People v. Mason, Docket No. 6884

• Citation: 178 N.W.2d 181,22 Mich.App. 595
• Decision Date: 25 March 1970
• Docket Number: Docket No. 6884,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Martin MASON, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 181

178 N.W.2d 181

22 Mich.App. 595

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Martin MASON, Defendant-Appellant.

Docket No. 6884.

Court of Appeals of Michigan, Division No. 1.

March 25, 1970.

Released for Publication June 26, 1970.

Leave to Appeal Denied Sept. 1, 1970.

Carl Levin, Arthur J. Tarnow, Detroit, for defendant-appellant.

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

Before LESINSKI, C.J., and QUINN and V. J. BRENNAN, JJ.

LESINSKI, Chief Judge.

Defendant Martin Mason was convicted of second degree murder (M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549)), following a jury trial. The conviction arose from the fatal shooting of defendant's wife, Yvonne Mason, in the early morning of March 6, 1968. Defendant brings this appeal as of right.

The facts surrounding the shooting are as follows. Defendant had spent the evening of March 5 in the bar where his wife was employed as a barmaid. After the bar closed an acquaintance drove them to where defendant was staying. Upon arriving, however, Yvonne Mason asked the driver to take her to her aunt's home. Defendant stated that his wife's feelings were hurt because he had been kidding her about drinking on the job and getting fat.

Defendant called a cab and followed his wife to her aunt's home. Defendant apparently was not on the best of terms with the aunt and demanded that Yvonne leave with him.

From the aunt's home they went to the nearby home of a common acquaintance, Mrs. McNeal. After being admitted, Yvonne sat down in the living room while defendant and Mrs. McNeal made light conversation for a few moments. Defendant then put some coins in a juke box, started the records playing, and sat down on the couch in the living room.

Yvonne then stated that her ankle was sore and defendant asked whether she wanted him to take her to a hospital. At his suggestion Yvonne got up and walked around the room, testing her ankle. She then sat down on the couch, next to her husband.

Conversation between defendant and decedent followed. Although Mrs. McNeal testified that she 'couldn't tell whether they were friendly or not,' she did state several times that they were not arguing but only talking with each other. She also stated that they were not talking in loud voices. Mrs. McNeal retired to her bedroom after a short while.

Defendant testified that he took out the gun he had been carrying around during the evening and emptied the bullets onto the floor. He testified that 'I looked at the gun and it was empty. So I don't know why, I just clicked the gun, I clicked it and leaned back the way I was sitting and I clicked it again.' Defendant denied knowingly or intentionally pointing the gun at his wife.

Mrs. McNeal testified that she heard the 'clicking' and returned to the room adjacent to the living room. She stated that she heard defendant say: 'All I have to do is click it one more time.'

Defendant denied making the statement. Rather, he testified that the clicking was making his wife nervous and she told him to put the gun away. He testified that scaring her seemed 'amusing' at the time, and clicked the gun again.

Mrs. McNeal testified that after she returned from the bedroom she heard two more clicks and then the gun went off. She then asked what had happened and defendant replied that he had shot his wife and told Mrs. McNeal to call the police.

Shortly after the shooting defendant fled the scene, but turned himself into the police five days later and was arrested.

It was defendant's position at trial that he thought he had taken all the bullets out of the gun and that the shooting was accidental. In support of his position defendant took the witness stand and testified that he and his wife were on generally good terms and that they were living together during the week before the shooting.

The evidence presented a difficult factual question as to whether malice was present making this act second degree murder or whether the act was an intentional aiming of the gun without malice, constituting manslaughter. ¹ Of great importance was defendant's state of mind, his feelings toward his wife and his credibility. The prosecutor's cross-examination of defendant centered around an attempt to show animosity between defendant and his wife during the morning of March 6th and the days preceding the shooting.

