People v. Melvin, Docket No. 23081

• Decision Date: 19 July 1976
• Docket Number: Docket No. 23081
• Citation: 70 Mich.App. 138,245 N.W.2d 178
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Dean MELVIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 178

245 N.W.2d 178

70 Mich.App. 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Dean MELVIN, Defendant-Appellant.

Docket No. 23081.

Court of Appeals of Michigan.

July 19, 1976.

Released for Publication Sept. 15, 1976.

Ronald B. Keys, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and D. E. HOLBROOK, Jr., and PAPP, ^* JJ.

ALLEN, Judge.

Defendant, Ronald Dean Melvin, was charged with the first-degree murder of his wife, Yvonne Melvin, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. The information was later amended to the statutory short form of murder with degree unspecified, M.C.L.A. § 767.44; M.S.A. § 28.984; M.C.L.A. § 767.71; M.S.A. § 28.1011. People v. Strutenski, 39 Mich.App. 72, 197 N.W.2d 296 (1972). Defendant was convicted by a jury of second-degree murder.

Ypsilanti police were summoned for help by defendant in the early morning of April 10, 1974. Defendant was very distraught and told police over the phone, 'I just killed my wife'. When units arrived, they found the victim face down in the bedroom with a wound in the left side of her head and without any signs of life. Defendant and his infant son were the only other persons in the apartment. Defendant kept repeating, 'I killed her. I'm sorry, help me'. A suitcase half full of folded baby clothes was lying near the bed.

After preliminary investigation, the police suggested to defendant that he take his son next door to a neighbor friend, Linda Paden. When Miss Paden's boyfriend answered the door, defendant told him, 'Bob, I just blew my old lady away'. He broke down as Miss Paden appeared, saying be had hurt his wife real bad, in fact killed her. Later, at the State Police Post, after asking a trooper whether his wife was dead, he rhetorically remarked, 'buckshot at three feet would do it'.

On April 14, 1974, members of the victim's family accompanied an officer to the apartment to secure some of the personal possessions of deceased. In a metal file box, a note in defendant's hand was discovered, apparently written some months before. The contents were later admitted into evidence:

'Honey,

You know I love you very much. But I can't put up with this fighting all the time. What are you trying to do? Put me back in the nut house? You r (sic) doing a damned good job at it.

If you want to leave go ahead but remember one thing. I'm not losing or giving up what is mine! I'll fight this time at any price! Even if I got to Kill for it. If you don't believe me try it and see.

Love

Ron' At trial, various neighbors testified as to incidents indicating that defendant and deceased had a stormy marriage relationship. On one occasion defendant was holding a crutch over deceased, who was bleeding from the mouth and severely bruised. On another occasion defendant was seen pursuing his wife with a pistol. On another occasion, he put a knife to her throat and threatened to 'shove it through'.

Upon the close of the evidence, the jury retired to deliberate, but returned shortly afterward inquiring about the legal distinction between second-degree murder and voluntary manslaughter. Ultimately, they returned a verdict of second-degree murder.

On appeal, defendant assigns as error (1) the finding by the examining magistrate of probable cause that the offense of first-degree murder was committed; (2) admission in evidence of prior marital arguments and altercations as testified to by neighbors; (3) admission in evidence of the death-threat letter; (4) insufficiency of evidence of premeditation and deliberation; (5) instructing the jury on the offense of first-degree murder. We discuss the alleged errors Seriatim.

1. At preliminary examination, the prosecution is required to present evidence to establish a prima facie case for each element of the crime charged. People v. Paill #2, 383 Mich. 621, 178 N.W.2d 465 (1970), People v. Asta, 337 Mich. 590, 611, 60 N.W.2d 472 (1953). Because the statutory short form of murder was used here, the prosecution was not strictly bound to show the premeditation and deliberation necessary for first-degree murder. However, the district court made a preliminary finding of premeditation and deliberation, and this Court finds the evidence sufficiently persuasive to sustain the finding. In any case, the district court will not be reversed unless a clear abuse of discretion is shown. People v. Bethea, 65 Mich.App. 375, 379, 237 N.W.2d 336 (1975), People v. Stinson, 58 Mich.App. 243, 227 N.W.2d 303 (1975), Lv. den. 394 Mich. 761 (1975).

