People v. Smith
| Citation | 81 Mich.App. 190,265 N.W.2d 77 |
| Decision Date | 06 February 1978 |
| Docket Number | Docket No. 31393 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse R. SMITH, Defendant-Appellant. 81 Mich.App. 190, 265 N.W.2d 77 |
| Court | Court of Appeal of Michigan (US) |
[81 MICHAPP 192] Monash & Moss by Richard A. Monash, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., James L. McCarthy, Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P. J., and D. E. HOLBROOK and MARTIN, * JJ.
Defendant was charged with open murder in the homicide of one Freelin Miller, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. The homicide was the result of a shooting that took place in an automobile in Oakland County on November 27, 1975. On August 6, 1976, a jury found defendant guilty of first-degree murder and he was subsequently sentenced to life imprisonment. On appeal defendant raises two issues.
Because of its bearing on the issues raised in this appeal, an extended recitation of the facts is necessary. Oliver Honchel 1 and Freelin Miller were serving time for manslaughter at a prison parole camp. The two men were very good friends and on Thanksgiving Day, November 27, 1975, they began drinking some vodka that had been smuggled into the prison camp. They started drinking around 7 a. m. and by 2 p. m. had consumed two pints of vodka. On the spur of the moment, they decided to take a camp truck and escape from the prison camp.
They drove to Detroit where they abandoned the vehicle and went to a bar in order to call Oliver's [81 MICHAPP 193] brother Calvin. 2 Calvin was home watching a football game when he received his brother's call around 4 or 5 p. m. Oliver told him that he and a friend had run away from the prison camp and wanted Calvin to help them. While waiting for Calvin to pick them up, Oliver and Freelin had a drink and when Calvin arrived, the three of them had a couple more drinks.
Oliver and Freelin needed some money so Calvin agreed to drive them to Pontiac where Freelin could get some money. However, Calvin did not have enough money for gas so he went to see Jesse Smith, a very good friend of his, in order to inquire if he could borrow some money. Calvin explained to Jesse that Oliver and Freelin had escaped and they needed some money for gasoline. The men sat down in Jesse's apartment and had a few drinks. Because Oliver and Freelin were still wearing their prison clothes, Jesse gave them a change of clothing.
Calvin asked Jesse if he wanted to go along with them on the ride to Pontiac. Both Jesse and his wife decided to go. Calvin's Pinto was too small for the group so they took Jesse's Cadillac. As they were leaving the apartment, Calvin asked Jesse if he was carrying his gun. Jesse said, "no", and then told Calvin that the gun was in his bedroom. Calvin went into Jesse's bedroom and, taking the gun, placed it in the waistband of his pants. Calvin testified that he wanted the gun for security in case they were stopped by the police. Everyone then got into the car and they left for Pontiac. Calvin drove because Jesse did not have a driver's license.
Before entering the I-75 freeway, they stopped [81 MICHAPP 194] and Jesse's wife bought a six-pack of beer. After they left the store, Jesse's wife sat between Calvin and Jesse in the front seat and Freelin sat behind Calvin in the back seat and Oliver sat behind Jesse in the back seat. As they drove down I-75, Calvin testified that Freelin began to get shaky. By this he meant that Freelin was worried about who was going to take responsibility for stealing the vehicle that they used in their escape. Freelin did not know whether he or Oliver should take the blame. Calvin stated that listening to Freelin and Oliver argue made him very nervous.
Calvin pulled the car off the freeway at Adams Road so the men could get out of the car and relieve themselves. Jesse and Calvin stood on the driver's side toward the back of the car and Oliver and Freelin stood on the other side of the car. They were outside the car for approximately five minutes.
Calvin testified that as he and Jesse stood there, Calvin told Jesse that he felt like killing Freelin. Calvin stated that he was thinking out loud and made the statement because Freelin was getting on his nerves. Calvin testified that Jesse told him not to worry about it and Calvin thought that Jesse was merely trying to calm him down. Calvin said that he did not actually intend to kill Freelin.
