People v. McGowan, No. 274829 (Mich. App. 12/15/2009), No. 274829.
| Decision Date | 15 December 2009 |
| Docket Number | No. 276385,No. 275197.,No. 274829. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HEATH ELMER MCGOWAN, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EDWARD JAMES GRIFFES, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CLINT ALLAN MCGOWAN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Montcalm Circuit Court, LC No. 06-007353-FC, LC No. 06-007355-FC, LC No. 06-007354-FC.
Before: Talbot, P.J., and O'Connell and Davis, JJ.
UNPUBLISHED
Defendants appeal as of right their convictions and sentences for first-degree felony murder, MCL 750.316(b), felony firearm, MCL 750.227b, and receiving and concealing stolen property (firearms), MCL 750.535(2)(b).1 We affirm defendants' convictions and sentences, but remand to the trial court solely for the ministerial purpose of correcting defendant Heath McGowan's judgment of sentence.
This appeal concerns the murder of 88-year old Henry Marrott within his home. Marrott was widely referred to as "Walking Sam" in the local area and in the town of Trufant, Michigan where he resided. Marrott's body was discovered by his lawn care service, having noticed an odor emanating from the home and a massive amount of flies at a window. Upon entering the home, a member of the lawn crew observed the victim's legs hanging out of a bed. On investigation, police observed the basement door area to be ajar and that the locking mechanism to the basement "appeared to have been broken or jimmied somehow."
At the time of discovery, the victim's body was badly decomposed and insects had begun to infest the corpse. Forensic entomologists were used to establish the date or time of death. Dr. Richard W. Meritt, an expert in forensic entomology determined the post mortem interval, indicating that the victim's death occurred on either July 19 or July 20, 2002. A forensic dentist confirmed the victim's identity by comparing his dental records with the jaw of the corpse. The medical examiner concluded that the victim's death was a homicide caused by "craniocerebral trauma or head injury."
There were no immediate arrests and a reward was offered for information. Police interviewed hundreds of people during the three-year investigation of this murder, which later evolved into a "cold case investigation" by the Michigan State Police. Timothy Hannah brought defendant Heath McGowan's name to the attention of police approximately four months after the death, while an inmate at the Montcalm County Correctional Facility. Police continued to investigate the crime leading to Heath McGowan becoming a more prominent suspect. However, it was not until a one-man grand jury was convened in the fall of 2005 that information was obtained and "this case burst wide open." Following a five-day hearing, in early 2006 the grand jury authorized indictments for Heath McGowan, Clint McGowan, Eddie Griffes, Michael Hansen and Melissa Mudgett on 14 separate counts, including open murder and felony murder.2 In addition, indictments were also authorized for Tara Waldorf and Brian Hansen3 for one count each of accessory after the fact.
Ultimately, co-defendant Michael Hansen pleaded guilty to second-degree murder, receiving a sentence of 22½ to 50 years imprisonment.4 In return, Hansen testified regarding the events leading up to and occurring after the murder. According to Hansen, while at the home of Tiffany Taylor, he and Heath were informed that Marrott had both Oxycontin and money in his home. Later, when at Jody Smith's apartment, Smith and the co-defendants discussed going to the victim's house when he would not be there to steal the money and drugs. Heath and Clint McGowan, along with Griffes, Hansen and two women, Tara Waldorf and Melissa Mudgett drove to the victim's home in the evening. Waldorf and Mudgett remained in the vehicle. The McGowans, Hansen and Griffes entered the victim's home. Hansen remained at the front door as a lookout. Contrary to their expectations, Marrott was at home and argued with Heath. Hansen indicated that Heath struck Marrott in the head "with his hand or something." While in the home, the McGowans and Griffes searched for drugs and money and left with an "old black powder pistol," an unknown quantity of Oxycontin pills and a "lock box" containing money. The four men and two women then drove to a state recreational facility for the visually disabled located near the home of McGowans' parents, later referred to as "the blind camp." At that location, the pills and money were divided.
