People v. Creith

• Decision Date: 04 August 1986
• Docket Number: No. 81196,81196
• Citation: 151 Mich.App. 217,390 N.W.2d 234
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Allen CREITH, Defendant-Appellant. 151 Mich.App. 217, 390 N.W.2d 234
• Court: Court of Appeal of Michigan — District of US

Page 234

390 N.W.2d 234

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Allen CREITH, Defendant-Appellant.

No. 81196.

151 Mich.App. 217, 390 N.W.2d 234

Court of Appeals of Michigan.

Submitted Feb. 6, 1986.

Decided April 22, 1986.

Released for Publication Aug. 4, 1986.

[151 MICHAPP 219] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and Margaret G. Horenstein, Asst. Pros. Atty., for the People.

Arthur J. Rubiner, Birmingham, for defendant-appellant on appeal.

Before ALLEN, P.J., and HOOD and LIVO, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a jury trial conviction for manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. Defendant was sentenced to three years probation with the first year to be served in the Oakland County Jail. Defendant raises two issues for our review.

The victim, David Yacobelli, suffered from kidney failure and required renal dialysis three times a week. Yacobelli's roommate, Richard Matsch, testified concerning the events leading up to Yacobelli's death. On the evening of May 5, 1981, Matsch left at about 10 p.m. to go to see his girl-friend. Yacobelli, who seemed fine at that time, was going to stay at home to hang curtains.

When Matsch returned about 4 a.m., the television was on, but Yacobelli was sitting on the couch staring at the wall. His head was bent against his shoulder at a peculiar angle, he was not talking and his face was blank. Matsch had never seen Yacobelli act this way before.

Matsch went to bed and throughout the night he heard Yacobelli in the bathroom vomiting. When Matsch got up around 11:30 a.m. the next morning, Yacobelli was again sitting on the couch and staring at the wall. Yacobelli was pale and was holding his stomach, which appeared to be bloated. [151 MICHAPP 220] Matsch noticed that Yacobelli's speech was slow and he was unable to straighten up his head.

Over defense counsel's objections on the ground of hearsay, the trial court permitted Matsch to testify as to what Yacobelli told him had occurred during Matsch's absence from the apartment. The court ruled that the testimony was within the "excited utterance" exception to the hearsay rule. MRE 803(2). Matsch stated that Yacobelli owed the defendant money for drugs. Yacobelli told Matsch that on the previous evening Yacobelli had seen the defendant tampering under the hood of Yacobelli's car. Yacobelli yelled out of the window at the defendant and the defendant came up to the apartment. When Yacobelli opened the door, the defendant punched Yacobelli in the stomach. The defendant then slammed Yacobelli up against the wall, injuring his neck, and also punched him in the face.

The conversation in which Yacobelli told Matsch what had happened took place at 4 a.m. Then, at 11:30 a.m. the next morning, Yacobelli acted out the events for Matsch. Yacobelli also told Matsch that both his vomit and stool were bloody. Later that afternoon when Yacobelli went for his scheduled dialysis, he was immediately admitted to the hospital and, a short time later, he died.

Carol Bielecki, the head nurse administrator at the dialysis center, testified that when Yacobelli came into the center on the date of his death he was holding his abdomen and looked like he was in pain. Bielecki testified without objection that Yacobelli told her he had a lot of pain in his "belly" and did not feel well because he had been beaten up at his apartment the night before. Yacobelli said he had been punched in the abdomen. Bielecki took him to an examination room where she checked his abdomen and found some swelling [151 MICHAPP 221] above the belt line. Bielecki then informed Dr. Daitch, one of the staff physicians, who examined Yacobelli and ordered that he be transported to the hospital emergency room.

Ibraham Ahmed, a registered nurse at the emergency room at Mount Carmel Hospital where Yacobelli was taken, also testified without objection that when Yacobelli came to the emergency room the decedent told him he had a pain in his abdomen. Yacobelli told him that he had been beaten at about 2 or 3 in the morning. He had been struck in the abdomen and the head. Ahmed informed an emergency room physician of the decedent's complaints.

