People v. Stinson

• Decision Date: 10 February 1975
• Docket Number: 16234--16235,Docket Nos. 16172,No. 1,1
• Citation: 227 N.W.2d 303,58 Mich.App. 243
• Parties: , 86 A.L.R.3d 559 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ellsworth Cecil STINSON et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 303

227 N.W.2d 303

58 Mich.App. 243, 86 A.L.R.3d 559

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ellsworth Cecil STINSON et al., Defendants-Appellants.

Docket Nos. 16172, 16234--16235.

Court of Appeals of Michigan, Division No. 1.

Feb. 10, 1975.

Released for Publication April 4, 1975.

Leave to Appeal Denied April 24, 1975.

Carl Ziemba, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and ALLEN and PETERSON, ^* JJ.

ALLEN, Judge.

Each of the defendants was charged with second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549, and Stinson was also charged with sodomy. M.C.L.A. § 750.158; M.S.A. § 28.355. A jury found each guilty of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and Stinson also guilty of attempted sodomy. Moore received a sentence of 5 to 15 years in prison; Burton was sentenced to 7 1/2 to 15 years; and Stinson was sentenced to 10 to 15 years on the manslaughter conviction and 3 1/3 to 5 years on the attempted sodomy conviction. Defendants appeal.

Initially, defendants argue that the trial court erred in denying their motions for directed verdict of acquittal on the second-degree murder charge. M.C.L.A. § 750.317; M.S.A. § 28.549. According to People v. Hodo, 51 Mich.App. 628, 639, 215 N.W.2d 733, 739 (1974), such a motion may be granted only where:

'there is no evidence at all, either direct or circumstantial, on each material element of the offense charged. In the event the requisite evidence is presented, it is submitted to the trier of fact for a determination of whether such evidence established guilt beyond a reasonable doubt.' (Omitted citations.)

We must examine the evidence in a light most favorable to the people to determine whether the charge of second-degree murder was properly submitted to the jury. People v. Watkins, 36 Mich.App. 380, 385, 193 N.W.2d 914 (1971); aff'd, 388 Mich. 717, 202 N.W.2d 780 (1972). We commence our examination by stating the elements of second-degree murder.

According to 3 Gillespie, Michigan Criminal Law and Procedure, § 1639, p. 1973:

'To constitute murder in the second degree there must be an unlawful killing and a purpose to kill, formed suddenly, preceding and accompanying the act, without that deliberation and premeditation which distinguishes murder in the first degree, but not such sudden provocation and stirring of the passions which precludes the exercise of reason, as would, in a legal sense, exclude the idea of malice aforethought, and thereby reduce the homicide to manslaughter.'

Murder 'is an unlawful, malicious killing', and malice aforethought is an essential element of second-degree murder. People v. Carter, 387 Mich. 397, 416--418, 197 N.W.2d 57 (1972). According to People v. Morrin, 31 Mich.App. 301, 310--311, 187 N.W.2d 434, 438 (1971), lv. den., 385 Mich. 775 (1971):

'Malice aforethoght is the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm.' (Footnotes omitted.)

Homicides which are 'unplanned or impulsive' or committed 'in the sudden heat of passion', and which are intentional and committed with malice aforethought are murder in the second degree. Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129, 137 (1967). See also People v. Vail, 49 Mich.App. 578, 591, 212 N.W.2d 268 (1973), lv. granted, 391 Mich. 789 (1974).

People v. Hansen, 368 Mich. 344, 350--351, 118 N.W.2d 422, 425 (1962), noted that malice required either an intent to cause the specific harm that resulted;

'or some harm of the same general nature, or an act done in wanton or wilful disregard of the plain and strong likelihood that some such harm will result.'

Pursuant to the above, People v. Geiger, 10 Mich.App. 339, 343, 159 N.W.2d 383, 385 (1968), lv. den., 381 Mich. 753 (1968), said 'an assault by blows without a weapon may, under certain circumstances, permit a jury to infer an intent to kill'. (Omitted citations.) This inference is a permissible one. People v. Martin, 392 Mich. 553, 561, 221 N.W.2d 336 (1974), and may arise 'from the totality of the circumstances'. People v. McBride, 30 Mich.App. 201, 203, 186 N.W.2d 70, 72 (1971). See also People v. Person, 20 Mich.App. 246, 249, 174 N.W.2d 67 (1969). The type and duration of a beating, as well as its severity and the nature in which it was carried out are factors which a jury may examine to determine 'that defendant knowingly committed an act which led to the result intended'. People v. McFee, 35 Mich.App. 227, 232, 192 N.W.2d 355, 357 (1971), lv. den., 388 Mich. 763 (1972).