In the course of his testimony defendant stated that his wife was living with him at his room during the week prior to her death, that she had spent the night before with him, that she had left directly from there for work on March 5th and that she would have returned home that night out for his kidding her about her drinking and weight. To rebut this testimony and attack defendant's credibility, the prosecutor introduced the testimony of the investigating police officer regarding what he saw during a search of defendant's room the day after the shooting. The officer stated that he found defendant's clothing in the room but that no woman's clothing or any other indication of a woman's presence existed. The evidence, thus, tended to prove that defendant's wife had not been living with him and that he had been lying on the witness stand.

The officer's testimony was argued to the jury by the prosecutor during summation:

'Now the defendant testified at the time of the incident the deceased was living with him on Littlefield, in fact she had lived there for the past four days.

'You heard the testimony of Detective Mason. He testified he went there and went there the next day, the day of the shooting, March 6, 1968 and he searched the bedroom in which the defendant had lived. And he found men's clothing, one suit, one topcoat, but he didn't find one stitch of women's clothing in that bedroom.

'Now, it seems to me that a woman who had lived with her man, her husband, for some twelve days, in fact, he testified she intended to return with him that evening would leave clothing, something, an article in that home in which she was living and which the testimony of Martin Mason indicates she was living.'

Defendant timely objected to the introduction of the rebuttal evidence on the grounds that it was obtained by a warrantless search in violation of the Fourth Amendment. The objection was denied below.

The principal issue on appeal is whether the evidence obtained by the warrantless search was properly admitted to rebut defendant's testimony.

At trial when the issue of the validity of the search which was the basis for the objected to testimony was raised, the trial court ruled that defendant lacked standing to raise the issue of the legality of the search. ² The prosecutor asserts this position on appeal.

Whether or not a particular defendant has standing to raise the issue of an unreasonable search and seizure depends on the facts of the case. While the record is not entirely clear, it does appear that the room searched was in a home owned by defendant's cousin. Defendant held no financial interest in the house. He, and allegedly his wife, had been using the room, however, for approximately four or five days prior to the killing. Defendant left his clothing and his personal papers there when not present.

Although a body of law relative to search and seizure, based largely on gambling and prohibition cases, exists in Michigan, ³ the issue raised in the instant case is not answered. Some authorities make the general statement that 'guests in a home are not entitled to claim constitutional immunity against search of premises where the owner himself does not object to the search.' ⁴ Our review of the cases, however, convinces us that this statement is overly broad. The mere designation of a defendant as a 'guest' cannot end the inquiry.

In People v. Azukauckas (Supra, footnote 4), the defendant who was merely a guest for a few hours at the homeowner's Saturday evening party, sought to attack the legality of a search. The Court held that the guest lacked standing.

However, in People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16, where the defendant who sought to raise the constitutionality of a search of an automobile was only a passenger, with no apparent financial interest in the car, the Court held that defendant had standing to raise the issue. The Court stated 356 Mich. at 257, 97 N.W.2d at 21:

'Further, we believe that on the facts in this case defendant had the right to raise the constitutional objection. There is no showing of any waiver of the objection by anyone. And Though defendant apparently had only the status of a passenger, when the first requirement of the search (and a material one to its outcome) was that defendant remove himself from the seat in the automobile where he had a right to be, we regard the search as directly affecting him.' (Emphasis supplied.) ⁵

There is a fundamental difference between the 'guest' in Azukauckas and the 'guest' in the instant case, who was staying with a relative for several days and had his own room. The difference centers largely on the degree of privacy the two 'guests' were entitled to in the areas searched.

In Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, defendant sought to suppress evidence found during a search of an apartment. Defendant testified that the apartment belonged to a friend who had given him the use of it and who had loaned him a key. Although he had a suit and shirt at the apartment, his home was elsewhere, he paid nothing for the use of the apartment, he had slept there 'maybe a night' and the owner only let him use it 'as a friend.' At the time of the search the owner had been away for about five days. The government challenged defendant's standing because he had alleged neither ownership of the seized property (narcotics) 'nor an interest in the apartment greater than...