People v. Losey

• Citation: 296 N.W.2d 601,98 Mich.App. 189
• Decision Date: 16 June 1980
• Docket Number: Docket No. 78-3340
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orville L. LOSEY, Jr., Defendant-Appellant. 98 Mich.App. 189, 296 N.W.2d 601
• Court: Court of Appeal of Michigan (US)

Page 601

296 N.W.2d 601

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Orville L. LOSEY, Jr., Defendant-Appellant.

Docket No. 78-3340.

98 Mich.App. 189, 296 N.W.2d 601

Court of Appeals of Michigan.

June 16, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 192] James R. Neuhard, State App. Defender, Terence R. Flanagan, Asst. State App. Defender, for defendant-appellant.

[98 MICHAPP 191] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul F. Berger, [98 MICHAPP 192] Pros. Atty., Janis L. Blough, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and BRENNAN and CAVANAGH, JJ.

CYNAR, Judge.

Defendant was convicted of conspiracy to commit murder, M.C.L. § 750.316, M.S.A § 28.548 and M.C.L. § 750.157a, M.S.A. § 28.354(1), and was sentenced to 40 to 60 years imprisonment. Defendant was acquitted of a charge of aiding and abetting murder. He appeals as of right.

I

The information filed in this case alleged a conspiracy among defendant, James Willis Lafler, and Ronald Heath to murder Maria A. Losey, defendant's ex-wife. Lafler was tried separately after defendant's trial and was acquitted of that charge, and Heath was granted immunity in return for his testimony.

On February 11, 1977, the victim was found dead in her home in Delta Township by the defendant, who reported the crime to the police. Death was the result of two .22 caliber bullet wounds in the head. The bullets were found in the victim's skull. Based on information received during the course of their investigation, a state police diver recovered a .22-caliber bolt action rifle, which was alleged to be the murder weapon, from the Kalamazoo River.

A neighbor of the victim testified that on the date of the homicide she saw a car drive past the [98 MICHAPP 193] decedent's house, which vehicle stopped twice. The neighbor was uncertain of the make and model year of the car but noted that it had a brown bottom and a white top. A car fitting this general description was found to have been owned by a Ron VerMuelen at the time of the killing, and was borrowed by Lafler the day prior to the murder.

Ronald Heath was the key prosecution witness. At trial, he testified that defendant asked him if Lafler could "get rid of" his ex-wife. A few days later, Heath brought Lafler to defendant's house at his request. Defendant and Lafler held a discussion in Heath's absence. Immediately thereafter, Heath noticed that Lafler had acquired a substantial amount of money. Leaving defendant's home, Lafler had Heath drive him past the victim's residence, at which time Lafler discussed killing her. On a subsequent occasion, Heath witnessed a transfer of $300 to Lafler from defendant. He substantiated the fact that Lafler borrowed VerMuelen's car. On the day of the homicide, Lafler called Heath asking for defendant's telephone number.

Heath further testified that on February 12, he accompanied Lafler, VerMuelen, and two other men, Leroy Baker and Ted Renner, on a trip to pick up VerMuelen's car. The auto was stranded on I-94 just east of I-69. Upon arriving at their destination, Lafler retrieved a .22 caliber rifle secreted away near the car. Lafler tossed the rifle into a nearby river. This account was corroborated by Baker, Renner, and VerMuelen.

Heath also testified regarding payments made by defendant to Lafler after the killing in which he served as the middleman.

Defendant testified in his own defense. He stated that Heath informed him that Lafler had killed his [98 MICHAPP 194] ex-wife. He explained that one payment made to Heath was in return for a loan.

II

Defendant first argues for reversal of his conviction on the ground that there can be no one-man conspiracy, and that since Lafler was acquitted of the charge at a later trial, and Heath was granted immunity, he, as the sole remaining alleged coconspirator, cannot be convicted on the conspiracy charge.

This argument was raised and rejected in People v. Berry, 84 Mich.App. 604, 607-608, 269 N.W.2d 694, 695 (1978), where this Court declared:

"On appeal, defendant contends that he cannot be convicted of a conspiracy charge where his sole alleged coconspirator received immunity from prosecution. Defendant reaches this conclusion by analogy from cases which have held that where all but one coconspirator is acquitted, the remaining coconspirator cannot be convicted on a conspiracy charge. People v. Alexander, 35 Mich.App. 281, 192 N.W.2d 371 (1971). See generally, Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 A.L.R.2d 700. This result is based on the fact that a conspiracy is a partnership in criminal purposes that requires more than one conspirator. There is no such thing as a one-man conspiracy, and once all alleged coconspirators are acquitted, what would remain would be a one-man conspiracy. People v. Alexander, supra, at 282 (269 N.W.2d 694); People v. Atley, 392 Mich. 298, 310, 220 N.W.2d 465 (1974).

"Defendant's analogy is not valid, however. When alleged coconspirators are acquitted, a finding of not guilty of the charged conspiracy has been made. When alleged coconspirators are granted immunity (or when they are unavailable for prosecution for some reason), no determination as to their guilt has been made. A grant of immunity is not inconsistent with guilt. The [98 MICHAPP 195] instant defendant may still be convicted despite his sole codefendant's immunity from conviction. This holding is in accord with the decision of other jurisdictions which have passed on similar situations. See Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 A.L.R.2d 700, 722."

We deem Berry to be dispositive of this predication of error, and find against defendant thereon.

III

Defendant next claims that the information filed in the instant case should have been quashed by the trial court or a verdict of acquittal should have been directed by the court below because there was not sufficient evidence aliunde the statements of a coconspirator (Heath) or defendant's extrajudicial admissions to establish a conspiracy. Absent such independent evidence establishing the existence of a conspiracy (the corpus delicti); the coconspirator's statements were not admissible under MRE 801(d)(2)(E), in effect at the time of trial; nor were defendant's admissions admissible.

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.

We first address defendant's claim that his own admission should not have been allowed in evidence unless the corpus delicti of the offense is first established by evidence aliunde those admissions.[98 MICHAPP 196] This contention fails for more than one reason.

First, the rule in Michigan is that the corpus delicti of first-degree premeditated murder (one of the charged offenses here) must be established by evidence aliunde a defendant's confession. People v. Johnson, 93 Mich.App. 667, 672, 287 N.W.2d 311 (1979), and the cases cited therein. This rule does not extend to a defendant's admissions. Id., 673, 287 N.W.2d 311. Moreover, even if defendant's statements were not admissible on this basis, they were clearly admissible under the rationale found in People v. Randall, 42 Mich.App. 187, 201 N.W.2d 292 (1972), wherein this Court stated:

"There are several types of statements which while classified as admissions are nonetheless admissible 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.E. 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 [98 MICHAPP 197] the truth to overcome any reluctance to convict on the basis of a confession. A rule that was created for the salutary purpose of doing justice should not be construed in a manner that makes it merely an escape hatch for the guilty." (Emphasis added). Id., 190-192, 201 N.W.2d 294.

The admission of defendant placed in evidence, to which he now objects, was to the effect that defendant admitted hiring Lafler to kill his wife. It establishes an indispensable element of the crime of conspiracy, the fact of an agreement to do an unlawful act. See People v. Atley, 392 Mich. 298, 310-311, 220 N.W.2d 465 (1974). Thus, it falls squarely under the first exception enumerated in Randall, supra, and would be admissible on that basis. We therefore reject defendant's contentions regarding his own admission being offered in evidence.

Since this evidence was properly received, we find defendant's argument regarding the admission into evidence of his coconspirator's statements to be wanting in merit. The...