People v. Strodder

• Decision Date: 24 April 1973
• Docket Number: Docket No. 13131,No. 2,2
• Citation: 208 N.W.2d 187,46 Mich.App. 395
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mandric V. STRODDER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 187

208 N.W.2d 187

46 Mich.App. 395

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mandric V. STRODDER, Defendant-Appellant.

Docket No. 13131.

Court of Appeals of Michigan, Division No. 2.

April 24, 1973.

Released for Publication June 21, 1973.

Leave to Appeal Granted Sept. 19, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and McGREGOR and DANHOF, JJ.

DANHOF, Justice.

Defendant was charged with first-degree murder. M.C.L.A. § 750.316; M.S.A. § 28.548. He waived a jury, and after a trial covering approximately 29 days was found guilty as charged. He was sentenced to life imprisonment and appeals.

At trial defendant presented 2 defenses: (1) lack of criminal responsibility due to insanity, and (2) innocence based upon a claim that the victim was murdered by her own husband, who had hired the defendant to take the blame.

The victim, Sally Ann Wright, died as a result of strangulation. The time of her death was fixed at approximately mid-afternoon on September 28, 1970. Her body was found in the Flint River near a site described by the defendant to his mother. A van-type truck, which the victim was driving on the day of her death, was found in the Taystee Bread parking lot in Flint. A palm print made by the defendant and the defendant's wallet were found in the van. The van was brought to the attention of the police by an employee of the baking company. The defendant was identified as the same man seen in the parked van going through a woman's purse and later hurrying away from the lot.

The defendant's mother testified that, on the day of the crime, her son came home and told her that he had raped and killed a woman, that he had thrown her body in the river, and that he had left her van in the Taystee Bread parking lot. Finally, he asked her to help him find his wallet which he had lost. After riding past the lot where the van had been abandoned and finding the police already there, the defendant asked his mother to drive to the site where the body had been thrown into the river in hopes that he could recover his wallet there. The defendant's mother further testified that she persuaded him that this was not the thing to do. They then drove to an attorney's office and, following consultation, the defendant and his mother went to the Snead Psychiatric Clinic where the defendant had been undergoing preliminary interviewing and testing. At the clinic they were met by the police and defendant was arrested. At this time, the defendant was given the Miranda warnings.

Several hours later, the defendant's mother obtained a map from him describing the location where the victim's body was thrown. However, officers using the map were met at the already discovered scene by an officer who had arrived there using a general description previously given by the defendant's mother. These directions had been given to the policy by the defendant's mother before she had obtained the map from her son and they were based on information that the defendant had given her before the time of his arrest.

In his own defense, defendant testified that the victim's husband had offered to get him off from a prior charge of rape and that, because the victim's husband knew people in high places, the defendant would receive at most a 4 year sentence for the instant crime for which he was to take the blame. Also the victim's husband allegedly offered to pay the defendant some money. Further testimony by the defendant was to the effect that the victim's husband and the defendant arranged for the defendant to take the victim's van to the Taystee Bread parking lot, leave a palm print and make a confession to his mother. The defendant testified that he waived a jury trial because he believed his deal was 'all set' when the judge said he knew the victim's husband. When it allegedly became apparent to the defendant that he had been double-crossed, he testified that all of his prior admissions concerning the offense were faked and false.

Doctor Edelbert Rogers, who had examined the defendant in 1968, testified on behalf of the defendant that because of defendant's emotional instability and inability to rationally deal with sexual matters, he was not criminally responsible for the charged act. Two other proposed experts for the defendant were excluded because of insufficient statutory notice regarding their appearance on the matter of criminal responsibility. M.C.L.A. §§ 768.20--768.21; M.S.A. §§ 28.1043--28.1044. Mr. David Shapiro and Doctor Ames Robey for the prosecution testified that defendant did know what he was doing and was able to control his actions at the time of the crime. These latter two experts were both from the Center for Forensic Psychiatry in Ypsilanti and had participated in an examination of the defendant to determine whether he was mentally competent to stand trial.

