People v. Mitchell

• Decision Date: 21 February 1973
• Docket Number: No. 2,Docket No. 11987,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Garry MITCHELL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 876

205 N.W.2d 876

44 Mich.App. 679

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Garry MITCHELL, Defendant-Appellant.

Docket No. 11987.

Court of Appeals of Michigan, Division No. 2.

Feb. 21, 1973.

Released for Publication April 13, 1973.

Clayton E. Preisel, Bahls & Preisel, Imlay City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Martin E. Clements, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

DANHOF, Judge.

Defendant was convicted by jury verdict of second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. He appeals, raising three allegations of error predicated upon the trial judge's rulings. Reversible error is claimed by these rulings which (1) admitted into evidence defendant's statement made to the police after his arrest because the motion made at trial to suppress was untimely, (2) permitted the prosecution to rebut defendant's claim that he was homosexually assaulted by the deceased with testimony regarding defendant's solicitation of homosexual relations with a third party, and (3) denied defendant's request for a second continuance to produce an additional surrebuttal witness.

At the time the sequence of events leading up to the homicide were set in motion, defendant was on parole. On November 13, 1970, defendant's parole officer received a letter from defendant relating the following story: On Sunday evening, November 8, defendant stopped at the Hillside Tavern located on highway M--24. Near closing time defendant met the deceased, Donald Guthrie, whom he asked for a ride to Lapeer. The deceased invited defendant to spend the night with him and he accepted. When defendant awoke the following morning, deceased was drinking beer at the kitchen table. The deceased offered defendant an 'eye-opener' and they drank a quantity of beer and whiskey. Defendant became ill and the deceased told him to lie down in the back bedroom. Defendant was awakened by deceased tugging at his pants with 'real big' eyes. He grabbed defendant's penis and defendant reacted by hitting him five or six times. The deceased stepped backwards, reached behind him, and produced a knife. A struggle ensued during which defendant secured possession of the knife and stabbed the deceased in the chest.

Overcome by panic, defendant took the deceased's car keys and fled in his vehicle. Defendant 'drove around' for a few days attempting to decide whether or not to surrender to authorities. He wanted to surrender but was afraid he would be convicted since he was an ex-convict and his claim of self-defense would not be believed. He gave the name and location of the deceased and concluded the letter by requesting that someone be notified since he did not know whether the man was dead.

This letter was forwarded to the Lapeer State Police post which dispatched an officer to the given address. The officer subsequently confirmed the homicide. Defendant was in an automobile which was stopped by Vassar city police officers for speeding in the early morning hours of November 14, 1970. After his identity failed to match the registration certificate listing Donald Guthrie as owner, the officers contacted the Lapeer State Police post for an 'identification check' of the vehicle's license plates. Upon being informed of the homicide, they arrested defendant and transported him to the Vassar City Police Department. Custody of defendant was subsequently transferred to Lapeer State Police officers. After they advised defendant of his Miranda ¹ rights, he offered a statement in substantial compliance with the letter. On November 20, 1970, defendant gave the police a slightly more elaborate statement which conformed to his earlier statement and letter.

At trial defendant's letter and two statements were offered and received into evidence. The defendant objected to the admission of the statement of November 20, 1970, contending that it was involuntarily procured. The trial judge denied defendant's motion to suppress, finding it untimely. Since the November 20th statement contained ambiguous references to defendant's involvement in homosexual conduct, defendant, upon taking the stand, testified that he had never solicited such relations. The prosecution offered one of defendant's three cellmates during his pretrial confinement as a rebuttal witness to testify to defendant's solicitation of homosexual relations. Defendant responded by requesting and obtaining a continuance and offering one of the remaining cellmates as a surrebuttal witness. Defendant requested a second continuance to secure the attendance of the final cellmate for surrebuttal. Believing further delay to be unjustified, the trial judge denied the motion. At the conclusion of trial, the jury returned a verdict of guilty.

