People v. Hamp

• Decision Date: 06 October 1981
• Docket Number: Docket No. 50228
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clark Elet HAMP, Defendant-Appellant. 110 Mich.App. 92, 312 N.W.2d 175
• Court: Court of Appeal of Michigan — District of US

Page 175

312 N.W.2d 175

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clark Elet HAMP, Defendant-Appellant.

Docket No. 50228.

110 Mich.App. 92, 312 N.W.2d 175

Court of Appeals of Michigan.

Oct. 6, 1981.

Released for Publication Nov. 18, 1981.

Rehearing Denied Nov. 23, 1981.

[110 MICHAPP 95] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, and A. George Best, II, Asst. Pros. Attys., for the People.

Lynn P. Chard and Stuart B. Lev, Asst. State Appellate Defenders, for defendant-appellant on appeal.

Before V. J. BRENNAN, P. J., and T. M. BURNS and PANNUCCI, ^* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant was convicted of conspiracy to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 750.316; M.S.A. § 28.548, aiding and abetting first-degree murder, M.C.L. § 767.39; M.S.A. § 28.979 and M.C.L. § 750.316; M.S.A. § 28.548, and of possessing a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to serve concurrent terms of life imprisonment for the conspiracy to commit murder and aiding and abetting murder convictions. He was sentenced to serve 2 years in prison for the felony-firearm conviction. Defendant appeals as of right.

On appeal, defendant raises numerous issues, none of which we find individually or collectively warrants reversal. We address them seriatim.

[110 MICHAPP 96] Defendant first argues on appeal that the trial court's pretrial ruling that certain extrajudicial statements of the defendant and codefendant were admissible into evidence at defendant's trial was clearly erroneous. We disagree.

Prior to trial, the trial court was asked to rule on the admissibility of three types of statements: (1) statements made by defendant to Linda Knazak prior to the homicide; (2) statements made by codefendant to Linda Knazak prior to the homicide; and (3) statements made by codefendant to Linda Knazak and Michael Mardigian after the homicide.

With respect to defendant's statements to Linda Knazak, the trial court was informed that Ms. Knazak would testify that in March, 1977, she called defendant at his place of employment, whereupon he acknowledged that a murder was going to take place; that he had inherited money, and that he was going to pay codefendant to commit the murder. She also would testify that defendant informed her that the reason for the murder was so that he could continue his affair with the decedent's wife. The trial court ruled that this testimony would be admissible to show the corpus delicti of the crimes charged: conspiracy to commit murder and aiding and abetting first-degree murder.

It is the well-accepted general rule that the corpus delicti of a crime must be established by evidence other than a confession or admission of the accused. In order to establish the corpus delicti of a crime, the prosecution must introduce evidence from which a trier of fact reasonably may find that acts constituting all the essential elements of the crime have been committed and that someone's criminality was responsible for the commission[110 MICHAPP 97] of those acts. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), adopting the dissent set forth in People v. Allen, 39 Mich.App. 483, 496, 197 N.W.2d 874 (1972).

However, the general rule that the corpus delicti of a crime cannot be established by evidence of a defendant's admissions is subject to judicially recognized exceptions. Statements which are admissions and which also fall within another exception to the hearsay rule have been admitted under certain circumstances to prove the corpus delicti:

"There are several types of statements which while classified as admissions are nonetheless admissible as to establish the corpus delicti. A statement which itself is an element of the offense may be admitted. People v. Lay, 336 Mich. 77 (57 N.W.2d 453) (1953). Excited utterances are admissible. A statement of a presently existing state of mind made shortly before the crime is committed is admissible to prove the crime. People v. Potter, 5 Mich. 1 (1858). In general, admissions made before the crime was committed are admissible to prove the corpus delicti. Warszower v. United States, 312 U.S. 342, 61 S.Ct. 603, 85 L.Ed. 876 (1941). A statement made roughly contemporaneously with the crime even if shortly after may be admitted to prove the corpus delicti. People v. Quimby, 134 Mich. 625 (96 N.W. 1061) (1903).

"When a defendant's statement is not simply an admission, but also falls within another exception to the hearsay rule, which gives an additional indication of truth, the statement is admissible to prove the corpus delicti.

"The policy of the rule requiring proof of the corpus delicti by proof other than a confession is not offended by admitting statements which fall within two exceptions to the hearsay rule. This is sufficient indication of the truth to overcome any reluctance to convict on the basis of a confession. A rule that was created for the [110 MICHAPP 98] salutary purpose of doing justice should not be construed in a manner that makes it merely an escape hatch for the guilty." People v. Randall, 42 Mich.App. 187, 190-192, 201 N.W.2d 292 (1972). Accord: People v. Stewart, 397 Mich. 1, 15, fn. 15, 242 N.W.2d 760 (1976).

