People v. Watkins

• Decision Date: 19 October 1971
• Docket Number: Docket No. 9650,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Deshorn WATKINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 914

193 N.W.2d 914

36 Mich.App. 380

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Deshorn WATKINS, Defendant-Appellant.

Docket No. 9650.

Court of Appeals of Michigan, Division No. 3.

Oct. 19, 1971.

Released for Publication Feb. 9, 1972.

Carl S. Krueger, Krueger & Gray, Muskegon Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.

HOLBROOK, Judge.

In a trial before a jury defendant DeShorn Watkins was tried for the crime of first-degree murder ¹ and convicted of second-degree murder. ² He was sentenced to prison for a term of from 10 to 15 years. He states one issue on appeal as follows:

Did the trial court err in failing to grant a motion to dismiss the charge of first-degree murder and later in instructing the jury on the offense of first-degree murder in view of the evidence in this case?

On the evening of December 31, 1969, defendant and Crawford Crowell had attended a social gathering in Muskegon Heights with 2 or 3 other persons, including Dora Kirks.

There had been some drinking of beer by the men. Earlier defendant and Crowell had been drinking wine at Crawford Crowell's house. Sometime after 11 p.m. defendant left with Crawford Crowell and Dora Kirks to go to defendant's apartment. On the way they met Larry Kirk, the deceased, and Arnold Penn who were invited to accompany them to defendant's apartment. After arriving at defendant's apartment they entertained themselves by talking and listening to some records. The men engaged in drinking beer and whiskey and Dora Kirks had one beer. For a period of time defendant was demonstrating karate to Larry Kirk. Arnold Penn fell asleep in a chair in the living room. Then defendant and Kirk went to the bathroom and were apparently in a jovial mood. Shortly before they returned to the living room, Crawford Crowell and Dora Kirks retired to the bedroom. She testified the door was left slightly ajar and he testified he closed it. They engaged in an act of sexual intercourse. After a short time, according to Dora Kirks, the defendant came and opened the bedroom door and said 'you better come and get this mother * * * before I kill him.'

Both Dora Kirks and Crawford Crowell testified that at this time their act of intercourse was not completed. Later defendant came back again and said he had cut him or something. At that time Crowell got up and dressed and went out into the living room where he observed that the deceased had been cut with a knife. It was established that the weapon (knife) had been out in the kitchen. Dora Kirks, at the sight of blood, said she felt faint and she was told she could leave and she left.

Dora Kirks and Crawford Crowell testified that they did not notice any animosity between defendant and the deceased during the course of the night except for the two times when defendant came to the bedroom and made the remarks stated.

That night before the police arrived, defendant told Crowell that a guy came into the apartment and got into it with Kirks and cut him and then ran out.

In 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), First-Degree Murder, § 1638, p. 1972, the author states:

'To constitute murder in the first degree the killing must have been deliberate and premeditated, but the length of time before the act when this purpose was deliberately formed and the act premeditated is unimportant. It is enough that the purpose was deliberately formed, and preceded and induced the act.'

In the case of People v. Dumas (1970), 25 Mich.App. 173, 174, 181 N.W.2d 89, 90, our Court stated:

'Defendant contends that there was no direct evidence produced at trial to sustain a verdict of either (first-) or (second-) degree murder. We disagree.

'Deliberation and premeditation, which would have been necessary to prove (first-) degree murder, could have been inferred from the character of the weapon used, the wound inflicted, and the circumstances surrounding the killing. People v. Bauman (1952), 332 Mich. 198, 205, 50 N.W.2d 757; People v. Wolf (1895), 95 Mich. 625, 629, 55 N.W. 357. Since there was ample evidence for the jury to find murder in the (first) or (second) degree, it was properly a jury question; thus, there was no reversible error in allowing the question to go to the jury.'

In determining whether or not there was sufficient evidence present in the case to submit to the jury an instruction on first-degree murder, we follow the rule set forth in the case of People v. Livermore (1967), 9 Mich.App. 47, 59, 155 N.W.2d 711, 716:

'In passing on the motion for dismissal or nonsuit, the state's evidence must be taken as true, and viewed in the light most favorable to the state, which is entitled to the benefit of every reasonable inference to be drawn therefrom.'

Dora Kirks testified in part as follows:

'Q. Am I correct in understanding that DeShorn Watkins came into the bedroom at the time he said this?

'A. Yes, he came in and said that and left.

