People v. McClure

• Decision Date: 18 January 1971
• Docket Number: No. 1,Docket No. 6257,1
• Citation: 185 N.W.2d 426,29 Mich.App. 361
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis McCLURE, Defendant-Appellant,
• Court: Court of Appeal of Michigan — District of US

Page 426

185 N.W.2d 426

29 Mich.App. 361

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis McCLURE, Defendant-Appellant,

Docket No. 6257.

Court of Appeals of Michigan, Division No. 1.

Jan. 18, 1971.

Released for Publication April 9, 1971.

Leave to Appeal Denied July 9, 1971.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Assn., 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., Patricia P. Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and HOLBROOK and VANDER WAL, ^* JJ.

HOLBROOK, Judge.

Defendant was charged with first degree murder, M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28.548), having assaulted one Jean Crawford on May 6, 1967, inflicting mortal wounds from which she languished and died on January 18, 1968. He was found guilty in the recorder's court for the city of Detroit by a jury of second degree murder, M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549) on July 2, 1968. He takes this appeal as of right.

Testimony taken at trial showed that the deceased and the defendant had been dating. On May 6, 1967, defendant entered the decedent's residence, which was the home of her mother, Mrs. Pauline Perkins. In addition to the deceased and her mother, several other people were also present. A few minutes after entering the home the defendant produced a sawed-off shotgun which had been concealed under his coat and shot one of the occupants of the house, Edsel Chatman. After the defendant shot Chatman, he struggled with the deceased's mother who was trying to keep him separated from her daughter, who had run into the basement after the shooting or was pushed into the basement by defendant who locked the door after him. A second shot was fired in the basement.

The police were called and when they arrived on the scene, they entered the basement through the back door of the house, which was open. The door leading to the kitchen was still closed at that time. When the police entered the basement they found the decedent lying in a pool of blood, the shotgun broken into three pieces and thrown into a wastebasket and a hole in the basement wall where a shotgun blast had been recently fired. Defendant was not present. The decedent was removed to the hospital where an examination revealed that she had sustained several severe blows on her head from a blunt object. She was subjected to brain surgery on May 6, 1967, and again on May 29, 1967. She languished in a coma for many months and died on January 18, 1968.

The defendant called police headquarters on three occasions beginning about 6:30 p.m. on May 6, 1967 stating that he wished to give himself up, and an officer went to the location specified by defendant and arrested him at that place.

At trial, the theory of the prosecution was that defendant and the deceased had been romantically involved and had quarreled. Defendant thought that the deceased was becoming involved with Edsel Chatman, so he proceeded to the Perkins' residence, shot Chatman, then chased the deceased into the basement, locking the door behind him. In the basement, he fired at the deceased and missed, hitting the wall. He then used the empty shotgun as a club, striking the deceased several times about the head. He then threw the shotgun into the wastebasket and fled through the rear door of the house.

The defense presented the theory that Edsel Chatman had produced the shotgun and had attempted to shoot the defendant and, in the ensuing struggle over the gun, Chatman was shot. Defendant then proceeded to the basement with the deceased's mother. He fired the remaining shell in the shotgun into the wall because he was leaving the gun for the police. After firing the shell, he left the basement of the Perkins' home through the back door and at that time the deceased was lying across the bed crying and was not injured in any way. Defendant also testified that at the time he left the basement the shotgun was still intact.

The defendant raises several issues which we discuss in order.

I

Did the trial court err in the conduct of the trial?

Defendant claims that the trial court erred by allowing extensive testimony as to the alleged assault on Edsel Chatman by defendant and then failing to allow the defendant to show that he had, in fact, been acquitted of that charge by a jury. Further, that the trial court committed error by restricting the cross-examination of the State's witnesses on two occasions.

The record reveals that the court did not err in the conduct of the trial. The allegation made by defendant as to the court's failure to allow proof that defendant was acquitted of the charge of assaulting Edsel Chatman is not a proper statement of the law of Michigan. The leading case on point is People v. Kowatch (1932), 258 Mich. 630, 242 N.W. 791, where it was held that if in the presentation of the Res gestae of one crime, the prosecution shows a commission of another crime, evidence of the occurrence of the separate crime is not inadmissible. See also People v. Andriacci (1968), 11 Mich.App. 482, 161 N.W.2d 435. Thus the test is whether or not the assault on Edsel Chatman was shown during the presentation of the Res gestae of the fatal assault on Jean Crawford. The record shows clearly that the first assault occurred so closely in time as to be a part of a continuous transaction and the facts surrounding the assault on Jean Crawford could not be presented without showing the assault on Edsel Chatman. The rule of Kowatch, supra, would thus apply and the evidence would be admissible. The fact that defendant was acquitted on that charge is not relevant to the fact of its occurrence. For it is its occurrence which would bear on the motive and intent of the defendant, People v. Andriacci, Supra, not whether or not the defendant was acquitted on the charge. The Res gestae constitutes substantive evidence and may properly be considered by the jury in determining guilt or innocence.

The allegation of the defendant as to the trial court's restriction of cross-examination of state witnesses also fails to provide grounds for reversal. The limitation on cross-examination of witnesses falls in an area of broad discretion of the trial court where an effort is being made to attack a witness' credibility. People v. Lewis (1970), 25 Mich.App. 132, 181 N.W.2d 79. The record reveals no abuse of discretion on the part of the trial court in either instance where error has been assigned by defendant. The answer to the question to which the court sustained an objection was not material and the refusal to allow defense counsel on recross-examination to go over every word of a witness' statement was the result of a determination by the court that it would be repetitive. The record supports such finding. There is no error here.

Ia

Was the statement of defendant inadmissible at trial due to an inadequate statement of defendant's right to counsel or failure on the part of defendant to specifically waive his right to counsel during questioning?

Defendant asserts that a damaging statement made by defendant was admitted into evidence as a part of the prosecution's case. Prior to making the statement defendant was informed that he 'had a right to have an attorney present before he answered any questions.' He argues that because an accused must be specifically informed of his right to have counsel present during questioning, such a warning violates the mandate of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, and thus would preclude the use of any such statement at trial. People v. Whisenant (1968), 11 Mich.App. 432, 161 N.W.2d 425 and People v. Whisenant (1969), 19 Mich.App. 182, 172 N.W.2d 524; People v. Ansley (1969), 18 Mich.App. 659, 171 N.W.2d 649.

Also, that it was necessary for the people to show that defendant specifically waived his right to counsel. All the record discloses is that the defendant did not ask for counsel prior to making a statement. People v. Limon (1966), 4 Mich.App. 440, 145 N.W.2d 287.

Defendant's contentions as to the sufficiency of compliance with the holding of Miranda v. Arizona, Supra, are clearly answered by reference to recent Michigan case law. This Court, in People v. Bynum (1970), 21 Mich.App. 596, 175 N.W.2d 870, construed the Same form as signed by defendant to fairly apprise an accused that he had the right to counsel during interrogation. The issue as to waiver was settled against the contention made by defendant in People v. Matthews (1970), 22 Mich.App. 619, 178 N.W.2d 94, where it was held that no express waiver was required after an accused had been advised of his rights. Defendant's...