People v. Meatte, Docket No. 78-5319

• Decision Date: 04 June 1980
• Docket Number: Docket No. 78-5319
• Citation: 296 N.W.2d 190,98 Mich.App. 74
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Larry MEATTE, Defendant-Appellant. 98 Mich.App. 74, 296 N.W.2d 190
• Court: Court of Appeal of Michigan — District of US

Page 190

296 N.W.2d 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Larry MEATTE, Defendant-Appellant.

Docket No. 78-5319.

98 Mich.App. 74, 296 N.W.2d 190

Court of Appeals of Michigan.

June 4, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 75] George E. Michaels, East Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Robert J. Berlin, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and CYNAR and MacKENZIE, JJ.

PER CURIAM.

The defendant was charged with second-degree murder and was convicted in a bench trial of manslaughter. Sentenced to imprisonment for a term of 10 to 15 years, he appeals by leave granted upon his delayed application for appeal.

The killing occurred at the apartment of the victim, McCoy. A neighbor testified that she observed a man struggling with McCoy in McCoy's darkened apartment. Leaving her apartment door, she returned to the peephole to observe the man fire several shots through McCoy's closed door. Other occupants of the building reported scuffling and shots at approximately the same time of the evening. One occupant, an elderly woman, was awakened with some difficulty by the police and [98 MICHAPP 76] reported that she was hard of hearing and had slept soundly throughout the evening.

Officers responding to a neighbor's call found McCoy's apartment door ajar, with three shotgun blasts through it. McCoy's nude body was within. Other officers followed a car leaving the scene with its lights off. In it was the defendant, in possession of a shotgun and six spent shells. He had a head wound.

Werner Spitz, a pathologist, testified that McCoy died from any one of four shotgun wounds that were discovered on the body. Two of the wounds had within them white plastic beads similar to those that filled the apartment's insulated door. It was the doctor's opinion that those beads had been carried by the shotgun charge from inside the door, indicating that at least two of the shots that struck McCoy were fired through the door. Defense counsel challenged the doctor's qualifications as a ballistics expert and objected to the judge's questions about the wounds as serving a prosecutorial function.

The defendant testified that he went to McCoy's apartment to talk to him, but McCoy answered the door with a shotgun in his hand. A fight resulted. The defendant, wresting the gun from McCoy, found himself locked out of the apartment and so fired two shots into the door to open it and discover why McCoy had attacked him. The fight resumed, the defendant said, but he remembered nothing more until he found himself standing over the wounded McCoy. Retrieving the spent shells, as he had been taught in the army, he left.

Psychiatrist Herbert Raskin testified that at the time of the shooting the defendant was suffering from dissociative hysterical neurosis, arising in part from the defendant's military combat experience[98 MICHAPP 77] and brought on by the confrontation with McCoy's apparently loaded shotgun. This mental disorder, the doctor said, was quite consistent with the defendant's claimed loss of memory, and indicated an inability to recognize what he was doing or to control his actions. This diagnosis was inconsistent, he said, with the defendant's statement to police that he recalled pointing and firing the weapon at McCoy. A prosecution psychiatrist testified that the defendant was in full control of his faculties at the time of the shooting, evidenced in part by the rather full account of the shooting the defendant had given the witness, including his statement that he shot McCoy "several times".

The defendant argues on appeal that pathologist Spitz was allowed to give testimony relating to the science of ballistics without qualification as an expert in that field. In reviewing this assertion, we must decide only whether the trial court abused the discretion vested in it to decide the matter in the first instance. People v. Pepper, 36 Mich.App. 437, 194 N.W.2d 67 (1971). The thrust of the witness's testimony was not that a shotgun charge could penetrate an insulated steel door (that was established by other testimony), but that material from such a door could be carried by the charge into wounds. In this he was both trained and experienced and was thus fully qualified to express his opinion. Cf., People v. Carter, 78 Mich.App. 394, 259 N.W.2d 883 (1977).

The second claim of error brought by the defendant asserts that the trial judge improperly refused to designate McCoy's elderly and infirm neighbor a res gestae witness. We note at the outset that the prosecutor offered to accompany the court and counsel to the witness's home to afford the defendant the opportunity to question [98 MICHAPP 78] her and that the defendant declined. Neither did the defendant ever request a hearing regarding what the witness might have had to offer had she been called. People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), requires such a request as a condition of raising this issue on appeal. In any event, the trial court was justified in ruling that the neighbor, infirm, hard of hearing and sound asleep throughout the altercation, was not a res gestae witness. People v. Abrego, 72 Mich.App. 176, 249...