People v. Hence, Docket No. 52070

CourtCourt of Appeal of Michigan (US)
Citation312 N.W.2d 191,110 Mich.App. 154
Docket NumberDocket No. 52070
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry HENCE, Jr., Defendant-Appellant. 110 Mich.App. 154, 312 N.W.2d 191
Decision Date06 October 1981

Page 191

312 N.W.2d 191
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Henry HENCE, Jr., Defendant-Appellant.
Docket No. 52070.
110 Mich.App. 154, 312 N.W.2d 191
Court of Appeals of Michigan.
Oct. 6, 1981.
Released for Publication Nov. 18, 1981.

Page 193

[110 MICHAPP 157] 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.

Walter S. Schwartz, Southfield (Martin B. Alvin, Southfield, of counsel), for defendant-appellant on appeal.

Before RILEY, P. J., and CYNAR and GAGE, * JJ.

[110 MICHAPP 158] RILEY, Presiding Judge.

On November 28, 1978, defendant was charged, along with codefendant, Raymond Gallagher, with first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and conspiracy to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1). Also named as coconspirators, but not codefendants, were Phillip Edmonds and Norman Robinson. Following a lengthy joint jury trial, both defendants were convicted as charged. On November 29, 1979, defendant Hence was sentenced to concurrent terms of life imprisonment on each count. Defendant appeals as of right, raising seven claims of error which we shall consider seriatim. Codefendant Gallagher is not involved in this appeal.

This case arose from the fatal shooting of Leon Sommers on May 11, 1978, at his home in Taylor, Michigan. The victim was found lying on a couch in the living room of his home, shot through the head four times at close range, apparently with his own gun.

The transcript reveals that witnesses testified that the victim allegedly was involved in stolen auto parts and/or drug trafficking in the downriver Detroit area. Most of the trial witnesses were also involved in these illegal activities, as was codefendant Gallagher.

Five weeks prior to the victim's death, codefendant Gallagher was convicted of interstate transportation of a stolen motor vehicle in an Ohio Federal District Court, based largely on the testimony of the victim. The prosecution's theory in the instant case was that between April 18, 1978, and May 13, 1978, (i. e., postconviction and presentencing on his Federal conviction), Gallagher, outraged by the victim's testimony against him, hired Phillip Edmonds, who in turn hired Norman Robinson[110 MICHAPP 159] and defendant Hence, the "hit-men", to kill the witness-victim. Hence denied knowing Gallagher and denied any knowledge of a conspiracy to kill the victim. Hence also presented an alibi defense, asserting he was home with his wife and a friend at the time of the shooting. The police eventually were led to Robinson by virtue of Robinson's fingerprint left on the adhesive tape which bound the hands of the victim. Robinson's statements, in turn, apparently led the police to Hence and Edmonds. Edmonds' statements apparently led to Gallagher.

The victim's wife testified that she returned home from work at 5:30 p. m. on May 11, 1978, and found her husband dead. Horrified, she called the police from the home of her next door neighbor. After the body had been removed, she returned to her home where she found that their bedroom had been ransacked and that, among other things, the victim's digital watch was missing. A gun which her husband owned and had kept under the mattress in the bedroom was also missing. (The police had found the gun on the couch. Ballistics confirmed later that it was the murder weapon.)

Due to the extremely complicated nature of this case and the voluminous evidence produced at trial, further significant facts will be noted only as they relate to the issues raised on appeal.

I.

A Georgia State Trooper testified that on August 10, 1978, he was on routine patrol on an interstate highway near Atlanta, Georgia, when he observed a Thunderbird automobile with improper license tags. Having run a check on the license plate number to determine registration, he

Page 194

stopped the vehicle and, believing Hence to be the person [110 MICHAPP 160] named on the driver's license presented, placed him in the police vehicle for the purpose of charging him with using fraudulent tags. The trooper then returned to the Thunderbird, talked to Hence's passenger (an apparent hitchhiker), noted a briefcase in the passenger's compartment, and returned to the police vehicle to call for a wrecker to impound the Thunderbird. Hence then informed the trooper that the car was not stolen and urged him to check the trunk. Upon doing so, the trooper found three automobile license plates, one from Alabama and two from Michigan. At that time, he turned and saw Hence escaping from the police car.