The men got back into the car and sat in the same places that they had been sitting in previously. Calvin testified that he proceeded to turn the car around and as he was doing this, Jesse reached around his wife and motioned for the gun. Calvin stated that he raised up and Jesse took the gun from Calvin's waistband. Calvin testified that within one or two seconds from the time Jesse took the gun from his waistband, he heard an explosion. At this time Calvin looked over at Jesse [81 MICHAPP 195] and saw the gun in Jesse's hand pointed toward the floor of the car. Calvin stopped the car and Jesse requested that he help him get the body out of the back seat. Jesse opened the car door and dragged Freelin out of the car and into a ditch where he was left. Calvin stated at trial that he thought Jesse took the gun from him to prevent Calvin from using it.
Oliver testified that because of all the liquor he had drunk, he was unable to remember leaving Jesse's apartment, riding in the car or relieving himself. All he remembered was hearing an explosion and feeling Freelin fall on his knee. The next thing he recalled was waking up the following morning.
Jesse's wife testified for the defense and stated that after the men relieved themselves they got back into the car and Calvin drove a short distance and stopped. She stated that she was pushed forward and heard a shot. She thought the shot occurred within one or two minutes after the car came to a stop. She also testified that it was a matter of seconds between when she went forward and when she heard the shot. Immediately after the shot was fired she looked in the back seat. She then looked at her husband and saw that he had a gun in his hand. Contrary to Calvin's testimony, she stated that her husband did not reach in front of her and that nothing passed between Calvin and her husband. She testified that as to any motive her husband had to shoot Freelin was, "the only possible reason was to protect myself, and the rest, because he was afraid of something happening to me".
After the body was dumped into the ditch, Calvin drove the group to Detroit where they stopped at three different bars. Later, Jesse's wife drove [81 MICHAPP 196] Calvin and Oliver back to Calvin's car. She testified that Calvin told her that she better not say anything or "he would dig a new well".
Jesse Smith 3 took the stand in his own behalf and testified that as they were relieving themselves, Calvin said, " 'We got to get rid of this guy.' " Jesse said, " 'We can leave him at the bar.' " Calvin said, " 'No, we got to get rid of him.' " After the men relieved themselves, Jesse said that Calvin drove down the road about 200 feet and pulled into a driveway where he then backed out onto the road and started to drive down it. Jesse said that the headlights went out on the car and he turned toward Calvin and noticed that Calvin was stopping the car. He also saw that Calvin was turning toward the back seat with a gun in his hand. Jesse testified that he grabbed his wife and pushed her down and with his other hand went to grab the gun. Jesse stated that the gun went off just as he was about to grab it and the gun ended up in his hand.
The next day Jesse was arrested and the gun was seized from him. The arresting officer stated that Jesse pulled the gun on him, but Jesse denied this and said the policeman was lying. When the police questioned Jesse about whether or not he had seen Calvin within the last few weeks, Jesse stated that he had not. Jesse admitted at trial that he had lied to the officers when they questioned him because Calvin was such a good friend and he wanted to protect him.
The next day after the homicide Calvin left for California where he was arrested and extradited back to Michigan. Calvin's murder charge was reduced to harbouring a fugitive in return for his testimony at trial.
[81 MICHAPP 197] On appeal, defendant brings two allegations of error. We deal with them in order.
The first issue raised by defendant is that the trial court abused its discretion in denying the defendant's motion for discovery of a pretrial statement made to the prosecutor by defendant's wife, a res gestae witness. In support of this issue, defendant contends that the trial court's refusal to order discovery of the statement resulted in a failure of justice because defendant needed to review the statement in order to determine whether to invoke his privilege and bar defendant's wife from testifying.
GCR 1963, 785.1(2) expressly excludes the application of discovery rules in criminal cases. In People v. Maranian, 359 Mich. 361, 368, 102 N.W.2d 568, 571 (1960), the Michigan Supreme Court stated the rule of discovery in criminal cases as follows:
Defendant, in his motion for discovery, stated:
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