People v. Clay

Decision Date20 August 1979
Docket NumberDocket No. 78-7
Citation91 Mich.App. 716,283 N.W.2d 870
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vesper CLAY, Defendant-Appellant. 91 Mich.App. 716, 283 N.W.2d 870
CourtCourt of Appeal of Michigan — District of US

[91 MICHAPP 718] Sally Claire Fink, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William P. Delhey, Pros. Atty., James S. Sexsmith, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, * JJ.

HOLBROOK, Judge.

On Thursday, April 21, 1977, at approximately 6:30 p. m., the defendant-appellant, Vesper Clay, stabbed to death the victim, Carl Gehringer, in an upstairs bedroom of the Tessmer Adult Foster Care Home, in the City of Ypsilanti, Washtenaw County, Michigan.

The defendant was almost immediately arrested at the scene of the crime. The defendant was charged with the crime of open murder, M.C.L. [91 MICHAPP 719] § 750.316; M.S.A. § 28.548, on April 22, 1977. The defendant was subsequently arraigned in the 14th District Court for Washtenaw County and preliminary examination was set for and held on April 28, 1977. The defendant was represented by counsel at his preliminary examination and also at his trial. Counsel for defendant urged the magistrate to find a lack of evidence to bind defendant over to Circuit Court for first-degree murder. The District Court ruled that even though the Court was not bound to find premeditation, there was sufficient evidence produced at the preliminary examination to show premeditation.

The defendant was bound over to circuit court for trial at the conclusion of the aforementioned preliminary examination. Defendant's arraignment in the Circuit Court for Washtenaw County occurred on May 26, 1977. At arraignment, the defendant stood mute and a plea of not guilty was entered by the court. A pretrial conference was ultimately held on July 14, 1977, at which time a firm trial date of October 17, 1977, was set. The defendant's counsel made several pretrial motions including a motion for a Walker 1 hearing, which was granted, and a motion to quash. The Walker hearing was held on October 17, 1977, at which time the motion to quash was also heard.

At the conclusion of the Walker hearing, the trial court ruled that the defendant's statement, made after having been advised of his rights per Miranda, 2 was admissible. It should be noted at this juncture that the District Court magistrate had also ruled, at the preliminary examination, that the defendant's statement was admissible.

[91 MICHAPP 720] Defendant's motion to quash was also denied by the trial court.

At trial, the prosecution produced evidence to show that the defendant and the deceased were residents of the Tessmer Adult Foster Care Home in Ypsilanti, where they shared a room. On April 21, 1977, both the defendant and the victim had dinner at the home, during which time they had a slight argument. After the dinner, the victim went up to his room and the defendant went outside the home for a few minutes. The defendant later went upstairs to the room, whereupon he and the victim continued their argument. The testimony at trial showed that approximately five minutes passed between the first argument at the dinner table and the second argument upstairs in the bedroom. Trial testimony further showed that the resident manager, Gerald Fortier, was called upstairs by another resident, because of a fight between the defendant and the victim. Mr. Fortier, upon going upstairs, found the two men standing about eight to ten feet apart, the victim with an incision in his neck, and the defendant with a knife in his hand. After observing this, Mr. Fortier left the room to call the police. When Mr. Fortier returned, after notifying the police, he found the victim slumped over the bed pleading for help. Mr. Fortier then went downstairs to wait for the ambulance and observed the defendant cleaning off his knife in the crack of the sidewalk.

By the time the police arrived, the victim was dead. Dr. Robert C. Hendrix, an expert pathologist, testified that the victim died from loss of blood from two stab wounds in the chest and lung.

Testimony was introduced by the prosecution to show that Detective William Stenning took a taped statement from the defendant after having [91 MICHAPP 721] advised him of his Miranda rights. The taped statement was played in its entirety for the jury.

After the people had rested, the defendant called Professor Hutt and Doctor Danto, a psychologist and psychiatrist respectively, who testified that at the time of the killing, the defendant was legally insane.