Hence was apprehended and arrested a short time later. The trooper ran the numbers on the Michigan plates found in the trunk of the Thunderbird on the LEIN System and ascertained that the party on the driver's license (which had borne a false name) was really Hence and that Hence was wanted by the authorities in Taylor, Michigan. The Thunderbird apparently had been leased to Hence by a firm in Michigan.

The trooper at the scene then made an inventory search of the trunk and the passenger compartment of the car and the briefcase which was not locked. He came upon birth certificates, driver's licenses, social security cards, and proof of insurance receipts, all of which were fraudulent. He also found two pistols, a black baretta, and a .38-caliber revolver. In addition, he found a digital watch. The trooper further testified that it was standard procedure to inventory items in this manner before releasing the vehicle to the private towing company.

The first issue concerns the admissibility of the .38-caliber revolver found in the briefcase. It was [110 MICHAPP 161] the people's theory that this was the weapon Edmonds and Robinson testified Hence had shown them at the conspiratorial meeting in late April of 1978 and was also the weapon that defendant Hence took to the victim's house the morning defendant Hence shot and killed the victim, using the victim's gun rather than the .38-caliber revolver. Edmonds testified during trial that at the meeting in late April of 1978, defendant Hence had carried a suitcase which contained a .38-caliber blue steel revolver.

After holding an evidentiary hearing, the court ruled that the search was a legal inventory search and denied the motion to suppress the evidence. As such, the gun was admitted as an exhibit, and Robinson later testified that it did look similar to the gun Hence had in his briefcase at the April, 1978, meeting and was similar to the weapon Hence took with him the morning of the shooting.

Defendant attacks the trial court's decision to admit the weapon on three grounds. First, he claims that the gun was not sufficiently identified to justify admission.

The appropriate rule to be followed in determining whether a physical item should be admitted as evidence was stated in People v. Burrell, 21 Mich.App. 451, 456-457, 175 N.W.2d 513 (1970), quoting 22A C.J.S., Criminal Law, § 709, pp. 949-951:

" 'To justify the admission, a proper foundation must be laid, and such articles must be identified as the articles they are purported to be, and shown to be connected with the crime or with the accused; however, such identification is not required to be positive, absolute, certain, or wholly unqualified, and where there is some evidence for this purpose, objections to its sufficiency go to the weight rather than the admissibility of the articles in question.' "

[110 MICHAPP 162] In short, there must be sufficient evidence of (1) the exhibit's identity and (2) its connection to the crime to support its admission at trial. People v. Kemp, 99 Mich.App. 485, 489, 298 N.W.2d 1 (1980), People v. Kremko, 52 Mich.App. 565, 573, 218 N.W.2d 112 (1974). A witness is not required to positively identify the weapon as being the weapon used in the crime, People v. Howard, 391 Mich. 597, 218 N.W.2d 20 (1974), and it is not error requiring reversal to admit a "similar" weapon. People v. Clark,

Page 195

63 Mich.App. 334, 234 N.W.2d 511 (1975). Further, a weapon is not necessarily inadmissible where it is conceded, as in this case, that it is not the weapon which was used in the crime charged. People v. Kramer, 103 Mich.App. 747, 303 N.W.2d 880 (1981), Clark, supra. This Court will not reverse the trial court's conclusion that there is sufficient identification absent an abuse of discretion. Kramer, supra.

Applying these principles, we cannot say that the trial court abused its discretion in admitting the gun. Robinson's testimony, coupled with that of Edmonds, established that the weapon was similar to the weapon he saw in Hence's possession. In addition, we likewise are unprepared to hold that the judge abused his discretion in finding that the probative value of admitting the weapon outweighed its prejudicial effect. MRE 403, People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976), People v. DerMartzex, 390 Mich. 410, 213 N.W.2d 97 (1973).

Defendant also contends that the search and seizure made by the Georgia trooper was unconstitutional and that the court erred in not suppressing the weapon.

A trial court's ruling at a suppression hearing will not be overturned unless that ruling is found [110 MICHAPP 163] to be clearly erroneous. People v. Erskin, 92 Mich.App. 630, 642, 285 N.W.2d 396 (1979), People v. Young, 89 Mich.App. 753, 282 N.W.2d 211 (1979). In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme Court upheld the use of routine inventory searches designed to protect the police and a defendant from claims of personal injury, lost or stolen property, or where the search was not intended to conceal other investigatory motives. In People v. Merchant, 86 Mich.App. 355, 361, 272 N.W.2d 656 (1978), this Court noted that Opperman "clearly allows the opening of closed containers taken into custody by the police under standard...

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