People v. Skowronski

• Decision Date: 27 May 1975
• Docket Number: Docket No. 17982,No. 2,2
• Citation: 61 Mich.App. 71,232 N.W.2d 306
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph SKOWRONSKI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 306

232 N.W.2d 306

61 Mich.App. 71

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

Docket No. 17982.

Court of Appeals of Michigan, Division No. 2.

May 27, 1975.

Released for Publication Sept. 4, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BASHARA and KAUFMAN, JJ.

KAUFMAN, Judge.

A jury convicted the defendant of felony murder. M.C.L.A. § 750.316; M.S.A. § 28.548. He was sentenced to life in prison and now appeals as of right.

On May 29, 1972, Salim Kirma, proprietor of Noble's Market in Hazel Park, was found fatally wounded on the floor of his market. He was found by Hazel Park Police who were responding to a report that the burglar alarm had been activated at the store. The only physical evidence secured at the scene was the shell casing of a .22-caliber automatic weapon, as well as a box of instant mashed potatoes from which two fingerprints of the defendant were later lifted. There was no evidence that anything had been removed from the store or any money taken from the deceased or the cash register.

The defendant was not arrested until the afternoon of August 2, 1972, after the police had located the murder weapon and matched the prints found on the mashed potato box. He was given his Miranda ¹ warnings, chose not to make a statement, and was placed in a cell for the night. On the morning of August 3, 1972 defendant made a confession admitting he had entered the store to rob the proprietor and that when he (Mr. Kirma) grabbed for the gun, defendant shot three times.

Defendant makes numerous claims of error, which we consider Seriatim.

Defendant first argues that the corpus delicti of felony murder was not proved independent of defendant's confession and it was, therefore, error to allow admission of the confession to prove the felony. We agree. In People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), adopting and following 39 Mich.App. 483, 494--506, 197 N.W.2d 874, 880--886 (1972) (Levin, P.J., dissenting), Judge (now Justice) Levin defined the corpus delicti rule in a felony murder case to require proof, independent of the confession, of the murder And the felony. Justice Levin states, at 39 Mich.App. 483, 503, 197 N.W.2d 874, 885:

'Just as the people must establish with evidence the essential element distinguishing second-degree murder from first-degree murder in order to convict an accused person of the aggravated offense, so, too, in order to prove the Corpus delicti, that distinguishing element must be established by evidence independent of the accused person's confession.'

The only proof of the attempted robbery in this case, independent of defendant's confession, was the activated burglar alarm. Since no one witnessed the event, there is no clear proof who activated the bell or why it was activated. The quantum of proof necessary to establish the corpus delicti of the crime is defined in People v. Kirby, 223 Mich. 440, 451, 194 N.W. 142, 145 (1923):

'The Corpus delicti cannot be established by a surmise supplemented by a guess. An inference cannot be based upon an inference.'

See also, People v. Burlingame, 257 Mich. 252, 260, 241 N.W. 253 (1932); People v. Zwierkowski, 368 Mich. 56, 117 N.W.2d 179 (1962). At least a double inference is necessary to assume from the fact that the alarm was ringing that the deceased was being robbed. We must assume the deceased rang the bell, that he rang it purposely and that he was indicating by this act that he was being robbed. The alarm was, therefore, insufficient evidence of the corpus delicti to give rise to the prosecutor's admission of the confession to prove the attempted robbery.

It remains to be determined whether a remand for sentencing on second-degree murder is an appropriate disposition of this matter. In employing this remedy in Allen, supra, Justice Levin cited People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971). In Morrin, supra, this Court remanded a first-degree murder conviction for resentencing on second-degree murder after the Court determined the evidence was insufficient to sustain the jury verdict of first-degree murder. Justice Levin, speaking for the Court, distinguished the case of Nye v. People, 35 Mich. 16 (1876), which was remanded for new trial because there was error in addition to the insufficiency in the evidence. ² It is an elementary conclusion that a remand for resentencing on a lesser offense cannot cure all other trial errors, and this Court has implicitly recognized that the Allen remedy is inappropriate when there are such other errors. People v. Olsson, 56 Mich.App. 500, 224 N.W.2d 691 (1974); People v. Gilbert, 55 Mich.App. 168, 222 N.W.2d 305 (1974); People v. DiGiorgio, 52 Mich.App. 175, 217 N.W.2d 77 (1974).