In rebuttal of the defense witnesses, the prosecution called Dr. Charles Hattaway, a psychiatrist from the Center for Forensic Psychiatry, who testified that the defendant was neither mentally ill nor legally insane at the time of the killing. Prior to Doctor Hattaway's testimony, the prosecutor learned that Doctor Hattaway had taped an interview between the defendant and himself. The prosecuting attorney ultimately moved for admission of the tape recording, which was objected to by defendant's trial counsel. However, the defendant's trial counsel's objection was not based on evidentiary grounds but rather on the fact that if the court were to admit the tape recording it should also admit written reports from Doctor Hutt and Doctor Danto. The tape recording of the interview with Doctor Hattaway was ultimately admitted and played to the jury. Doctor Hattaway stated that he had relied on the information received from the tape recorded interview in forming his opinion as to the defendant's sanity.

The written reports of Doctor Hutt and Doctor Danto were also admitted into evidence at trial. It should be noted at this point that Doctor Hutt's and Doctor Danto's reports contained several references to the defendant's prior incarcerations and prior criminal record.

After both sides had rested, the Court then heard final arguments and gave instructions to the jury. Prior to the Court's instructions to the jury, [91 MICHAPP 722] the defendant's counsel objected to the giving of the Michigan Judges Association instructions on insanity, for the reason that a presumption of sanity instruction was included therein.

The jury found the defendant guilty of Murder in the Second Degree. Thereafter, the defendant was sentenced to a term of twenty to forty years with the Michigan Department of Corrections. Defendant now appeals his conviction and sentence by right.

The defendant claims four errors which we consider in proper order.

I. The trial court's failure to give the Michigan Criminal Jury Instructions on insanity was error. Further, the instructions given from the Michigan Judges Association instructions improperly contained a statement on "presumption of sanity" and failed to state a burden of proof as to mental illness.

We reject the defendant's claims of error. The presumption of sanity has been the law from the very beginning and is still a viable part of our law. People v. Garbutt, 17 Mich. 9 (1868); People v. Eggleston, 186 Mich. 510, 514, 152 N.W. 944 (1915), and People v. Woody, 380 Mich. 332, 338, 157 N.W.2d 201 (1968). The trial court properly instructed the jury in accord with the rules laid down in the cases just cited. The proposed Michigan Criminal Jury Instructions (not mandatory at the time of trial of this case) also contain a commentary on the presumption of sanity. (MCJI, Vol. I, p. 7-145).

The trial judge instructed on burden of proof as to sanity in the following words:

"Once however there is any evidence tending to show that the defendant was insane, the people then have the burden of proof of establishing beyond a reasonable [91 MICHAPP 723] doubt that the defendant was legally sane at the time of the alleged offense. In order for you to render a just verdict, it will be necessary for you to consider separately the questions of the presence or absence of mental illness and the presence or absence of legal sanity. In determining whether or not the defendant was mentally ill at the time of the alleged offense, you are to apply the following definitions of mental illness. Mental illness means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality or the ability to cope with the ordinary demands of life."

The defendant claims that the trial judge should have expanded further on the insanity instructions. The defendant failed to object to this aspect of the instructions so the issue is not preserved for appeal. GCR 1963, 516.2. The instructions, considered as a whole, fairly and accurately presented the issues to the jury.

II. (A) The District Court committed error in binding defendant over to Circuit Court for trial on a charge of open murder, and determining that premeditation was shown on the record.

(B) The trial judge committed error in denying defendant's motion to quash the information, and denying defendant's motion for directed verdict as to first-degree murder.

A. First we point out that the district judge is not, on preliminary examination, required to determine the degree of murder. The degree of murder is for the trier of fact. People v. Strutenski, 39 Mich.App. 72, 197 N.W.2d 296 (1972), and People v. Norwood, 68 Mich.App. 730, 243 N.W.2d 719 (1976).

We also point out that there was some evidence Aliunde defendant's confession in the examination record that indicated premeditation. The resident manager, Gerald Fortier, went upstairs to the room that Gehringer and defendant shared, and [91 MICHAPP 724] saw them standing a distance apart with a cut on Gehringer's neck and with defendant swinging a knife in Gehringer's direction, but not reaching him. He did not describe any other cutting on Gehringer at that time. Both men were standing when Fortier observed them for a short time. Fortier then left the room and went...

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  • People v. Williams
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    ...People v. Davis, 343 Mich. 348, 355, 72 N.W.2d 269 (1955); Cargen v. People, 39 Mich. 549, 551 (1878); People v. Clay, 91 Mich.App. 716, 723, 283 N.W.2d 870 (1979), lv den 408 Mich 857 (1980). Defendant was properly bound over on an open murder charge since the elements of first-degree felo......
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