People v. Ketzner
| Decision Date | 22 May 1973 |
| Docket Number | Docket No. 10466,No. 3,3 |
| Citation | 47 Mich.App. 75,209 N.W.2d 272 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Daniel KETZNER, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John Daniel Ketzner, Jr. in pro. per.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, * JJ.
I agree with Judge Holbrook that a jury-submissible case was made by the testimony and exhibits in this case. Fact issues were created and submitted to the jury under a proper charge requiring proof of the defendant's guilt beyond a reasonable doubt. I find no basis for disturbing the jury's verdict of guilty.
As to the claimed legal errors, all of them are within the purview of M.C.L.A. § 769.26; M.S.A. § 28.1096; and GCR 1963, 529.1. The Supreme Court recently held that the statute and court rule are 'different articulations of the same idea'. People v. Robinson, 386 Mich. 551, 562, 194 N.W.2d 709, 713 (1972). That articulation is:
'No judgment or verdict shall be set aside or reversed or a new trial be granted * * * in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, * * * unless * * * it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.' M.C.L.A. § 769.26, Supra.
As mandated by Robinson, supra, and the statute itself, I have reviewed the whole record. I cannot find any suggestion that the defendant here did not have a fair trial or was in anywise denied due process. I am mindful in so holding that Robinson reaffirms what has always been the law of this state that the statute and its corollary court rule are not cure-alls for error and both must be applied within constitutional limitations. I have considered the constitutional limitations and I do not find that they have been violated as to the defendant herein.
Affirmed.
Defendant John Daniel Ketzner, Jr., was convicted in a jury trial of first-degree murder in violation of MCLA 750.316; MSA 28.548. He was sentenced to life imprisonment. He filed a motion for a new trial which was denied in trial court and has now taken this appeal as of right. The pertinent facts in the case are as follow.
At approximately 8:00 p.m. on the evening of January 22, 1970, defendant John Daniel Ketzner, Jr., and his wife Patricia arrived at the Red Coach Inn at 401 Leonard, NW, in the City of Grand Rapids. Defendant was unemployed; however, he was a former Red Coach employee and he could still 'charge' his meals and drinks at that establishment. Defendant and his wife entered the restaurant and proceeded downstairs to a room called the Village Pub where they ate dinner and had several rounds of drinks. Mrs. Sandy Gail Seyfarth, the waitress who served defendant until she was relieved at about midnight, recalled that defendant did not pay cash for anything but 'ran a tab' on everything he and his wife ordered.
Shortly after 11:00 p.m., Patricia Ketzner left the restaurant and returned home. Defendant, however, remained at the Red Coach until after closing time. After his wife departed, he moved over to the piano bar where he and a customer named Larry Glen Winnie passed the next few hours with off-duty waitresses Christine Brown and Loretta Stocking by playing the piano and singing. Defendant was especially solicitous of Miss Stocking; he ordered several drinks for her, insisted that she sit with him and asked her to join him for an early breakfast after 'last call', which invitation she politely declined.
When bartender Christopher Schaffner announced 'last call' at shortly before 2:00 a.m., defendant ordered a final round of drinks. He was then presented with his bar tab by Miss Beverly Mae Brady, who had relieved Mrs. Seyfarth as defendant's waitress sometime after 10:00 p.m. Defendant asked her if he could 'sign it' and, after clearing it with Mr. Schaffner, Miss Brady replied that he could. Defendant thereupon signed his tab and told Miss Brady he would write in a $5 tip for her if she would return $2 of it in cash to him. Miss Brady complied with this request and when she returned with his two one-dollar bills, defendant asked her to purchase him a package of Pall Mall cigarettes out of one of them. Once again, Miss Brady followed defendant's instructions and, not realizing that there was a cigarette machine in the nearby Wine Cellar because she normally worked in the upstairs dining rooms, she went all the way upstairs to purchase the cigarettes defendant requested.
