People v. Oliver

• Decision Date: 28 January 1982
• Docket Number: Docket No. 50525
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Raymond OLIVER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 740

314 N.W.2d 740

111 Mich.App. 734

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Raymond OLIVER, Defendant-Appellant.

Docket No. 50525.

Court of Appeals of Michigan.

Submitted June 26, 1981.

Decided Dec. 15, 1981.

Released for Publication Jan. 28, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William A. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Asst. Pros. Atty., Appeals, and Timothy Baughman, Asst. Pros. Atty., for the people.

Peter Jon Van Hoek, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Before J. H. GILLIS, P. J., and BASHARA and SANBORN, ^* JJ.

J. H. GILLIS, Presiding Judge.

Defendant was charged with three counts of first-degree murder for the February 15, 1979, stabbing of Joan Prather in Hamtramck. M.C.L. § 750.316; M.S.A. § 28.548. Count I charged defendant with premeditated murder while counts II and III charged defendant respectively with committing the murder while in the perpetration or attempted perpetration of a larceny and while in the perpetration or attempted perpetration of a rape. On December 19, 1979, defendant was found guilty on all three counts by a Wayne County Circuit Court jury. The trial judge sentenced the defendant to life imprisonment for the conviction under count I and dismissed counts II and III. Defendant brings this appeal by right.

At the close of the prosecution's proofs, defendant moved for a directed verdict as to count I, claiming premeditation had not been established. The trial court denied the motion stating that premeditation was indicated by defendant's conduct in going home for the knife. This information was supplied by defendant's own statement to the police. Defendant claims that use of the defendant's statement to provide evidence of premeditation violates the corpus delicti rule.

The corpus delicti of felony murder may not be established without evidence, independent of the accused's confession, of the essential element that distinguishes the offense of first-degree murder from second-degree murder. People v. Allen, 390 Mich. 383, 385, 212 N.W.2d 21 (1973). In Allen, the Supreme Court adopted the reasoning of now Justice Levin in his dissenting opinion in this Court. 39 Mich.App. 483, 494-506, 197 N.W.2d 874 (1972). The reasoning of that opinion would not limit the holding to felony murder cases, but would apply it to all first-degree murder prosecutions. 39 Mich.App. at 502-506, 197 N.W.2d 847. See also People v. Sparks, 393 Mich. 135, 224 N.W.2d 481 (1974).

However, in Michigan, the corpus delicti rule is limited to confessions. People v. Porter, 269 Mich. 284, 257 N.W. 705 (1934).

" * * * The cases do not purport to render inadmissible statements of fact by the accused which do not amount to a confession of guilt of the offense.

"Defendant does not distinguish between confessions and admissions of fact. If the fact admitted necessarily amounts to a confession of guilt, it is a confession. If, however, the fact admitted does not of itself show guilt but needs proof of other facts, which are not admitted by the accused, in order to show guilt, it is not a confession but an admission and, therefore, is not within the range of cases cited.

"Here, defendant's exclamation and statements were not part of a confession nor did they, of themselves, amount to a confession of guilt. They were merely admissions, which needed other facts to give them convicting force, and, therefore, were admissible on the corpus delicti." 269 Mich. 290-291, 257 N.W.2d 705.

The statement in question here reads:

"I remember leaving the Stephens' house in the project; got a butcher knife. I then blacked out. I blacked out 'til after midnight when I received a phone call at home. I do not remember where I went with the knife. In the morning I woke up, went into the attic. I saw Joan's stereo. I then took the speaker and hid it in the attic. I do not know if I did or did not kill Joan Prather."

The facts admitted did not amount to a confession of guilt; they did not of themselves show guilt, but needed proof of other facts, not admitted, to show guilt. The statement was therefore an admission and outside the corpus delicti rule. Porter, supra.

Although Porter appears to enunciate a minority rule, ¹ it is still the law in Michigan. The case has never been overruled or otherwise disavowed by the Supreme Court. Moreover, in recent years it has repeatedly been followed by this Court. People v. Drielick, 56 Mich.App. 664, 667-668, 224 N.W.2d 712 (1974), lv. den., 396 Mich. 813 (1976); People v. Allen, 91 Mich.App. 63, 66, 282 N.W.2d 836 (1979); People v. Johnson, 93 Mich.App. 667, 673, 287 N.W.2d 311 (1979); People v. Losey, 98 Mich.App. 189, 196-197, 296 N.W.2d 601 (1980). The use of defendant's statement to establish premeditation was not error.

