People v. Stacy, Docket No. 118513

Citation193 Mich.App. 19,484 N.W.2d 675
Decision Date03 February 1992
Docket NumberDocket No. 118513
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Dennis STACY, Defendant-Appellant. 193 Mich.App. 19, 484 N.W.2d 675
CourtCourt of Appeal of Michigan (US)

[193 MICHAPP 21] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Michael D. Thomas, Pros. Atty., and Laura A. Chappelle, Asst. Pros. Atty., for the People.

State Appellate Defender by James Krogsrud, for the defendant on appeal.

Before SHEPHERD, P.J., and MARK J. CAVANAGH and FITZGERALD, JJ.

SHEPHERD, Presiding Judge.

After a jury trial, defendant was convicted of arson of a dwelling, M.C.L. Sec. 750.72; M.S.A. Sec. 28.267, and five counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. The convictions arose out of the firebombing of the home of the Brandon family in Saginaw, Michigan, during the early morning hours of September 3, 1987, which resulted in the death of five occupants. Defendant was sentenced to thirteen to twenty years' imprisonment for the arson and to life imprisonment for the five counts of murder. Defendant now appeals as of right. We affirm.

The evidence of defendant's guilt was largely circumstantial except for the testimony of his girl friend, Iza Mae Nash. There was evidence that defendant had been in altercations with Greg Davis. One of these altercations took place on the night of September 2, 1987, and involved others who were friends of Davis. There was testimony that Davis had lived in the Brandon family home until shortly before the firebombing. In fact, that [193 MICHAPP 22] night, after the altercation, Davis was sitting on the porch of the Brandon home. The prosecution theorized that defendant thought that Davis was still living there at that time.

Iza Nash testified that she saw defendant at about 10:30 p.m. on September 2, 1987, at which time he told her that he had been in a fight. Defendant left Nash and went out again shortly after 11:00 p.m. Defendant's friend, Johnnie Batton, testified that, shortly after midnight in the morning of September 3, 1987, defendant attempted to get Batton to help him "f--- up" the "dudes" that had "messed with" him earlier that night. Batton refused.

A neighbor, Ruben Garcia, first saw the fire between 1:45 and 1:50 a.m. and reported it shortly before 2:00 a.m. Garcia saw a thin black male crouched down near a railroad power box by the tracks that ran behind his home and next to the Brandon home. The man got up and approached the Brandon home with something in his hands that lit up with fire. Garcia heard breaking glass and saw the fire spread rapidly. The man then walked away, passing the railroad power box and walking along the tracks behind Garcia's home. Garcia told his wife to call the fire department.

Officer Thomas McGarrity testified that he was dispatched to a breaking and entering in progress a block east of Howard Street during the early morning hours of September 3, 1987. The subject ran from that location and Officer McGarrity gave chase, catching him across the street from the Brandon house at 1:39 a.m. As he was handcuffing the subject, McGarrity saw a black male dressed in dark clothing and fitting defendant's general description walk quickly from the area of the Brandon house, cross the street diagonally behind him, and disappear before he finished handcuffing his [193 MICHAPP 23] prisoner. By 1:45 a.m., another officer had arrived to escort the prisoner and McGarrity back to his car; there were no signs of fire at the Brandon house at that time.

An arson investigator of the Michigan State Police was qualified as an expert and testified that the fire was deliberately ignited with an accelerant--gasoline. A knife was found at the scene, in the front yard near the railroad power box and white picket fence. The knife was identified as the one defendant carried when he spoke with Officer Charles Braddock and Timothy Lee and Phillip Lee at approximately 10:00 p.m. on the evening of September 2, 1987. And, as indicated, defendant's girl friend, Iza Nash, testified with regard to conversations she had with defendant after he came back to her house at about 2:00 a.m. He had been staying with Nash that summer. Her home was approximately 3 1/2 blocks from the Brandon home. The details of the conversations are discussed infra.

I

Defendant first argues that error requiring reversal occurred when the trial court permitted the prosecutor to impeach, or attempt to impeach, defendant with a statement made by him to the police after he had requested counsel. Defendant also advances what is labeled as an alternative argument, i.e., that he was denied the effective assistance of counsel because his trial counsel failed to move for the suppression of the statement. It is clear, however, that the latter argument is dependent upon the success of the first argument. Indeed the arguments are one. Trial counsel at first objected to, and later acquiesced in, the use of the report. Thus the asserted error is not preserved. Accordingly, defendant argues ineffective[193 MICHAPP 24] assistance. At a Ginther 1 hearing, the trial court concluded that the attempted impeachment was not harmful and was based on legitimate trial strategy. We affirm the trial court's conclusion that the use of the statement for impeachment was proper and that defendant was not denied the effective assistance of counsel. Therefore, any suppression motion by counsel would have been unwarranted.

