People v. Sowders

• Decision Date: 22 December 1987
• Docket Number: Docket No. 88964
• Citation: 164 Mich.App. 36,417 N.W.2d 78
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Garry Wayne SOWDERS, Defendant-Appellant.

Page 78

417 N.W.2d 78

164 Mich.App. 36

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Garry Wayne SOWDERS, Defendant-Appellant.

Docket No. 88964.

Court of Appeals of Michigan.

Submitted May 6, 1987.

Decided June 25, 1987.

Released for Publication Dec. 22, 1987.

[164 MICHAPP 39]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Larry L. Roberts, Asst. Pros.Atty., for the People.

Howard S. Siegrist, Farmington Hills, for defendant-appellant.

[164 MICHAPP 40]Before BEASLEY, P.J., and HOOD and BORRADAILE, ^* JJ.

PER CURIAM.

Defendant was charged with two counts of first-degree murder, M.C.L. Sec. 750.316;M.S.A. Sec. 28.548, and one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b;M.S.A. Sec. 28.424(2).On August 28, 1985, a Wayne Circuit Court jury found defendant guilty of two counts of first-degree murder and one count of felony firearm and, on September 23, 1985, defendant was senteneced to life imprisonment on each of his first-degree murder convictions and two years' imprisonment on his felony-firearm conviction.Credit was given for six months and twenty-one days already served.Defendant appeals as of right.We affirm.

Defendant filed many motions including a forensic examination request to determine if defendant was competent to stand trial, as well as motions to quash and motions to suppress.Defendant has raised a lengthy series of objections, most of which involve trial of the matter.This Court will deal with these seriatim.

Defendant complains that he was not allowed to call Robert Pancow, who out of the presence of the jury indicated that he intended to assert his Fifth Amendment right not to testify.Our Supreme Court in People v. Dyer, 425 Mich. 572, 576, 390 N.W.2d 645(1986), resolved this issue against defendant by indicating that neither party may call a witness knowing that the witness will avail himself of his right not to testify relative to self-incrimination under the Fifth Amendment.

At the start of trial, defense counsel filed a motion in limine seeking to prohibit testimony regarding a suppressed diamond ring.The trial [164 MICHAPP 41]court denied the motion with regard to Kimberly Faydenko's testimony concerning the ring.Faydenko saw the ring prior to the police's seeking a search warrant.She was a private citizen not involved in any aspect of the police investigation or subsequent execution of search warrants in the case.In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319(1920), the United States Supreme Court ruled that the exclusionary rule had no application where the government learned of the evidence from an independent source.Clearly Faydenko had an independent observation of the ring that was free from any taint; thus, her testimony rightly was not suppressed.

After the people had rested, defense counsel moved for a directed verdict of acquittal.The test, as properly set forth in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284(1979), cert. den. sub nomMichigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110(1980), requires a trial judge when ruling on such a motion to consider the evidence presented by the prosecutor up to the time the motion is made, view the evidence in a light most favorable to the prosecutor, and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.In the present case, the trial judge used the civil standard and thus was in error; however, the error was harmless.In People v. Buchanan, 107 Mich.App. 648, 649-650, 309 N.W.2d 691(1981), this Court found that the trial court erred in applying the "scintilla" or "any evidence" standard to a defendant's motion for a directed verdict rather than the appropriate standard as set forth in Hampton, supra, when it denied a motion for a directed verdict.However, the Buchanan case states:

[164 MICHAPP 42]"[R]eversal is not required unless the prosecution's evidence was insufficient to justify a reasonable factfinder in concluding that all of the essential elements of the crime were proven beyond a reasonable doubt."Buchanan, supra, p. 650, 309 N.W.2d 691.

