People v. Moncure

• Decision Date: 20 February 1980
• Docket Number: Docket No. 78-1415
• Citation: 94 Mich.App. 252,288 N.W.2d 675
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul MONCURE, Defendant-Appellant. 94 Mich.App. 252, 288 N.W.2d 675
• Court: Court of Appeal of Michigan — District of US

Page 675

288 N.W.2d 675

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul MONCURE, Defendant-Appellant.

Docket No. 78-1415.

94 Mich.App. 252, 288 N.W.2d 675

Court of Appeals of Michigan.

Feb. 20, 1980.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 255] Morris Berris, Southfield, Raymond L. Miller, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and BASHARA and BEASLEY, JJ.

PER CURIAM.

We are asked to decide, Inter alia, whether a statement made by the defendant to a third party who is called by the prosecution to testify at trial is hearsay as defined by MRE 801. Charged with first-degree murder contrary to M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony in contravention of M.C.L. § 750.227b; M.S.A. § 28.424(2), defendant was convicted by a jury on February 3, 1978. He appeals of right, alleging five grounds for reversal.

1. Defendant contends the evidence is insufficient to support a finding of murder and that the trial court erred in denying his motion for a directed verdict of acquittal. The test for determining[94 MICHAPP 256] if evidence was sufficient in a criminal case to warrant submission to the jury is whether the evidence is ample to sustain a finding of guilty beyond a reasonable doubt. People v. Williams, 368 Mich. 494, 501, 118 N.W.2d 391 (1962); People v. Johnson, 83 Mich.App. 1, 16, 268 N.W.2d 259 (1978).

We find the evidence ample. There was eyewitness testimony that the defendant fired the shots which killed the decedent. There was testimony that the defendant and decedent had been involved in a love affair, and that the decedent had broken it off. The murder weapon was found a few feet away from the place where the defendant was found. He had shot himself. It could be reasonably inferred that the killing and attempted suicide were the unhappy resolution of the love affair. Finally, there was testimony that the defendant left his residence on September 12, 1977, the morning of the murder, at 12 a. m. and returned around 4 a. m. The murder occurred at approximately 3 a. m. This combination of direct and circumstantial evidence was clearly sufficient to support a finding of guilty beyond a reasonable doubt. People v. Edgar, 75 Mich.App. 467, 255 N.W.2d 648 (1977).

2. The defendant next contends the court's charge omitted the element of malice from the jury's deliberations on the first-degree murder charge. This is simply inaccurate. The court's charge on malice was almost a word-for-word rendition of proposed CJI 16:2:01(2). The charge was legally accurate.

3. We are not persuaded by defendant's claim that there was insufficient evidence to support a finding of premeditation and deliberation. To establish premeditation and deliberation it is necessary to show that a time span existed between the [94 MICHAPP 257] initial thought and ultimate action which could afford a reasonable man time to subject the nature of his response to a "second look". People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471 (1979). In People v. Meadows, 80 Mich.App. 680, 691, 263 N.W.2d 903, 908 (1977), we said:

"Factors to be considered in determining whether the accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant's actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant's conduct after the homicide."

One witness, a fellow employee of the deceased, testified that on the night of the shooting he had driven the deceased home following work, that he was followed by defendant's car, that while he and deceased were parked outside deceased's home, the defendant drove very slowly past their parked car and then came back a third time as the witness and deceased were walking toward deceased's doorway; that defendant then fired four shots, killing the deceased. This testimony supplies ample evidence that the accused had the opportunity of a second look.

4. Certain remarks made by the prosecutor in his opening, closing and rebuttal statements are characterized as having been erroneously allowed. In his opening statement the prosecutor stated that a certain witness whom he would call, Ms. Shields, would testify that the defendant told her "if the deceased ever left him (defendant) he would kill her (deceased) and then kill himself." No objection was made at the time but later, when Ms. Shields was called as a witness, objection was made. The jury was excused and the defense argued that the intended statement was hearsay. [94 MICHAPP 258] The prosecution argued the statement was admissible under the "party admission" rule set forth in MRE 801 d(2). The trial court sustained the objection on the grounds that, because Ms. Shields could not remember the dates when the statements were made, an insufficient foundation was laid for admission into evidence. Defendant contends on appeal that even though the testimony was disallowed, the prosecution's very reference to it in his opening statement was inflammatory and prejudicial.

Resolution of the question raised requires our interpretation of MRE 801 defining hearsay. The relevant portion of that rule reads:

"The following definitions apply under this article:

"(a) Statement. A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.

"(b) Declarant. A 'declarant' is a person who makes a statement.

"(c) Hearsay. 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

"(d) Statements which are not hearsay. A Statement is not hearsay if:

"(2) Admission by party-opponent. The Statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, * * *." (Emphasis supplied.)

Since the statement was not made by defendant while testifying at trial and since it was offered by the prosecution to prove the truth of the matter asserted, Viz. he would kill the deceased if she left him it clearly falls within (c) as [94 MICHAPP 259] hearsay. The next question is whether it becomes "not hearsay" by subsection (d)(2). Except for language not relevant to the question before us, MRE 801(d) is identical with the Federal Rule. Considerable light is shed on the scope and meaning of (d)(2), commonly known as the party-opponent admission rule, in Saltzburg & Redden, Federal Rules of Evidence Manual, (2d ed.), 454-470.

Based on the extensive comments found in that text, we find that subsection (d)(2) is a statement of the common-law exception to hearsay rule. At common law, out-of-court statements made by a party to a lawsuit were hearsay but were allowable hearsay. Id. 459-460. The only difference between the common-law rule and (d)(2) is that the former was treated as an exception to the hearsay rule while the latter treats it as "not hearsay".

We also glean from that text that the out-of-court statements of a defendant are not limited to "admissions" as that word is commonly understood to mean but refers to all statements made by defendant. This fact and the rationale therefor is succinctly stated in 4 Wigmore, Evidence (3d ed.), § 1048, p. 405:

"The theory of the hearsay rule is that an extrajudicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross-examination by the party against whom it is offered; e. g., if Jones had said out of court 'The party-opponent Smith borrowed this fifty dollars,' Smith is entitled to an opportunity to cross-examine Jones upon that assertion. But if it is Smith himself who said out of court, 'I borrowed this fifty dollars,' certainly Smith cannot complain of lack of opportunity to cross-examine himself before his assertion is admitted against him. Such a request would be absurd. Hence the objection of the hearsay rule falls away, because the very basis of the rule is lacking, viz., [94 MICHAPP 260] the need and prudence of affording an opportunity of cross-examination.

"In other words, the Hearsay rule is satisfied ; Smith has already had an opportunity to cross-examine himself; or (to put it another way) he now as opponent has...