Defendant argues: "[I]t is an open question whether under the Michigan Constitution the prosecution may impeach an accused with a statement taken by police after failing to honor the defendant's request for counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Michigan Supreme Court has not settled this issue."

It is true that the Michigan Supreme Court has not settled this issue. See People v. Esters, 417 Mich. 34, 331 N.W.2d 211 (1982), where three justices opined that, under the Michigan Constitution, such a statement could not be used for any purpose, while three others took the view that a voluntary statement obtained in violation of Miranda could be used for impeachment; Justice Riley did not participate. See also People v. Gonyea, 421 Mich. 462, 473-483, 365 N.W.2d 136 (1984) (also a 3-to-3 split; Justice Cavanagh concurring on the facts of that case that the statement was inadmissible for any purpose but not indicating whether this conclusion was based on Michigan or federal constitutional law). However, this Court has held that, as a matter of Michigan constitutional law, "statements taken in violation of a defendant's right to counsel, if voluntary, may be used for impeachment purposes although they [193 MICHAPP 25] could not have been used in the prosecutor's case-in-chief." People v. Paintman, 139 Mich.App. 161, 169-170, 361 N.W.2d 755 (1984). See also People v. Clark, 127 Mich.App. 176, 339 N.W.2d 14 (1983). We are not persuaded to diverge from this path. Defendant does not contend that his statement was involuntary. Accordingly, we find no error in the use of the statement and conclude that defendant was not denied the effective assistance of counsel.

II

Defendant next argues that he was denied a fair trial because the police intimidated a key prosecution witness, Iza Mae Nash, with threats of jail and criminal charges, thereby causing her to testify against defendant. Both our Supreme Court and this Court have strongly condemned prosecutorial intimidation of witnesses. People v. Pena, 383 Mich. 402, 175 N.W.2d 767 (1970); People v. Crabtree, 87 Mich.App. 722, 276 N.W.2d 478 (1979). Threats from law enforcement officers may be attributed to the prosecution. See People v. Hooper, 157 Mich.App. 669, 675, 403 N.W.2d 605 (1987). Where a testimonial record must be developed to support a defendant's argument on the issue, remand for an evidentiary hearing has been ordered. See People v. Hooper, 422 Mich. 875, 366 N.W.2d 6 (1985) (timely motion for remand had been filed). See also People v. Pena, supra (while three justices voted for outright reversal, a majority could be mustered only to remand "for a determination by [the trial] court as to whether or not the prosecutor ... did intimidate the witnesses").

In this case, defendant's girl friend, Iza Nash, was clearly the most damning witness against defendant. She was called as the prosecution's last witness and testified that, about 10:30 in the evening[193 MICHAPP 26] of September 2, 1987, she was returning to her home when she noticed defendant talking to the police on the street. Shortly thereafter, defendant came to Nash's home and told her he had been in a fight. She and defendant went next door to her sister's house to watch television. Defendant stayed "for a minute" and went out again sometime after 11:00 p.m. Nash went back to her house at approximately 1:30 or 1:45 in the morning of September 3, 1987. Thereafter, she heard sirens, and defendant then knocked at her door.

At this point in the testimony, the prosecutor asked Nash if defendant said anything when he walked through the door. Nash's answer could not at first be heard. She then testified that defendant said that "he hope[d] there [were] no kids in there." The prosecutor then asked if defendant said anything else, whereupon Nash replied, "I don't feel too good." A recess was then taken. When the court reconvened, the prosecutor resumed this line of questioning:

Q. Did he say anything else to you at that time?

A. Yes.

Q. What did he say?

A. Do I have to say it?

The Court: Yes, ma'am.

A. Well The Court: Miss Nash, do you still have some water there? Do you want some?

Witness: No.

The Court: Pardon? I'm sorry, do you want some water?

Witness: Unt-unt [sic].

The Court: Okay.

A. He said he done it.

Q. He said he done it?

A. Yeah.

[193 MICHAPP 27] Q....

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