People v. Fuzi

• Decision Date: 01 September 1982
• Docket Number: Docket No. 53339
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wendell Albert FUZI, # 1 Defendant-Appellant. 116 Mich.App. 246, 323 N.W.2d 354
• Court: Court of Appeal of Michigan — District of US

Page 354

323 N.W.2d 354 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Wendell Albert FUZI, # 1 Defendant-Appellant. Docket No. 53339.
116 Mich.App. 246, 323 N.W.2d 354 Court of Appeals of Michigan. Submitted March 5, 1982.
Decided May 19, 1982.
Released for Publication Sept. 1, 1982.

Page 355

[116 MICHAPP 248] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and William E. Molner, Asst. Atty. Gen., for the People.

Terence R. Flanagan, Asst. State Appellate Defender, for defendant-appellant.

Before WALSH, P. J., and CYNAR and HOOD, ^* JJ.

WALSH, Presiding Judge.

Defendant, Wendell Albert Fuzi, was charged with the first-degree murder (felony) of Gordon Clark in Wexford County. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Defendant's motion for change of venue was granted. He was found guilty [116 MICHAPP 249] as charged by an Isabella County jury. He was sentenced to life imprisonment to be served in solitary confinement at hard labor.

In exchange for her testimony in this case and in a Manistee County case where defendant was charged with the murder of William Mowrey ¹, Susan Mishler was granted immunity from prosecution in the two cases.

Ms. Mishler testified that defendant came to her home on the evening of May 10, 1979. They drove around Cadillac for a while and picked up William Mowrey. After discussing where they might be able to get some money, they drove to the apartment of 77-year-old Gordon Clark. Mowrey and defendant went up to the apartment. Mishler stayed in the car. About 15 minutes later, Mowrey and defendant came running back to the car and all three drove to Berry Lake. Mowrey appeared sick but defendant was laughing. Defendant said he had knocked down the old man and had taken a wallet from the apartment. Mowrey and defendant divided the money and defendant threw the wallet in the lake. Mishler drove Mowrey and defendant home and returned to her own home. Later that evening, defendant and Mishler's friend Norma Ray came to Mishler's house. All three drove to Clark's apartment. Norma Ray and defendant

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went into the apartment and came out with another wallet. They all went home.

The next morning, Mishler, Mowrey and defendant drove to a wooded area in Manistee County where defendant killed Mowrey. Defendant told Mishler that he had to kill Mowrey because Mowrey "knew too much". The jury was instructed that evidence of the killing of Mowrey was admitted[116 MICHAPP 250] for the limited purpose of showing defendant's consciousness of guilt for the killing of Mr. Clark.

Defendant was apprehended in a Wexford County breaking and entering on August 3, 1979. At that time, defendant led police to the wooded area in Manistee County where Mowrey's body was located. Defendant also told the police that Gordon Clark had been murdered. Although Clark's death was originally attributed to a heart attack, his body was disinterred in August, 1979, and an autopsy revealed that his death had been caused by blows to his body from a blunt object.

Evidence of various confessions by defendant was admitted. Defendant testified at trial that he had been drinking alcohol and taking drugs on May 10, 1979. He could not recall many of the events of May 10, 1979. The theory of the defense was insanity.

The first issue raised by defendant on appeal concerns the trial court's ruling that evidence of Mishler's knowledge of, and involvement in, several killings other than the Clark and Mowrey homicides, for which she had been granted immunity, could not be introduced at trial. Sometime prior to trial, Mishler had given a list of 13 homicides which had allegedly occurred in various Michigan counties to Nelson Gelinas, a police investigator. Mishler had admitted involvement in at least some of the alleged homicides. Of the 13 homicides, the police had been able to confirm only the Clark and Mowrey killings. The other homicides were not related to the Clark and Mowrey cases. Mishler notified the trial court in this case that she would assert her Fifth Amendment privilege against self-incrimination if questioned about the other homicides. The trial court ruled that neither Mishler nor Gelinas could be questioned [116 MICHAPP 251] about the other homicides. Defendant argues that the effect of this ruling was to deny him his constitutional right to the confrontation of witnesses. U.S.Const.Am.VI; Const.1963, art. 1, Sec. 20.

In United States v. Cardillo, 316 F.2d 606 (CA 2, 1963), the court discussed the assertion of a...