People v. Parney, Docket No. 78-3353

Decision Date10 December 1979
Docket NumberDocket No. 78-3353
Citation296 N.W.2d 568,98 Mich.App. 571
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Junior Lavern PARNEY, Defendant-Appellant. 98 Mich.App. 571, 296 N.W.2d 568
CourtCourt of Appeal of Michigan — District of US

[98 MICHAPP 574] James R. Neuhard, State Appellate Defender by Rolf E. Berg, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald C. Zellar, Pros. Atty., Leonard J. Malinowski, Pros. Atty. Appellate Service, for plaintiff-appellee.

Before CYNAR, P. J., and MacKENZIE and CORKIN, * JJ.

PER CURIAM.

This case arises from the defendant's shooting of Ms. Roberta Kurtz, with whom he had been carrying on a somewhat stormy relationship for about a year and a half. Ms. Kurtz's two daughters, Brenda and Cynthia, were present at the time of the shooting and give substantially similar testimony.

On the morning of August 11, 1975, Ms. Kurtz and defendant argued for some two hours over whether defendant could spend the next weekend with the Kurtz family. Ms. Kurtz remained firm with her refusal, and defendant left the house. In about half an hour he returned to the house and [98 MICHAPP 575] asked if he could stay there the next week. On being told no, he left the house again, but returned a few minutes later holding a shotgun. Ms. Kurtz and defendant struggled over possession of the gun. The struggle ended when defendant put the gun down. There followed a brief conversation. Ms. Kurtz then went out the front door and onto the front porch, followed by defendant, who had picked up the gun. According to Cynthia Kurtz, defendant said something to her mother and then shot her. According to Brenda Kurtz, defendant threatened to kill her mother and shortly thereafter shot her. Shortly afterwards, defendant shot himself in the neck. When police officers arrived, a short time after the shooting, they found him in his car in the driveway together with the gun. He was immediately placed under arrest.

Ms. Kurtz, who was paralyzed in all extremities as a result of the shooting, was taken to a local hospital and then transferred to the University of Michigan Medical Center. On September 14, 1975, she was found dead in her hospital bed. Autopsy findings shows that she had choked on some partially digested food which had caused a fatal reflex reaction.

On September 9, 1975, a police officer tape recorded a conversation with Ms. Kurtz. 1 At the [98 MICHAPP 579] trial, the prosecution offered this recording in evidence as a dying declaration of the deceased, and the defense objected to its admission as being hearsay testimony. The trial court, after research and discussion with counsel, admitted the recording as a dying declaration, and it was played for the jury. This is the basis for one of two claimed errors on appeal.

Defendant requested the trial court to instruct the jury on the lesser included offense of manslaughter. This the court refused to do because it found no evidence to support such an instruction. This is the basis for defendant's second claim of error on appeal.

Defendant had originally pled guilty to second degree murder, but this Court vacated the conviction because of defects in determining his competency. People v. Parney, 74 Mich.App. 173, 253 N.W.2d 698 (1977). In this trial defendant presented an insanity defense. After less than an hour's deliberation, the jury returned a verdict of "guilty but mentally ill" of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. Defendant appeals as of right from the verdict.

We first consider the claimed error in the trial court's admission into evidence of the taped statement of Ms. Kurtz made to Michigan State Police Trooper Chapman as a dying declaration.

In defendant's view, the people failed to clearly establish that Ms. Kurtz' statement was made while she believed that her death was impending. [98 MICHAPP 580] People v. Johnson, 334 Mich. 169, 173-174, 54 N.W.2d 206 (1952). The statement itself would not indicate such a belief, and a review of the autopsy report indicates an opinion that she had been gradually improving up to the time of her death. Defendant claims that, because of the presentation of an insanity defense, his state of mind and the circumstances leading up to the shooting were crucial to his defense and the admission of the statement was prejudicial to this aspect of the defense.

The people assert that because the trial court gave full consideration to the question, determining that the statement was made in extremis, this Court should not overrule that finding. The people also claim that even if the admission of the statement was error there was ample support in the record for the jury's verdict aside from the statement so that the error should be considered harmless.

