People v. Welch
| Decision Date | 21 November 1997 |
| Docket Number | Docket No. 196763 |
| Citation | 226 Mich.App. 461,574 N.W.2d 682 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Martell WELCH, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for People.
Carl Ziemba, Detroit, for Defendant-Appellant on appeal.
Before SMOLENSKI, P.J., and FITZGERALD and GAGE, JJ.
Defendant was convicted by a jury of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and sentenced to sixteen to forty years' imprisonment. Defendant appeals as of right. We affirm.
Defendant's conviction arises out of the drowning death of Deletha Word, who jumped off the MacArthur Bridge at Belle Isle after she had been attacked and repeatedly beaten by defendant.
Defendant first challenges the sufficiency of the evidence and the trial court's denial of defendant's motion for a directed verdict with respect to the charge of second-degree murder. We find no error. The trial court used the proper standard in denying defendant's motion. See, e.g., People v. Vincent, 455 Mich. 110, 121, 565 N.W.2d 629 (1997). Moreover, viewing the evidence that was presented by the prosecution up to the time the motion was made in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt (1) that Word died, (2) that defendant's acts were a contributory cause that were a substantial factor in producing Word's death, (3) that circumstances of justification, excuse, or mitigation did not exist, and, (4) that defendant's acts were done with the intent to inflict great bodily harm or the intent to create a very high risk of death with the knowledge that the act probably would cause death or great bodily harm. Vincent, supra; People v. Bailey, 451 Mich. 657, 669, 676, 549 N.W.2d 325 (1996), amended 453 Mich. 1204, 551 N.W.2d 163 (1996). Likewise, defendant's conviction is supported by sufficient evidence. People v. Reeves, 222 Mich.App. 32, 34, 564 N.W.2d 476 (1997).
Next, defendant argues that the trial court erroneously instructed the jury with respect to the element of malice. However, defendant did not object to the instructions as given. Thus, review of this issue is foreclosed absent manifest injustice. People v. Kuchar, 225 Mich.App. 74, 78, 569 N.W.2d 920 (1997). In this case, we conclude that manifest injustice will not result from our failure to review this issue because the disputed instructions, as a whole, adequately conveyed to the jury the concept of malice. Bailey, supra, 451 Mich. 657, 549 N.W.2d 325.
Next, defendant objects to portions of the prosecutor's closing and rebuttal arguments. However, defendant did not object to any of the remarks that he now claims were improper. This Court will reverse in the absence of an objection only if a curative instruction could not have eliminated the prejudicial effect of the remarks or where failure to review the issue would result in a miscarriage of justice. People v. Messenger, 221 Mich.App. 171, 179-180, 561 N.W.2d 463 (1997). After reviewing the disputed remarks, we conclude that any errors that did occur could have been eliminated with a curative instruction and, therefore, do not require reversal. Id. at 180, 561 N.W.2d 463.
Next, defendant takes issue with opinion testimony elicited during the prosecutor's cross-examination of defendant's expert witness in behavioral psychology. However, no objection was made at trial on the ground now asserted on appeal. "It is well established that objections to admissibility not properly raised at trial cannot be later asserted on appeal." People v. Kilbourn, 454 Mich. 677, 685, 563 N.W.2d 669 (1997).
Next, defendant takes issue with the admission of testimony, as well as the prosecutor's subsequent argument, concerning the fact that, after she drowned, Word's right leg was severed by a boat propeller. However, defendant did not object to the admission of this testimony or the prosecutor's argument concerning this testimony. 1 Accordingly, appellate review is precluded. Kilbourn, supra; Messenger, supra.
Next, defendant raises another evidentiary issue. Below, defendant sought to admit under MRE 803(24) 2 evidence that a police officer had recorded in a report a statement by a witness named Simmons that Word, after being assaulted by defendant had stated that she was going to kill herself. The officer testified outside the presence of the jury that after Word jumped from the bridge he approached a group of four people who were "on the sidewalk on the same side of the bridge where she jumped" and who were "kind of laughing and giggling about the whole situation," and asked them "what happened." The officer testified that Simmons told him
that an unidentified vehicle, he didn't know what kind of car it was, he said hit the rear of the station wagon and then he said that two--what he say two black males got out [sic] the vehicle and start destroying the station wagon with like crowbars or poles or something. And then he also said--he said they assaulted the female. He said the female then exits the vehicle and runs on the west side of the bridge stating that she was going to kill herself. He said at the same time two identified black males follow her over the bridge and jumped into the water to save her.
The officer further testified that he did not recall getting any information from Simmons concerning Simmons' location at the time he allegedly heard Word state that she was going to kill herself.
The trial court, analyzing the issue as constituting various levels of hearsay (Word's statement, Simmons' statement, and the officer's recording of Simmons' statement), ruled that this evidence could not be admitted because each level of hearsay, particularly the circumstances surrounding Simmons' statement, lacked sufficient circumstantial guarantees of trustworthiness. Specifically, the court noted (1) that no other prosecution or defense witness had testified that they heard Word say that she was going to kill herself, (2) that there was no indication that Simmons had been within earshot of Word at the time she allegedly said she was going to kill herself, (3) that questions existed concerning whether Simmons actually received his information from the group he was with or independent of the group, (4) that the fact that the group had been laughing and giggling about Word's jumping reduced the trustworthiness of Simmons' statement, (5) that at least sixteen minutes had elapsed between the time Simmons allegedly heard Word's statement and Simmons informed the officer of this statement, (6) that the scene at the time Simmons made his statement was chaotic, and (7) that the officer did not write the statement down as Simmons was talking.
On appeal, defendant contends that the trial court erred in excluding this evidence.
MRE 803(24) provides, in relevant part, as follows:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * * * *
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Because we have found no Michigan cases construing the trustworthiness requirement in the newly adopted "catch-all" or "residual" hearsay exceptions contained in MRE 803(24) and MRE 804(b)(6), we look to the analogous federal evidentiary rules for guidance. See FRE 803(24); FRE 804(b)(5).
In United States v. Barrett, 8 F.3d 1296, 1300 (C.A.8, 1993), the Eighth Circuit Court of Appeals considered the issue whether...
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...evidence under MRE 803(24), commonly referred to as the "residual" or "catchall" exception to the hearsay rule. People v. Welch, 226 Mich.App. 461, 466, 574 N.W.2d 682 (1997). Specifically, defendant contends that D.D.'s statement to a Family Independence Agency (FIA) child protective servi......
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...justice will best be served by admission of the statement into evidence. The only case interpreting MRE 803(24) is People v. Welch, 226 Mich.App. 461, 574 N.W.2d 682 (1997), which the defendant argued that the trial court improperly refused to allow a hearsay statement into evidence under M......
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