People v. Wallach, Docket No. 49312

Citation110 Mich.App. 37,312 N.W.2d 387
Decision Date06 October 1981
Docket NumberDocket No. 49312
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Duncan WALLACH, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, and Geoffrey H. Nickol, Asst. Pros. Atty., for the people.

Cooper, Shifman & Gabe by Philip H. Seymour, Royal Oak, for defendant-appellant.

Before CYNAR, P. J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

Defendant was charged with two counts of first-degree murder. M.C.L. § 750.316; M.S.A. § 28.548. Salvadore Gonzales was also charged with one of these counts. The pair were tried separately, however. Following a jury trial in the Oakland County Circuit Court, defendant was found to be guilty as charged. Thereafter, he was sentenced to two mandatory terms of life imprisonment. Defendant now appeals as of right.

On Sunday, January 28, 1979, two bodies were found buried in the snow next to a vacant house in Waterford Township. The deceased were later identified as Fred Torres and Elmer Evans. According to Dr. Robert Sillery, the Chief Medical Examiner for Oakland County, Torres died as a result of multiple stab wounds, and Evans had been beaten to death.

James Patrick Perry, Jr., testified that he was living with Torres at the time of the latter's death and that he had been sexually involved with him. On Friday, January 26, 1979, he witnessed Torres pull a knife on defendant Wallach at the Liberty Bar and demand an apology for comments Wallach had made concerning Torres' homosexuality. The witness stated he talked Torres into putting the knife away. Thereafter, he heard defendant state that if Torres ever pulled a knife again he would make him eat it.

Nora Meston testified that she had lived with defendant in Canada during a part of 1978 when she was separated from her husband. Upon returning to her husband, she learned that she was pregnant by defendant and subsequently bore his child. Defendant was frequently allowed to visit the child and often slept overnight in his station wagon.

On Friday, January 26, 1979, defendant and his girlfriend, Rhonna Burns, were visiting at the Mestons' home. Defendant told Nora Meston that "this fag" had pulled a knife on him at the bar and that he was going to pay back "them motherfuckers". Defendant kept repeating, "Nobody does this to me" and "Nobody gets away with it". The next day, defendant again told Meston he was going to get even with Torres and that he was going to talk with a Steven (Gonzales sometimes used this name) and a Chico.

Defendant and Ms. Burns left for the Liberty Bar at about 9:30 p. m. on January 27th. Nora Meston saw defendant again at approximately 5:00 a. m. on Sunday, January 28, 1979. She stated that it appeared as if he had been beaten. He had a cut on his right hand and blood on his pants. Defendant stated that he had injured his hand in a fight. Later, he told Meston that he had hurt his hand smashing his car's windshield. On Sunday, defendant stated he would not have any more problems or anything to worry about because he had gotten even with Torres. During dinner, defendant stated that Torres and Evans were dead, that one had been stabbed and the other beaten. He did not say, however, that he was responsible for the pair's deaths. In February, 1979, defendant told Nora he would kill her if she repeated his comments. Robert Meston, Nora's husband, corroborated most of her testimony.

Rhonna Burns was allowed to testify over defense objections. These objections were based on the fact that Burns' memory had been hypnotically "refreshed" so that any testimony she gave would be tainted and inadmissible.

Ms. Burns stated that she witnessed the altercation between defendant and Torres at the Liberty Bar. She saw Torres pull a knife on defendant.

The next night, January 27, 1979, Burns and defendant returned to the Liberty Bar. During the course of the evening she saw defendant leave with Torres and a man who went by the name of Chico. Defendant returned about one and one-half hours later. Torres never returned.

Upon defendant's return, Burns was sitting at a table with Gonzales. While she talked to Gonzales, defendant went over to Elmer Evans and talked with him. Burns heard defendant suggest that he give Evans a ride home. Although Evans was apparently not interested in the ride, defendant kept insisting. Burns also indicated that although Evans did not want a ride, he was too drunk to drive himself. Eventually Gonzales came over and Evans gave him the keys to his car. Thereafter, defendant, Burns, and Evans, who had a glass of beer, got into defendant's automobile. Defendant drove to the front of a building that looked like a warehouse. Gonzales was there, and he got into the back seat of the car and sat next to Evans.