Defendant raises several allegations of error which are hereinafter discussed.

I

Defendant contends that it was error for the trial court to deny defense counsel's motion to withdraw and defendant's request to release his appointed attorney. In the early stages of trial, differences of opinion did exist between defendant and counsel, most notably concerning the defendant's desire to waive a jury trial. However, although there were differences of opinion, they were not irreconcilable. People v. Williams, 386 Mich. 565, 576, 194 N.W.2d 337 (1972). Defendant prevailed in his choice of strategy to be tried by the court rather than by jury. During the subsequent course of his trial, defendant expressed approval of his counsel on several occasions. On these facts, it was not an abuse of discretion to deny the motion to withdraw.

II

It is contended that certain evidence was admitted in violation of the defendant's Fifth Amendment rights and that the admission of this evidence, notwithstanding the absence of an objection, constitutes reversible error. After the defendant had been arrested and given the Miranda warnings he was transferred to the psychiatric ward of Hurley Hospital. There the above-described map was obtained from the defendant by the police through the assistance of the defendant's mother. The defendant contends that the map was illegally obtained because the Miranda warnings were not repeated and that by it essential elements of the corpus delicti were discovered. We do not reach the question of whether there was any primary illegality in obtaining this map because there was sufficient evidence at trial for us to conclude that by means of an independent source discovery of the victim's body was already in progress before the officer in possession of the map had arrived on the scene, and that the defendant's palm print and wallet were found as a result of information independent of the map. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967).

III

Defendant claims that he was denied effective assistance of counsel. Although defendant's counsel failed to consult with him personally for a substantial period of time prior to trial, counsel did indicate that he had been preparing the case and working with defendant's mother before trial. Our inquiry must focus on whether any actual prejudice arose from lack of consultation. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The defendant does not argue that a requested consultation was refused, but rather points to differences in trial strategy. Trial strategy which proves to be error is not a basis for finding a denial of effective counsel. People v. Budrick, 40 Mich.App. 647, 652, 199 N.W.2d 267 (1972); People v. Burd, 39 Mich.App. 22, 25, 197 N.W.2d 76 (1972).

More serious is the contention that counsel did not adequately prepare the insanity defense by failing to properly list 2 experts who had most recently examined the defendant. However, from the record, it appears that this was partially due to defendant's strategy to rely more heavily upon his alternate defense of general denial. Also, contemporaneous with the trial court's ruling that experts not listed in the notice to the prosecution would not be permitted to testify was a specific suggestion by the court to make an offer of proof regarding the information possessed by these experts. No such offer was made. In its absence we do not find the court's exclusion of these experts to have been an abuse of discretion.

Defendant argues that antagonism arose between his trial counsel and the trial judge, that the failure of his attorney to move for a mistrial--when suggested by the judge himself--demonstrates a denial of effective assistance of counsel. The decision not to request a mistrial was one of strategy discussed by the defendant and his attorney. People v. Budrick, Supra. After an examination of the record as a whole, we are unable to conclude that with new counsel a different decision may very well result. People v. Degraffenreid, 19 Mich.App. 702, 718, 173 N.W.2d 317 (1969); People v. Bottany, 43 Mich.App. 375, 381, 204 N.W.2d 230 (1972).

IV

Defendant contends that the trial court committed reversible error by admitting expert testimony on behalf of the prosecution regarding defendant's sanity because such testimony was inadmissible pursuant to M.C.L.A. § 767.27a(4); M.S.A. § 28.966(11)(4). In construing this statute our Supreme Court in the case of People v. Martin, 386 Mich. 407, 425, 192 N.W.2d 215, 224 (1971) held:

'. . . a psychiatrist who conducts such a forensic psychiatric examination may not be called to testify in the criminal trial if there is an objection to the...