People v. Siler

• Decision Date: 12 October 1988
• Docket Number: Docket No. 97898
• Citation: 171 Mich.App. 246,429 N.W.2d 865
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Harvey SILER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 865

429 N.W.2d 865

171 Mich.App. 246

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Harvey SILER, Defendant-Appellant.

Docket No. 97898.

Court of Appeals of Michigan.

Submitted June 13, 1988.

Decided Sept. 7, 1988.

Released for Publication Oct. 12, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., and Carol K. Bucher, Asst. Pros. Atty., for the people.

Howard & Quinn, P.C. by Michael B. Quinn, Grand Rapids, for defendant-appellant.

Before WEAVER, P.J., and DOCTOROFF and SAPALA, ^* JJ.

DOCTOROFF, Judge.

Following a jury trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and was sentenced to a prison term of fifteen to thirty years. He appeals as of right. We affirm.

At the preliminary examination, the prosecutor introduced a tape made when the victim, Gordon Darwin, called the emergency 911 number for an ambulance. Defendant objected, claiming hearsay. The district court admitted the tape as a dying declaration, an exception to the hearsay rule. MRE 804(b)(2). Defendant was bound over on an open murder charge.

At the inception of trial, defendant moved to quash the information. The trial court denied the motion, finding no abuse of discretion on the part of the district court. Defendant then moved to exclude the 911 tape from evidence, arguing that it was hearsay and inadmissible as a dying declaration because the victim had not been conscious of his impending death. The trial court denied this motion.

The evidence at trial showed that on March 15, 1987, at 8:00 p.m., the Grand Rapids Police Emergency Communications Operator received a call from a person, later identified as Gordon Darwin. All incoming calls are taped directly from the telephone. A copy of the tape was admitted into evidence over defendant's objection and played for the jury. It reads as follows:

"OPERATOR: At the tone the time will be 8:02 and forty seconds. At the tone the time will be 8:02 and.

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"DISPATCHER: Grand Rapids Police.

"CALLER: I need an ambulance right away.

"DISPATCHER: Where?

"CALLER: 21 Weston, apartment 514.

"DISPATCHER: What's going on there?

"CALLER: My heart's stabbed.

"DISPATCHER: Your heart is what?

"CALLER: I've been stabbed in the heart.

"DISPATCHER: And who did it?

"CALLER: Just come with the ambulance....

"DISPATCHER: Who did it?

"CALLER: A friend of mine.

"DISPATCHER: Is he there?

"CALLER: William Siler, yeah.

"DISPATCHER: William Tyler.

"CALLER: Siler, he's looking out for me in the meantime

"DISPATCHER: That would be apartment 514?

"CALLER: 21 Weston, hurry please.

"DISPATCHER: What is the phone number there, sir?

"CALLER: 456-6725. Hurry with the ambulance.

"DISPATCHER: Okay. William Siler did it, huh?

"CALLER: Yeah.

"DISPATCHER: Okay. What's he wearing? They're on the way.

"CALLER: Hurry with the ambulance.

"DISPATCHER: Right, they're on the way. Just tell me what he's wearing. Operator."

Police Officer Robert Winters was dispatched to Darwin's apartment and found him lying unconscious on the floor in a fetal position. Winters located a bleeding stab wound in Darwin's left chest. Darwin was transported to St. Mary's Hospital where he died at around 9:30 p.m.

On appeal, defendant first contends that the district court erred in binding defendant over based on the 911 tape whereon the victim named defendant as his attacker. Defendant argues that the tape was not a dying declaration and was inadmissible under MRE 802. Absent the tape, the magistrate would not have bound defendant over. We hold, in agreement with the trial court, that the magistrate did not abuse his discretion in binding defendant over.

It is the duty of the magistrate to bind the defendant over for trial if it appears at the conclusion of the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant committed it. People v. Grihm, 148 Mich.App. 285, 289-290, 383 N.W.2d 631 (1986). It is well established that a reviewing court may not properly substitute its judgment for that of the magistrate, but may reverse only if it appears on the record that there has been an abuse of discretion. People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981).

MRE 804(b)(2) provides:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

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* * *

"(2) Statement under belief of impending death. 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."