The record indicates that the trial court found the following remarks in the statement significant:

"CHAPMAN: Well, there is nothing to be afraid of. There's nothing more going to happen to you. All we want you to do is just rest and get better so you can go back home. Your kids are all doing fine. I have talked to them.

"ROBERTA: Yea. Well, I probably never will get back home.

"CHAPMAN: Well, I wouldn't say that. You are doing terrific. You've made a miraculous recovery. I thought you were gone to tell you the truth.

"ROBERTA: Yes, I know it.

"CHAPMAN: Apparently you are stronger than what we think you were.

"ROBERTA: ______

"CHAPMAN: Well * * * ."

[98 MICHAPP 581] The foregoing, when considered together with the testimony of an ambulance attendant who recalled that on the ride to the hospital Ms. Kurtz said, "I'm going to die, aren't I?" evidently led the court to conclude that Ms. Kurtz had a continuing consciousness of impending death throughout her stay in the hospital and that this satisfied the factual basis for finding that the statement qualified as a dying declaration.

An out-of-court statement made by a declarant who is not available for cross-examination is normally inadmissible as being hearsay. However, dying declarations are an exception to the hearsay rule. MRE 801, 804(b)(2). MRE 804(b)(2) allows the admission of a statement made by an unavailable defendant when:

"In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death."

Thus, four requirements must be met before a statement can be admitted as a dying declaration. People v. Schinzel, 86 Mich.App. 337, 342, 272 N.W.2d 648 (1978):

(1) The declarant must have been conscious of impending death;

(2) Death must actually have ensued;

(3) The statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent; and

(4) The statements must relate to the circumstances of the killing.

It is the trial court's duty to determine whether a statement is admissible as a dying declaration. [98 MICHAPP 582] People v. Johnson, supra; People v. Fritch, 210 Mich. 343, 347, 178 N.W. 59 (1920). The Court is aware of the case of People v. Denton, 312 Mich. 32, 19 N.W.2d 476 (1945), wherein Justice Wiest, in the course of his opinion, appears to consider it a jury question. However, the trial court had in fact made a determination as to the admissibility of the declaration under review, and the question of who was to make the determination of admissibility was not an issue in the case. Thus, we do not consider the case as authority for delegating to the jury the duty of determining whether a statement is admissible as a dying declaration.

In this case only the requirement that the declarant be conscious of impending death when the statement was given is brought into question. The trial court found that it was.

The standard for review of a trial court's determination of the question of whether or not a statement is admissible as a dying declaration is not clear. That it is subject to review, as would be any other evidentiary ruling, is clear.

Apparently, the last case addressing the question of the standard for reviewing a trial court's determination as to the admissibility of a statement as a dying declaration was Johnson, supra, 334 Mich. 174, 54 N.W.2d 208, where the Court said:

"Because of the dangerous nature of dying declarations, the public policy of according an accused every possible safeguard consistent with justice and the constitutional guarantees of a fair trial, those preliminary matters necessary to be determined before the admission of a dying declaration should be clearly established."

The preliminary matters the Court refers to are the factors required to make a statement a dying [98 MICHAPP 583] declaration. In determining whether or not the factors exist, the trial court must reach factual conclusions. A reviewing court will not set aside the trial court's findings of fact unless they leave the reviewing court with a definite and firm conviction that the trial court made a mistake. In other words, that such findings of fact were clearly erroneous. GCR 1963, 517.1; 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 596-597. No cause has expressly applied the clearly erroneous standard to the trial court's factual findings that a statement is a dying declaration. However, such a standard applies to bench trials as well as preliminary trial court factual conclusions in jury trials, and this Court would apply it as the standard for review of the trial court's findings that the statement in this case was a dying declaration.

We find little support for the trial court's finding that Ms. Kurtz clearly had a consciousness of impending death when she made the statement. Her injuries were serious, and her paralysis was probably permanent. Also, she did make the statement that she probably never would get back home, but moments before...

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