People v. Marsack

• Decision Date: 21 August 1998
• Docket Number: Docket No. 186506
• Citation: 586 N.W.2d 234,231 Mich.App. 364
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Peter MARSACK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 234

586 N.W.2d 234

231 Mich.App. 364

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Peter MARSACK, Defendant-Appellant.

Docket No. 186506.

Court of Appeals of Michigan.

Submitted June 3, 1998, at Lansing.

Decided Aug. 21, 1998, at 9:35 a.m.

Released for Publication Nov. 18, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John Huss, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.

State Appellate Defender (by Debra A. Gutierrez), for the defendant on appeal.

Before SAWYER, P.J., and MICHAEL J. KELLY and DOCTOROFF, JJ.

MICHAEL J. KELLY, Judge.

On March 13, 1995, defendant was convicted by a jury of one count of first-degree, premeditated murder, M.C.L. § 750.316; MSA 28.548. On April 13, 1995, he was sentenced to a mandatory term of life in prison without the possibility of parole. Defendant appeals as of right from the amended judgment of sentence. We affirm.

I. BACKGROUND

Defendant's conviction arises from the July 13, 1993, shooting death of Terrence Barr, defendant's supervisor. Both Barr and defendant were employees of the state's Department of Natural Resources (DNR) in the Parks and Recreation Division. Defendant was a water sites operator in the Gaylord DNR office. Barr was the supervisor for the Gaylord and Grayling offices.

On the day of the shooting, Barr left home for work at approximately 6:45 a.m. This was Barr's normal departure time for work in the summer. At approximately 7:00 a.m., Barr's body was found in a ditch off to the side of Wilcox Bridge Road. At a later autopsy, it was determined that Barr had been fatally shot in the chest by a 12-gauge shotgun slug. His truck was parked along the side of the road with a fallen tree obstructing traffic on the road. Witnesses testified that a fallen tree had been lying across the road at approximately 6:15 a.m., at 6:25 a.m., and at 6:50 a.m. There was evidence of wood chips and shavings at the base of the tree stump, indicating that the tree had been intentionally cut down with an ax. Some of these same witnesses observed seeing a green DNR truck in the area before the shooting.

On the day of the shooting, defendant was scheduled to have a meeting with Barr. The day before the shooting, defendant told a fellow employee that he intended to skip work in order to avoid having the meeting with Barr. Defendant, on several occasions, informed other employees that he thought Barr was out to get him fired.

Because defendant was scheduled to meet with Barr on the day of the shooting, the police wanted to talk with defendant. A Crawford County sheriff's deputy and a detective sergeant with the Michigan State Police located defendant at a tire store at 3:10 p.m. on the afternoon of the day of the shooting. Miranda ¹ warnings were not given at this time. The officers identified themselves and asked defendant about his meeting with Barr that morning. When asked why he did not attend the meeting, defendant simply stated, "I just didn't go." When asked if defendant owned any guns, defendant responded that he did not own guns. Upon further inquiry, defendant stated that he had owned guns in the past, but that he presently did not own any firearms.

The officers then asked defendant if he was willing to answer more questions at the police station since a small crowd had gathered outside the tire store. Defendant agreed and followed the officers in his DNR vehicle. At the station, the officers told defendant that many people had stated that he, in fact, did own several guns. At this point, defendant stated, "I'm no match for you. I want to talk to an attorney." The questioning by the officers then stopped.

At this point, the officers wanted defendant's permission to search his clothing and home and to perform an atomic absorption test to check for gunpowder residue. Defendant was informed of his Miranda rights and was read three consent to search forms. All three consent forms were signed by defendant. At no point was defendant in custody or placed under arrest.

Defendant accompanied the officers to his home in an unmarked police car. Defendant was wearing prison clothing because his personal clothing was being analyzed by the police. Defendant was not placed in handcuffs or otherwise secured within the police vehicle. Defendant was free to move about his home during the search. During the search of the home, the officers observed a gun safe in the basement of the house. The safe was empty; however, there were dust prints on the floor of the safe indicating that guns had been stored in the safe in the past. The officers found .22 caliber shell casings and an ax inside defendant's personal vehicle. Neither the shell casings nor the ax were related to the shooting. No evidence was seized at defendant's home, nor was any evidence found on defendant's clothing. The results of the atomic absorption test were never admitted into evidence at trial. The test was ineffective anyway because defendant had washed his hands before the test.