Defendant claims that the prosecution failed to prove beyond a reasonable doubt premeditation and deliberation, necessary elements of first-degree murder.Premeditation and deliberation need not be established by direct evidence, but may be inferred from defendant's conduct in light of the circumstances.However, such an inference must have an adequate basis in the record evidence.People v. Hoffmeister, 394 Mich. 155, 158-159, 229 N.W.2d 305(1975).Factors to be considered in determining the existence of premeditation and deliberation include facts about the manner of the killing from which a jury could infer a preconceived plan to kill.People v. Jones, 115 Mich.App. 543, 553, 321 N.W.2d 723(1982), aff'd419 Mich. 577, 358 N.W.2d 837(1984).In People v. Gill, 43 Mich.App. 598, 602-603, 204 N.W.2d 699(1972), this Court set forth three basic categories of evidence relative to a finding of premeditation and deliberation.The planning activity and preconceived design, two of the three categories, are analytically much the same.Evidence of motive, the other category, without evidence of either a preconceived design or planning activity is not sufficient to find first-degree murder.Gill, supra, p. 603, 204 N.W.2d 699.

In the instant case, there is sufficient evidence to allow a factfinder to infer that defendant killed decedents Roberts and Steffey over a drug-related debt.The evidence also strongly suggests that the defendant received payment from Pancow for killing both decedents.Harvey's testimony placed defendant at the crime scene at the time the [164 MICHAPP 43] killings took place.A young man living in the home, Robby Roberts, testified that after being awakened by four gunshots he saw a person who fit defendant's description leave the house, though he admitted he saw the back only.Finally, there was evidence that Roberts and the defendant were having an argument and that the defendant left after arguing with Roberts.This fact, in and of itself, showed there was time for defendant to cool off before returning to Roberts' house.Thus we are satisfied that sufficient evidence was submitted to allow a reasonable factfinder to conclude that the prosecution established premeditation and deliberation beyond a reasonable doubt.

Next, defendant raises various claims of error in regard to the trial court's instructions to the jury.Defendant challenges the trial court's instructions on the intoxication defense relative to a charge of first-degree murder.The court, in its first statement as to the intoxication defense, misinstructed the jury regarding the applicability of the defense of intoxication as to first-degree murder.However, once the trial court was made aware of this error, the court reinstructed the jury with regard to the elements of first and second-degree murder and the intoxication defense.In reinstructing the jury, the trial court properly stated the law with defense counsel indicating no objection.

Defense counsel relies on People v. Crittle, 390 Mich. 367, 212 N.W.2d 196(1973), in support of his claim of error regarding the intoxication instructions; however, we note that the Michigan Supreme Court in People v. Savoie, 419 Mich. 118, 134, 349 N.W.2d 139(1984), said:

"We are convinced that that portion of our opinion in Crittle which concluded that the 'capacity standard' is improper, per se, was not a correct [164 MICHAPP 44] statement of the law.The proper standard is that articulated by Justice Christiancy more than a century ago--whether the degree of intoxication was so great as to render the accused 'incapable of entertaining the intent'.To this extent this opinion diverges from Crittle.Crittle is overruled."

Jury instructions are viewed in their entirety in order to determine if error occurred and are not extracted piecemeal in an effort to establish error requiring reversal.People v. Bender, 124 Mich.App. 571, 574, 335 N.W.2d 85(1983).Even where instructions are imperfect, there is no error if the instructions "fairly presented to the jury the issues to be tried and sufficiently protected the rights of defendant."People v. Kalder, 284 Mich. 235, 241-242, 279 N.W. 493(1938);People v. Burgess, 153 Mich.App. 715, 726, 396 N.W.2d 814(1986).A verdict will not be set aside based on an alleged error in the jury instructions where no objection was made to an alleged erroneous instruction at trial unless it resulted in a miscarriage of justice.Id.We find that no miscarriage of justice occurred in this case.

Defendant also claims that the trial court erred in refusing to give the "pure circumstantial evidence instructions."The prosecution's case was based on both circumstantial and direct evidence.Therefore, the trial court accurately instructed the jury on the issue of mixed direct and circumstantial evidence as found in proposed CJI 4:2:02.SeePeople v. Burgess, supra, pp. 726-727, 396 N.W.2d 814.

Defendant also challenges the ruling of the trial court concerning demonstrative evidence (shells that were introduced during the testimony of Trooper Donald Jones, who had been qualified as an expert in firearms and ammunition identification).Trooper Jones testified that he was present when autopsies were done on both decedents and that he received bullet fragments removed from [164 MICHAPP 45] their bodies.He testified about the characteristics of the bullet fragments which led him to conclude that they were from a .22-caliber shell.Jones then stated that he had bullets on his person which he could show the jury to help the jurors understand the witness' conclusions.Defense couns...