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; and

"(4) The statements must relate to the circumstances of the killing." People v. Parney, 98 Mich.App. 571, 581, 296 N.W.2d 568 (1979).

It is the trial court's duty to determine whether a statement is admissible as a dying declaration. Id.

The condition in dispute in this case is whether Darwin was conscious of impending death. "Consciousness of death" requires, first, that it be established that the declarant was in fact in extremis at the time the statement was made and, secondly, that the decedent believed his death was impending. But, it is not necessary for the declarant to have actually stated that he knew he was dying in order for the statement to be admissible as a dying declaration. People v. Johnson, 334 Mich. 169, 173, 54 N.W.2d 206 (1952); People v. Schinzel, 86 Mich.App. 337, 342-343, 272 N.W.2d 648 (1978), rev'd on other grounds 406 Mich. 888, 276 N.W.2d 27 (1979).

Darwin called the emergency number, stating that he had been stabbed in the heart and that he needed an ambulance right away. Three times he repeated his request for an ambulance and told the police to hurry. A forensic pathologist testified that Darwin remained conscious for four to five minutes after the wound was inflicted. Approximately one and a half hours later, he was pronounced dead without having regained consciousness. Taking these circumstances into account, we find that Darwin was conscious of impending death when he telephoned the emergency number. The tape recording reflects a dying declaration. The magistrate did not abuse his discretion.

Defendant next raises several claims of error concerning the admission of evidence. The admission or exclusion of evidence rests in the sound discretion of the trial judge, and the judge's exercise of discretion will not be overturned on appeal absent a showing of clear abuse of such discretion. People v. Burgess, 153 Mich.App. 715, 722-723, 396 N.W.2d 814 (1986), lv den 428 Mich. 868 (1987); People v. Myers, 158 Mich.App. 1, 17, 404 N.W.2d 677 (1987). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Relevant evidence is generally admissible. MRE 402. Even if relevant, a trial court may choose to exclude evidence on the ground of unfair prejudice. MRE 403; People v. O'Brien, 113 Mich.App. 183, 203, 317 N.W.2d 570 (1982), lv. den. 418 Mich. 895 (1983).

Defendant first contends that the trial court should have excluded the 911 tape under MRE 403 because it was more prejudicial than probative. We disagree. Darwin's statement that defendant had stabbed him was relevant because it was proof of the crime of murder with which defendant was charged. The tape was extremely probative because no one saw defendant stab Darwin. Evidence of guilt is always prejudicial. Only if it would unfairly prejudice defendant should probative evidence be excluded. People v. Bunting, 145 Mich.App. 210, 213, 377 N.W.2d 307 (1985). We hold that defendant was not unfairly prejudiced by the admission of this evidence and that the trial court did not abuse its discretion in admitting the 911 tape.

Defendant's next issues involve the following testimony. William Coonrod, a resident of Kent County Correctional Facility, was defendant's cellmate in May, 1986. He testified that he was reading the Bible when defendant began talking to him about his case. Defendant told Coonrod that defendant and Darwin had argued over a situation which had occurred several days before the stabbing involving the following facts. Darwin had a bloody nose and mouth and explained to defendant that he had been beaten by three men. Darwin told defendant that a female neighbor had set him up for the beating. Defendant then angrily confronted the neighbor and threatened her. Subsequently, Darwin admitted to defendant that he had not been beaten, but had fallen into the elevator and hurt his face. Apparently, Darwin had been intoxicated or high on drugs at the time. Defendant then felt like a fool for his actions with the neighbor. The night of the murder, Darwin began teasing defendant about making a fool out of himself. An argument ensued and defendant grabbed a knife and stabbed Darwin in the chest. Defendant then went back to his own apartment.

Defendant asked Coonrod how to get forgiveness from God and Coonrod wrote down defendant's words: "Oh, Lord, please forgive me, I have stabbed and killed a man." Defendant then signed the paper.

Defendant later asked Coonrod for the paper back, but Coonrod told defendant he had flushed it down the toilet. In fact, Coonrod had hidden the paper in a crack in the cell. Coonrod hoped to use the paper in some way to aid his own situation.

The next day, defendant and Nick Brasic, another cellmate, found the paper, tore...