People v. King, Docket No. 18279

• Decision Date: 11 February 1975
• Docket Number: Docket No. 18279,No. 1,1
• Citation: 58 Mich.App. 390,228 N.W.2d 391
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard KING, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 391

228 N.W.2d 391

58 Mich.App. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard KING, Jr., Defendant-Appellant.

Docket No. 18279.

Court of Appeals of Michigan, Division No. 1.

Feb. 11, 1975.

Released for Publication May 7, 1975.

Leave to Appeal Denied April 24, 1975.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Michael Lang, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

DANHOF, Judge.

Defendant was tried before a jury on a charge of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548. ¹ He ws convicted of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549, and sentenced to a term of from 20 to 30 years in prison. He appeals raising 13 allegations of error.

On September 21, 1972, at approximately 10 a.m. Ceola Webster was visited by the defendant at an apartment she shared with Elzra Johnson and another couple. Defendant accompanied her to a nearby market to cash a check. The market employed an armed security guard, one Ulysses Toney, who stopped them to ascertain if they had paid for their purchases. Upon leaving the store, the defendant asked Ceola Webster what time the store closed, and stated that he wanted the guard's gun.

Defendant returned to the apartment in the company of one Amos Grady at about 6 p.m. that evening carrying a rifle that he had obtained from Elzra Johnson's brother. He wiped the rifle and bullets clean of fingerprints. At about 7 p.m., carrying the rifle, defendant left the apartment with Grady and Johnson.

Shortly after closing at 8 p.m. Ulysses Toney left the market wearing his guard uniform and proceeded up the street on foot. He had walked a short distance when he was shot numerous times by two men. As he lay on the sidewalk, his hat and handgun were taken. Two men were seen running from the area, one of them carrying a rifle, and the other a hat. Detroit police officers, who arrived at the scene at approximately 8:30 p.m., were given descriptions of the two assailants and discovered seven spent shell casings in the immediate area. Later comparison indicated that these casings had been fired from the rifle given to the defendant by Elzra Johnson's brother.

About 8:15 p.m. the defendant returned to the apartment breathing hard and exclaiming, 'I got him, I got him, I hit him eight times'. He was in the company of another person known as 'Texas Slim'. He was still carrying the rifle. Texas Slim had a guard's hat and a .38 caliber pistol. The occupants of the apartment asked them to leave and they did so taking the weapons, but leaving the hat as a 'souvenir'. Ceola Webster put the hat in a garbage can.

At trial, the defense rested without offering any evidence, relying on the theory that the defendant was not one of the two men involved in the murder. The jury was instructed on second-degree murder as a lesser included offense, and they returned a verdict of guilty of that offense. The issues advanced by the defendant will be considered in the order raised.

I

At trial, a police officer was permitted to testify over objection to the description of the assailants given to him by an eyewitness who was called to the stand by the people, but not cross-examined by the defense. Defendant now claims that the admission of this testimony was a reversible violation of the hearsay rule. We disagree.

This testimony comes within the res gestae exception to the hearsay rule. People v. Solomon, 47 Mich.App. 208, 213--214, 209 N.W.2d 257 (1973), remanded on other grounds, 391 Mich. 767, 214 N.W.2d 60 (1974), citing People v. Thomas, 14 Mich.App. 642, 165 N.W.2d 879 (1968). Moreover, any possible error is rendered harmless and moot by the fact that the eyewitness personally testified and was subject to cross-examination. People v. Rea, 38 Mich.App. 141, 195 N.W.2d 809 (1972), lv. den., 388 Mich. 795 (1972).

II

The prosecution called Elzra Johnson who had been present in the apartment at all relevant times, whose brother gave defendant the rifle, and who left the apartment with the defendant on the night in question. He admitted making and signing a statement to the police shortly after the shooting, but claimed that he did not recall making many of the statements contained therein. The prosecution offered to let him examine the statement to refresh his memory; he replied that he could not read. Over objection, the prosecution was thereupon allowed to use, for purposes of impeachment, the witness's prior inconsistent statement to the police in which he stated that the defendant told him that he had shot the security guard. Most of the witness's statement was read for this purpose, and the defense moved for a mistrial, which was denied. Defendant argues that this was error. We disagree.