Defendant first challenges the trial judge's denial of his motion to suppress the allegedly involuntary statement of November 20, 1970, submitted at trial. The procedure followed by the courts of this State to test the voluntariness of statements and confessions elicited from defendants during police interrogation is found in People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (On Rehearing, 1965). A Walker hearing, contemplating a pretrial motion, conforms with the general rule which requires a pretrial motion to suppress evidence upon pain of waiver. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965); People v. Smith, 19 Mich.App. 359, 172 N.W.2d 902 (1969); People v. Childers, 20 Mich.App. 639, 174 N.W.2d 565 (1969); People v. Paffhousen, 20 Mich.App. 346, 174 N.W.2d 69 (1969). People v. Williams #1, 23 Mich.App. 129, 178 N.W.2d 128 (1970). This rule is not without exception since the authorities permit the trial judge within his discretion to entertain a motion to suppress at trial. Whether a trial judge abuses his discretion by not turning aside from a criminal case to conduct a separate hearing upon the admissibility of evidence may be tested by the existence of 'special circumstances' ² justifying the delay. Although this concept has not been fully defined, the primary example is offered in People v. Ferguson, Supra, a case where the factual circumstances constituting the illegality are not known prior to trial.

In the present case, defense counsel, when questioned by the trial judge regarding the delay in submitting the motion to suppress, answered that it was a matter of strategy. He argued that certain portions of the statement not originally considered harmful subsequently became prejudicial. The precise nature of this prejudice was neither revealed to the trial judge nor appears in defendant's appellate brief. An application of the cited authorities fails to reveal an abuse of discretion. Further, based upon the record before us, we cannot conclude that the statement, even if improperly admitted, caused a miscarriage of justice requiring us to consider the merits of an unpreserved issue. ³

The record shows no abuse of discretion in refusing to allow a second continuance.

The significant issue before us is raised by defendant's challenge to the admission of evidence regarding his alleged homosexual conduct with others. The issue of homosexuality was interjected into the case by defendant's reliance upon a claim of self-defense precipitated by the deceased's alleged homosexual assault. The defendant also testified that he had never made homosexual advances. When the defendant did these things he placed his character in issue insofar as it involves homosexuality. By placing his character in issue he rendered it proper for the prosecution to introduce evidence that his character was not as he said it was. Wigmore, Evidence (3d ed.), § 58, pp. 457--458.

Finding no Michigan authority that is in point on the question of proving bad character by proof of other bad acts in a case similar to the one at bar, we turn to a line of California cases which we find highly persuasive. People v. Westek, 31 Cal.2d 469, 190 P.2d 9 (1948), was a prosecution for sodomy and lewd and lascivious conduct. On direct examination the defendant testified that he had never committed any acts of sodomy or lewdness. The prosecution then produced several witnesses who testified that he had performed such acts on them. The Supreme Court of California found such evidence to be admissible. The Court reasoned that unless the prosecutor was allowed to use such evidence the defendant would be able to place himself in an especially favorable light before the jury, and the prosecution would not be allowed to rebut the false impression thus conveyed. We agree with the reasoning of the California Court.

Subsequent California cases have applied the same reasoning. People v. Goff, 100 Cal.App.2d 166, 223 P.2d 27 (1950), applied the rule in another lewdness case. People v. LeBeau, 235 P.2d 850 (Cal.App.1951), was a narcotics case. People v. Hughes, 123 Cal.App.2d 767, 267 P.2d 376 (1954), was an assault case. We are convinced that the rule should be applied to the case at bar.

We are not impressed by the argument that evidence of homosexuality should be limited to proof of a reputation for homosexuality. To adopt such a rule would be to reject the more reliable of two types of proof. A homosexual will often have no reputation as such, and a reputation for homosexuality will all too often be based on the rankest of speculation. Proof of specific acts is by far the most reliable means of proof.

Affirmed.

BRONSON, Presiding Judge (dissenting).

The use of character evidence, like prior convictions, for purposes of impeaching a defendant's credibility while contradicting a proffered defense may well become the determinative factor in a criminal trial. The jurisprudence of this state rejects the proposition that other crimes and misconduct are admissible to prove a defendant's criminal disposition or propensity to commit the crime charged. Evidentiary exceptions which permit the...