People v. Norwood

• Decision Date: 17 May 1976
• Docket Number: Docket No. 22650
• Citation: 243 N.W.2d 719,68 Mich.App. 730
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eileen NORWOOD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 719

243 N.W.2d 719

68 Mich.App. 730

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eileen NORWOOD, Defendant-Appellant.

Docket No. 22650.

Court of Appeals of Michigan.

May 17, 1976.

Released for Publication July 19, 1976.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward G. McNamara, Jr., Pros. Atty., for defendant-appellant.

Kenneth A. Webb, Detroit, for plaintiff-appellee.

Before KAUFMAN, P.J., and R. B. BURNS and DENEWETH, ^* JJ.

G. R. DENEWETH, Judge.

On December 13, 1973, the defendant was convicted after a jury trial of the crime of manslaughter. On February 4, 1974, a sentence of not less than 3 nor more than 15 years in the state prison was imposed. It appears that the defendant had been married to the decedent and that even after the divorce the parties maintained a close liaison with each other although they were never remarried. The day on which the decedent was killed, they had been visiting a local bar during the course of which visit an argument developed. Eventually the defendant went to her mobile home, then proceeded back to the bar to pick up the decedent, and returned to her mobile home. Upon arrival at the defendant's mobile home, the decedent became quite angry at what he considered to be a failure on the part of the defendant to open the door quickly enough. He became violent and ripped the door off the hinges. At this point and defendant called the local sheriff's office and informed the deputy who answered the call that there had been trouble between herself and the decedent, and that the trouble was continuing and that serious problems would arise if someone did not come out to her home. The deputy, who had received many earlier false alarms from the defendant, suggested a future call if the fracas continued. Approximately one-half hour later the defendant again called the sheriff's office and informed the deputy that she had just shot the decedent. The deputy immediately went to the trailer and upon his arrival found the decedent lying in a pool of blood at one end thereof and the defendant lying on the other end of the trailer with a pistol still in her hand. Immediately upon entering, the deputy sheriff inquired as to what happened, and the defendant responded that the decedent had been beating her, that they had been arguing and that she found her gun and shot him. At the time the question was asked by the deputy and the answer was given, no Miranda ¹ warnings had been given to the defendant. The State Police subsequently arrived and they gave the defendant her Miranda warnings and then began to question her. The defendant refused further interrogation until she had the opportunity to consult with her attorney and she was removed to a hospital for treatment of the bruises and contusions which were on her body. The decedent was taken to the hospital and pronounced dead on arrival. The defendant was then arraigned on a charge of first-degree murder under the first-degree murder statute, M.C.L.A. § 750.316; M.S.A. § 28.548. The complaint charged the defendant had feloniously and maliciously killed the decedent. After the examination the defendant was bound over to circuit court for trial on an open charge of murder. The information filed in the circuit court charged the defendant with first-degree murder. The defendant filed two motions to dismiss, both of which were denied by the trial judge. After the close of the proofs the trial judge dismissed the charge of first-degree murder and submitted the case to the jury on the charges of second-degree murder, manslaughter or not guilty. The theory under which the defendant proceeded during the trial was that of self-defense. The trial judge gave an instruction on self-defense which he later clarified for the jury, and on the basis of the instructions given and the facts as presented the jury returned a verdict of guilty of manslaughter. The appeal in this case raises four basic questions.

1) Whether or not it was error to bind the defendant over for trial on an open charge of murder. We think not.

2) Whether or not the deputy sheriff's questioning violated the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We think it did.

3) Whether or not improper prosecution argument constituted reversible error. We think it did.

4) Whether or not the trial judge erred in the self-defense instructions which he gave the jury. We think he did.

This Court is of the opinion that the conviction must be set aside and the case remanded for a new trial because of the failure on the part of the deputy sheriff to give the Miranda warning to the defendant prior to his asking her what happened. This, as well as the other issues raised by the defendant will hereinafter be reviewed in the order in which they were raised.

Issue #1: It is so axiomatic so as not to require citation that the prosecution must establish two things at the preliminary examination: (1) that the crime with which the defendant has been charged was in fact committed, and (2) that there is reasonable cause to believe that the defendant committed that crime. Absent either element being established, the charges against the defendant must be dismissed at the examination stage. The facts in the instant case present a variation on the question of whether a defendant may be bound over to circuit court on an open charge of murder, and brought to trial on an information charging first-degree murder, where the preliminary examination testimony fails to show premeditation and deliberation. It is our opinion that this question must be answered in the affirmative. The case of People v. Davis, 343 Mich. 348, 355--356, 72 N.W.2d 269, 274 (1955), sets forth the general proposition that:

'Where a complaint charges that an accused feloniously, wilfully and of malice aforethought did kill and murder, the certification to the circuit court need not specify whether it was first or second degree murder.'

This principle was further amplified in the case of People v. Strutenski, 39 Mich.App. 72, 197 N.W.2d 296 (1972), where the Court held that the examining magistrate is not, at the time of the preliminary examination, required to determine the degree of murder. 'The question of the degree of murder was a question for the trier of the facts--in this case the jury.' 39 Mich.App. at 73, 197 N.W.2d at 277.

The defendant in her argument has placed a great deal of emphasis upon the case of the People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). It is our opinion that the Allen case does not apply to the instant situation. That case speaks only to the question of felony murder, a peculiar form of first-degree murder. In the so-called 'ordinary first-degree murder case,' the corpus delecti is the body of the decedent and the criminal agency of another causing death, both of which facts were abundantly clear in the present case without the necessity of any confession. It may also be said Arguendo that such a procedure even if it be considered error is harmless in view of the trial judge's instructions to the jury not to consider the question...