The ax used to cut down the tree was found near the scene of the shooting. It was later identified by defendant's son as belonging to defendant. The murder weapon was found several months after defendant's arrest in a wooded area, about twenty feet from the road, on the property of defendant's neighbor. It was wrapped in a camouflage case and a box of shells was found with it. Gun registration records established that defendant purchased the shotgun in 1989.

On July 15, 1993, defendant purchased a one-way airline ticket to Detroit. Police learned of defendant's intentions after questioning defendant's friend. Defendant had been under surveillance since July 13, 1993. Upon belief that defendant was attempting to flee the area, the Wayne County Sheriff's Office was notified and deputies arrested defendant as a homicide suspect when he landed at Detroit Metropolitan Airport on July 15, 1993.

On July 15, 1993, the police executed a search warrant for defendant's home. Seven guns were found in a deer blind on defendant's property. A shotgun was not recovered; however, an interchangeable barrel was found that fit the murder weapon.

II. SUFFICIENCY OF THE EVIDENCE

First, defendant claims that prosecution failed to prove beyond a reasonable doubt that he was, in fact, the person who killed Terrence Barr. An appellate court's review of the sufficiency of the evidence to sustain a conviction turns not on whether there was any evidence to support the conviction, but whether there was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 513-514, 489 N.W.2d 748 (1992). The evidence must be viewed in the light most favorable to the prosecution. Id. at 514-515, 489 N.W.2d 748.

The prosecution argues that this issue involves the weight of the evidence, but because defendant did not make a motion for a new trial that issue is therefore not properly preserved for appellate review. People v. Johnson, 168 Mich.App. 581, 585, 425 N.W.2d 187 (1988). Because defendant argues that the evidence was insufficient, we will confine our analysis to that standard only.

In order to convict a defendant of first-degree murder, the prosecution must prove that the defendant intentionally killed the victim and that the killing was premeditated and deliberate. Premeditation and deliberation require sufficient time to allow the defendant to take a second look. People v. Anderson, 209 Mich.App. 527, 537, 531 N.W.2d 780 (1995). Circumstantial evidence and reasonable inferences drawn from the evidence may constitute satisfactory proof of the elements of the crime. People v. Greenwood, 209 Mich.App. 470, 472, 531 N.W.2d 771 (1995).

From the above-stated facts, we believe that it is readily conceivable that defendant committed this crime. The prosecution presented evidence of defendant's whereabouts in the early morning hours on July 13 sufficient for a jury to infer and find beyond a reasonable doubt that it was defendant's DNR vehicle that was parked along the side of Lewiston Grade while defendant sat in the wooded area lying in wait for Terrence Barr to pass by on his way to work.

Premeditation and deliberation were established by evidence inferring the plan to kill Barr. Defendant chopped down a tree to create a diversion for Barr that required Barr to get out of his truck while defendant waited for Barr in the woods. Essentially, the plan was an ambush to commit murder.

The physical evidence linking defendant to the shooting included the fact that the gun used to shoot Barr was registered to defendant, and the fact that defendant's ax, found at the scene, was the ax used to fell the tree that blocked the victim's right of way.

Further, there was evidence to establish that defendant tried to cover up his involvement in the shooting. Several firearms that defendant owned were hidden in a deer blind on his property. Also, defendant, abruptly and without a neutral reason, took flight to Detroit with the intent to travel to an unknown destination. In sum, after reviewing all the evidence, we believe that there was sufficient evidence presented by the prosecution to justify the trier of fact's conclusion that it was defendant who committed this crime.

III. RIGHT TO COUNSEL AND SEARCH AND SEIZURE

Next, defendant asserts that once he invoked his constitutional right to counsel, the police violated his Fifth and Sixth Amendment rights by asking him to sign the consent to search forms. Defendant also claims that the consent to search was coerced, thus violating his Fourth Amendment right to be free from unreasonable searches and seizures. Defendant argues that the trial court erred in failing to grant his motion to suppress the evidence obtained as a result of the searches.

In general, a trial court's findings at an evidentiary hearing are reviewed for clear error. Howev...