People v. Hall

• Decision Date: 05 June 1978
• Docket Number: Docket No. 26791
• Citation: 269 N.W.2d 476,83 Mich.App. 632
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George N. HALL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 476

269 N.W.2d 476

83 Mich.App. 632

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George N. HALL, Defendant-Appellant.

Docket No. 26791.

Court of Appeals of Michigan.

June 5, 1978.

Released for Publication Sept. 7, 1978.

Reid & Reid, P. C., by Joseph D. Reid, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Lee Wm. Atkinson, Chief Appellate Atty., Lansing, for plaintiff-appellee.

Before QUINN, P. J., and V. J. BRENNAN and BOSMAN, ^* JJ.

V. J. BRENNAN, Judge.

Defendant George N. Hall was convicted by a jury in Ingham County Circuit Court on a multiple count information which consisted of three counts of murder, three counts of felony murder, one count of assault with a dangerous weapon with intent to commit murder and one count of assault with intent to rob while being armed. He was tried jointly with codefendant Leo McGill on September 15-18, 22-25 and October 6- 9, 13-16, 20 and 22-24, 1975. McGill was found not guilty on every count. Defendant was found guilty on all eight counts. On December 1, 1975, defendant was sentenced to a term of life imprisonment on each of the eight counts. Defendant appeals as a matter of right under GCR 1963, 806.1.

Little dispute exists about the events leading up to defendant's conviction. Early in the morning of January 30, 1975, defendant was a participant in a card game at the home of John Fowler in East Lansing, Michigan. At about 3 a. m. defendant and Lawrence Chappell became involved in an altercation. Testimony at trial indicated that defendant produced a knife and threatened Chappell with violence. Eventually the parties returned to their card game and defendant left the building at 5 a. m. At that time only Lawrence Chappell, Charles Bovinette, N. A. Gaulden and John Fowler remained at Fowler's residence. Half an hour later, defendant went to the home of Karen Lawson and demanded the return of firearms he had left with her.

Testimony regarding the actual murders was produced by N. A. Gaulden, the lone survivor of the incident. At about 6 a. m., defendant and another man identified as Leo McGill returned to the home where the card game was being played. Defendant was refused his request to rejoin the game because he had no money. Defendant responded, "Never mind, it doesn't matter. We are taking all the money anyhow." At this point, defendant and codefendant McGill drew guns and ordered everybody to the floor. Gaulden then heard shots and saw Charles Bovinette fall, although he could not determine who had fired the shots. Next, he saw defendant shoot at Lawrence Chappell.

Defendant then told Gaulden to give him his money. After complying, he was ordered to lie on the floor. He then heard several shots and was struck twice by bullets, once in the side and once in the back. Shortly afterward, Gaulden called the police. On arrival, they found John Fowler and Lawrence Chappell dead. Charles Bovinette died on February 4, 1975.

On appeal, defendant raises several allegations of error. We will address those which merit discussion.

Defendant first contends that the trial court committed reversible error by permitting defendant to stand trial on three counts of premeditated murder and three counts of felony murder and by sentencing defendant to six life sentences where defendant is alleged to have killed only three people.

Defendant was found guilty of the following crimes: (1) separate convictions for the premeditated murder and felony murder of John E. Fowler, contrary to M.C.L. § 750.316; M.S.A. § 28.548; (2) separate convictions for the premeditated murder and felony murder of Lawrence Chappell, contrary to M.C.L. § 750.316; M.S.A. § 28.548; (3) separate convictions for the second-degree murder and felony murder of Charles Bovinette, contrary to M.C.L. § 750.317; M.S.A. § 28.549 and M.C.L. § 750.316; M.S.A. § 28.548; (4) separate convictions for assault with intent to commit the crime of murder and assault with intent to rob while armed of N. A. Gaulden, contrary to M.C.L. § 750.89; M.S.A. § 28.284 and M.C.L. § 750.83; M.S.A. § 28.278. The propriety of convicting and sentencing defendant on the two assault counts is not contested on this appeal. However, concerning the murder counts, defendant was convicted and sentenced to six life terms for the commission of only three criminal acts. He challenges this penalty on grounds of double punishment.

We would note first that the prosecution need not have been forced to elect between the two theories of first-degree murder. People v. Cabassa,249 Mich. 543, 545, 229 N.W. 442 (1930). In Cabassa, the Michigan Supreme Court noted:

" 'When distinct offenses are charged in different counts, but are committed by the same acts, at the same time, and the same testimony must necessarily be relied upon for conviction, the prisoner cannot be confounded in making his defense, and the people ought not to be compelled to elect.' " People v. Cabassa, supra at 545, 229 N.W. at 443.

See also People v. Allan, 263 Mich. 182, 201-202, 248 N.W. 589 (1933); People v. Andrus, 331 Mich. 535, 540-541, 50 N.W.2d 310 (1951); People v. Loncar, 4 Mich.App. 281, 287, 144 N.W.2d 801 (1966). In short, we find no error in the court's not requiring election by the prosecutor between premeditated murder and felony murder. No such election is required.

Nonetheless, even the prosecution concedes that defendant's six murder convictions and sentences resulted from three separate acts. We find defendant was subjected to double punishment and hold that three of the convictions and sentences must be vacated. See People v. Stewart (On Rehearing), 400 Mich. 540, 547-550, 256 N.W.2d 31 (1977); People v. Martin, 398 Mich. 303, 307-311, 313-314, 247 N.W.2d 303 (1976). See also People v. Crown, 75 Mich.App. 206, 215-216, 254 N.W.2d 843 (1977). In Crown, we vacated one of two life sentences imposed upon defendant where he had been convicted of both a felony murder and premeditated murder of a single victim. Following the procedures used there, the life sentences imposed for the felony murders of John E. Fowler and Lawrence Chappell are vacated. Similarly, the life sentence imposed for the second-degree murder of Charles Bovinette is vacated. See People v. Anderson, 62 Mich.App. 475, 482-483, 233 N.W.2d 620 (1975). Thus three life sentences may stand.

Defendant next claims the trial court committed reversible error by refusing to admit evidence relating to the defense of diminished capacity and by refusing to instruct the jury on this defense when evidence of diminished capacity was admitted. The contention is erroneous; the trial court did admit certain evidence regarding this defense and also gave an appropriate instruction although not specifically labelled "diminished capacity".

Review of this record leads us to conclude that defendant was not prejudiced by the trial court's ruling. We find defendant was able to present evidence of diminished capacity by means of the testimony of Dr. Arnold Werner. This witness testified that defendant exhibited some amnesia, had not slept much prior to the murders and had suffered a blow to the head at some time. This testimony was extensive enough to provide the jurors with sufficient evidence to consider whether defendant's specific intent was negated by diminished capacity. Other testimony provides only cumulative information to that provided by Dr. Werner. The jury had the benefit of all relevant evidence relating to the defense. We find no basis for reversal here.

Moreover, the following summation of defendant's argument was made to the jury by the trial court:

"It is defendant Hall's position that because of the excessive use of alcohol coupled with lack of sleep and use of amphetamines That he was unable to formulate the specific intent to kill and rob. Furthermore, that he contends that he received certain blows to the head which complicated his thinking process." (Emphasis added.)

In addition to instructing the jury as to the intent required for each crime charged, the court noted the following:

"When a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist."

In addition, both attorneys referred to the "concussion" theory in their closing argument. Therefore, we feel that the trial court adequately apprised the jury as to defendant...