People v. Walker

• Decision Date: 16 October 1979
• Docket Number: Docket No. 78-4294
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry WALKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 812

285 N.W.2d 812

93 Mich.App. 189

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry WALKER, Defendant-Appellant.

Docket No. 78-4294.

Court of Appeals of Michigan.

Oct. 16, 1979.

Released for Publication Dec. 18, 1979.

David M. Lawson, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief App. Counsel, Asst. Pros. Atty., Michael J. Modelski, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and MacKENZIE and CORKIN, ^* JJ.

CYNAR, Judge.

Defendant Larry Walker was jury-convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and sentenced to 10 to 20 years in prison. He now appeals as of right.

The case against defendant was based on circumstantial evidence. Testimony at trial established that the decedent, Robert Brent, and a second man, Willie Dillon, drove to the Orchard Trace Apartments in Pontiac, shortly before 4 p. m. on January 9, 1977. Dillon went there to complete some repair work at the apartment of one Claudia Sylvester, with whom the defendant lived.

When the two men arrived, Dillon exited from the vehicle, but admonished the decedent to remain in the car. Dillon was aware of a prior serious dispute between Brent and Walker over a bad check passed by Brent to Walker.

Brent stayed behind while Dillon went up to the apartment. Defendant, wearing a blue lounging robe, answered the door, and informed Dillon that Ms. Sylvester was not home at the time. Dillon said that his tools were in the apartment, and that he would return later for them. Dillon left, and, after indicating to decedent his intention to do so, went to a gym in another portion of the apartment complex.

Shortly thereafter, a neighbor, Veronica Nance, who lived directly below defendant, heard the sound of someone or something falling on the floor of defendant's apartment. Next, the neighbor heard the door to Walker's apartment open and close and someone come down the stairs. Looking out a window, she saw a man enter a car and drive it to a point below defendant's apartment, blow his horn, and then yell out "Larry" or "Walker". She heard a sliding glass door open above her, then an argument ensued between the man at the car and a man upstairs.

The man at the car said he was sorry and wanted to come back upstairs and explain. The voice upstairs said to leave. Ms. Nance then heard a shot and saw the man by the car fall to the ground. The sliding glass door closed.

Just before the shot was fired, Willie Dillon had returned from the gym. He saw decedent look up toward defendant's apartment and heard him say that "he would be back". He told decedent he was going up to the apartment and would be right back. At that time, he noticed a man wearing a robe standing in the window of defendant's apartment, but he was not certain it was Walker. Before reaching the apartment, Dillon heard a shot, ran down the stairs and to the parking lot. He found Brent lying on the ground, bleeding from his forehead. He returned to the apartment and was let in by defendant. After defendant finished with a phone call, he asked Dillon to "take something from me".

When the police arrived, they were not admitted into Walker's apartment for about five minutes. They had found a trail of blood leading from the apartment to decedent's body. There was blood smeared on both the inside and outside door knobs of the apartment. The blood on the door knobs was of the same type as decedent's.

The police found Brent lying in the parking lot with a towel in his left hand. It too was smeared with blood of his type. The chief pathologist for Oakland County found that decedent had a small laceration on the tip of his nose, and blood was also found inside his nose. He also stated that the angle of entry of the bullet which struck decedent in the forehead indicated that it was fired from above.

Upon examining the screen door opening onto the balcony of defendant's apartment, a hole was found, approximately 1/2 in diameter. Gunpowder residue was found surrounding the hole, with no dust on top of it. No murder weapon was ever found.

Defendant first contends that his conviction must be reversed because there was insufficient evidence to establish beyond a reasonable doubt that he committed the offense. Since the conviction was based solely on circumstantial evidence, defendant argues that it is incumbent upon the prosecution to rebut every reasonable theory consistent with defendant's innocence. This the prosecution failed to do, according to defendant.

There is a split of authority in this Court over what standard is to be employed in reviewing the sufficiency of the evidence in cases where the conviction is based entirely on circumstantial evidence.

In People v. Davenport, 39 Mich.App. 252, 257-258, 197 N.W.2d 521 (1972), a panel of this Court held that, where all the evidence in the case is circumstantial, the prosecution is obliged to negate every reasonable theory consistent with the defendant's innocence of the crime charged. ¹

A second standard was established in People v. Edgar, 75 Mich.App. 467, 469-474, 255 N.W.2d 648 (1977), where the Court first noted that the Davenport rule was not being applied in all circumstantial evidence cases and had proved unworkable in close cases. The Edgar Court then held that the Davenport rule was defective to the extent that it treated circumstantial evidence differently than direct evidence and to the extent that it required the prosecution to Specifically disprove all innocent theories and that it is sufficient for the prosecution to prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense produces. Edgar, supra, 473-474, 255 N.W.2d 648.

The Edgar Court opined that it would be impossible for the prosecution to disprove all innocent theories, even by direct evidence. Beyond this, it was felt that the implied distrust of circumstantial evidence was unwarranted and that such evidence was no less trustworthy or probative of guilt than direct evidence. Edgar, supra, 472-473, 255 N.W.2d 648. ² Finally, the Court held that, in lieu of requiring the prosecutor to Specifically disprove all innocent theories, resolution of the question of whether the prosecutor had done so is properly for the trier of fact. Edgar, supra, 474, 255 N.W.2d 648, People v. Fuller, 395 Mich. 451, 455, 236 N.W.2d 58 (1975).

We are persuaded that Edgar and its progeny represent the better approach. Under that standard, we have no difficulty in concluding that there was sufficient evidence for the trier of fact to conclude that the defendant had committed the crime of which he was convicted, notwithstanding the theory proffered by defendant at trial, that Willie Dillon had actually killed Robert Brent.

Defendant next assigns as reversible error the failure of the trial court to grant his motion for a directed verdict of acquittal on the charge of first-degree murder. He claims that no evidence was offered on the element of premeditation and deliberation. As a consequence of this, the jury was permitted to consider a charge unwarranted by the proofs, thus decreasing his chances of acquittal on any valid charge because of the possibility of a compromise verdict. We reject this contention.

It is proper to deny a motion for a directed verdict of acquittal if, when reviewing the evidence presented by the prosecution in the light most favorable to the prosecution, there is sufficient evidence on each element of the charge upon which the jury could base a verdict of guilty beyond a reasonable doubt. People v. Royal, 62 Mich.App. 756, 757-758, 233 N.W.2d 860 (1975), People v. Scott, 72 Mich.App. 16, 19, 248 N.W.2d 693 (1976), People v. Neal, 83 Mich.App. 102, 105, 268 N.W.2d 303 (1978), People v. Edgar, supra, 75 Mich.App. 474-475, 255 N.W.2d 648.

In People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434 (1971), Judge, now Justice, Levin defined premeditation and deliberation as follows:

"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'." People v. Morrin, supra, 329-330, 187 N.W.2d 449.

In People v. Meadows, 80 Mich. 680, 263 N.W.2d 903 (1977), this Court stated that:

"Factors to be considered in determining whether the accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant's actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the...