People v. Loyer, Docket No. 79605

• Decision Date: 18 July 1988
• Docket Number: Docket No. 79605
• Citation: 169 Mich.App. 105,425 N.W.2d 714
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Douglas LOYER, Defendant-Appellant. 169 Mich.App. 105, 425 N.W.2d 714
• Court: Court of Appeal of Michigan — District of US

Page 714

425 N.W.2d 714

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Douglas LOYER, Defendant-Appellant.

Docket No. 79605.

169 Mich.App. 105, 425 N.W.2d 714

Court of Appeals of Michigan.

Submitted June 25, 1987.

Decided June 6, 1988.

Released for Publication July 18, 1988.

[169 MICHAPP 107] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Mark E. Blumer, Asst. Atty. Gen., Criminal Div., Office of Atty. Gen., for the people.

State Appellate Defender by Rolf E. Berg, for defendant-appellant on appeal.

Before WAHLS, P.J., and MAHER and BOYLE, ^* JJ.

WAHLS, Presiding Judge.

Following a jury trial in the Iosco Circuit Court, defendant, John Douglas Loyer, was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, for the killing of his nineteen-year-old wife, Helen Ann Loyer. Three months later, in June, 1984, he was sentenced to a term of thirty to fifty years imprisonment. Defendant appeals as of right and we affirm, although in doing so we declare unconstitutional a statute in the Code of Criminal Procedure concerning the payment of subpoena fees by the government on behalf of indigent defendants, M.C.L. Sec. 775.15; M.S.A. Sec. 28.1252.

Defendant's conviction arises from events which [169 MICHAPP 108] occurred on May 9, 1978, at the Oscoda residence of defendant and his wife, the victim in this case. Defendant was not arrested for the offense until 1983, and his trial did not begin until February, 1984.

The record reveals that on May 9, 1978, at 4:42 p.m., Shirley Scharich, a police dispatcher, received a telephone call from Albert Pirkl requesting that police officers and an ambulance be sent to defendant's home. Defendant himself told Scharich that his wife had been "tied up, beaten, and raped." As a result, Scharich immediately dispatched officers and an ambulance. Pirkl testified that on May 9, 1978, he was near defendant's residence when defendant approached him and stated that his wife had been beaten and raped and perhaps was not breathing. Pirkl called the police. He then accompanied defendant inside defendant's home and observed the victim lying on a bed. First, Pirkl unsuccessfully tried to detect the victim's pulse. When he extended the victim's neck in an attempt to administer CPR, her feet raised out of the bed, and Pirkl realized that she was dead and stiff.

Several other witnesses testified for the prosecution. Dianne Brown, apparently a neighbor of defendant, stated that sometime after 4:00 p.m. on May 9, 1978, she heard a scream and then observed a red car leaving the area. Marjorie Bevens, the victim's mother, testified that her daughter intended to join the U.S. Air Force and that, whenever she discussed this intention in defendant's presence, defendant exhibited "nasty looks." Mrs. Bevens also testified that her ex-husband had previously been found not guilty, by reason of self-defense, of killing her brother, and that one or two weeks after the death of her daughter, defendant asked her how her ex-husband "got off" for killing her brother. Angel Ponce, who shared a room with [169 MICHAPP 109] defendant for a period of time, testified that one day during the winter of 1981 or 1982, he noticed that defendant was crying, and consequently asked him what was wrong. According to Ponce, defendant responded that he had killed his wife. Specifically, Ponce stated defendant told him that one day when he returned home for lunch, he tied up his wife with a rope, made love to her, and then killed her by way of suffocation.

Michael John Cleary, one of defendant's co-workers at the time of the killing, testified that, on the date of the victim's death, defendant seemed more rushed or nervous than usual. After lunch, defendant returned to work with the buttons missing from his shirt. A couple of weeks later, the two men were at a party together, drinking beer and smoking marijuana, and defendant said that "as soon as he got out of this he was going to get a new car and cruise." Another co-worker, Danny Myus, stated that approximately one week after the victim's death, when he saw defendant leaning against his car, he patted defendant on the back and inquired about what he was thinking. Myus related that defendant responded, "I'm thinking about something I'd done earlier that I didn't want to do, you know what I mean, Danny...." After Myus acknowledged to defendant that he knew what he meant, he further inquired about what defendant was going to do, and defendant replied, "I'm going to wait until the last minute, and if they think I done it, I'm going to run." In addition, Stuart Popielarski, who lived with defendant during November, 1978, in Detroit, testified that when he asked defendant whether he had killed his wife, defendant responded, "there are some things a man can never tell." On other occasions, defendant told Popielarski that he had to stay one step ahead of the law, that he could not be [169 MICHAPP 110] "nailed" for "her" murder, that he had "outslicked" the police, and that he could not return to the AuSable area because a man cannot return to the scene of a crime. Popielarski also stated that defendant informed him that he was angry that his wife intended to join the Air Force and that on May 9, 1978, he had had anal and vaginal intercourse with the victim while she was tied up. While Popielarski asserted that defendant told him that he had used a pillow to muffle the victim's screams, he acknowledged on cross-examination that defendant had also told him that someone must have broken into his home and smothered his wife.