In light of this determination we decline to address defendant's argument concerning the dismissal of counts II and III. A decision on that issue would be necessary only if defendant's conviction on count I was found to be infirm.

Defendant next claims that the trial judge erred when instructing the jury on count II, felony murder in the perpetration of a larceny. It is defendant's position that the trial court should have instructed that a felonious larceny had to be involved and that a misdemeanor larceny is insufficient. The issue was preserved for appeal by defense counsel's requests for a pretrial ruling, and later, for dismissal based on this point.

The statute defining first-degree murder reads:

"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life." MCL 750.316; MSA 28.548. (Emphasis supplied.)

The statute describes circumstances that elevate what is otherwise murder (requiring proof of malice) to first-degree murder. People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). First-degree murder includes murder "committed in the perpetration, or attempt to perpetrate * * * larceny of any kind * * *". The cardinal rule of statutory construction is to arrive at and effectuate the intent of the Legislature. Nonetheless, a statute must admit of some ambiguity before a court will examine the legislative intent behind it in an attempt to ascertain meaning. People v. Moore, 96 Mich.App. 754, 760-761, 293 N.W.2d 700 (1980). Here, the language is unambiguous and the legislative intent should be determined accordingly. The phrase "larceny of any kind" means just that. The difference between felony and misdemeanor larceny will often depend on the value of the property stolen. M.C.L. § 750.356; M.S.A. § 28.588. A larceny or attempted larceny is no less of an aggravating circumstance in the context of a murder charge if the killing is for 35 cents as opposed to $100 or $5,000. The trial judge did not err in failing to instruct the jury on felonious larceny.

Count III of the information originally charged defendant with first-degree felony murder, alleging the murder took place during the perpetration or attempted perpetration of a rape. ² The trial court denied defendant's pretrial and trial motions to dismiss count III based on lack of evidence. We review that ruling with the Hampton ³ standard in mind.

Samples from the decedent's vagina failed to reveal the presence of sperm. However, when decedent was found, her nightgown as pulled up over her waist and a knife was left in her vagina. Further, decedent's panties were found in a ripped or cut condition. Her sweater was on a couch in the living room, but buttons apparently torn off of it were found under a kitchen table. The condition of the articles of clothing points to a struggle in the course of an attempted rape. The sweater and panties were apparently torn off the decedent and the nightgown pulled up. While just one of these circumstances might leave one with a reasonable doubt as to the existence of an attempted rape, their combination creates a sufficiently compelling set of circumstances so that a rational trier of fact could find beyond a reasonable doubt that an attempted rape had taken place. The trial court properly denied defendant's motion for directed verdict on count III.

Prior to trial defendant moved to suppress all evidence of various interrogation sessions conducted after defendant's arrest. Defendant claims his right to due process and a fair trial were denied because the police erased tape recordings of some of those interrogation sessions. The tapes in question were erased prior to any defense request. In People v. Amison, 70 Mich.App. 70, 245 N.W.2d 405 (1976), this Court stated:

"This Court has uniformly held that, absent intentional suppression or a showing of bad faith, the loss of evidence which occurs before a defense request for it does not mandate reversal. People v. Eddington, supra (53 Mich.App. 200, 218 N.W.2d 831 (1974) ); People v. Bendix, 58 Mich.App. 276, 227 N.W.2d 316 (1975); People v. McCartney, 60 Mich.App. 620, 231 N.W.2d 472 (1975). This Court has also held that the intentional destruction of tape recordings, where the purpose is not to destroy evidence for a forthcoming trial, does not mandate reversal. People v. Hardaway, 67 Mich.App. 82, 240 N.W.2d 276 (1976). It is only where this Court has found that there was no effort made to preserve the evidence initially, People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972), remanded on other grounds, 391 Mich. 419, 216 N.W.2d 780 (1974), or where there was the possibility that certain test results may have been actually suppressed, People v. Drake, supra, (64 Mich.App. 671, 236 N.W.2d 537 (1975) ), that this Court has found possible...