There was error in this case in addition to the failure to establish the corpus delicti of the felony independent of defendant's confession. The test to determine whether a case requires reversal is not whether there are some irregularities, but whether defendant had a fair trial. People v. Smith, 363 Mich. 157, 108 N.W.2d 751 (1961). While no one of the errors we will discuss may in itself be reversible, the totality of the errors compels a conclusion defendant was denied a fair trial and requires that we remand for a new trial.

1. The trial court did not instruct the jury regarding the elements of the felony charged, attempted robbery. Our Supreme Court has said that '(w)here the language defining an offense can be understood by a person of ordinary intelligence, it is not necessary for the court to define or explain it'. People v. Cabassa, 249 Mich. 543, 549, 229 N.W. 442, 445 (1930). While it may be argued that attempted robbery is easily understandable to the layman, this Court's attempt to define the elements of 'attempt' and 'robbery' (as distinguished from 'preparation' and 'larceny', for example) belie such an argument. Cf. People v. McGuire, 39 Mich.App. 308, 197 N.W.2d 469 (1972); People v. Lamson, 22 Mich.App. 365, 372, 177 N.W.2d 204 (1970). The trial court must instruct the jury as to all the essential elements of the crime. People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973). Something more was required here than a bald statement of the felony charged.

2. The court's instruction to the jury contained the following statement of his determination at the Walker hearing: ³

'Now, I have ruled and this is binding upon you, that his confession was given voluntarily. That is that his confession was not given under duress. So you will spend no time on that in your deliberations.'

The prosecutor's brief acknowledges that this instruction constitutes error based on the recent decision from this Court in People v. Gilbert, 55 Mich.App. 168, 222 N.W.2d 305 (1974). The Court in Gilbert concluded that a binding ruling of voluntariness effectively precludes a jury from questioning the credibility or truthfulness of the confession. Such an instruction is not cured by a later charge that the jury is the sole arbiter of the credibility and weight to be assigned to the statements. ⁴

3. The trial court refused defendant's request to charge on the lesser offenses of second-degree murder and manslaughter. ⁵ There is a split of opinion in this Court as to when, or if, instructions on lesser included offenses are proper in a felony murder prosecution. People v. Bufkin, 43 Mich.App. 585, 204 N.W.2d 762 (1972), adhered to on rehearing, 48 Mich.App. 290, 210 N.W.2d 390 (1973), Lv. granted, 390 Mich. 803 (1973); People v. Wimbush, 45 Mich.App. 42, 205 N.W.2d 890 (1973). Had the confession been properly admissible to prove the felony, the exclusion of the lesser offense from the jury's determination would have been proper under the authority of either case. However, in view of our determination that the corpus delicti of the felony was not proven independent of the confession, a verdict should have been directed as to felony murder and the jury should have been instructed on the offense of second-degree murder. Cf. People v. Di Giorgio, supra. We make no determination whether defendant was entitled to a charge on manslaughter, but leave this to the trial court's original discretion on retrial, guided by the reasoning in Wimbush, supra, that the instruction should be drawn to fit the proofs.

4. The trial court erred in allowing a social worker to testify as an expert to evaluate competency. The forensic center had administered several psychological tests and reported there was no evidence of organic brain damage. However, the only witness provided at the competency hearing by the forensic center was a social worker who admitted she was not qualified to administer or evaluate those tests. This social worker had conducted a two-hour interview with the defendant. Based on these qualifications, admission of expert opinion from this witness in a trial would have been error. O'Dowd v. Linehan, 385 Mich. 491, 509--510, 189 N.W.2d 333, 342 (1971). Rudimentary due process requires that the foundation for receiving expert testimony should be no less in a hearing involving a 'substantively justiciable right', People v. Gomolak, 386 Mich. 540, 549, 194 N.W.2d 320, 323 (1972), than in a trial on the issue of guilt.

The trial court, having before it only the uninterpreted test results and the improperly admitted expert opinion, could not properly make a judicial determination of competency as required by the statute then in effect, M.C.L.A. § 767.27a(4); M.S.A. § 28.966(11)(4); and defendant is entitled to a new hearing on that issue. See M.C.L.A. § 330.2020 Et seq.; M.S.A. § 14.800(1020) Et seq. People v. McGoldrick, 51 Mich.App. 579, 215 N.W.2d 711 (1974); People v. Lucas, 393 Mich. 522, 227 N.W.2d 763 (1975).

5. The absence of a possible res gestae witness...