People v. Spalla

• Decision Date: 05 June 1978
• Docket Number: Docket No. 31488
• Citation: 269 N.W.2d 259,83 Mich.App. 661
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick T. SPALLA, Defendant-Appellant. 83 Mich.App. 661, 269 N.W.2d 259
• Court: Court of Appeal of Michigan — District of US

Page 259

269 N.W.2d 259

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick T. SPALLA, Defendant-Appellant.

Docket No. 31488.

83 Mich.App. 661, 269 N.W.2d 259

Court of Appeals of Michigan.

June 5, 1978.

Rehearing Denied July 11, 1978.

Released for Publication Sept.7, 1978.

[83 MICHAPP 663] Wesley J. Roberts, Warren, for defendant-appellant.

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

Before BASHARA, P.J., and KELLY and ALLEN, JJ.

BASHARA, Presiding Judge.

Defendant appeals from a jury verdict convicting him of first-degree murder. ¹ The information alleged an open charge of murder, but cited the first-degree murder statute. ²

It is claimed by defendant that there was insufficient evidence presented to support the issuance of a complaint and warrant for his arrest. When arraigned on the information, defendant entered a plea without raising this objection. Consequently, if there was any defect in the complaint and warrant, it was thereby waived. People v. Licaboli, 256 Mich. 229, 231, 239 N.W. 292 (1931); People v. Dowd, 44 Mich. 488, 7 N.W. 71 (1880); People v. Bohm,49 Mich.App. 244, 250, 212 N.W.2d 61 (1973), Lv. den., 397 Mich. 877 (1976).

A pre-trial motion to quash the information was made by defendant on the basis that insufficient [83 MICHAPP 664] evidence was presented at the preliminary examination on the element of premeditation and deliberation to permit a trial on the charge of first-degree murder. Defendant contends that denial of that motion was erroneous. In conjunction with this claim, defendant further argues that it was error for the magistrate to submit defendant for trial on a charge of murder without specifying the degree.

As to the latter contention, it is important to recognize that the purpose of an information is to advise the accused of the offense with which he is charged. People v. Rios, 386 Mich. 172, 175, 191 N.W.2d 297 (1971); People v. Gould, 237 Mich. 156, 164, 211 N.W. 346 (1926). In People v. Treichel, 229 Mich. 303, 200 N.W. 950 (1924), the Court held that an information charging the defendant with murder, but not specifying the degree or circumstances, was a sufficient basis for finding him guilty of either first- or second-degree murder. Id. at 307-308, 200 N.W. 950. Accordingly, the information in the instant case was sufficient to advise the defendant that he must prepare to defend himself against both first- and second-degree murder.

This conclusion also finds support from the case of Sneed v. People,38 Mich. 248 (1878), where it was held that an indictment charging the defendant with "murder" was sufficient to encompass first-degree murder. ³ Id. at 251-252. We therefore, [83 MICHAPP 665] conclude that the magistrate was not required to specify the degree of murder charged, even though a request for such particularization was made by the defendant. When the charge encompasses first-degree murder the ultimate finding as to degree is for the jury. See M.C.L. § 750.318; M.S.A. § 28.550; Cf. People v. Carter, 395 Mich. 434, 438, 236 N.W.2d 500 (1975).

We also find that the evidence presented at the preliminary examination as to premeditation and deliberation was sufficient to warrant a denial of defendant's motion to quash the information. Although the evidence presented by the prosecution was entirely circumstantial, that alone would not preclude the jury from finding the element of premeditation and deliberation. People v. Hoffmeister, 394 Mich. 155, 158-159, 229 N.W.2d 305 (1975). The defendant's state of mind may be inferred from his conduct within the context of the circumstances shown by the evidence. Id.

In the instant case, testimony was presented which, if believed by the jury, would establish that the defendant and decedent left the decedent's residence together in a bronze compact automobile, borrowed by defendant from his friend. Defendant stated, in the presence of one witness, that he and the decedent were going to an area near Lake Orion. Approximately twenty to thirty minutes thereafter, another witness, while on his property in a secluded area near Lake Orion, heard three gun shots. He then observed a bronze compact automobile drive out from a nearby field and speed away from the area. When the witness went over to the area from which he observed it drive away, he found the decedent's body.