'Q. He opened the door, and he came into the room and said that?

'A. Yes.

'Q. All right. Now, were you still in the act of having intercourse at this particular time?

'A. When he first came in?

'Q. When he came in and uttered those words, were you in the process of and in the act of having intercourse at this time?

'A. Yes, sir.

'Q. Now, was this the first time you had ever had intercourse with Crawford Crowell?

'A. Yes.

'Q. What is your answer?

'A. Yes.

'Q. Now, he immediately left out of the room again, is that right?

'A. DeShorn?

'Q. Yes.

'A. He came back in and he left out again.

'Q. Now, how long was he in the room?

'A. He just came in and told him that, and then he left back out.

'Q. Long enough to make one statement?

'A. Yes, and then he came back in and said he had cut him, and went back out.

'Q. Now, he came in the room and he made one statement, and immediately left the room?

'A. Yes.

'Q. Now, did he immediately come back into the room again?

'A. He stayed in there for awhile, and then he came back and he told Crawford that he had cut him, and then Crawford--

'Q. Now, just answer my questions, if you will, please. He went out of the room?

'A. Yes.

'Q. And how long before he came back in again?

'A. It wasn't that long.

'Q. How long was it?

'A. Just a few minutes. He just went back out and he came back in again.'

She later testified that it was seconds between the first time and the second time that defendant came to the bedroom. She also testified as follows:

'Q. All right. And was there any other conversation besides DeShorn telling Crawford Crowell to get an ambulance for Larry Kirk?

'A. Then I said that I had to go before I faint, and he told me that I could go, because I didn't see nothing, and I didn't hear nothing, and then Watkins told Crawford that he was going to prison.

'Q. And that is all you heard is a conversation between these boys to that extent?

'A. Yes.'

Crawford Crowell testified in part as follows:

'Q. After you went in the bedroom, was the door closed or was it left open?

'A. I closed the door myself.

'Q. Do you know if it was tight or fastened tight?

'A. I closed the door all the way. But I couldn't say whether it came out a little bit after that.

'Q. You don't know if it was latched?

'A. It was not enough crack for you to see in or out.

'Q. All right. And how long were you in the bedroom?

'A. About fifteen or twenty minutes.

'Q. And what were you doing in the bedroom?

'A. Well, having intercourse.

'Q. Now, could you hear anything that was going on out in the living room during this time?

'A. Well, you could hear some talking, but you didn't know or couldn't say what they were saying. They were talking.

'Q. Did anyone come into the bedroom before you left the bedroom on this morning?

'A. Yes.

'Q. And who was it?

'A. DeShorn Watkins.

'Q. And you had been in there how long when he came in?

'A. I would say about fifteen minutes. It was a pretty good while, about fifteen minutes.

'Q. Were you all through having intercourse at the time he came in?

'A. No.'

Crowell's account of what happened when first interrogated and his testimony at trial were not the same, and he admitted he had changed his story.

At the trial the defendant testified, in essence, that he was out of the living room and when he returned to the living room Larry Kirk held a knife and when he was asked to put down the knife challenged DeShorn Watkins to take it from him. That he, DeShorn Watkins, then went to the kitchen and picked up a butcher knife and returned with the knife holding it extended toward Larry Kirk and stated 'Give me the knife,' whereupon Larry Kirk lunged at DeShorn Watkins with the knife in his hand held in a stabbing gesture and was speared upon the end of the blade held by the defendant.

We rule that the testimony produced at trial would justify a finding by the jury that defendant deliberately formed in his mind beforehand the intent to kill the deceased. As a result of this determination, we are constrained to rule, viewing the evidence in the light most favorable to the people, that the jury could also have determined that sufficient time had elapsed between the time defendant deliberately formed in his mind the intent to kill the deceased and the act of stabbing the deceased which caused his death, to justify a finding of premeditation.

Affirmed.

LEVIN, Judge (dissenting).

I would reverse because there was insufficient evidence of premeditation and deliberation to justify submitting the issue of first-degree murder ¹ to the jury, and, since we cannot exclude the possibility that the jury's verdict convicting the defendant of second-degree murder ² was a compromise, the defendant is entitled to a new trial.

On New Year's Eve 1969, defendant DeShorn Watkins and Crawford Crowell dropped in on Dora Kirks and one of her sisters at the sister's home, 2309 Hoyt Street, Muskegon Heights. All...