People v. Germain

• Decision Date: 09 July 1979
• Docket Number: Docket No. 78-172
• Citation: 284 N.W.2d 260,91 Mich.App. 154
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward J. GERMAIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 260

284 N.W.2d 260

91 Mich.App. 154

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward J. GERMAIN, Defendant-Appellant.

Docket No. 78-172.

Court of Appeals of Michigan.

July 9, 1979.

Rehearing Denied Aug. 10, 1979.

Released for Publication Oct. 10, 1979.

James R. Neuhard, State Appellate Defender, by Ronald J. Bretz, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Farrell E. Elliott, Pros. Atty., Thomas Nelson, Pros. Attys. Appellate Service, Lansing, for plaintiff-appellee.

Before RILEY, P. J., and KELLY and BEASLEY, JJ.

RILEY, Presiding Judge.

On October 6, 1977, defendant was convicted by a jury of first-degree murder; contrary to M.C.L. § 750.316; M.S.A. § 28.548, in the shooting death of his girlfriend. He was sentenced to life imprisonment, appeals by right, and poses four allegations of error, two of which contain merit.

The background facts as pertinent to the issues on appeal reveal that on the evening of March 25, 1977, Lt. Robert Clary of the Sault Ste. Marie police department received a call at headquarters around 11:43 p. m. from a male identifying himself as Ed Germain. The caller asserted that he had just shot someone in his trailer home, that he was going to shoot himself, and that Clary had better send someone. The lieutenant promptly dispatched two cars to the given address. Following their arrival, the officers entered the trailer and found defendant's girlfriend lying dead of a gunshot wound on the bed. Defendant, himself shot in the chest, was lying on top of her. When questioned by one of the officers as to what happened, defendant replied that he had shot his girlfriend, Lillian TenEyck, and then shot himself. Defendant was taken to a hospital, where, following surgery, he convalesced for approximately a three-week period. During that time he was guarded in part by Deputy Sheriff Michael Baker. At both the preliminary examination and trial, Baker ascribed to defendant certain allegedly volunteered statements, given without benefit of Miranda warnings, which included defendant's own inculpatory account of the event in issue. Defendant's motion to suppress these statements was answered by a Walker hearing at which the lower court ruled them admissible as voluntary statements "made without being questioned".

Other facts are provided insofar as they are necessary to a resolution of the issues raised on appeal.

Defendant first alleges that the trial court erred in failing to instruct the jury on the elements of both voluntary and involuntary manslaughter. With respect to the former, although defendant submitted to the court a proposed instruction, no objection was proffered to its omission when the court inquired as to whether counsel was satisfied with the intended charge. The failure to so object waives appellate consideration. People v. Dixon, 84 Mich.App. 675, 685, 270 N.W.2d 488 (1978), People v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), People v. Hall, 77 Mich.App. 456, 258 N.W.2d 517 (1977), Lv. den. 402 Mich. 909 (1978). However, proper exception was taken to the trial judge's failure to instruct on involuntary manslaughter. M.C.L. § 750.329; M.S.A. § 28.561 defines that offense as follows:

"Any person who shall wound, main or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter."

The court denied defendant's request because there was no testimony adduced from which an affirmative showing could be made of defendant's state of mind. In People v. Doss, 406 Mich. 90, 98, n. 3, 276 N.W.2d 9 (1979), the Court recognized the elements of involuntary manslaughter as defined in the applicable standard Criminal Jury Instruction:

"(1) That the deceased died on or about a date;

"(2) That the death was caused by an act of the defendant;

"(3) That the defendant caused the death without lawful justification or excuse;

"(4) That the death resulted from the discharge of a firearm;

"(5) That at the time of such discharge, the defendant was pointing or aiming the firearm at the deceased; and

"(6) That at the time of such discharge, the defendant intended to point or aim the firearm at the deceased." CJI 16:4:06.

Thus, the only proof necessary to support the charge, which the prosecution concedes was in evidence in the present case, was that defendant intentionally pointed the gun at TenEyck and that she died as a result of the subsequent discharge of the firearm. Defendant was therefore entitled to the instruction. People v. Van Wyck, 402 Mich. 266, 269-270, 262 N.W.2d 638 (1978).