In the instant case, we agree with the trial court's conclusion that defendant's statements to Ms. Knazak fell within one of the exceptions outlined in Randall. The defendant's statements were admissible as a declaration of a presently existing state of mind made before the crime was committed. Randall, supra, People v. McKinney, 65 Mich.App. 131, 138-139, 237 N.W.2d 215 (1975), lv. den. 397 Mich. 809 (1976), Warszower, supra. Therefore, the trial court did not err in finding that defendant's statements to Ms. Knazak were admissible and sufficient to show the corpus delicti of the crimes charged. McKinney, supra.

With respect to codefendant's pre-homicide statements to Ms. Knazak, the trial court was informed that Ms. Knazak would testify as follows:

"1. From 1972 until the spring of 1977 she and Dalsando maintained an on and off amorous relationship.

"2. In the spring of 1977 she and Dalsando and a Mr. Michael Mardigian were present in her apartment. Dalsando told her and Mardigian that a man by the name of 'Clark' (Clark Hamp) wanted to hire him to murder his girl friend's husband and would pay him $10,000.00 for the murder. There followed a discussion of possible circumstances in which the murder could be accomplished. On a subsequent occasion, in the presence of a person named 'Jimmy', another conversation was had between Dalsando and Linda in which Dalsando further discussed circumstances in which the murder could be accomplished and the purpose of the murder, i. e., Hamp's desire to continue his affair with Mrs. Taylor."

[110 MICHAPP 99] The trial court ruled that since such statements were made during the course of and in furtherance of a conspiracy, they were admissible under MRE 801(d)(2) (E). On appeal, defendant claims that since there was not independent proof of a conspiracy by a preponderance of the evidence the trial court erred in admitting the statements into evidence.

In People v. Losey, 98 Mich.App. 189, 195, 296 N.W.2d 601 (1980), the defendant made substantially the same argument.

"In a related argument, defendant further contends that the quantum of proof necessary to independently establish the conspiracy is proof by a preponderance of the evidence, not merely the establishing of a prima facie case of conspiracy, the traditional standard. Defendant argues that the adoption of the Michigan Rules of Evidence, specifically MRE 104(a), mandates this conclusion."

The Court concluded as follows:

"Our above use of the standard requiring the establishment of a prima facie case of conspiracy independent of a coconspirator's statements is by design, for this is the traditional requirement in Michigan, People v. Stewart, 397 Mich. 1, 6, 242 N.W.2d 760 (1976), People v. Scotts, 80 Mich.App. 1, 263 N.W.2d 272 (1977), and we are not persuaded that the adoption of the Michigan Rules of Evidence elevated this standard to proof by a preponderance of the evidence. See United States v. Ochoa, 564 F.2d 1155, 1157 (CA 5, 1977), which interpreted similar Federal Rules of Evidence provisions, and concluded that prima facie evidence was the proper standard for independent proofs. We dismiss defendant's claim to the contrary." Id., 98 Mich.App. 197-198, 296 N.W.2d 601.

For the reasons set forth in Losey, we conclude that defendant's argument as to the quantum of proof lacks merit.

[110 MICHAPP 100] With respect to codefendant's post-homicide statements, the trial court was advised that Ms. Knazak would testify that codefendant told her that the murder had been accomplished when he shot Mr. Taylor in the head in a bowling alley parking lot while Mr. Taylor was changing a flat tire and that Mr. Michael Mardigian would testify as follows:

"5. Subsequent to April, 1977, he and Dalsando had a conversation in the Medical Examiner's Office. He asked if the murder ever happened. Dalsando answered 'yes', that it had happened, that it had been accomplished in a bowling alley parking lot and the man who was shot had a flat tire. Dalsando said that he walked by the man and shot him and that he was assisted by a 'black guy' who works at the examiner's office. The 'black guy' drove the car."

The trial court ruled that codefendant's statements were admissible because the case of People v. Tunnacliff, 375 Mich. 298, 134 N.W.2d 682 (1965), was distinguishable and because the statements were declarations against interest under MRE 804(b)(3).

In this regard, we find that the trial court erred in its attempt to distinguish Tunnacliff as not being applicable to the instant case. As the Court stated in Ogden v. State, 12 Wis. 532, 78 Am.Dec. 754 (1860), a case relied upon...