People v. Densmore

• Decision Date: 05 December 1978
• Docket Number: Docket No. 77-2600
• Citation: 87 Mich.App. 434,274 N.W.2d 811
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale L. DENSMORE, Jr., Defendant-Appellant. 87 Mich.App. 434, 274 N.W.2d 811
• Court: Court of Appeal of Michigan — District of US

Page 811

274 N.W.2d 811

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale L. DENSMORE, Jr., Defendant-Appellant.

Docket No. 77-2600.

87 Mich.App. 434, 274 N.W.2d 811

Court of Appeals of Michigan.

Dec. 5, 1978.

Released for Publication Feb. 9, 1979.

[87 MICHAPP 435] James R. Neuhard, State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., by Bruce A. Barton, Sp. Pros. Atty., for plaintiff-appellee.

[87 MICHAPP 436] Before DANHOF, C. J. and BASHARA and CYNAR, JJ.

BASHARA, Judge.

Defendant appeals his jury conviction of first-degree premeditated murder and first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548.

The facts elicited at trial indicate that on the day in question, defendant drove his car down a trail road and parked off in the woods. He walked back up the trail with his sawed-off shotgun to a gas station where he was once employed. After placing the gun behind the gas station, he conversed with the attendant, Mr. Noppe, until closing time. He then retrieved the gun and proceeded to rob Noppe. The defendant tied up Mr. Noppe and made him get in the trunk of Noppe's car. He drove the car back to the spot in the woods where he had left his own vehicle and forced Mr. Noppe into the defendant's car trunk. He then placed a styrofoam cooler in the rear seat of the auto and set it on fire. He left the scene in Mr. Noppe's car which was eventually found abandoned in Denver, Colorado.

The body of the decedent was found in the locked trunk of defendant's car. The cause of death was determined to be thermal injuries, carbon monoxide poisoning, and toxic fume inhalation. The owner of the service station testified that $75 was missing, the amount that Mr. Noppe had on his person while working that night.

Defendant was arrested in Texas where a statement was taken during an interview in the Texas jail. A Walker ¹ hearing was held prior to trial. The [87 MICHAPP 437] trial court held that defendant's statement was admissible as evidence.

The killing of Mr. Noppe was never disputed at trial, since the theory of the defense was insanity.

On the second day of trial, defense counsel informed the court that defendant had filed a petition the previous day by mail for removal to the Federal district court. The trial court denied a motion to stay the proceedings, finding that the motion in the Federal court had not been timely filed.

The removal petition was not actually filed until 18 days after the end of the trial, and was eventually denied. The Federal court found there was no valid basis for removal and that the petition had not been timely filed.

Defendant initially claims that oral notice of mailing was sufficient to stay proceedings and, in any event, timeliness is to be determined by the Federal court. We disagree.

At the time of defendant's trial, the procedural steps necessary to effectuate removal were governed by 28 U.S.C. § 1446, which provides:

"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

"(c) The petition for removal of a criminal prosecution may be filed at any time before trial.

"(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written [87 MICHAPP 438] notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded."

The state court need not stay proceedings until the petition is filed. South Carolina v. Moore, 447 F.2d 1067, 1073 (C.A.4, 1971). Oral notice of mailing on the second day of trial does not meet the procedural requisites necessary to remove jurisdiction from the state court.

The right to removal from state to Federal court is wholly statutory and as such can only be exercised in the method designated by Congress, as clearly stated in Biscup v. People, 129 F.Supp. 765, 767 (W.D.N.Y., 1955).

"The present statute, insofar as the time for removal is concerned is imperative and mandatory, and must be strictly construed and complied with, Kramer v. Jarvis, D.C., 81 F.Supp. 360, owing to the fact that the law was designed to restrict the jurisdiction of the Federal Courts.

"No discretion is conferred on Federal Courts to extend or enlarge the time in which to petition for removal, Cyc. of Fed.Proc. Vol. 2, P. 334."

See also Chesimard v. Kuhlthau, 370 F.Supp. 473, 475-6 (D.N.J.1974).

The present case is clearly distinguishable from People v. Wynn, 73 Mich.App. 713, 253 N.W.2d 123 (1977), where the removal petition was filed and service effectuated on the trial court prior to the commencement of the proceedings.

Defendant's second contention is that the prosecution failed to establish the corpus delicti of premeditated murder Aliunde defendant's confession as mandated by our Supreme Court in People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973).

[87 MICHAPP 439] The elements that are claimed not to have been independently proved are premeditation and deliberation. This requisite state of mind is not amenable to direct proof, and as such may be inferred from all the surrounding circumstances. People v. Hoffmeister, 394 Mich. 155, 159, 229 N.W.2d 305 (1975); People v. Morrin, 31 Mich.App. 301, 331, 187 N.W.2d 434 (1971).

Well established guidelines for determining premeditation and deliberation have been formulated by our courts. In People v. Berthiaume, 59 Mich.App. 451, 465, 229 N.W.2d 497 (1975), these principles were reiterated:

" '(1) Premeditation can be reasonably inferred from the circumstances surrounding the killing;

" '(2) a defendant may not be found guilty of first-degree murder if he did not have an opportunity to subject the nature of his response to a second look or reflection, i. e., one cannot instantaneously premeditate a murder;

" '(3) a sufficient time lapse to provide an opportunity for a "second look" may be merely seconds, or minutes, or hours, or more, dependent on the totality of the circumstances surrounding the killing;

" '(4) where it is factually clear that there is No evidence of premeditation the trier of fact may not consider a charge of first degree murder.' People v. Meier, 47 Mich.App. 179, 191-192, 209 N.W.2d 311 (1973). (Emphasis in original.)"

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