People v. Myers

• Citation: 30 Mich.App. 409,186 N.W.2d 381
• Decision Date: 15 February 1971
• Docket Number: No. 1,Docket No. 7397,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elizabeth J. MYERS, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 381

186 N.W.2d 381

30 Mich.App. 409

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elizabeth J. MYERS, Defendant-Appellant.

Docket No. 7397.

Court of Appeals of Michigan, Division No. 1.

Feb. 15, 1971.

Released for Publication May 3, 1971.

Abba I. Friedman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia P. Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and HOLBROOK and VANDER WAL, JJ. ^*

HOLBROOK, Judge.

On April 1, 1968, the defendant was charged in a complaint and warrant with the crime of manslaughter, C.L.1948, § 750.321 (Stat.Ann.1954 Rev. § 28.553). An examination was held April 26, 1968, and defendant was represented by Watts A. Shelly. The defendant was bound over to the circuit court for trial. An information ¹ was filed on May 23, 1968. On June 5, 1968, defendant was arraigned in circuit court with counsel present and stood mute, and a plea of not guilty was entered.

On June 26, 1968, Marvin Blake was substituted for Watts A. Shelly as attorney for the defendant.

The case was set for trial, first for July 8, then adjourned on June 26 to September 9, and on August 23 it was again adjourned to October 14, 1968. Trial before a jury was commenced on October 14 and completed on October 21, 1968 in the circuit court for the county of Wayne. The verdict of the jury was guilty as charged. A psychiatric examination was ordered by the court with 3 psychiatrists appointed. After their report and a pre-sentence report from the probation department had been received, the court, on January 30, 1969, sentenced defendant to a term of from 10 to 15 years in the Detroit House of Correction.

Upon proper application of defendant, appellate counsel was appointed for her on April 15, 1969, and the transcript ordered. On May 14, claim of appeal was filed and new counsel for defendant, Abba I. Friedman (present counsel) was appointed on January 13, 1970. On January 23, 1970, the trial transcript was filed in the trial court. Defendant's brief was filed on May 18, and plaintiff's brief on August 13, 1970. Defense counsel raises 5 issues on this appeal for our review and decision. We restate them as follows:

(1) Did the trial court err in refusing to quash the information because of lack of evidence at the examination?

(2) Was the defendant's attorney prejudicially restricted in stating to the jury his theory of the law in his opening statement?

(3) Did the trial court err in admitting a photograph of the deceased showing the extent of the burns on her body?

(4) Did the trial court err in failing to strike from the testimony the account of a prior burn on the deceased?

(5) Did the trial court err in refusing to grant a motion for directed verdict based on the claim that voluntary manslaughter had not been proven?

I

In the case of People v. Ray (1966), 2 Mich.App. 623, 627, 628, 141 N.W.2d 320, 322, it is stated in part as follows:

'The first issue to be considered is the sufficiency of the evidence produced at the examination to warrant binding the defendant over for trial in the circuit court. The test, upon preliminary examination, is stated by Mr. Justice CARR in the case of People v. Asta (1953), 337 Mich. 590, on p. 609, 60 N.W.2d 472, on p. 482 as follows:

"Under the statute relating to preliminary examinations (C.L.1948, § 766.13 (Stat.Ann.1954 Rev. § 28.931)) the magistrate may bind a defendant, or defendants, over to the circuit court for trial if it shall appear from the proofs that an offense not cognizable by a justice of the peace has been committed, and that there is probable cause for charging defendant, or defendants, therewith. In the instant case it was not required that the justice find the guilt of the defendants established beyond a reasonable doubt. People v. Hirschfield (1935), 271 Mich. 20, 27, 260 N.W. 106; People v. Wilkin & Walsh (1936), 276 Mich. 679, 687, 268 N.W. 779. It was essential, however, under the provisions of the statute, to determine that the offense charged had been committed, and that there was probable cause to believe that defendants were guilty.'

