People v. Clay

• Decision Date: 23 January 1980
• Docket Number: Docket No. 77-2726
• Citation: 289 N.W.2d 888,95 Mich.App. 152
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benny Lee CLAY, Defendant-Appellant. 95 Mich.App. 152, 289 N.W.2d 888
• Court: Court of Appeal of Michigan — District of US

Page 888

289 N.W.2d 888

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benny Lee CLAY, Defendant-Appellant.

Docket No. 77-2726.

95 Mich.App. 152, 289 N.W.2d 888

Court of Appeals of Michigan.

Jan. 23, 1980.

Released for Publication April 4, 1980.

Lynn V. Hooe, Jr., Pontiac, for defendant-appellant.

[95 MICHAPP 154] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, [95 MICHAPP 155] Pros. Atty., Robert C. Williams, App. Chief, Asst. Pros. Atty., Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and MacKENZIE and PIERCEY, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his jury conviction of second degree murder, contrary to M.C.L. § 750.317; M.S.A. § 28.549. He was sentenced to life imprisonment with credit given for 218 days previously served.

The defendant had been wounded in the arm after an attempted holdup of a liquor store in Pontiac and was admitted to Pontiac General Hospital as a police prisoner. The defendant was sharing a semi-private room with a patient named John Underwood. In the early morning hours on December 7, 1976, Officer Robert Hunter of the Pontiac Police Department was on duty in the hospital room to guard the defendant. Officer Hunter was due to be relieved by Officer Gerald Carpenter at approximately 5:30 a. m. The defendant was sleeping in his bed.

At about 5:30 a. m., Officer Hunter heard footsteps in the hallway and saw a man, later identified as Melvin Scott, enter the hospital room pointing a chrome or nickel plated revolver. Scott told Hunter not to move, took his .38 calibre service revolver, and ordered him into the bathroom. The officer saw a woman in a nurse's uniform, later identified as Janice Love, standing in the doorway of the hospital room. She asked the defendant whether he was ready. Once Officer Hunter was in [95 MICHAPP 156] the bathroom, he was tied, gagged, and had a sheet placed over his head. A few moments later, Officer Hunter heard numerous gunshots. When he was able to free himself, he saw Officer Carpenter lying dead on the floor, close to the hall door. The defendant and Ms. Love were gone, and the hallway was empty. Melvin Scott was lying badly injured on the floor between defendant's bed and the wall. Hunter retrieved his revolver, which was lying on defendant's bed. He noted that the gun, which had been fully loaded, had no live rounds in it. Scott's gun was lying under a nightstand which was positioned between the defendant's bed and Underwood's bed.

John Underwood, a 60-year old heart attack patient, testified that he was awakened by some noises at about 5:20 a. m. He saw a man pointing a gun at the police officer who had been guarding the defendant. The officer was escorted to the bathroom. A woman dressed like a nurse, later identified as Janice Love, came over to Underwood's bed, disconnected his bell cord, and put her fingers to her lips, warning him to keep quiet. The defendant got out of bed, and put on Underwood's robe and slippers because he had no clothes of his own. Ms. Love went to the door to keep a lookout and said that someone was coming. Scott hid behind the bathroom door, armed with his silver-colored pistol. Clay and Ms. Love hid behind the door to the hall. Clay was armed at that time with a black pistol. Underwood saw Clay pick up the black pistol from Clay's bed shortly after Hunter was taken into the bathroom. The man outside the door paused, stepped back, drew his gun, and entered the room. Scott fired a shot with the silver-colored gun. More shots were fired, but Underwood could not see what was happening. Officer [95 MICHAPP 157] Carpenter fell down. Scott came out from behind the bathroom door, and he also fell on the floor. At this time, Clay and Ms. Love left the room. Moments later, Officer Hunter emerged from the bathroom, retrieved his gun and called for assistance. Mr. Underwood stated that at no time during the incident in question did he see anyone in the room with more than one gun.

Dr. Robert Sillery, the pathologist who performed an autopsy on Officer Carpenter, testified that there were 11 bullet wounds in the body, 6 entry wounds and 5 exit wounds. The cause of death was determined to be shock and hemorrhage due to multiple gun shot wounds.

Donald McLaughlin, a technician at the Oakland County Crime Laboratory, testified that he examined the bullets recovered from Officer Carpenter's body, his clothing, the shell casings, and the firearms which were on the scene. Based on his comparison test shots, he concluded that at least one of the bullets in Carpenter's body came from Officer Hunter's gun. When recovered, all three of the guns were empty, having fired 6 rounds each.

Benny Clay testified on his own behalf. He stated that he knew Melvin Scott, but had had no contact with him prior to the escape and knew nothing about it beforehand. He saw Scott disarm Officer Hunter and take him into the bathroom, but did not see where Scott put the gun. Janice Love handed him Underwood's robe and slippers. Scott went to the door and said that someone was coming. At that point, Clay hid behind the door with the slippers in his hand. He denied ever having a gun. Clay heard shooting and when he came out, saw a police officer lying on the floor. Mr. Clay left the room, went to the elevators, [95 MICHAPP 158] where he met Ms. Love, and they both left the hospital.

On appeal, the defendant claims that the trial erred reversibly in refusing to direct a verdict for the defendant at the close of the people's case, because the case was based entirely on circumstantial evidence which was not sufficient with which to go to the jury. He claims further that the prosecutor failed to negate every reasonable theory of innocence, namely, that Melvin Scott had used Officer Hunter's gun to kill Officer Carpenter.

In reviewing the denial of a motion for a directed verdict, this Court considers the evidence presented at the time the motion is made in the light most favorable to the prosecution, and determines whether that evidence, if credible and believed, would justify a reasonable person in concluding that all elements of the crime charged were established beyond a reasonable doubt. People v. Royal, 62 Mich.App. 756, 758, 233 N.W.2d 860 (1975); People v. Smith, 85 Mich.App. 404, 409, 271 N.W.2d 252 (1978), rev'd. on other grounds 406 Mich. 945 (1979).

Under the rule promulgated in People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521 (1972), where the people's case is based on circumstantial evidence, the prosecution has the burden of proving that there is no innocent theory possible which will, without violation of reason, accord with the facts. People v. Millard, 53 Mich. 63, 18 N.W. 562 (1884); People v. Spann, 3 Mich.App. 444, 142 N.W.2d 887 (1966). In order to obtain a conviction on circumstantial evidence, the prosecutor must present evidence that not only points to the defendant's guilt but also negates any reasonable theory of innocence. People v. Wingfield, 62 Mich.App. 161, 233 N.W.2d 220 (1975); People v. Talley, 67 Mich.App.[95 MICHAPP 159] 239, 240 N.W.2d 496 (1976); People v. Smith, supra.

While a reasonable inference may be drawn from an established fact, inferences cannot be built on inferences. People v. Atley, 392 Mich. 298, 314-315, 220 N.W.2d 465 (1974). The pyramiding of inferences is impermissible because it deprives a defendant of the right to be proved guilty beyond a reasonable doubt. People v. McGregor, 45 Mich.App. 397, 206 N.W.2d 218 (1973).

In the case at bar, an eyewitness testified that he saw the defendant pick up a dark gun, like Officer Hunter's, and hide behind the door. Many gunshots were heard. Officer Hunter stated that the gun had been fully loaded. When Hunter came out of the bathroom, he retrieved his gun with all six bullets spent. A ballistics expert testified that at least one bullet recovered from Officer Carpenter's body came from Hunter's gun. The eyewitness said that...