People v. Goree

• Decision Date: 04 May 1984
• Docket Number: Docket No. 56266
• Citation: 132 Mich.App. 693,349 N.W.2d 220
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brady GOREE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 220

349 N.W.2d 220

132 Mich.App. 693

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brady GOREE, Defendant-Appellant.

Docket No. 56266.

Court of Appeals of Michigan.

Submitted June 28, 1982.

Decided March 20, 1984.

Released for Publication May 4, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Kent County Pros. Atty., Carol S. Irons, Chief Appellate Asst. Pros. Atty., and David M. Schieber, Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant-appellant.

Before MAHER, P.J., and KELLY and TAHVONEN, ^* JJ.

TAHVONEN, Judge.

Brady Goree was convicted by a jury of both premeditated and felony murder arising out of the death of Janice Kahn on February 20, 1980. He appeals as of right.

Mr. Goree claims that (1) the trial court erred in admitting "similar acts" testimony, (2) the trial court erred in admitting "blood-typing" evidence and (3) his convictions for both premeditated and felony murder constitute "double jeopardy".

We conclude that the trial court did not abuse its discretion in admitting the challenged similar acts and blood-typing evidence but that the defendant's double jeopardy claim is well-founded. Accordingly, we affirm the felony murder conviction and vacate the premeditated murder conviction.

Analysis of the legal issues before us requires a clear understanding of the evidence introduced at trial.

On February 20, 1980, at about 1:15 in the afternoon, Janice Kahn was found shot to death in the back of the Prism Shop in Grand Rapids. Ms. Kahn had been shot in the head while kneeling or stooping. Her hair was disarrayed in a manner indicating that it had been grabbed or held during or before the firing of the fatal shot. The victim's skirt was raised above her waist, her shoes and pantyhose were found next to her body and semen was found on her thigh and skirt. The autopsy revealed no other signs of sexual assault.

A police crime technician testified that there was no money in the cash drawer after the murder, although the shop's owner stated that there was at least $50 in the register as of 10 o'clock that morning. A receipt lying on the rear counter in the store was made out to "John Smith" of "1922 Greenville Drive, Grand Rapids". No significant fingerprints were found on the receipt or elsewhere in the shop.

There is no road or street by the name of "Greenville Drive" in either the City of Grand Rapids or in Kent County. However, an employee of a local car dealership testified that defendant filled out a credit application for an automobile on February 14, 1980 (six days before the murder), listing his nearest relative as "Shirlene Smith" of "Greenville Drive". Defendant's sister, Shirlene Smith, does live on Greenview Drive, which is a street in Kent County. Defendant's grandmother accompanied him to the dealership on the 14th, but contended that Smith's address had been correctly given as Greenview Drive.

After the murder, the shop's owner found one $40 lamp in the lay-away area; the "John Smith" receipt indicated that a deposit of $10 had been made on the lamp.

Several witnesses placed defendant in or near the store between the hours of 10:40 a.m. and 1:00 p.m. on the day of the murder.

Norma VanKuiken testified that she was in the store from 10:40 a.m. to 11:10 a.m. on February 20 and that while she was there defendant came in and talked to the victim for ten minutes. Defendant purchased nothing, although he displayed a $10 bill and Kahn told him to come back later.

Ernestine Maze, a neighbor and acquaintance of defendant, testified she saw defendant several times on February 20 while she was in downtown Grand Rapids for a dentist appointment. She first saw defendant about 11:30 a.m. before she had some teeth pulled. At about 12:15 p.m. Ms. Maze left the dentist's office and shopped for an hour. She saw defendant again and spoke with him briefly. The third time Ms. Maze saw defendant was on a return trip home while she was in a cab. At about 1:30 p.m. she saw defendant downtown walking toward Division Street. Ms. Maze's cabdriver, Mr. John Feutz, testified that his daily log reflected picking up Ms. Maze at about 1:30 p.m. on February 20 at a downtown Revco store. Mr. Feutz recalled Ms. Maze saying, "I know that man" about someone she saw while the cab waited at a traffic signal around Fulton and Division Streets.

Miguel Berrios testified that he had known the defendant for several months prior to February 20 and had met with him at his downtown Grand Rapids office between 11:00 and 11:30 a.m. on that date.

Elsa Kerr and Chantell Milligan were in the Prism Shop on their lunch hour from 12:20 to 12:40 p.m. and saw Ms. Kahn in the shop waiting on a woman customer. Renee Kosprzak, present in the store from 12:55 p.m. to 1:00 p.m., saw no one.