Nevertheless, despite the court's failure to give the requested charge, reversal of defendant's conviction is not compulsory on this ground. The jury was twice instructed as to the elements of both first and second-degree murder and convicted defendant of the higher charge, contrary to the logical result had there been doubt as to the seriousness of defendant's mental state. The trial judge's omission, therefore, was harmless. People v. Hughes, 85 Mich.App. 8, 13, 270 N.W.2d 692 (1978), People v. Richardson, 77 Mich.App. 411, 421-422, 258 N.W.2d 741 (1977).

Defendant next maintains that the trial court abused its discretion in refusing to suppress defendant's statements given Deputy Baker concerning the events of the night in question.

At the Walker hearing, Deputy Baker's preliminary examination testimony was admitted by both parties to establish the circumstances surrounding the making of defendant's purportedly involuntary declarations:

"A. (DEPUTY BAKER.) Approximately 9:15, if I remember correctly, Mr. Germain had asked me if I would crank his bed up. This I did. And afterwards I returned to my chair and was reading the paper when he started talking. He asked me you know, if I would mind him talking. I said, 'No' and continued to read the paper.

"At this point, he started talking about, apparently, what had happened the night of the shooting. He made reference to that he had some problems. He and Miss TenEyck were not getting along, she had been nagging for the last six months. He had come home that evening, and he made reference that he had four cans of beer in his refrigerator and she had drank three, prior to his arriving home, and he had drank the other one.

"At which I just nodded and, I believe, once I acknowledged that I was listening to him. He continued to state that they had gone out that night and she had been giving him a hard time nagging. I believe he said the last six months, and upon returning home she continued to keep this nagging up, apparently at which he, if I remember correctly, the quote was he told her, '(s)hut your mouth bitch'. He stated he had slapped her on the side of the head, at which time he held his fist up. I presume showing what he used to do it with.

"At this point, Mr. Germain stated she continued to keep nagging at him, at which time he slapped her along the other side of the head and he said that he could tell that he had hit her pretty hard, I believe was his words, because her eyes were swelling up on both sides of her head.

"At this point, as I recall, Mr. Germain stated he said, '(o)kay, I'll show you', and he said he went and got the shotgun. Prior to this he said he threw her on the bed. He didn't state which room this was, which bedroom this was, but he stated he had thrown her on the bed and then stated, 'I'll show you' and he said he went and got the shotgun and shot her.

"Q. (PROSECUTING ATTORNEY.) Had you asked him any questions at all?

"A. No, sir. We had talked earlier in the day but nothing in regards to what had happened that night.

"Q. Was this you only participation in this case, that of guard duty?

"A. Yes, sir.

"Q. You were not an investigating officer or anything of that nature. Is that correct?

"A. No, sir."

The trial court ruled that defendant's statements were freely given and not the result of coercion. On appeal, we reexamine the entire record in order to reach an independent determination. People v. Robinson, 386 Mich. 551, 557, 194 N.W.2d 709 (1972), People v. Dixon, supra, 84 Mich.App 681, 270 N.W.2d 488, People v. Smith, 80 Mich.App. 106, 111, 263 N.W.2d 306 (1977). In so doing we are led to the same conclusion as that of the lower court.

Defendant acknowledges that Deputy Baker never expressly questioned him, but argues that Baker's consent to defendant's desire to continue talking constituted an invitation to speak amounting to an implicit interrogation. Defendant's attempt to come within the confines of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), is without merit. Miranda proscribes the use of compelled statements derivative of "custodial interrogation" which the Court defined as "Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way". (Emphasis supplied.) 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694.

Michigan courts have consistently held that spontaneous declarations by in-custody defendants do not fall within the purview of Miranda, supra. People v. Terry, 86 Mich.App. 64, 67-68, 272 N.W.2d 198 (1978), People v. Nard, 78 Mich.App. 365, 377-378, 260 N.W.2d 98 (1977), People v. Leffew, 58 Mich.App. 533, 535-536, 228 N.W.2d 449 (1975), People v. Moore, 51 Mich.App. 48, 51, 214 N.W.2d 548 (1974). In the instant case, Deputy Baker's sole duty was to guard the defendant. He was not otherwise involved in the investigation of defendant's alleged crime. At no time during the rendition did the officer ever question defendant as to the events which the latter had recounted. Baker's testimony was that defendant asked his permission to talk before defendant broached the subject...