People v. Furman, Docket No. 84528

CourtCourt of Appeal of Michigan (US)
Writing for the CourtCOOK; ALLEN; SHEPHERD
Citation158 Mich.App. 302,404 N.W.2d 246
Docket NumberDocket No. 84528
Decision Date06 May 1987
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Phillip FURMAN, Defendant-Appellant.

Page 246

404 N.W.2d 246
158 Mich.App. 302
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
John Phillip FURMAN, Defendant-Appellant.
Docket No. 84528.
Court of Appeals of Michigan.
Submitted May 20, 1986.
Decided March 3, 1987.
Released for Publication May 6, 1987.

Page 248

[158 Mich.App. 305] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Thomas C. Johnson, Asst. Atty. Gen., for the People.

State Appellate Defender by Peter Jon Van Hoek, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and ALLEN and COOK, * JJ.

[158 Mich.App. 306] COOK, Judge.

After a jury trial in Lenawee Circuit Court, defendant was found guilty but mentally ill of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, for the killing of a college honors coed. Defendant was sentenced to imprisonment for his natural life without parole. He appeals from his conviction by leave granted to file a delayed appeal.

The prosecution's case against defendant was based upon circumstantial evidence presented through the testimony of more than forty witnesses, not including expert testimony from a rebuttal witness. Defendant testified and raised two defenses: a reasonable doubt existed that defendant was the perpetrator of the homicide; and, in the alternative, legal insanity. On appeal defendant raises eight issues. We affirm.

The victim's body was discovered in a field off of a country road outside of Tecumseh, Michigan, on Tuesday, January 31, 1984, at 7:30 a.m. She was last seen alive in Tecumseh at approximately 5:30 p.m., Monday, January 30, 1984. Just two weeks before her death, the victim assumed employment as an Avon lady and was assigned a route which covered the Russell Square Apartments in Tecumseh where defendant lived.

A description of the victim's actions on January 30 is warranted to more fully appreciate defendant's arguments on appeal and the factual setting of this case.

Ruth McCarley, a Tecumseh resident, testified that her daughters had ordered Avon products from the victim and that the victim had stopped at her house between 12:30 p.m. and 1:30 p.m. to make a delivery but then agreed to return about 5:00 p.m.

Page 249

when Ruth's daughters would be home. Ruth testified that the victim never returned. Several residents of Russell Square Apartments [158 Mich.App. 307] testified that the victim had delivered their Avon orders to them at home between 1:30 p.m. and 3:00 p.m. on Monday, January 30. Lillian Gardner, a family friend, testified that she saw and waved to the victim at a gas station around 4:20 p.m. or 4:25 p.m. Delores Letson, a friend of the victim from high school, testified that she talked to the victim at the Tecumseh Plaza at about 4:45 p.m. The victim invited the Letsons over for a visit and explained that she had to run into the store and had three Avon orders to drop off but would be home in one hour. Judy Aranda, another Avon customer who lived in Tecumseh, testified that the victim delivered her order and left at 5:15 p.m. Waltrud Sterling testified that the victim was alone in her car, signaling a turn, when she blew her horn and waved at Sterling at approximately 5:30 p.m.
I

Defendant argues that the prosecution presented insufficient evidence on the element of premeditation. According to defendant, the evidence was sufficient to sustain a second-degree murder conviction but was lacking in several key areas to establish a cold-blooded, deliberate and planned killing rather than one committed in the heat of passion or frenzy. These areas include: a pre-homicide motive, defendant's actions preceding the offense to show a plan for the homicide, and a prior relationship between the victim and defendant other than that established by the sale of Avon products to defendant by the victim. He contends that the brutality of the method of killing alone is not evidence of a deliberate plan. Finally, he argues that the evidence of sexual relations tending to show that the homicide was committed in the [158 Mich.App. 308] course of a criminal sexual assault is consistent with a finding that the killing was the result of the heat of passion and not cool-headed reflection.

