People v. Treadwell, Docket No. 21079

• Decision Date: 13 August 1975
• Docket Number: Docket No. 21079
• Citation: 63 Mich.App. 299,234 N.W.2d 494
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. TREADWELL, Defendant-Appellant. 63 Mich.App. 299, 234 N.W.2d 494
• Court: Court of Appeal of Michigan — District of US

Page 494

234 N.W.2d 494

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. TREADWELL, Defendant-Appellant.

Docket No. 21079.

63 Mich.App. 299, 234 N.W.2d 494

Court of Appeals of Michigan.

Aug. 13, 1975.

Released for Publication Nov. 5, 1975.

[63 MICHAPP 300] Lawrence R. Greene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Steven Rabinowitz, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and R. B. BURNS and KELLY, JJ.

BASHARA, Judge.

Defendant was convicted by a jury of first-degree murder contrary to M.C.L.A. § 750.316; M.S.A. § 28.548, and appeals.

Defendant's first contention on appeal is that there was insufficient evidence as to the elements of premeditation and deliberation. Therefore, an extended discussion and analysis of the facts is required.

On November 7, 1973, the deceased, Police Officer Moore of the Detroit Police Department, was on duty with Officer Prince and Sergeant Boyle in plain clothes in an unmarked police car. Moore was armed with a .44 magnum revolver.

At approximately 10:50 p.m., a vehicle was observed parked on the wrong side of Chippewa Street, which suddenly accelerated at a high rate of speed. The vehicle, pursued by the unmarked [63 MICHAPP 301] police car, stopped after driving about one block. Three males exited, one from the driver's side and two from the passenger side. The police car was stopped approximately 10 feet behind and as the men exited, one stumbled and looked back into the headlights. He was later identified by both officers as the defendant. A shotgun was dropped by one of the passengers.

Sergeant Boyle proclaimed that they were police officers and ordered them to halt. Two fled in one direction and were followed by Prince and Boyle. They apprehended one of the two, Derrick Meeks, in a back yard. One fled across the street, followed by Officer Moore.

Two other officers received a radio message to patrol the area to check for an officer on foot chasing a suspect. At a driveway, an officer's black flashlight and a black beanie cap were discovered, along with Moore's body. A further search of the area revealed the presence of a live gun shell, however Officer Moore's revolver could not be found.

Dr. Bass, the Assistant Medical Examiner for Wayne County, performed an autopsy which revealed the cause of death was a gunshot wound to the left chest. He stated there was no gunpowder or soot on the body which indicated the range of firing was not close. Dr. Bass also testified that he was not able to determine from the entrance of the bullet whether Officer Moore was running, standing or crouching when the fatal shot was fired. Further testimony established Officer Moore's service revolver left traces of gun powder when fired from less than three feet but did not leave powder traces when fired at more than four feet.

Edward Benson testified that he was currently [63 MICHAPP 302] in Jackson Prison for parole violation and that in return for his testimony he had been promised immunity for any charge arising out of the incident in question. Benson testified that he had known both the defendant and Meeks for approximately 17 months. He stated Meeks and the defendant told him they were going to be evicted from their apartment and needed money. They asked Benson if he wanted to go on a stick-up. Defendant was carrying a sawed-off shotgun which Benson identified at trial.

Benson stated they drove around Detroit and observed the unmarked car which he took to be a police vehicle. Meeks verbalized similar thoughts. He testified that both he and defendant told Meeks to get on the freeway but Meeks said no, 'the man' will stop me. Treadwell said, 'I will take care of that'. Meeks in his testimony recalled the defendant said something, but did not recall what.

Upon exiting the stopped car, Benson testified that defendant faced the police vehicle immediately behind them. Benson bumped into the defendant, causing him to drop his shotgun. Defendant was facing the police vehicle's headlights. He stated defendant was wearing a black hat.

Benson testified he fled from the car and followed Meeks. He emptied a bag of leaves on the ground and hid underneath them until early morning. Benson admitted that he was arrested about 5:00 a.m. on November 8, while walking on the service road in the area. He was covered with leaves and wearing a dark hat.

Based upon the information obtained from both Meeks and Benson, Police Officer Thompson, with a tracking dog, went to 3797 Waverly in the City of Detroit at approximately 7:00 a.m. on November [63 MICHAPP 303] 8th. The defendant was found in the basement, hiding under a blanket in a dresser drawer. Following defendant's removal from the basement, a search was conducted and a .44 magnum was found hidden in a storage shed under the stairs, about 20 to 25 feet from the dresser. A piece of hair on the left side of the gun was observed. A qualified expert testified that she had compared the hair found on the gun with some hair removed from decedent's head and found them similar in all characteristics: pigmentation, size of cuticle, size of medulla, diameter of strand, arrangement of medulla within the strand, scale pattern and number of scales per quarter-inch. She concluded both hairs could have originated from the same source.

Another expert testified that a fingerprint belonging to the defendant was found on the gun taken from the basement.

At trial defendant's principal defense was that some one other than he had committed the homicide.

Recently, our Supreme Court has decided two cases, People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975), and People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305 (1975), which consider the question of what evidence is necessary to establish premeditation and deliberation in a first-degree murder prosecution. In both cases, the Court either remanded for sentencing on second-degree murder or reversed a defendant's conviction because the evidence was lacking on this element. In Vail, supra, 393 Mich. 468, 469, 227 N.W.2d 538, the Court quoting from People v. Morrin, 31 Mich.App. 301, 328, 330, 187 N.W.2d 434 (1971), Lv. den. 385 Mich. 775 (1971), elaborated on the distinction between first and second-degree murder.

[63 MICHAPP 304] 'First-degree and second-degree murder are separate offenses, carrying vastly different penalties, distinguished only by the requirement that a homicide punishable as first-degree murder be committed with premeditation and deliberation. If premeditation and deliberation are ill-defined, the jury is left with no objective standards upon which to base its verdict.

'Accordingly, it underscores the difference between the statutory degree of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look." (Emphasis supplied.)

The underscored language emphasized that in a first-degree murder prosecution the adduced facts at trial must show that a defendant thought about the homicide 'beforehand' and that he had an opportunity for a 'second look' or reflection before committing the act.

In this case, although no direct evidence was introduced to show that the defendant engaged in the thought process necessary to classify the homicide as premeditated and deliberate murder, there was sufficient circumstantial evidence for the jury to infer premeditation and deliberation: see People v. Hoffmeister, supra.

Upon observing the unmarked police car, both Benson and Meeks testified that they felt if they departed, the police would stop them....