Having defined the elements of murder of the second degree we now turn to examine the evidence applicable to each defendant, and to determine whether the charge was properly submitted to the jury.

Initially, we note that medical testimony was presented which indicated that the deceased suffered from a subdural hemorrhage which resulted from an injury to the brain. In the doctor's opinion, this damage to the brain was caused by a 'blunt force injury', and that possibly the striking of deceased's head with fists caused that injury. Medical evidence was also received that at the time deceased was admitted to Detroit General Hospital, he was diagnosed as having suffered a subdural hematoma approximately 24 to 48 hours previous to his admission. While the doctor was unable to state exactly when this injury occurred, and although defense counsel argued that the evidence raised a question as to whether deceased had entered the jail cell with this condition already existing, we find that the evidence was sufficient to go to the jury on the question of cause of death.

On June 8, 1972, Harold Cross, age 21, having been arraigned earlier in the traffic and ordinance division of Detroit Recorder's Court, entered ward 218 of the Wayne County Jail. Among the other persons confined therein were defendants Stinson, Moore and Burton. During the evening of June 8, and the afternoon and evening of June 9, Cross was subjected to various assaults by each defendant. At approximately 11 p.m. on the evening of June 9, Cross was taken from ward 218 to Detroit General Hospital, where he never regained consciousness and where he died on June 11, 1972.

Evidence Against Stinson: Samuel Kleckley, an inmate in ward 218, testified that Stinson and Cross initially began 'joking around' and exchanged a few slaps. Apparently Stinson slapped Cross, Cross returned the slap, and Stinson struck Cross again. Apparently, one thing led to another, and Kleckley then saw Stinson kicking at Cross, and Cross began to seek refuge under one of the bunks. Other inmates in the cell block had to pull Stinson away. Cross came out from underneath the bunk, stumbled, hit his head against the bars, and was placed in his bunk by other inmates. He got up again, stumbled, and returned to his bunk. He remained there until he was carried to Detroit General Hospital.

Ernest Lockett, another inmate, said that Stinson had accused Cross of being employed by the police. He also testified that he heard Stinson tell Moore to 'be cool or I will kill the dude'. Lockett also testified as to a towel beating incident, in which Stinson beat Cross with a wet, knotted towel for about 5 minutes.

Walter Kaminski, a fellow inmate, testified that as soon as Cross entered the ward, all three defendants began to talk to him, and after dinner Cross and defendants were singing together. On that first day, Stinson had slapped Cross. On the next day, the beating with wet towels occurred, and Stinson began to beat Cross with his fists. He also kicked him, and this lasted for about 10 minutes. Kaminski testified to the incident in which Cross had sought refuge underneath his bunk where Stinson kept kicking him in the legs. Kaminski testified that later that evening Stinson beat Cross again, with Cross running around trying to avoid the beating. Stinson was striking Cross with his fists and kicking him, and was throwing shoes at him. After Cross fell to the floor, Stinson kept hitting and kicking him. Stinson never quit, and Burton and Moore had to pull him off.

Ronald Bousquette, another inmate, testified that after breakfast on the second day, June 9, Stinson and Burton began to beat Cross, and also testified about the towel beating incident. Bousquette also testified about the beating which resulted in Cross lying on the floor underneath his bunk and with Stinson continuing to kick him. Bousquette testified that Stinson beat Cross with his fists and feet and had knocked Cross to the floor. Stinson continued to kick Cross once Cross was on the floor. He said that Stinson had picked up a shoe and beat Cross with it while Cross was trying to get underneath the bunk.

Evidence Against Moore: Lockett testified that Moore, nicknamed 'Duck', hit Cross in the face with his fist about 3 or 4 times while Cross was lying on the floor. This occurred on June 8. On the second day, Lockett testified that Moore was involved in the wet towel incident, and in fact said that all defendants were involved in that activity. Lockett said that after Stinson said he would kill Cross, Moore said 'I don't care'. Kaminski testified that although Burton and Moore pulled Stinson off while he had been beating Cross, Moore subsequently became involved in the beating of Cross. While Kaminski said that he never saw Moore attack Cross, he had previously told investigating officers that Moore had assaulted Cross. He then testified that he saw Moore attack Cross, and that Moore and Stinson had told him to...