People v. Kozlow

• Decision Date: 23 February 1972
• Docket Number: No. 3,Docket No. 10769,3
• Citation: 38 Mich.App. 517,196 N.W.2d 792
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph KOZLOW, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 792

196 N.W.2d 792

38 Mich.App. 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph KOZLOW, Defendant-Appellant.

Docket No. 10769.

Court of Appeals of Michigan, Division No. 3.

Feb. 23, 1972.

Released for Publication May 3, 1972.

Leave to Appeal Denied June 22, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty., Gen., Robert A. Derengoski, Sol. Gen., John A. Wilson, Asst. Atty. Gen., for plaintiff-appellee.

Before QUINN, P.J., and DANHOF and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

Defendant, Joseph Kozlow, was tried and convicted of murder in the first-degree ¹ on November 10, 1969. Defendant's application for leave to file a delayed appeal was granted by this Court January 22, 1971.

The facts of this case as developed by the prosecution at the trial on the basis of investigation by the State Police are as follows: Sometime in 1968 the State Police received a tip from one Jack McKinley, a prisoner in Marquette Prison, that a crime had been committed some six years previously, the facts of which had been disclosed to him. According to this story, the defendant had related to McKinley the story of the murder and burial of one James Shannon. McKinley reported that the defendant informed him that in June 1962, while sitting behind Shannon in Shannon's car, in a remote area of Arenac County, defendant had shot Shannon in the back of the head with a single-shot, single-barrel shotgun. Defendant and his brother, Edward Kozlow, then buried Shannon in the woods and drove the car to a river to wash the blood out. A few days later, on a visit to the grave site, defendant and his brother noticed that the grave had been disturbed by animals, so they buried the body at a different site and poured lime in the grave. Defendant also told McKinley that he had buried the shotgun somewhere on his father's farm, but when it was plowed up later he had cleaned it and taken it back into his father's house. The motive for the crime allegedly was the desire of the defendant and his brother to secure the engine from Shannon's car and the money in his wallet. They drove the car around for a few days and then removed the engine from the car and ultimately sold it to a junk yard. They endeavored to disassemble the car with an ax before burying it on the property of an old man near Twining. According to McKinley, the defendant had threatened the old man with reprisal if he said anything about the incident. Further he indicated that the old man had recently moved to Pontiac to live with his daughter. Sometime after the alleged incident relatives of Shannon inquired as to his whereabouts but the defendant claimed that he was ignorant thereof and further claimed that Shannon had disappeared owing him $5, which the relatives paid him.

For six years subsequent to the events related, until Jack McKinley revealed this story, both the crime and the victim's body remained buried. With meticulous care in a seven-month investigative effort the State Police managed to piece together the evidence and developed the testimony substantiating the information they had received.

The State Police located sixty-year-old Lawrence Ecker in Saginaw, living with his daughter. They had previously lived in Arenac County. Mr. Ecker testified that the defendant had introduced him to the deceased Shannon while the latter was still alive and that defendant had later shown him where he had buried Shannon's body. He further testified that the defendant and his brother, while in his back yard, had taken an engine from a car and that afterwards the car had been stripped down, chopped with an ax, burned, and hauled away.

One Melvin Spencer partially corroborated the testimony of Lawrence Ecker. He testified that defendant had shown Mr. Ecker and himself the spot where he had buried the body. Allegedly defendant then threatened both of them with dire consequences if they dared to tell anyone. Spencer further testified that defendant had told him that it was Shannon's mistreatment of the defendant's sister that caused him to kill him.

Dennis Chrivia, a part-time deputy sheriff in 1962, testified that on June 16, 1962, he had issued a traffic ticket to defendant who had produced the license and registration of one James Shannon.

Ecker led the State Police to a place that defendant had allegedly indicated to him as the burial place of a body. Here the police found the remains of a human body, later positively identified as that of James Shannon, in a shallow grave. The skull, bearing a large hole in the rear and a fracture 'not compatible with life,' was taken from this grave and later introduced at trial without objection, as were the bones of a left leg and feet bearing evidence of a healed fracture matching one known to have been sustained by Shannon. Also introduced without objection were seven photographs, in color, of the grave site, some of them showing traces of calcium carbonate, a substance found in lime.

