People v. Shirk

• Decision Date: 09 March 1970
• Docket Number: No. 40,40
• Citation: 383 Mich. 180,174 N.W.2d 772
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Harvey SHIRK, Defenant-Appellant.
• Court: Michigan Supreme Court

Page 772

174 N.W.2d 772

383 Mich. 180

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Harvey SHIRK, Defenant-Appellant.

No. 40.

Supreme Court of Michigan.

March 9, 1970.

Thomas G. Plunkett, Pros. Atty., Oakland County, by Dennis Donohue, Chief Appellate Counsel, for plaintiff-appellee.

Booth, Patterson, Hays & Karlstrom, Pontiac, for defendant and appellant.

Before the Entire Bench, except T. G. KAVANAGH, J.

T. M. KAVANAGH, Justice.

The focal issue presented by this appeal is the applicability of Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, as made retroactive by Roberts v. Russell (1968), 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, in light of our decision in People v. Farmer (1968), 380 Mich. 198, 156 N.W.2d 504.

A joint jury trial of defendants Shirk and MacKay commenced on May 17, 1960. On May 20, 1960--after police officers had testified concerning confessions made to them by defendant MacKay, hereafter discussed--the prosecuting MacKay, hereafter leave granted, filed an amended information as to defendant MacKay to include the offense of second degree murder. Defendant MacKay pleaded guilty to the included offense, his plea was accepted by the court, and the trial proceeded as to defendant Shirk alone.

Defendant Shirk claims that the following events in the course of trial effectively deprived him of his constitutional right to confront the witnesses against him and generally denied him a fair trial.

Detective Keenan and Detective Allen testified that defendant MacKay was arrested on January 4, 1960, that at the time of his arrest he had in his possession a 25-caliber gun from which one of the bullets found in the body of the victim was fired, and that they found in the trunk of MacKay's automobile bloodstained clothing which was later identified as belonging to the victim.

Detective Garton of Homicide Bureau testified that he and his partner interrogated MacKay on January 5, 1960, concerning the bloodstained clothing. MacKay stated (according to Garton's testimony) that the clothing was his and explained that he had received a gunshot wound a couple of months earlier, that he had slept in the car because of some marital dispute, and that while doing so his wound opened and blood got on his clothing.

Detective Marlowe of the Hold-Up Bureau testified that on January 8, 1960, he talked to MacKay regarding information he was going to give concerning the whereabouts of Carlo Vitale (the victim). When asked by the prosecutor to relate their conversation, Shirk's counsel objected, and after a conference in chambers the court instructed the jury that where two or more defendants are charged with the same crime 'any statements or admissions, oral or written, made by one of those codefendants not in the presence of the other codefendants, are not admissible in evidence to be used against the other codefendants; but may be considered only in connection with the person who made the statements or the admissions.' Detective Marlowe's written notes of his conversation with MacKay were then offered and received in evidence and read to the jury by Detective Marlowe. In this statement MacKay claimed that Shirk accidentally shot and killed the victim on the night of November 28, 1959. Detective Marlowe further testified that he, his partner, and MacKay went to the vicinity in which MacKay claimed the killing took place, but that they were unsuccessful in locating the body.

Detective Ware testified of conversations wherein MacKay intimated that he was afraid to tell the whole story because of his trepidation of defendant Shirk and because he didn't want to be labeled by his prospective fellow inmates as a 'squeaker.' The detective testified that MacKay finally asked for Detectives Sobolewski and Ernst to show them where the body was buried. All four proceeded to where MacKay directed them and they found the victim's body.

The following morning MacKay, according to Detective Ware, was confronted with the fact that the autopsy had shown the victim to have been shot more than once. Detective Ware testified as follows:

'This is what he (MacKay) said: He gave us the same original story of driving out around Fourteen Mile and Mound Road with Vitale and with Shirk along; that Shirk was handing a 25 automatic back to Vitale, who was in the back seat; the gun accidentally discharged while Shirk was handing him back; wounded Vitale. He said he became frightened. He got out of the car, became excited, and that Shirk slapped him around. He says, 'I was shook up and Shirk slapped me around and said, 'Come on, quieten down. We've got to do something about this."

'He said he was told by Shirk that they couldn't possibly take Vitale to get any aid, because they would both be in serious trouble. So, Shirk said, 'We have to'--to use the words--'finish him off.'

'He said, 'Shirk told me to shoot him twice and tht he, Shirk, would shoot him twice.'

'So that he truned around and fired twice at Vitale while the car was stopped in this location after they stopped the car with the first accidental shot.