After signing his tab and receiving his cigarettes from Miss Brady, defendant stood up and said something like 'about time to go home, or 'well, I might just as well go home, call a cab and go home'. He then picked up his hat and coat and 'started for the exit, toward the north side of the building where the door is that you go out'. He did not, however, walk all the way over to that door, nor did he exit through it. Instead, as Miss Stocking clearly recalled, defendant walked past where she was sitting 'and then he went around the corner of the bar into the back room' at about 2:15 a.m. Miss Stocking did not think anything of the fact that defendant went into this back storage room because, as she testified, 'I knew he had worked there at one time and I figured he was going to say good night to somebody'. That was the last time defendant was seen that morning by anyone in the Red Coach Inn. Neither Miss Stocking nor any of the other patrons and employees of the Village Pub room ever saw him emerge from the back storage room. Everyone Assumed tha he had carried out his pointedly announced intention of going home.
Shortly after defendant disappeared into the back storage room, Mr. Winnie, who was still seated at the piano bar, turned to Miss Brown and asked her if she could get him some cigarettes. Miss Brown indicated that she could and, knowing that there was a cigarette machine located in the nearby Wine Cellar, she proceeded to that location and purchased a pack of the brand requested by Mr. Winnie. While in the Wine Cellar, Miss Brown noticed that the cigarette machine was well lighted and that the room itself was further illuminated by 2 or 3 'hanging lights'. She definitely remembered that neither defendant nor anyone else was present in the Wine Cellar during the time she was there purchasing cigarettes.
Miss Brown returned to the Village Pub and handed Mr. Winnie his cigarettes. Relating the time sequence of defendant's departure to the purchase of his cigarettes by Miss Brown, Mr. Winnie testified, As soon as Mr. Winnie received his cigarettes, Mr. Schaffner told everyone that it was time to close and Mr. Winnie thereupon got up and left, returning directly to his home in Jenison. It was then approximately 2:25 a.m.
The others left at that time also but Miss Stocking and Miss Brown waited outside for Mr. Schaffner and his assistant, Charles F. Avery, who was being 'broken in' as a new bartender that night, so they could all have breakfast together at Russo's Italian Restaurant on nearby Bridge Street. Mr. Schaffner and Mr. Avery then finished the job of closing the restaurant inside. They secured the evening's cash receipts in the 'usual place' on the bottom shelf of a little cabinet behind the bar and began turning off the lights and locking doors. In the process, they found the Wine Cellar, as had Miss Brown a few minutes earlier, well lighted and unoccupied by anyone, including defendant. They also locked the door of the back storage room from the outside so that anyone on the inside would be locked in at least until Gerald Gordon Dudley, the night janitor, opened the room to obtain cleaning supplies as he did each morning.
Mr. Schaffner and Mr. Avery then locked all the outside doors and proceeded on their way to breakfast at Russo's with Miss Stocking and Miss Brown. On their way out they said good night to Mr. Dudley, a young family man, then 27 years old, who worked as the night clean-up man at the Red Coach. He had left his pregnant wife and young child at 11:00 p.m. to go to work that night, just as he did every other working night. When Mr. Schaffner and Mr. Avery left him at sometime between 2:30 a.m. and 2:45 a.m., Mr. Dudley was working in the kitchen upstairs, not having gone down to clean the Village Pub as yet. With all of the outside doors secured, they left him locked inside the Red Coach. That was the last time Gerald Gordon Dudley was seen alive.
At approximately 6:55 a.m., Father Pedro Garcia of St. Andrew's Cathedral in Grand Rapids was awakened by a telephone call from defendant Ketzner. Defendant indicated that he wanted to see Father Garcia right away and that he thought he had just witnessed a murder. Father Garcia told him to come directly to St. Andrew's rectory, located at 267 Sheldon, SE. Defendant agreed to do so and met the priest at the rectory at about 7:25 a.m. At this point, defendant related for the first time his version of the events which had transpired earlier that morning at the Red Coach Inn.
Defendant told Father Garcia that while drinking in the Village Pub room of the Red Coach that morning, he had become sleepy along toward last call. Accordingly, he got up and walked into the Wine Cellar, put his head down on a table and fell asleep. At about 4:00 a.m., defendant continued, he was awakened by the sound of the vacuum cleaner being operated by Mr. Dudley in the Village Pub. Looking out from the Wine Cellar, he saw Mr. Dudley hard at...
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