When reviewing a claim of insufficient evidence, we review the record to determine whether sufficient evidence was introduced to justify a trier of fact in reasonably concluding that the defendant is guilty beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. sub nom. Michigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. People v. Vail, 393 Mich. 460, 468, 227 N.W.2d 535 (1975), quoting People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971). Premeditation and deliberation characterize a thought process undisturbed by hot blood. Vail, supra. While the minimum length of time needed to exercise this process is incapable of exact determination, a sufficient interval between the initial thought and the ultimate action should be long enough to afford a reasonable man an opportunity to take a "second look" at his contemplated actions. Vail, supra, 393 Mich. at p. 469. See also, People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471 (1979).

Premeditation and deliberation need not be established by direct evidence, but may be inferred from all the facts and circumstances established on the record. People v. Hoffmeister, 394 Mich. 155, 158-159, 229 N.W.2d 305 (1975), reh. den. 394 Mich. 944, 230 N.W.2d 270 (1975); People v. Conklin, 118 Mich.App. 90, 93, 324 N.W.2d 537 (1982). Evidence of the following nonexclusive factors may establish premeditation: (1) the previous relationship of the parties; (2) the defendant's actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide. People v. Johnson, 93 Mich.App. 667, 287 N.W.2d 311 (1979). [158 Mich.App. 309] For other nonexclusive factors, see People v. Conklin, supra.

The brutal nature of a killing does not alone justify an inference of premeditation and deliberation. People v. Hoffmeister, supra, 394 Mich. at p. 159, 229 N.W.2d 305. It has been held that evidence of manual strangulation and a defendant's post-homicide conduct support a prima facie case of first-degree premeditated murder.

Page 250

People v. Irby, 129 Mich.App. 306, 323, 342 N.W.2d 303 (1983), lv. den. 418 Mich. 951 (1984). See also, People v. Charles, 58 Mich.App. 371, 384, 227 N.W.2d 348 (1975), lv. den. 397 Mich. 815 (1976) (evidence of strangulation by the use of an electrical cord and evidence of a struggle at the scene of the crime constitute sufficient evidence of premeditation and deliberation for the jury).

After reviewing the entire record, we conclude that sufficient evidence was presented from which the jury could infer premeditation. Evidence was presented from which the jury could infer motive and a deliberate plan by defendant's pre-homicide actions. Compare, People v. Gilbert, 101 Mich.App. 459, 469, 300 N.W.2d 604 (1980).

Evidence of motive, a sexual interest in the victim, was presented through the testimony of Todd Davis Sparks. On August 15, 1984, Sparks, an escapee from Jackson Prison, was lodged in the Lenawee County Jail in a cell adjacent to that of defendant. According to Sparks, he and defendant conversed after defendant learned that Sparks had escaped from prison. Defendant wanted to know what prison conditions were like. Defendant explained that he was incarcerated for killing the Avon lady. Defendant described her as so "good-looking, that he wanted some." Defendant told Sparks that he had made a pass at the Avon lady when she delivered a gift which defendant had purchased for his ex-wife on their divorce. Defendant [158 Mich.App. 310] told Sparks that the Avon lady became "radical." Defendant told Sparks that he had a seizure and remembered taking her out to the van. Sparks testified that defendant remembered he dumped her on some "line" road. Sparks testified that defendant revealed no details of the killing or the length of the seizure.

As an explanation for why he was caught, defendant told Sparks that he was on the client list. He further told Sparks that police had found one of her earrings and stated: "I fucked up. She lost an earring." Sparks testified that he had no plea agreement for the escape charge when he reported this conversation to police. He further testified that he knew nothing about the case until his conversation with defendant.

Evidence of defendant's pre-homicide actions was presented which could support an inference of premediation or an opportunity to give his actions a second look.

Katherine Richter, formerly defendant's second wife, testified that she visited defendant in his apartment twice on January 30, the date their divorce became final. She first visited him in the afternoon, arriving at 3:23 p.m. and leaving by 3:55 p.m. She delivered the final divorce papers and had defendant sign off of their joint bank account. According to her testimony, defendant told her that he had a gift to give her as a memento of the marriage but that he had not yet received it. She further testified that they had sexual relations at his request. She testified that defendant threw the gift, an Avon necklace, at her when she visited him the second time, shortly after midnight.