'Gillespie in 1 Michigan Criminal Law and Procedure (2d ed.), § 303, p. 361, stated:

"All facts and incidents which plainly relate to the offense are admissible. In many cases the application of strict rules of evidence would go far to defeat the object of the inquiry. The examining magistrate must be allowed a large discretion as to the extent and range of the inquiry. The magistrate does not act judicially in the technical sense, and the proceeding is one which, at common law, was conducted very much at the discretion of the magistrate.' ²

In reviewing the testimony presented at the preliminary examination, we find the following pertinent facts:

On the fateful late afternoon or early evening of March 29, 1968, there were 5 persons present during part or all of the occurrence that led to the charge here. They were the defendant and 4 of her stepdaughters, Antoinette, the deceased, Theresa, Antoinette's identical twin, and two older sisters, Brenda and Frances. The defendant had placed or told the 4 girls to get in the tub. The water was hot and Brenda and Frances, after stating it was too hot, were told by defendant to get out of the tub and go to bed. The 2 littlest girls, Antoinette and Theresa, remained in the tub. Some time later, about 6:15 p.m., the defendant called on a neighbor for help because the twins were having trouble breathing. Kathryn Shelhart, the neighbor, went with defendant directly to the bathroom of defendant's home and there she saw the twins on the floor. She testified that they were moaning, making a little cry, and breathing rather oddly. Their eyes seemed to be staring, didn't seem to be focusing on anything as they moaned. She stated that they were horribly burned--both seemed to be evenly burned. She called the Dearborn rescue squad and awaited their arrival. When they arrived, Antoinette and Theresa were taken by them to the Wayne county general hospital.

John Gorbe, a Dearborn police officer, testified that he arrived at the house shortly after 6 p.m. and in talking to one of the older children was informed that Brenda was upstairs in bed and that she had a cut on her leg. He went upstairs and found her leg was burned and he took her to the hospital. At the hospital he asked Brenda who turned the water on and she said her mother turned the water on and that the water was so hot she got out. Upon being informed by Brenda that Frances was also burned, the officer returned to the residence and finding that Frances was burned on the ankle, also took her to the hospital. The officer's testimony in part is as follows:

'Q. What did you do then, if anything?

'A. I talked to Frances on the way out to the hospital also.

'Q. What, if anything, did she say?

'A. Frances told me the same thing, her mother turned the water on, the water was real hot. She got out of the bathtub, she and Brenda got out of the bathtub, because her mother told them to. I asked them about the twins, and she said the twins did not get out of the bathtub, because the mother did not tell them to, and her mother sent Frances and her, Brenda, to bed.

'Q. Did you stay at the hospital with the two girls?

'A. I was there a little while until the helicopter came.

'Q. Frances and Brenda, did you stay at the hospital with them?

'A. No, I didn't stay in the room with them.

'Q. How did they get back to their home, did you drive them back?

'A. No.

'Q. You were at the hospital when the helicopter came?

'A. Yes.

'Q. What helicopter was that?

'A. The helicopter that came to transport the twins to the Ann Arbor Hospital.'

The resident physician at the Wayne county general hospital, Charles Duane Adams, M.D., was a witness at the examination and testified in part as follows:

'Q. Did you have occasion to be called in regard to two little girls being burned?

'A. Yes.

'Q. How did you happen to be called?

'A. I was emergency room surgical physician at the time.

'Q. What, if anything, did you observe when the girls were brought in?

'A. They arrived at 6:32, by our record. My attention was directed to the first, two children, two twins.

'Q. Can you estimate the age at this time?

'A. I was told by, the records indicate three and a half, by the record room. They, I better describe one at a time. One of them was identified to me as Antoinette Marie Myers. She was very ill. She was lying rigidly on the stretcher. She had cyanosis around the mouth, or she was bluish color. She was bluish in color. She had a very shallow respiration. Well, from all appearances, she appeared morbid, she appeared to be near death. She was burned from the waist down.

'A. Well, her left foot was in extension, the toe was pointed down. We attempted to straighten the feet up. When we attempted to straighten the foot up, it would not return to the normal position.

I interpreted that to being that she had sufficient burning to, well, to have caused shortening of the achilles tendon, and caused her foot to be permanently short. She had no sensation to the entire lower extremities, except for the few spots on the upper portion of her foot.

'A. She had no sensation except on the dorsum of her foot. As far as the rest of her examination, she had a rapid pulse. I started administering oxygen at this time because of her color. I made an incision in her right arm to find a vein so I could have fluid enter by vein, which took a period of time, approximately five minutes. We drew blood from here for typing and cross match, so we could administer blood, if necessary. We drew blood for chemical studies. She did not respond to therapy. That is, her blood pressure did not return to normal. Her pulse did not improve with the considerable amount of fluid. The extent of her burn was approximately 55%, as I...