People v. McKinney, Docket No. 21561

• Decision Date: 14 October 1975
• Docket Number: Docket No. 21561
• Citation: 65 Mich.App. 131,237 N.W.2d 215
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert McKINNEY, Defendant-Appellant. 65 Mich.App. 131, 237 N.W.2d 215
• Court: Court of Appeal of Michigan — District of US

Page 215

237 N.W.2d 215

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert McKINNEY, Defendant-Appellant.

Docket No. 21561.

65 Mich.App. 131, 237 N.W.2d 215

Court of Appeals of Michigan.

Oct. 14, 1975.

Released for Publication Jan. 22, 1976.

[65 MICHAPP 133] Campbell, Lee, Kurzman & Leitman by Parvin Lee, Jr., Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and J. H. GILLIS and CAVANAGH, JJ.

J. H. GILLIS, Judge.

On January 11, 1973, defendant was convicted by a jury of first-degree murder. M.C.L.A. § 750.316; M.S.A. § 28.548. He received the mandatory life sentence on January 23, 1973. Defendant appeals by leave granted.

This cause arises out of the murder of John Arthur Williams in the City of Pontiac on September 19, 1972. The victim was found in his home on a couch with his hands and feet tied. His death was caused by a gunshot wound in the chest.

On appeal defendant raises three issues. We will deal with them seriatim.

I.

The first assignment of error concerns the preliminary examination. With regard to the preliminary examination, defendant first argues that the corpus delicti of felony murder was not established at the preliminary examination, and therefore, the circuit court never obtained jurisdiction to try defendant on a felony-murder charge.

The only evidence at the preliminary examination[65 MICHAPP 134] regarding the felony element of felony murder was defendant's extrajudicial statements. Defendant argues that, under People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), ¹ the felony element of the corpus delicti of felony murder cannot be established by defendant's extrajudicial statements. We believe that this case can be distinguished from Allen for the reasons set forth Infra in part II.

However, it should be noted at this juncture that the defendant has not properly preserved this issue for appeal. A defendant may not on appeal raise errors or irregularities relating to the preliminary examination, unless the issue was timely raised prior to or at trial. People v. Sparks, 53 Mich.App. 452, 454, 220 N.W.2d 153, 155 (1974); People v. Boyd, 49 Mich.App. 388, 212 N.W.2d 333 (1973); People v. White, 32 Mich.App. 296, 188 N.W.2d 236 (1971).

In the case at bar, there was no defense objection at the time defendant was bound over, no did defendant move to quash the information prior to or at trial. Therefore this matter has not been preserved for appeal.

Secondly, also with regard to the preliminary examination, the defendant argues that binding over the defendant on an 'open charge' of murder did not give circuit court jurisdiction to try the defendant for first-degree murder.

The complaint and warrant both charged 'open murder' and cited the statutes for both first- and second-degree murder. Defendant was bound over on a charge of 'open murder'. In binding defendant over, the district judge stated that he felt the prosecution had established the crime of murder.

[65 MICHAPP 135] Circuit court's jurisdiction is limited to the offense specified in the return of the examining magistrate. People v. Curtis, 389 Mich. 698, 209 N.W.2d 243 (1973). In the case at bar, the return specified 'open murder'. Defendant argues that a charge of open murder is a charge of second-degree murder, citing Allen, supra. We do not agree.

M.C.L.A. § 767.71; M.S.A. § 28.1011 provides:

'In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; and it shall be sufficient in manslaughter to charge that the defendant did kill the deceased.'

The defendant in this case was charged with murder in both the warrant and information under the provisions of M.C.L.A. § 767.44; M.S.A. § 28.984, the statutory short form. Both the warrant and information cited M.C.L.A. § 750.316; M.S.A. § 28.548, first-degree murder; M.C.L.A. § 750.317; M.S.A. § 28.549, second-degree murder; and M.C.L.A. § 750.318; M.S.A. § 28.550, manslaughter.

Michigan courts have long recognized the propriety of the open charge of murder. Brownell v. People, 38 Mich. 732 (1878); Cargen v. People, 39 Mich. 549 (1878); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1965). The courts have also held that a person may properly be charged with and convicted of first-degree murder under a theory of premeditation and deliberation, where such a charge has been made in the statutory short form language. People v. Collins, 216 Mich. 541, 185 N.W. 850 (1921); People v. Brown, 23 Mich.App. 528, 179 N.W.2d 58 (1970). The same rule applies when the defendant is convicted of first-degree murder on a [65 MICHAPP 136] felony-murder theory, as is demonstrated in People v. Page, 198 Mich. 524, 165 N.W. 755 (1917).