Janet Ann Poley, an acquaintance from the Seventh Day Adventist Church, testified that defendant's apartment was dark between 6:15 p.m. and 6:20 p.m. when she stopped to pick him up for [158 Mich.App. 311] the weekly Monday evening revelation seminar at church. She and her husband had befriended defendant during his divorce and regularly picked him up for the seminars three nights each week and for the Sabbath service. As had been the habit for the previous two months, Poley...

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40 practice notes
  • State v. Steiger, No. 13766
    • United States
    • Supreme Court of Connecticut
    • April 16, 1991
    ...weigh their relevance properly. Eaton v. State, supra; State v. Garcia, supra, 233 Kan. at 600-601, 664 P.2d 1343; People v. Furman, 158 Mich.App. 302, 326-27, 404 N.W.2d 246, appeal denied, 429 Mich. 851 (1987); State v. White, supra, 60 Wash.2d at 568, 374 P.2d 942; see Page 423 Pisel v. ......
  • Com. v. Trill
    • United States
    • Superior Court of Pennsylvania
    • July 8, 1988
    ...Caldwell v. State, 257 Ga. 10, 354 S.E.2d 124 (1987); People v. Fierer, 151 Ill.App.3d 649, 503 N.E.2d 594 (1987); People v. Furman, 158 Mich.App. 302, 404 N.W.2d 246 (1987); People v. Ramsey, 422 Mich. 500, 375 N.W.2d 297 (1985); People v. DeWit, 123 Ill.App.3d 723, 463 N.E.2d 742 (1984); ......
  • People v. Howard, Docket No. 172633
    • United States
    • Court of Appeal of Michigan (US)
    • November 25, 1997
    ...the state of mind exception to the hearsay rule, MRE 803(3), as a declaration of where Terry Lamb intended to go. People v. Furman, 158 Mich.App. 302, 316, 404 N.W.2d 246 Defendant argues that the trial court erred in denying his request for a complete transcript of his first trial. Followi......
  • People v. Coy, Docket No. 217707.
    • United States
    • Court of Appeal of Michigan (US)
    • January 10, 2001
    ...statistical analysis,3 defendant did not timely object at trial to the DNA expert's testimony. MRE 103(a)(1); People v. Furman, 158 Mich.App. 302, 329-330, 404 N.W.2d 246 "Mere forfeiture, [however], does not extinguish an `error.'" People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000......
  • Request a trial to view additional results
40 cases
  • State v. Steiger, No. 13766
    • United States
    • Supreme Court of Connecticut
    • April 16, 1991
    ...weigh their relevance properly. Eaton v. State, supra; State v. Garcia, supra, 233 Kan. at 600-601, 664 P.2d 1343; People v. Furman, 158 Mich.App. 302, 326-27, 404 N.W.2d 246, appeal denied, 429 Mich. 851 (1987); State v. White, supra, 60 Wash.2d at 568, 374 P.2d 942; see Page 423 Pisel v. ......
  • Com. v. Trill
    • United States
    • Superior Court of Pennsylvania
    • July 8, 1988
    ...Caldwell v. State, 257 Ga. 10, 354 S.E.2d 124 (1987); People v. Fierer, 151 Ill.App.3d 649, 503 N.E.2d 594 (1987); People v. Furman, 158 Mich.App. 302, 404 N.W.2d 246 (1987); People v. Ramsey, 422 Mich. 500, 375 N.W.2d 297 (1985); People v. DeWit, 123 Ill.App.3d 723, 463 N.E.2d 742 (1984); ......
  • People v. Howard, Docket No. 172633
    • United States
    • Court of Appeal of Michigan (US)
    • November 25, 1997
    ...the state of mind exception to the hearsay rule, MRE 803(3), as a declaration of where Terry Lamb intended to go. People v. Furman, 158 Mich.App. 302, 316, 404 N.W.2d 246 Defendant argues that the trial court erred in denying his request for a complete transcript of his first trial. Followi......
  • People v. Coy, Docket No. 217707.
    • United States
    • Court of Appeal of Michigan (US)
    • January 10, 2001
    ...statistical analysis,3 defendant did not timely object at trial to the DNA expert's testimony. MRE 103(a)(1); People v. Furman, 158 Mich.App. 302, 329-330, 404 N.W.2d 246 "Mere forfeiture, [however], does not extinguish an `error.'" People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000......
  • Request a trial to view additional results

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