Dr. Horach Mirchandani, a forensic pathologist and Deputy Chief Medical Examiner for Wayne County, performed an autopsy on Yacobelli and found bruises on the sides and back of Yacobelli's head which would be consistent with being slammed against a wall. There was also bruising in the bowel region or mesentery which went through the small intestine which appeared to have been caused by a blow from a blunt object. Dr. Mirchandani found evidence of inflammation of the peritoneum or the membrane covering the abdominal organs which had been brought about by a blunt trauma to the abdomen. The blunt trauma was evidenced by bruising in the tissue of the abdominal organs. He opined that a blow to the abdominal cavity by a blunt object caused Yacobelli to develop peritonitis, which resulted in his death.

Two other doctors, Dr. Laurence Simson, a forensic pathologist, and Dr. Gregorio Ferrer, a nephrologist, also testified after reviewing Dr. Mirchandani's autopsy report and Yacobelli's medical record. Dr. Simson stated that he would classify Yacobelli's death as a homicide. He indicated that [151 MICHAPP 222] the blunt-force injuries and metabolic disturbances produced an increased level of potassium in the blood, causing Yacobelli's death. Dr. Simson did not believe that the blunt-force injury alone would have caused the level of potassium in the blood to become lethal. Dr. Simson concluded that Yacobelli's nonfunctioning kidneys and his dietary intake significantly contributed to the high level of potassium in the blood. Dr. Simson believed that the blunt-force injury contributed to Yacobelli's death.

Dr. Ferrer did not believe that the blow to the abdomen contributed to Yacobelli's death. He stated that the high level of potassium was probably related to dietary indiscretion. He did indicate that the bruising would cause the release of some potassium into the blood, but could not tell how much it would contribute to the increased level of potassium.

Defendant's post-arrest statements to the police were admitted without objection. Defendant testified consistently with his post-arrest statement and admitted that an altercation had occurred in Yacobelli's apartment on the night before Yacobelli died. He stated that, in an effort to collect the money he was owed, he slapped Yacobelli across the face causing his nose to bleed and that he pushed Yacobelli by the shoulders against a wall where Yacobelli struck his head. However, he stoutly denied that he ever punched Yacobelli in the stomach and stated that he was aware of Yacobelli's physical condition and that he knew that a blow to Yacobelli's stomach could have serious consequences. Defendant's girlfriend, Sharolyn Arnold, was with defendant at Yacobelli's apartment on the night in question and corroborated defendant's account in all material respects.

Defendant first contends that the trial court erred in allowing Richard Matsch to testify about [151 MICHAPP 223] David Yacobelli's statements regarding the circumstances and the details of the assault upon him. The trial court admitted the hearsay account based upon the MRE 803(2) "excited utterance" exception to the hearsay rule:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

"(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

There are three requirements which must be satisfied for evidence to be admitted under the "excited utterance" exception to the hearsay rule. The statements: (1) must arise out of a startling event; (2) must be made before there has been time to contrive and misrepresent; and (3) must relate to the circumstances of the startling occurrence. People v. Kreiner, 415 Mich. 372, 378-379, 329 N.W.2d 716 (1982); People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979); People v. Soles, 143 Mich.App. 433, 437, 372 N.W.2d 588 (1985). Admission of hearsay evidence under the "excited utterance" exception is generally left to the trial court's discretion. People v. Lobaito, 133 Mich.App. 547, 559, 351 N.W.2d 233 (1984); People v. Petrella, 124 Mich.App. 745, 758, 336 N.W.2d 761 (1983), aff'd 424 Mich. 221, 380 N.W.2d 11 (1985).

In the instant case, defendant does not dispute that the complained-of statements arose out of a startling event and related to the circumstances of the startling occurrence. Rather, defendant argues that too much time elapsed between the time when Yacobelli was struck and when the statements[151 MICHAPP 224] were made for the statements to be deemed reliable. The trial judge ruled that Matsch's testimony convinced him that the decedent was...