People v. Thomas, Docket No. 2301

Decision Date02 December 1968
Docket NumberDocket No. 2301,No. 1,1
Citation165 N.W.2d 879,14 Mich.App. 642
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ivory THOMAS, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Manning Hathaway, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and LEVIN and McGREGOR, JJ.

LESINSKI, Chief Judge.

Michael Railsbach, age 18, was found with a stab wound in the chest March 30, 1965 at about 7:40 p.m. near Dueweke Park. He was taken to a nearby flat where he collapsed. In response to a radio call, police officers rushed Railsbach to Receiving Hospital where he arrived at 8:08 p.m. He died on the operating table at 9:25 p.m.

At the hospital Railsbach regained consciousness long enough to answer certain questions asked of him by officer Leon Studzinski.

At the trial of the defendant, officer Studzinski testified as follows:

'We received the call at 7:45 p.m., and approximately five minutes later we were there, about 7:50 p.m. We went to that address, 4739 Field Avenue and we went upstairs and--to an upstairs flat and saw--we saw the deceased lying on the floor; his shirt was open and he had a chest wound and I made conversation with him; asked him first of all his name and he was able to get out and I was able to understand, 'Michael,' and the rest was incoherent. I asked for an address, which was furnished to me on paper by the occupants of the house. I asked him then what happened and he stated he was stabbed and I asked him if he knew by whom and he said he did not. This is information I received at the scene as the deceased was rolling from side to side clutching his chest, and then became unconscious. We hurriedly rushed him to Receiving Hospital where, at the hospital, he regained consciousness and we again asked him what happened and he said he was stabbed. I said, 'Was that the result of a fight or a robbery or what,' and he said he had been robbed and I asked him of what and he says his wallet was taken containing $6.00. I said, 'What did the man look like,' and he described the man as colored, approximately 17 years of age, 5 feet 10 inches tall, medium build and wearing a green jacket. He related that the assailant had asked him for a cigarette and as he was pulling the cigarette out he was stabbed. That was all.'

At the trial this testimony was allowed in evidence over the objection of defense counsel, either as dying declarations or as Res gestae utterances. On appeal the admission of this testimony is sought to be upheld solely on the basis that it comes under the Res gestae exception to the hearsay rule.

The defense contends that the statements attributed to the deceased, Railsbach, were not spontaneous and were the result of leading questions put to him by officer Studzinski.

In Rice v. Jackson (1965), 1 Mich.App. 105, 111, 134 N.W.2d 366, the admissibility of Res gestae statements was reviewed exhaustively by this Court. Under the standards of Rice, supra, which have applicability in this criminal action, statements are admissible in evidence under the following conditions:

'(1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it.'

Testing the facts of this case against these standards, we find the objected to testimony properly admissible in evidence.

The occurrence involving the deceased, beyond a question, was such as would give rise to spontaneous and unreflecting answers. The lapse of time between the stabbing and the making of the statements did not exceed 40 minutes. 1 Of this time the deceased was unconscious part of the time and at others in great pain. 2 The statement related directly to circumstances surrounding the stabbing.

The most serious challenge to the admissibility of the contested testimony is made on the basis that the reason for the stabbing was established by the following question of the deceased by officer Studzinski:

'Was that the result of a fight or a robbery or what?'

The deceased responded that he had been robbed and in response to 'of what' he said his wallet containing $6.

The testimony which also related to the deceased's description of his assailant and some of the circumstances of the attack upon him were very damaging to the defense as it tied in other circumstantial evidence which was introduced in the trial.

The testimony is challenged on the basis that the questions suggested the answer. Under the circumstances of this case we do not find this objection valid. The answer to the question 'Was that the result of a fight or a robbery or what' requires an answer beyond that of a simple 'yes' or 'no,' or the election between alternatives. The response to this question had to originate in the mind of the deceased. The question then is, was the response spontaneous and unreflecting, and Made before there was time to contrive and misrepresent. In passing upon the answer to this question, the trial judge is given considerable discretion. See White v. City of Marquette (1905), 140 Mich. 310, 103 N.W. 698.

We find no abuse of discretion on the part of the trial judge in allowing the testimony into evidence.

The credibility of the officer giving this testimony and the weight to be given it is within the province of the trier of fact.

Affirmed.

LEVIN, Judge (concurring).

On this appeal from his conviction by a jury of the crime of first degree murder the defendant asserts that a police officer should not have been allowed to repeat at the trial certain statements alleged to have been made by the victim before he died.

On March 30, 1965, at about 7:40 p.m., Michael Railsbach, 18 years of age, staggered out of Dueweke Park in the City of Detroit with a stab wound in the chest, calling for help. He was taken to the flat of a nearby resident, where he collapsed on the floor. He was able to give his name and address and say that he was stabbed. Two police officers responded to a radio call and rushed Michael to Receiving Hospital, arriving at 8:08 p.m., where, according to the police officer whose testimony is in issue, he regained consciousness and was able to answer certain questions put to him by the officer. He was then taken into surgery, and died on the operating table at 9:25 p.m.

The testimony in issue was that of police officer Leon Studzinski:

'We received the call at 7:45 p.m., and approximately five minutes later we were there, about 7:50 p.m. We went to that address, 4739 Field Avenue and we went upstairs and--to an upstairs flat and saw--we saw the deceased lying on the floor; his shirt was open and he had a chest wound and I made conversation with him; asked him first of all his name and he was able to get out and I was able to understand, 'Michael', and the rest was incoherent. I asked for an address, which was furnished to me on paper by the occupants of the house. I asked him then what happened and he stated he was stabbed and I asked him if he knew by whom and he said he did not. This is information I received at the scene as the deceased was rolling from side to side clutching his chest, and then became unconscious. We hurriedly rushed him to Receiving Hospital where, at the hospital, he regained consciousness and we again asked him what happened and he said he was stabbed. I said, 'Was that the result of a fight or a robbery or what,' and he said he had been robbed and I asked him of what and he says his wallet was taken containing $6.00. I said, 'What did the man look like,' and he described the man as colored, approximately 17 years of age, 5 feet 10 inches tall, medium build and wearing a green jacket. He related that the assailant had asked him for a cigarette and as he was pulling the cigarette out he was stabbed. That was all.'

The people contend that Michael's alleged statements were spontaneous, Res gestae utterances and no longer defend the admission of officer Studzinski's testimony under the dying declaration exception to the hearsay rule. Without officer Studzinski's testimony showing robbery, the defendant's conviction of first degree murder might not have been justified by the evidence.

'Spontaneous exclamation' as a specific exception to the hearsay rule was identified and differentiated by Professor Wigmore from the general Res gestae exception from which it grew. The essential validating element for Wigmore was the emotional impact of a startling event, Which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.' 6 Wigmore on Evidence (3d ed), § 1747, p. 135. (Emphasis supplied.) Psychological research generally tends to bear out this belief that shock inhibits the ability to falsify, 1 and the Wigmorean principle has been widely accepted by the courts. 2

The emotional impact, said Wigmore, tends to create a circumstantial probability of trustworthiness (Wigmore, Supra, § 1749, p. 139) when 3 conditions are met:

(1) the utterance relates to a startling occurrence,

(2) the occurrence is startling enough to produce nervous excitement which would render the utterance Spontaneous and unreflecting, and

(3) the utterance was made before there has been time to contrive and misrepresent, I.e., 'while the nervous excitement may be supposed Still to dominate and the reflective powers to be yet in abeyance.' Wigmore, Supra, § 1750, pp. 142, 155. (Emphasis supplied.)

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