People v. Paintman

• Decision Date: 19 September 1979
• Docket Number: Docket No. 77-3436
• Citation: 285 N.W.2d 206,92 Mich.App. 412
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman PAINTMAN, Defendant-Appellant. 92 Mich.App. 412, 285 N.W.2d 206
• Court: Court of Appeal of Michigan — District of US

Page 206

285 N.W.2d 206

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman PAINTMAN, Defendant-Appellant.

Docket No. 77-3436.

92 Mich.App. 412, 285 N.W.2d 206

Court of Appeals of Michigan.

Sept. 19, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 413] James R. Neuhard, State Appellate Defender, by P. E. Bennett, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief [92 MICHAPP 414] Appellate Counsel, Asst. Pros. Atty., Lawrence J. Bunting, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and CARROLL, ^* JJ.

V. J. BRENNAN, Judge.

Defendant, Norman Paintman, was convicted by a jury of four counts of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. Defendant was sentenced to life imprisonment on each conviction and brings this appeal by right.

The defendant and one William Wardel Kidd were charged together with the February 23, 1976, premeditated murders of Ronald Brown, Floyd McElahanon, Theodoro Nelson, and Andrea Brown. At trial the medical examiner testified that the victims died of gunshot wounds to the head. One to three wounds were inflicted on each victim; seven wounds in all. Police officers established by their testimony that the four victims had been discovered lying side-by-side on the floor of a Southfield apartment on February 23, 1976. Testimony relating to bullets and shell casings established the probable weapons as a Smith and Wesson revolver and an F.I.E. "Titan Tiger".

The prosecution's evidence also included testimony by Arthur Sailes. Sailes was an ex-narcotics dealer who had frequently purchased narcotics from Floyd McElahanon. Sailes testified that he drove to McElahanon's apartment in Southfield on February 23, 1976, after speaking with McElahanon on the telephone at about noon that day. Arriving in the area of the apartment at approximately[92 MICHAPP 415] 12:25 p.m., Sailes saw the defendant and Kidd leave McElahanon's apartment building. The defendant was carrying a shiny object in his hand. Sailes tried to gain entry into the apartment building by ringing the bell but received no response. He entered the building with a key and went to McElahanon's apartment, finding the door open. Sailes, stated that looking inside, he saw three bodies on the floor and noticed an odor of gunpowder. Sailes stated that he had known William Kidd for a period of time and he had seen Kidd carry a .38 caliber Smith and Wesson revolver. He testified that Kidd had threatened to kill Floyd McElahanon.

Also presented as a part of the prosecution's case was testimony from Southfield Police Captain Edward Ritenour. Ritenour related the substance of defendant's statement given on March 1, 1976, in the Oakland County jail. According to the statement, defendant agreed to go with William Kidd to McElahanon's apartment to hold up McElahanon for money and drugs. Defendant knew that Kidd also intended to kill McElahanon. Defendant also knew that Kidd owed McElahanon money for previous drug dealings. Defendant and Kidd went to McElahanon's apartment building where Kidd gave defendant a handgun. Kidd and defendant then gained entrance to the apartment building, and ultimately into McElahanon's apartment where they forced the people inside to lie on the floor. Kidd "covered" the people on the floor while defendant searched for, and found, a quantity of drugs and money. Then defendant and Kidd shot the persons lying on the floor, and left.

The jury returned a verdict of guilty on all counts. Defendant appeals raising several allegations of error.

[92 MICHAPP 416] The first two allegations of error concern the admissibility of defendant's statement made while in police custody. This precise question was addressed by this Court in a previous interlocutory appeal by the prosecutor. In that appeal the Walker ¹ hearing in the present case was reviewed on the whole record with the ultimate finding that the statement was voluntary and thus admissible. People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974). Since the prior ruling concerned the same questions of law presented on this appeal, it is the law of the case and is controlling. A legal question which has been raised in one appeal may not be raised again in a subsequent appeal after proceedings held on remand to the lower court. People v. Drew, 83 Mich.App. 57, 268 N.W.2d 284 (1978), Allen v. Michigan Bell Telephone Co., 61 Mich.App. 62, 232 N.W.2d 302 (1975).

Next defendant argues that the trial court erred in instructing the jury that they could find the defendant guilty of aiding and abetting first-degree murder when the alleged principal had been convicted of second-degree murder. The defendant's contention is without merit. A person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. People v. Mann, 395 Mich. 472, 477-478, 236 N.W.2d 509 (1975), People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974).

Next defendant claims on appeal that the following instruction was erroneous:

"It is charged in this case that Norman Paintman either deliberately committed the crime charged, that is either murder in the first degree, or that he intentionally aided and assisted another in the commission of [92 MICHAPP 417] the crime. All persons who aide (sic) or assist in the commission of a crime are as libel (sic) as if they had directly committed the crime and may be convicted of the principal offense or as an aider and abettor.

"Before you may convict, you must be convinced of the following beyond a reasonable doubt: First, the crime charged must have been committed either by the Defendant or some other person; second, the Defendant must have performed acts or given encouragement which aided or assisted the commission of that crime either before or at the time of the commission of the crime; third, the Defendant must have intended the commission of the crime charged at the time of giving aid or encouragement."

It is the defendant's contention that the rule of People v. Olsson, 56 Mich.App. 500, 224 N.W.2d 691 (1974), requires reversal where a single offense is based on two alternative theories of guilt and the jury has not been instructed that it must unanimously agree on the theory upon which it finds the defendant's guilt. In Olsson, the defendant was charged with murder in the first degree. The jury was instructed to agree unanimously on a verdict and was charged that a conviction of first-degree murder could follow from a theory of felony murder or from a theory of premeditated murder. In its explanation of the fault in the instruction in that case the Court noted:

"We feel that these instructions did not adequately inform the jury of their duty to make a unanimous finding as to whether defendant was guilty of premeditated murder or murder in the perpetration of a felony. We agree with defendant that on the basis of these instructions, it is possible that the jury arrived at a compromise verdict, that is, some members of the jury may have felt defendant was guilty beyond a reasonable doubt of murder in the perpetration of a robbery or larceny while the remaining members may have felt [92 MICHAPP 418] that defendant was guilty beyond a reasonable doubt of premeditated murder. Such a verdict would not be unanimous and could not convict defendant. GCR...