A single-shot, single-barrel shotgun was discovered in the home of defendant's brother, Valentine Kozlow. This weapon was admitted into evidence at the trial over objection by the defendant.

The defense in the presentation at the trial maintained that some person other than defendant, to-wit, his uncle by marriage, had the motive, temperament, and opportunity to murder James Shannon. The uncle, referred to by the defense, had been institutionalized and had committed suicide four years prior to trial. The defendant's aunt, the wife of said uncle, testified for defendant.

Defendant raises five issues on appeal which he contends constituted error. A careful examination of such contentions follows.

I. Was it error to admit into evidence the skull and bones of the deceased and photographs of the grave site?

Defendant now objects to the admission into evidence of the skull, leg, and foot bones, and photographs of the grave site on the grounds that these items were so prejudicial to a fair trial as to require a new trial even absent objection. The admission of evidence however lies within the sound discretion of the trial court and we will not disturb such exercise of discretion unless a clear abuse is demonstrated. People v. Gill, 31 Mich.App. 395, 187 N.W.2d 707 (1971); People v. Hoffman, 24 Mich.App. 244, 180 N.W.2d 99 (1970); People v. Surles, 29 Mich.App. 132, 185 N.W.2d 126 (1970). The general rule concerning admissibility of evidence was recently reiterated in People v. Surles, Supra, in which this Court said:

'In Michigan the general rule of admissibility seems to be 'that it is admissible if helpful in throwing light upon any material point in issue.' People v. Becker (1942) 300 Mich. 562, 565, 2 N.W.2d 503, 505. This rule has been refined somewhat as stated in a thorough opinion by Judge John H. Gillis in People v. Turner, Supra ² (p. 130, 169 N.W.2d p. 334) as one disallowing relevant photographic evidence 'if its possible prejudicial effect outweighs its probative value." (Footnote added.)

In examining the instant case we find that the trial court did not abuse its discretion in allowing the skull and bones, along with pictures of the grave site, to be introduced into evidence. The leg and foot bones aided in proving the identity of the deceased although they were actually not necessary to the establishment of such identity. The skull and pictures of the grave site corroborated Jack McKinley's testimony. Together this evidence helped to establish the Corpus delicti of the crime. In addition, because of the poor quality of the photographic exhibits, they could not be considered gruesome or inflammatory. See People v. Falkner, 36 Mich.App. 101, 193 N.W.2d 178 (1971). The skull and bones were apparently washed and cleaned before being shown to the jury. The photographs show leaves, dirt, a whitish substance, and only indistinguishably a half-buried skeleton. Clearly, under this situation, there was little, if any prejudicial effect to outweigh the probative value of this evidence.

II. Was it error to deny defendant's motion to quash the information as to murder of the first and second degree on the ground that no evidence existed to support a finding of premeditation other than the defendant's extra-judicial confession?

It is the defendant's contention that there was no evidence introduced at trial going to the issue of premeditation or malice save the extra-judicial confession introduced through the testimony of the witness Jack McKinley. Further, defendant contends that the Corpus deliciti of first-degree murder, Including premeditation and malice must be established by evidence independent of the defendant's extra-judicial confession in order to support the charge. We cannot fully agree. The long establish rule is that the Corpus delicti of a crime may not be proved by a naked extra-judicial confession. People v. Ranney, 153 Mich. 293, 116 N.W. 999 (1908); People v. Eding, 292 Mich. 46, 289 N.W. 324 (1939); People v. Lane, 49 Mich. 340, 13 N.W. 622 (1882). But, it is also well established that the Corpus delicti of the crime of first-degree murder consists only of proof of the death and the existence of a criminal agency as its cause. People v. Mondich, 234 Mich. 590, 208 N.W. 675 (1926); People v. Coapman, 326 Mich. 321, 40 N.W.2d 167 (1949). Thus, death and the existence of criminal agency as its cause, the Corpus delicti of the first-degree murder, only need be proved independently to make extra-judicial confessions admissible as to the elements of premeditation and malice. People v. Mondich, Supra. Furthermore, once the Corpus delicti has been established, the elements of premeditation and malice may be inferred from circumstantial evidence. People v. Griner, 30 Mich.App. 612, 186 N.W.2d 800 (1971); People v. Crawford, 30 Mich.App. 221, 186 N.W.2d 90 (1971).

In this case proofs were introduced at trial indicating that a buried skeleton had been found, the place...