Tara Waldorf acknowledged being in the vehicle and at the victim's home with the McGowans, Griffes, Hansen and Mudgett when the crime occurred. At the time of these events she was approximately 16 years of age and had been drinking heavily with Mudgett throughout the day. Waldorf and Mudgett remained in the vehicle when the men entered the home. Waldorf indicated that the men were arguing when they returned to the vehicle and that Clint was punching Heath's seat. She recalled Clint carrying a metal box upon return to the vehicle, but did not remember any other significant details regarding the evening. Waldorf acknowledged lying to the grand jury and police on at least three occasions. She indicated she was not aware of Griffes' name initially, but did identify him as being in the vehicle through photographs shown during the grand jury. In return for her testimony, Waldorf was allowed to plead to being an accessory after the fact and was placed on probation through the Holmes Youthful Trainee Act (HYTA).
Melissa Mudgett was the girlfriend of Heath McGowan and the mother of at least one of Heath's children. She was friends with Waldorf, the McGowans and Hansen at the time of the events and was also a methamphetamine addict. Mudgett testified that she and Tara met up with the McGowans, Hansen and Griffes and were told they were going to get some pills. She recalls stopping at the victim's house, but she remained in the vehicle with Waldorf. When the men returned to the vehicle from the home, Clint had a box and the men were angry. She recalled Heath having pills and money and saying, "I beat him up . . . ." Mudgett discovered that Marrott was killed several days later when Heath "said he beat an old man and put him under a mattress." She also overheard conversations between Hansen and Heath indicating a need to "get rid of the gun." She testified that while in the vehicle leaving the victim's home that Clint acknowledged that Heath had beaten "that guy up and messed him up pretty bad." Mudgett admitted lying repeatedly to police and the grand jury regarding her lack of knowledge of the events. Mudgett
was jailed for one and one-half weeks as a material witness. At that time, she requested to speak with police, as she was pregnant and near her due date. Mudgett pleaded guilty to being an accessory after the fact, but had not been sentenced at the time of trial. She indicated her belief that she would receive sentencing consideration and anticipated her sentence would be "[t]hree years felony probation, with a fine."
On appeal, defendants all contend the trial court erred in denying them expert witness fees to permit them to retain an expert witness to testify regarding the effects of methamphetamine use on memory, effectively denying them a defense. Defendants also challenge the trial court rulings, which permitted Detective Sally Wolter to testify regarding the effects of methamphetamine use on various witnesses. Defendant Heath McGowan also asserts the ineffective assistance of counsel due to the failure of his attorneys to bring or join in co-defendants' motion for expert witness fees. This Court reviews for an abuse of discretion a trial court's decision on a motion for payment of expert witness fees. See People v Tanner, 469 Mich 437, 442; 671 NW2d 728 (2003). "An abuse of discretion will be found only when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification or excuse for the ruling made." People v Lueth, 253 Mich App 670, 689; 660 NW2d 322 (2002).
The trial court conducted a hearing on a series of pretrial motions, including a written motion by counsel for defendant Griffes seeking expert witness fees. Defendant sought $1200 to retain Ben Kuslikis, Ph.D. as an expert witness in pharmacology and toxicology. Counsel asserted testimony from such an expert was necessary to aid the jury in understanding "why these witnesses are making these false statements" and, impliedly, to challenge their credibility based on memory problems evidenced by habitual methamphetamine users. Counsel for defendant Clint McGowan did not file a written motion, but orally concurred regarding the necessity of securing funds to retain this expert to testify at trial given the indigent status of defendants. Notably, Griffes' counsel implied that the presence of the proposed witness would be of assistance to almost everyone, stating: "It's probably going to help the Prosecution in a certain fashion here, probably against Heath McGowan . . . ." Counsel for defendant Heath McGowan was not present and did not participate.
The prosecutor contested the necessity of defendants securing an expert witness, since all of the purported witnesses readily acknowledged difficulties with their memories and that cross-examination would be sufficient to demonstrate these problems and was the proper method to challenge their credibility. The prosecution expressed concern for the jury's potential misuse of the expert's testimony in determining the credibility of these witnesses.
In ruling, the trial court discussed the requirements of MCL 775.15 and MRE 702 and case law interpreting those provisions. The trial court rejected defendants' request for expert witness fees...
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