Kevin Rozanek, a friend of defendant in 1979, testified that defendant said that he had tied his wife to the bed, put a pillow over her head, and killed her. Kevin Moors, who knew defendant in 1981, stated that defendant told him that he had suffocated his wife, but that he did not mean to do so. Marc Sivrais, a friend and co-worker of defendant, stated that, when he expressed his sorrow to defendant on the death of his wife approximately one and one-half weeks after the incident, defendant stated that he did not "regret it a bit" and that his wife "got what she deserved."

Larry Weddel, a police officer with the Oscoda/AuSable Township Police Department, testified that he was dispatched to defendant's home on May 9, 1978, by Shirley Scharich. He stated that there were abrasions on the victim's hip and elbow and that there were rope marks on her wrists and ankles. Her body was naked below the waist and was clothed in a beige blouse and a brassiere that was inside out. Detective Lieutenant Raymond Knuth, also of the Oscoda/AuSable Police Department, stated that the only identifiable fingerprints obtained from the residence where Helen Loyer's [169 MICHAPP 111] body was found belonged to either the victim or defendant. Richard Bisbing, a civilian employee in the crime laboratory of the Michigan State Police, testified that a vaginal swab taken from the victim contained semen.

James Jacques, M.D., a physician in general practice and the medical examiner for Iosco County who pronounced the victim dead at 6:15 p.m. on May 9, 1978, stated that he observed marks around the victim's wrists and ankles indicating that they had been tied. He opined that the victim had been suffocated and had been dead for eight to twelve hours prior to when he saw her at 6:15 p.m. William DeYoung, M.D., a physician specializing in forensic pathology and who performed an autopsy on the victim on May 10, 1978, stated that he, too, observed the binding or rope marks on the victim's wrists and ankles and opined that the victim had been suffocated. His opinion was that the victim had been dead for six to twelve hours before 6:15 p.m. on the day of her death.

After the prosecution rested, defendant presented his proofs. Ronald Hines, M.D., a pathologist, after reviewing the victim's postmortem examination report, opined that an exact answer as to the time of the victim's death could not be given. Two of defendant's friends, Gary Cox and Cindy Cox, and defendant's sister, Brenda Forsythe, testified that defendant and the victim appeared to be happy together, that defendant's behavior did not indicate that he did not want his wife to join the Air Force, and that defendant never admitted to them any participation in the killing of the victim. John Kloss, with whom defendant lived for three weeks, stated that defendant told him that his wife had been killed by gunshot and that he had loved her. He also testified[169 MICHAPP 112] that prosecution witness Kevin Moors does not have a very good reputation for honesty and truthfulness.

Finally, defendant testified in his own behalf. He asserted that he had never tied up his wife, whom he had married on Valentine's Day, 1977, and that he thought it was "great" that she wanted to enter the Air Force. On May 9, 1978, he stated, he went to work in the morning and came home for lunch. After eating lunch, he changed his shirt, told his wife he loved her, kissed her, and returned to work. After work, at 4:30 p.m., defendant came home. However, since the door was locked and his knocks went unanswered, he climbed through a bedroom window. In the bedroom, his wife was lying on the bed, motionless and without a pulse. He then ran for help and asked a neighbor to telephone the police. When the police were contacted, he requested that they come to his residence because his wife "had been raped, robbed, and murdered." He denied ever having told anyone that he killed his wife and denied having killed her.

On appeal, defendant raises four issues. First, he argues that he was denied his right to compulsory process by the trial court's refusal to compel certain out-of-state witnesses to attend the trial.

An accused in a criminal prosecution has the right to compulsory process for obtaining witnesses in his favor. US Const. Am. VI. This right is applicable to the states through the Fourteenth Amendment. Washington...