Elzra Johnson was a res gestae witness in this case. He was present at a time and place very near the crime and he had knowledge of material information concerning the events surrounding it. People v. Szymanski, 52 Mich.App. 605, 218 N.W.2d 95 (1974). His presence in the company of the defendant near or at the time of the crime, regardless of what he may or may not have seen happen, is persuasive of his status as a res gestae witness. See People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973), and the cases analyzed therein.

Because the prosecution was under an obligation to call him, the prosecution had the right to impeach this witness. M.C.L.A. § 767.40a; M.S.A. § 28.980(1). The witness's response that he did not recall the questions and answers in his statement to the police, did not preclude the prosecution from using that prior inconsistent statement for purposes of impeachment. The witness recalls making the statement, he merely was unable to 'remember the specifics of the individual questions and the answers he gave'. People v. Coates, 40 Mich.App. 212, 214, 198 N.W.2d 837, 838 (1972). Consequently, as discussed in Coates, the rule in People v. Durkee, 369 Mich. 618, 120 N.W.2d 729 (1963), relied upon by the defendant here is not applicable.

III

Defense counsel requested an instruction during the examination of witness Johnson cautioning the jury that the prior statement could be considered for purposes of impeachment only, and not as substantive evidence. The trial judge declined to give such an instruction at that time, but he did give a thorough and careful limiting instruction at the conclusion of the trial. Defendant argues on appeal that it was reversible error to delay this instruction.

A similar argument was made in People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971). In that case, it was concluded that the failure of the trial court to immediately give a limiting instruction when the evidence was introduced, where the instruction was given as part of the final charge to the jury, did not constitute reversible error in the absence of a timely request or the miscarriage of justice. In so holding, the Supreme Court did not intend to promulgate a rule to the effect that reversible error results where an immediate cautionary instruction is requested, but not given. On the contrary, the Supreme Court in Kelly affirmed this Court's decision in which Judge O'Hara stated 'We hold failure in this case to give instruction immediately upon admission of the testimony was not reversible error'. People v. Kelly, 26 Mich.App. 148, 159, 182 N.W.2d 8, 13 (1970). This language appears in People v. Chism, 390 Mich. 104, 120, 211 N.W.2d 193 (1973), in which failure to give a limiting instruction at any time was held not to constitute reversible error where such an instruction was not requested. Therefore, while the better practice would be to give the limiting instruction immediately upon request of the defense, any error in the present case is harmless beyond a reasonable doubt in view of the fact that a proper instruction was given later, the evidence of defendant's guilt was overwhelming, and defendant is unable to show how he was prejudiced by the delay. The error complained of here has not resulted in a miscarriage of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096.

IV

Testimony of the other couple sharing the apartment with Ceola Webster and Elzra Johnson was received at trial. The testimony of the husband was in the form of his preliminary-examination testimony, after the wife testified that he had died during the interim. Defendant objected in the lower court as he does here that this testimony constituted an insufficient showing to justify the admission of the prior testimony.

Testimony taken at a preliminary examination, 'may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial'. M.C.L.A. § 768.26; M.S.A. § 28.1049. It was stated in People v. Boyles, 11 Mich.App. 417, 422, 161 N.W.2d 448 (1968), and repeated in People v. Hairston, 37 Mich.App. 65, 74, 194 N.W.2d 504, 508 (1971): 'The sufficiency of the showing of the prosecution's effort to establish the unavailability of a witness is a question for the trial judge and will not be disturbed in the absence of a showing of an abuse of discretion.' Defendant did not allege at trial that the witness was alive, he does not so argue now. The trial judge did not abuse his discretion.

V

Defendant objected to the admission into evidence of the seven shell casings found at the scene of the crime. He based his objection on the contention that a proper chain of custody had not been sufficiently established. He also argues that proof that the area had not been disturbed before the police arrived was inadequate to permit admission of the shell casings into evidence. He now contends that the trial court committed reversible error by not excluding the casings upon timely motion.

The objections raised by the defendant go to the weight of the evidence...