Furthermore, the district judge is not required, on preliminary examination, to determine the degree of murder. People v. Strutenski, 39 Mich.App. 72, 197 N.W.2d 296 (1972). Therefore we find defendant's contentions to be without merit.

II.

Defendant next contends that reversible error was committed under Allen, supra, when the prosecution used defendant's extrajudicial statements to establish the felony element of the corpus delicti of felony murder.

People v. Allen, supra, held that the corpus delicti of felony murder may not be established without evidence independent of the accused person's confession of the essential element that distinguishes first-degree murder from second-degree murder.

In the case at bar, two witnesses testified at trial that on the evening in question they drove over to the victim's home to buy some heroin from the victim. Upon their arrival they observed defendant and another on the porch of the home. Defendant approached the car and told them he was going to 'pull a rip', I.e., a robbery.

Following this, defendant went back to the victim's house and the witnesses drove down the street. It appeared as if defendant was trying to get into the house. A short time thereafter, a gunshots were heard and defendant was observed running with another to a car which then left the scene. They followed the car to another location, where the car stopped and the defendant got out, came back to the witnesses' car and told them that [65 MICHAPP 137] he 'only got a little bit'. The witnesses also observed the defendant wiping what appeared to be blood from his hands.

A police officer testified to finding the deceased. A butcher knife was discovered underneath the deceased's body and broken pieces of an ashtray and vase were found scattered on the floor two to three feet from his head. A search of the home revealed no other signs of a struggle or ransacking. Although the deceased was a narcotics dealer, a search uncovered no narcotics whatsoever. However, the tools of the trade for cutting and packing were present. Money was found in one of deceased's pockets.

It is clear from reviewing the testimony that defendant's admissions were necessary to make out the felony element of the corpus delicti of felony murder. The corpus delicti may, of course, be established by circumstantial evidence and reasonable inferences. People v. Allen, supra, adopting People v. Allen, 39 Mich.App. 483, 494, 197 N.W.2d 874, 880 (1972). Here, however, the circumstantial evidence alone was not sufficient to show a robbery.

It has been stated that it is the settled rule that the corpus delicti cannot be established by the extrajudicial admission or confession of the accused. People v. Barron, 381 Mich. 421, 424, 163 N.W.2d 219, 220 (1968). However, certain exceptions to that rule have been carved out for some admissions which are not confessions.

In People v. Randall, 42 Mich.App. 187, 190--191, 201 N.W.2d 292, 294--295 (1972), Judge Danhof summarized this area of the law:

'There are several types of statements which while classified as admissions are nonetheless admissible to [65 MICHAPP 138] establish the corpus delicti. A statement which itself is an element of the offense may be admitted. People v. Lay, 336 Mich. 77, 57 N.W.2d 453 (1953). Excited utterances are admissible. A statement of a presently existing state of mind made shortly before the crime is committed is admissible to prove the crime. People v. Potter, 5 Mich. 1 (1858). In general, admissions made before the crime was committed are admissible to prove the corpus delicti. Warszower v. United States, 312 U.S. 342, 61 S.Ct. 603, 85 L.Ed. 876 (1941). A statement made roughly contemporaneously with the crime even if shortly after may be admitted to prove the corpus delicti. People v. Quimby, 134 Mich. 625, 96 N.W. 1061 (1903).

'When a defendant's statement is not simply an admission, but also falls within another exception to the hearsay rule, which gives an additional indication of truth, the statement is admissible to prove the corpus delicti. Older cases allowed these statements as part of the Res gestae. People v. McGarry, 136 Mich. 316, 99 N.W. 147 (1904), People v. Potter, supra, People v. Quimby, supra. Today we would analyze them under the more specific analysis advocated by Professor Wigmore. See People v. Jones, 38 Mich.App. 512, 515--516, 196 N.W.2d 817, 818 (1972), where we said:

"The term 'res gestae' has been used to justify the admission of testimony which would otherwise be inadmissible as hearsay. Examples of the types of statements which have been called Res gestae are (1) declarations of present bodily condition, (2) declarations of present mental states and emotions, (3) excited utterances, and (4) declarations of present sense impressions. The term 'res gestae' has also been used to describe statements that are not hearsay and this fact illustrates the indiscriminate coverage of the term."

Judge Danhof also explained...