Crime laboratory investigators obtained tire tread impressions and measurements from the [83 MICHAPP 666] area where decedent's body was found. Those impressions and measurements matched the tread style and wheel base of the car defendant borrowed from his friend.

Additional circumstantial evidence was presented as to the distances allegedly traveled by defendant, the time required to traverse those distances, and the sequence of events before and after the occasion of decedent's death. It is our conclusion that this array of evidence was sufficient to allow a trier of fact to infer that the defendant planned the excursion to a secluded area with the intent to kill the decedent. Therefore, the court's denial of defendant's motion to quash the information was proper. Proof of the Corpus delicti and defendant's guilt may rest upon circumstantial evidence. People v. Barron, 381 Mich. 421, 426, 163 N.W.2d 219 (1968); People v. Hawksley,82 Mich. 71, 73, 45 N.W. 1123 (1890).

At trial the prosecutor, in his opening statement, indicated that he would show the motive for the murder was to collect the proceeds of the insurance on decedent's life. As part of the motive evidence, the prosecutor called the decedent's wife as a witness. He attempted to elicit testimony showing her close relationship with defendant. The prosecutor then asked whether she had previously stated to a named friend that she would share the life insurance proceeds from decedent's death with whomever she could find to kill him. She denied making any statement of that nature.

One of the following prosecution witnesses was the friend of the decedent's wife named in the latter inquiry. She testified, over the defendant's objection, that approximately nine to twelve months prior to his death, decedent's wife had made the claimed statement. The trial court instructed the jury that [83 MICHAPP 667] they were to consider such testimony only for the purpose of assessing the credibility of decedent's wife. Defendant maintains that in permitting the prosecutor to impeach the credibility of his own witness, the trial court committed reversible error.

Our state's jurisprudence continues to adhere to the archaic common law prohibition against a party's impeachment of his own witness's credibility. People v. White, 401 Mich. 482, 508, 257 N.W.2d 912 (1977). Notwithstanding the resounding criticism of the rule ⁴ and its abrogation in numerous jurisdictions, ⁵ it has been codified, along with its exceptions, in our recently adopted rules of evidence. ⁶ The exceptions are not applicable to the [83 MICHAPP 668] instant case. Consequently, it was error for the trial court to allow the prosecution to impeach the credibility of its witness.

However, our inquiry cannot cease with that conclusion. We must assess whether that error resulted in undue prejudice to defendant's right to a fair trial, or whether it was harmless beyond a reasonable doubt. People v. Robinson, 386 Mich. 551, 562-563, 194 N.W.2d 709 (1972); People v. Smith, 363 Mich. 157, 164, 108 N.W.2d 751 (1961).

In People v. White, supra, the impeachment evidence was found to be so prejudicial that the jury could not be relied upon to follow the admonition of the trial court's instruction limiting its use to credibility assessment. Id. at 510, 257 N.W.2d 912. The evidence consisted of testimony by a cofelon given in a previous trial, that he and defendant committed the offense with which the defendant was charged. The Court referred to the supporting case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which involved utilization of a codefendant's confession in a joint trial, admitting that he and the petitioner had committed the charged offense.

The Bruton decision was premised upon a perceived violation of the defendant's Sixth Amendment right of confrontation. However, the United States Supreme Court also made the following observation:

" 'Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury [83 MICHAPP 669] can reasonably be expected to follow them, the jury system makes little sense.' We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. 'A defendant is entitled to a fair trial but not a perfect one.'

"It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Id. at 135, 88 S.Ct. at 1627 (citations omitted).

Accordingly, our inquiry is, essentially, whether the inadmissible evidence in the case under review is of a nature that the "human limitations" of the jury could reasonably be anticipated to preclude them from adhering to the limiting instruction of the trial court. That instruction enjoined them not to consider the testimony as substantive evidence, but only that the decedent's wife made a prior...