Defendant drove the vehicle to a house which Burns thought belonged to Evans. Burns said she stayed in the car while the three men got out. Ten or 15 minutes later defendant and Gonzales returned; Evans did not. Defendant had blood on his pants and his hand was cut. Defendant and Burns dropped Gonzales off downtown. They then picked up Chico and took him home.

Burns indicated that later she and defendant returned to the Mestons' residence. Defendant retrieved a blanket and what appeared to be a shovel. Some time later, they returned to the house where they had dropped off Evans. Defendant took something out of the car and walked to the left. After defendant had been gone for a while, Burns stated that she got out of the car and walked around the house. There, she saw defendant shoveling snow on two corpses, including the body of Evans. Burns then related how the hypnotist had aided her in remembering the burying of the bodies.

Clifford Thompson, a detective with the Waterford Township Police Department, testified that he initially met defendant at the Liberty Bar on January 31, 1979. At this time, defendant gave the following account of what had transpired on January 27, 1979. He stated that on that night he was at the bar with a woman named Debbie McLaughlin. He saw Torres who asked him if he had seen a particular person. Defendant indicated that he had been in a fight with Torres the preceding Monday or Tuesday and that the altercation occurred over a name defendant had called Torres. Defendant explained that he received the deep cut in his hand in another fight with a black male at the tavern on January 29, 1979.

On February 1, 1979, Detective Thompson received a call from defendant. The latter stated that he had given inaccurate information at the bar because he was afraid other people might overhear him.

Defendant's new version of the events in issue was that Torres came into the bar looking for Chico. Defendant told him that Chico was at another bar. He further stated that Chico had told him he would harm Torres if Torres did not leave him alone.

Thereafter, Detective Thompson received several further phone calls from defendant. At Detective Thompson's request, on February 5, 1979, defendant voluntarily brought his car into the police station so that the vehicle number could be examined. While checking the number, Thompson saw a large blood stain on the seat and blood-stained slacks.

Upon making this discovery, Detective Thompson and Sergeant Werner interrogated defendant. This interrogation was preserved on tape. During the questioning, Thompson told defendant he was a "prime suspect". At this time, defendant stated the blood was caused by putting his fist through the windshield of the car owned by the black man he claimed to have been in a fight with. He also stated that he had spent Saturday night with a black man named Leon who lived at Park Lodge. During this interview Sergeant Werner told defendant he believed that "you're not quite telling the whole truth".

On March 9, 1978, Detective Thompson accompanied defendant to Lieutenant Robert Crider's office for a polygraph examination. After the interview, defendant stated, "You've got me", and that he wanted to make a statement about the murders. Another taped interview was conducted at the Waterford Township Police Department. Defendant gave the following story during this interview. On Saturday night, Chico came into the Liberty Bar and told him that Torres wanted them to be friends. Chico and defendant drove the latter's car to where Torres was standing. Torres then pulled a knife on defendant and tried to stab him. However, defendant took the knife away and cut him. Defendant ultimately jumped in his car and drove away. He did not know if he killed Torres, whom he stabbed two or three times. However, he specifically denied having helped bury the body.

Defendant was also interviewed on March 9, 1978, by Lieutenant Crider of the Michigan State Police. At this time, defendant told yet another version of the events in question. According to defendant, Chico, Torres, and himself left the Liberty Bar on the night in question and went to the area where the two bodies were found. Torres told defendant he wanted to talk to him, but then pulled a knife. Defendant took the knife from Torres and stabbed him once or twice. Elmer Evans came onto the scene and, when he intervened, defendant hit him with his fist. Chico then jumped on Evans and started beating him. Defendant stabbed Torres two or three more times and after finishing him off, got into his car and left the scene.

Defendant testified in his own behalf. He admitted having an argument with Torres and that Torres had pulled a knife on him at the Liberty Bar. He denied killing either Torres or Evans, however. He also attempted to explain away the statements he had made.

Other facts will be discussed where relevant to specific issues.

We are presented with several difficult issues in this case involving Miranda 1...

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