People v. Schinzel, Docket No. 77-3422

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-3422
• Citation: 272 N.W.2d 648,86 Mich.App. 337
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph D. SCHINZEL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 648

272 N.W.2d 648

86 Mich.App. 337

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph D. SCHINZEL, Defendant-Appellant.

Docket No. 77-3422.

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

Ina G. Zeemering, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Robert J. Sheiko, Asst. Pros. Atty., for plaintiff-appellee.

Before Judges MAHER, P. J., and GILLIS and McGREGOR, ^* JJ.

PER CURIAM.

On May 23, 1977, defendant was convicted by a jury of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. Sentenced to a term of from 20 to 30 years imprisonment, he appeals as of right.

The deceased, Clim Green, died as the result of a shotgun blast to his face. He was pronounced dead on April 1, 1976, 9 days after he was shot. At trial, Climmie Allen, the deceased's woman friend, testified that she was in his home on March 22, 1976. Green received two phone calls and at 7:30 or 7:45 p. m. he left his residence to meet one of the callers. Allen left and returned to her residence. At 8:15 p. m. she received a call from the hospital. Shortly afterwards she went there to visit the deceased. Green was covered with blood and had a towel over his head. He told Allen that the last phone caller had been a man named "Joe" who told Green to meet him at Campbell near Vernor. Green did so. Allen testified that deceased also stated, "Joe shot me".

After the shooting Green staggered onto the front steps of the home of Kenneth Cantreraz. Cantreraz testified that he asked Green who had done it. Green responded by first stating David, then Joe, then he mentioned David once again and finally he said Joe three more times.

Police officer George Wilson interviewed Green at the hospital at approximately 9:15 p. m. The officer testified that Green was lying on his back with bandages on his face and blood dripping from it. Green was also spitting up blood. He told the officers what had happened. When asked by the officer to describe who shot him, Green spoke of a Mexican male, known to him as "Joe", who was living on Cavalry south of Vernor Highway.

Officer Clyde Jones, partner of Officer Wilson, testified to participating in the interview of the deceased. He stated that the victim gave clear and coherent answers to the questions posed, pausing briefly after each question.

After Jones testified, defense counsel moved to strike the testimony of Officer Wilson, on the basis that the interview at the hospital did not fall within the "dying declaration" or "excited utterance" exceptions to the hearsay rule. The trial court denied the motion.

On appeal, defendant renews his argument that the testimony of Officer Wilson was hearsay and not recognized within any hearsay exception and therefore inadmissible. The trial court allowed the admission of the hearsay statement on the basis of the dying declaration exception and the excited utterance exception.

Four requirements must be met before a statement can be admitted as a dying declaration:

(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.

(4) The statements must relate to the circumstances of the killing. See People v. Franklin, 70 Mich.App. 343, 347, 245 N.W.2d 746 (1976).

The requirement in dispute in the case at bar is whether Clim Green was conscious of his impending death. "Consciousness of death" requires first, that it be established that declarant was in fact In extremis at the time the statement was made and, secondly, that the decedent believed his death was impending. People v. Johnson, 334 Mich. 169, 173, 54 N.W.2d 206 (1952).

On this record there is no evidence that anyone actually informed decedent of his critical condition. Nor did the decedent himself make any statements signifying his belief that death was imminent.

But a verbal indication that a person believes he or she is about to die is not necessary. People v. Johnson, supra. The essential fact of declarant's belief that death is impending may be proved like any other facts in the case in light of the existing and surrounding circumstances. People v. Simpson, 48 Mich. 474, 12 N.W. 662 (1882). The declarant's belief may be shown by the apparent fatal quality of the wound, by statements made to the declarant by the doctor or by others that his condition is hopeless, and by other circumstances. McCormick, Evidence (2d Ed.), § 282, pp. 680-681.

