People v. Fullwood

• Decision Date: 01 March 1974
• Docket Number: No. 1,Docket No. 13910,1
• Citation: 51 Mich.App. 476,215 N.W.2d 594
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Martin FULLWOOD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 594

215 N.W.2d 594

51 Mich.App. 476

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Martin FULLWOOD, Defendant-Appellant.

Docket No. 13910.

Court of Appeals of Michigan, Division No. 1.

March 1, 1974.

Released for Publication March 19, 1974.

Robert S. Harrison, Harrison, Friedman & Roberson, James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Attys., for plaintiff-appellee.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA,* JJ.

J. H. GILLIS, Judge.

A jury convicted Charles Martin Fullwood of first-degree murder. M.C.L.A. § 750.316; M.S.A. § 28.548. He appeals as of right.

Police discovered Joyce Ann Tuggle's fatally wounded, partially burned body, on April 29, 1971, in a secluded location in Edward Hines Park, after receiving an informant's tip. Earlier that day she had been reported missing from a bar where she was employed as the day-shift barmaid. Her employer had observed her reading newspaper want ads before he left that morning. A delivery man last saw the victom alive, working alone, about 11:30 a.m. He also noticed a red station wagon enter the parking lot, and a stocky man of middle statute exit the car and enter the bar. Another witness reported entering the open, but vacant, bar about an hour later. The victim's husband, who stopped for lunch, reported his wife missing at 1:15 p.m. Police investigation revealed that cash register contents and a money box containing $150 including $52 in coins were missing. Mrs. Tuggle's coat and purse containing $30 were inside the bar and her car was still in the lot. There were no signs of struggle; an open newspaper, a candy bar wrapper, and glass and coaster (lacking usable fingerprints) remained on the counter.

Witnesses testified that about 4 p.m. defendant exchanged approximately $50 in coins for bills at his neighborhood store. The owner had told defendant earlier that he needed change. Defendant stated the coins were his poker winnings.

About 9 p.m. a tipster who called himself 'C.A.' telephoned a television news desk with a murder report. He related that he had witnessed two men murder a woman the previous evening, and gave precise directions to the body's location. The tipster subsequently contacted the police directly. Defendant, en route at a later date to the county jail, told police he was 'C.A.', gave the television station's telephone number, and reiterated the identical exculpatory claim.

A barmaid testified that about 9 p.m., defendant asked for change to call police and report a dead woman's body in the park. Other witnesses testified that defendant, acting peculiarly, struck up conversations about Joyce Tuggle's disappearance and death in local bars at 11 p.m. and 1 a.m. that evening.

Defendant, wearing a bloodstained shirt, was arrested near his home some 17 hours after the discovery of the body. A subsequent car search, pursuant to warrant, produced a .38-caliber weapon found in the air vent, a gasoline can, a clump of fibers matching similar fibers found at the scene, and human hair and blood samples matching the victim's. The experts concluded the victim was murdered elsewhere and deposited in the park. Police theorized she was murdered in the defendant's car.

Separate counts of murder in the perpetration of a kidnapping and premeditated murder were lodged against defendant. On appeal, he argues that the jury improperly considered the felony-murder count, because no evidence established that the victim was alive at the time of asportation.

The facts adduced support a kidnapping charge. People v. Adams, 389 Mich. 222, 237--239, 205 N.W.2d 415, 422--423 (1973). The jury could infer from circumstantial evidence that Mrs. Tuggle was alive when asported. The open and vacant bar, the absence of any sign of struggle, particularly lack of blood stains, the missing money box and cash register contents, the open newspaper, the purse and coat left behind, considered against the brutal and bloody condition of the body, support the inference that she was alive and taken from the bar against her will. Adams, supra, appears persuasive in this context:

'2. The movement element is not sufficient if it is 'merely incidental' to the commission of another underlying lesser crime.

'3. If the Underlying crime involves murder * * * Movement incidental thereto is generally sufficient to establish a valid statutory kidnapping.' People v. Adams, Supra, 238, 205 N.W.2d 422 (Emphasis supplied.)

Wary of resurrecting the recently interred 'any movement' rule, we nevertheless think Adams concludes that movement of a live victim Any distance incidental to the murder suffices to make out a valid statutory kidnapping. Applying the Adams test, we conclude that murder, often the consequence of the prior kidnapping, is the Underlying crime in this transaction. The elements of kidnapping could be inferred from the circumstantial evidence here adduced. Thus, no error resulted from allowing the felony-murder charge to go to the jury.

The information, charging alternative counts of premeditated and felony murder, went to the jury. The jury, returned a verdict of murder in the first degree. Defendant claims he was entitled to know upon which theory the jury convicted to insure his right to a unanimous verdict and avoid double jeopardy problems. We do not agree.

As to the jeopardy question, Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972), and People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973), dictate that upon acquittal of murder in the first degree, defendant could not be retried under either theory. Nor was defendant deprived of his right to a unanimous jury verdict. A general verdict of guilty is erroneous when the offenses charged are separate and distinct in character, provable by substantially different evidence, and punishable by different penalties. People v. Huffman, 315 Mich. 134, 23 N.W.2d 236 (1946); People v. Lowenstein, 309 Mich. 94, 14 N.W.2d 794 (1944). The penalty for felony and premeditated murder, both species of first-degree murder, is the same. Substantially similar evidence proves both crimes, except that a showing of murder in the...