Fred Johnson, an acquaintance of defendant's, saw him walking on Ionia Street just in front of the Prism Shop sometime between 12:55 p.m. and 1:00 p.m.

The examining pathologist testified that Ms. Kahn died of a contact gunshot wound to the top of her head. During the course of the autopsy, the pathologist removed dried semen from the victim's upper right thigh and said he believed semen stains were on her skirt. No semen was found in any body cavity and there were no findings of trauma indicative of forced penetration. At the scene, the blood splatter pattern suggested that the victim was shot while kneeling, bending or stooping over. Bruising of skin over the knee-cap was consistent with the suggestion that she was kneeling. Her hair was disarrayed in a manner indicating it had been grabbed or held. Testimony from a police officer was to the effect that Ms. Kahn had been killed by a .38 or .357 caliber handgun.

The challenged "blood-typing" evidence consisted of the testimony of Glen Moore, a qualified crime laboratory technician. Mr. Moore told the jury that blood serology analysis revealed:

(1) That the semen found on the victim's skirt came from a non-secretor, PGM type 1.

(2) That defendant is a non-secretor, PGM type as are 12% of the population, and could have been the source of the semen.

(3) That the victim's husband could not have been the source (he is PGM type 2).

The "similar acts" evidence consisted of the testimony of Kathy Blanchard, who worked in downtown Grand Rapids at the Wigwam Shoppe on South Division Street. On January 14, 1980, at about 10:30 a.m. while Ms. Blanchard was clerking in the store alone, defendant came in to buy a wig. As Ms. Blanchard was about to write defendant a receipt, he pulled a gun out and forced Ms. Blanchard to put the money from the cash register in a bag. At gunpoint, defendant ordered Ms. Blanchard to go to the back of the store. Defendant told Ms. Blanchard to remove her boots and pantyhose, which she did. He then made Ms. Blanchard lie on her back on the floor with her skirt raised up. Defendant unzipped his pants and exposed his penis. Defendant next forced Ms. Blanchard to move in a variety of positions, first on her stomach and then on her knees. While she kneeled, defendant placed something around Ms. Blanchard's neck and choked her until she passed out. When Ms. Blanchard revived, her boss had returned and defendant was gone. Ms. Blanchard testified that she believed the gun the defendant had at the time was small, perhaps .22 caliber.

Although the defendant elected not to testify, the defense did present an alibi defense based upon testimony that defendant was at his sister's house from 12:00 to 12:30 p.m. and at 2:15 p.m. on February 20, 1980.

The jury convicted defendant of both premeditated and felony murder.

BLOOD-TYPING EVIDENCE

The trial court permitted the prosecutor to introduce blood-typing evidence including the defendant among 12% of the male population that could have been the source of the semen found on the decedent's thigh and skirt and excluding the decedent's husband as a possible source. Defense counsel's specific and timely objection preserved this issue for our review.

Panels of this Court differ on the admissibility of blood-typing evidence offered to include a particular defendant among a class of serologically possible perpetrators. Compare People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669, lv. den. 407 Mich. 933 (1979), with, for example, People v. Camon, 110 Mich.App. 474, 313 N.W.2d 322 (1981). Until our Supreme Court authoritatively speaks to the question, perhaps further analysis at this level appears superfluous. But our duty to provide a principled decision in this case requires that we state plainly our views on this divisive issue.

Evidence having any tendency to make a consequential fact more or less probable is relevant, MRE 401, and generally admissible, MRE 402, but may be excluded where its probative value is substantially outweighed by, among other things, the danger of unfair prejudice, MRE 403.

Whether or not Mr. Goree was the source of the semen found on the decedent's thigh and skirt is a consequential fact, i.e., a "fact that is of consequence to the determination of the action". MRE 401. Evidence that the defendant is among only 12% of the male population that could have been the source tends to make it more probable that he was the source. Such evidence is therefore relevant. MRE 401.

There is no constitutional provision, statute, court rule or rule of evidence that bars introduction of such evidence in a case of this nature. It is therefore generally admissible. MRE 402.

The Michigan Rules of Evidence recognize that even this otherwise admissible blood-typing evidence should be excluded by the trial court if the judge finds that its probative value is substantially outweighed by, among other things, the danger of unfair prejudice to the defendant. MRE 403. This weighing of the contribution the proposed evidence will make in the factfinding process against the danger that the outcome will be affected by improper considerations is...