Despite the lack of a statement from decedent, we conclude from other circumstances that decedent knew death was imminent. The wound in the face which severed decedent's eye, the blood, both dripping and being spit up, all point to an injury of fatal proportions. As the Supreme Court has stated:

"Some wounds certify death. Such a wound was given the sheriff. He was not asked if he was aware of impending death or informed that his death was imminent, nor did he express himself on the subject, so far as this record discloses. When the first bullet ripped its course through his vitals his hours were numbered. His stoical bearing, restraint of emotions and retention of opinion or knowledge on the subject of dissolution do not at all rule the admissibility of his statements. * * * To say he did not sense impending death would accord him less than ordinary intelligence." People v. Arnett, 239 Mich. 123, 131-132, 214 N.W. 231, 234 (1927).

Likewise, in People v. Gorman, 252 Mich. 603, 233 N.W. 430 (1930), the court looked to the surrounding circumstances to reach the conclusion that decedent believed his death was imminent.

"There is no testimony that deceased at the time of the statement and the writing believed he was In extremis or that he had been so advised. He died the ninth day after the shooting, and was conscious during a portion of the early part of the intervening time. He was an intelligent man and experienced in police work. Besides having several large scalp wounds and numerous abrasions and contusions about the forehead and face, he was suffering from two bullet wounds. One bullet had entered just above and a little in front of the right ear and the other in the right side of his neck. To presume that in his conscious moments he did not appreciate that he was in the shadow of death would be doing violence to common sense and common experience." 252 Mich. at 605, 233 N.W. at 431.

See also People v. Franklin, supra.

The police here were notified by physicians that decedent's condition was serious. Witnesses testified that decedent's eye had been shot out, his face badly battered. At the hospital, blood continued to drip from the face and when answering the police officer's questions, decedent was continually coughing up blood. These circumstances lead us to believe that decedent, as a man of ordinary common sense, knew that his death was imminent. The lack of a direct statement from decedent is not decisive.

Nor are we persuaded that the length of time between the shooting and Green's death nine days removes decedent's statement from the class of dying declarations. The fact that the maker of the dying declaration lives for several days after making the declaration is not controlling in determining its admissibility. People v. Johnson, supra, at 173, 54 N.W.2d 206. In People v. Denton, 312 Mich. 32, 19 N.W.2d 476 (1945), it was held that a declaration made by a decedent while he was being taken to a hospital almost immediately after being shot and while he was conscious of impending death would be a dying declaration notwithstanding that decedent lived for 11 days after being shot. Similarly, under the circumstances of the case at bar, the passing of 9 days did not negate the nature of decedent's statements as a dying declaration.

Even if decedent's words are not admissible as a dying declaration, they are admissible as an excited utterance. An excited utterance will be allowed in evidence if (1) there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the statement was made before there has been time to contrive and misrepresent; and (3) the statement relates to the circumstances of the occurrence preceding it. Rogers v. Saginaw-Bay City R. Co., 187 Mich. 490, 153 N.W. 784 (1915), Rice v. Jackson, 1 Mich.App. 105, 134 N.W.2d 366 (1965), People v. Mosley, 74 Mich.App. 145, 254 N.W.2d 33 (1977).

Here those three requirements are met. The statements did relate to the circumstances of the occurrence preceding it. A shooting is a startling occasion which can produce nervous excitement. See Rice v. Jackson, 1 Mich.App. at 111, 134 N.W.2d 366. The statements were made approximately 45 minutes to an hour after the shooting. A 40-minute time lapse was not found to be too great in People v. Thomas, 14 Mich.App. 642, 165 N.W.2d 879 (1968), when the party was in great pain and unconscious part of the time.

Decedent in the instant case was bandaged but still bleeding. He was continually expectorating blood. While there was a 45-minute period between the shooting and the police interview, the circumstances surrounding the events indicate that defendant did not reflect, contrive or misrepresent. The time lapse was not extraordinary considering that defendant had crawled for help, awaited an EMS van and had been bandaged at the hospital. When the police saw him he was still bleeding profusely, his eye was shot out and he was spitting up blood. One may infer that decedent's statements were made before he had time or mind to contrive or misrepresent the facts in his statements to the police. See Rice v. Jackson, supra, and Stone v. Sinclair Refining Co., 225 Mich. 344, 196 N.W. 339 (1923) for other situations in which excited utterances have been...