2. Defendant argues the neighbors' testimony should not have been allowed at trial. Yet, no objection was raised there. This fact will normally foreclose raising the matter on appeal. People v. Webb, 13 Mich.App. 625, 164 N.W.2d 697 (1968), People v. Loudenslager, 327 Mich. 718, 42 N.W.2d 834 (1950). Only by showing manifest injustice can defendant now obtain reversal on this matter. People v. Jolly, 51 Mich.App. 163, 214 N.W.2d 849 (1974).

Testimony of prior acts may be admitted to show defendant's motive and intent, if the evidence is also relevant. People v. Campbell, 61 Mich.App. 600, 604, 233 N.W.2d 103 (1975), People v. Wood, 44 Mich.App. 99, 205 N.W.2d 66 (1972), People v. Simon, 23 Mich.App. 64, 178 N.W.2d 106 (1970). The testimony was relevant to establish the 'malice aforethought' even if not premeditation and deliberation. Defendant had argued that the killing was an accident. The testimony of the neighbors was evidence to rebut this interpretation, proving malice, and demonstrating a motive. People v. Powell, 223 Mich. 633, 194 N.W. 502 (1923). The relevancy seems clear. People v. Smedley, 37 Mich.App. 325, 194 N.W.2d 383 (1971), People v. Burton, 28 Mich.App. 253, 184 N.W.2d 336 (1970).

3. Since the defendant admitted shooting his wife but testified that the killing was accidental, the importance of the letter to the prosecution's case is obvious. The defense repeatedly objected to its admission--during both the trial and the preliminary examination. We believe that the letter was properly admitted. Given the importance of this single piece of evidence, each of the defendant's grounds for opposing its admission will be discussed separately.

First, he argues that the foundation for admission of the letter was inadequate because there was not a sufficient showing that the defendant wrote the letter. The letter was found among the defendant's wife's personal effects; it was addressed to 'Honey' and was signed 'Ron'; the victim's sister testified that the handwriting was the defendant's. The evidence was sufficient to establish that the defendant wrote the letter. Champion v. Champion 368 Mich. 84, 117 N.W.2d 107 (1962), McCormick on Evidence (2d ed), § 221, p. 547.

It is next suggested that the letter was inadmissible because the threat it contains was too remote in time to be relevant. The letter was undated. However, the defendant and the victim were married on November 20, 1971; and the homicide occurred on April 10, 1974. Assuming that the letter was written by the defendant to the victim, it was almost certainly no more than 2 1/2 years old. ¹ Given the prosecution theory that the defendant killed his wife because she was about to leave him again, the logical relevance of the letter is clear. The argument that the letter was too old to be admitted is an attack on its legal relevancy, I.e., whether its improper prejudicial effect outweighs its proper probative value. Evaluation of those factors is entrusted to the discretion of the trial judge. People v. Howard, 391 Mich. 597, 218 N.W.2d 20 (1974). There was no abuse of that discretion in the present case. See also People v. Bauman, 332 Mich. 198, 50 N.W.2d 757 (1952).

Finally, the defendant argues that the foundation for admission of the letter was inadequate because it was not established that the letter was actually written to the victim. The defendant had been married previously; apparently this argument is intended to suggest that the letter may have been addressed to his first wife. No Michigan case has ever stated what, if anything, the party moving for admission of a letter must do if it is suggested that the letter was not addressed to the person in whose possession it was found. In Armistead v. Brooke, 18 Ark. 521 (1857), and Wilkins v. Burton, 5 Vt. 76 (1835), letters to unidentified or non-existent addressees were admitted. But the present case is distinguishable because the letter is obviously irrelevant unless it was addressed to the victim. In the absence of controlling authority, we hold that the identity of the addressee may be established in the same manner as the identity of the author of a letter. Identity may be established by circumstantial evidence. Flickema v. Henry Kraker Co., 252 Mich. 406, 233 N.W. 362 (1930). The letter was found among the victim's personal effects; it was addressed to 'Honey', a common endearment; its references to fights sparked by threats of separation were verified by other testimony. Given that evidence, we believe that an adequate foundation was established. ²

Even though properly authenticated, the letter was still hearsay since it was a written out of court statement offered to establish the truth of the defendant's statement that he had decided to kill his wife if the fights over her repeated departures continued, McCormick on Evidence (2d ed), § 246, p. 584. However, once properly authenticated, it became admissible under the recognized hearsay exception for proofs of the declarant's state of mind where that state of mind is a material issue. McCormick on Evidence (2d ed), § 294, p. 694. The letter might also qualify as an admission; but because of its remoteness in time to the homicide, we prefer to rely upon the state of mind exception.

4. The meaning of premeditation and deliberation cannot be entirely abstracted...