'He said then Shirk got back in the car and started to drive, as he could not drive, he was too excited. He said they drove a short way. Shirk turned around with his gun and fired a shot into Vitale. He said Shirk drove another distance and turned around and grabbed Vitale by the hair of his head and turned around and fired a shot into the back of his head.'

At the conclusion of Detective Ware's testimony, MacKay's attorney requested a recess. When the court reconvened, and in the absence of the jury, the prosecutor filed an amended information adding a second count, to which defendant MacKay pleaded guilty. The court, at the conclusion of these proceedings, then informed the jury that MacKay had just pleaded guilty to the second charge, that his plea had been accepted by the court, and that the trial would continue only as to defendant Shirk.

The prosecution, through an expert witness in hematology, introduced proofs that the blood type found on the clothing in MacKay's car trunk differed from MacKay's blood type and was the same type as the victim's. The prosecution's ballistic expert witness testified that one of the bullets removed from the corpse was fired from the gun found on MacKay's person at the time of his arrest.

Upon the conclusion of the People's case, and after defendant's opening statement, defendant Shirk took the stand in his own defense. He testified that he and MacKay took the victim to Chattanooga, Tennessee, and that this was the last time he saw the victim. The denied any knowledge concerning the circumstances of the victim's death.

Subsequently, the prosecution called MacKay as a rebuttal witness, and his testimony is as follows:

'Q. (By Mr. Barry, Assistant Prosecutor) You were a codefendant in this case?

'A. Yes.

'Q. You have pleaded guilty in this court to the charge of second degree murder in connection with this matter?

'A. I have.

'Q. Do you know the respondent Richard MacKay or--Richard Shirk, rather?

'A. Yes.

'Q. Are you acquainted with the facts surrounding the shooting of Carlo Vitale?

'A. I am not going to answer.

'Q. Were you present when Carlo Vitale was killed?

'A. I am not going to answer any questions, Mr. Barry.

'Q. You are here under subpoena of this court?

'Q. Yes.

'Q. Would you tell this court and this jury why you refuse to answer questions concerning this matter?

'A. Because I am afraid of Dick, that is why.

'Q. Of Dick Shirk?

A. Yes.

Q. In what way?

'A. Just afraid of him, that's all. I don't want to be wrong about anything. I am not going to answer any questions.

'Mr. Barry: Your witness.

'Q. (By Mr. Bedrosian, attorney for defendant) Were you told to say that now, sir?

'A. Was I told to say that. No. What I was told--I was--that is what I told I was going to say.

'Q. You told the police that Carlo Vitale was killed on November 28th?

'A. I am not going to answer any questions.

'Q. Was Carlo Vitale killed on november 28th?

'A. I am not answering any questions, Mr. Bedrosian.

'Q. Is your wife a nurse?

'A. I told you, I have nothing to say. I am not answering any questions.

'Q. Did you ever attempt to kill Vince Venezia?

'A. I am not answering any questions.

'Q. Did you ever shoot Bob Hicks through the hand?

'A. I am not answering any questions.

'Mr. Bedrosian: No further questions.

'Mr. Barry: That is all.'

The mutually agreed upon issues raised on appeal are:

(1) Was the accused denied his right to be confronted by the witnesses against him as guaranteed by section 19 of article 2 of the Michigan Constitution of 1908 ¹ and by the Sixth Amendment to the Constitution of the United States?

(2) Was the defendant denied the 'fair trial' which the Constitutions afford to each person accused of crime?

The threshold question to be resolved in this appeal is whether defendant properly raised the first issue above which relates to a codefendant's extrajudicial statements and preserved it for appellate review. The People contend that this issue was never properly raised for appellate review, relying almost exclusively upon the authority of People v. Farmer (1968), 380 Mich. 198, 156 N.W.2d 504.

In Farmer this Court held (p. 205, 156 N.W.2d p. 507):

'While the rule announced in Walker (People v. Walker (Rehearing, 1965), 374 Mich. 331, 132 N.W.2d 87) was made retroactive, it does not follow that in every trial prior to Walker in which a confession was admitted in evidence a defendant is now automatically entitled to a Walker-type hearing. See, for example, People v. Fordyce (1966), 378 Mich. 208, 144 N.W.2d 340.

'Under normal appellate procedures, since defendant was represented by counsel at all stages of the proceeding in which he was entitled to such representation And no claim of inadmissibility was raised, there would be no assignment of error for an appellate court to review. This would end our consideration of the...