d 762 (1973), lv. den., 391 Mich. 792 (1974).

Understandably in the present case, no objection to the trial court's ruling and instruction was made. Therefore, we have closely examined the record in an effort to determine if this error has resulted in a miscarriage of justice necessitating reversal. We conclude that it has not.

The information concerning the newspapers on the porch which was requested from the two witnesses named in the note was later provided by two other prosecution witnesses. A police detective testified extensively with respect to the newspapers, establishing that the two papers found on the porch were the Ann Arbor News for...