People v. Whetstone

Decision Date03 December 1982
Docket NumberDocket No. 53409
Citation326 N.W.2d 552,119 Mich.App. 546
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brenda Joyce WHETSTONE, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Patrick M. Meter, Chief Asst. Pros. Atty., for the People.

State Appellate Defender by Lynn Chard and Stuart B. Lev, Ann Arbor, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and ALLEN and MEGARGLE, * JJ.

ALLEN, Judge.

May a defendant be convicted of felony-murder where the underlying felony, breaking and entering, occurred in 1978, before breaking and entering was made an enumerated felony in 1980 under M.C.L. Sec. 750.316; M.S.A. Sec. 28.548? This question of first impression comes to us on the following facts.

Sometime between 10:00 and 11:00 a.m. on Sunday, October 15, 1978, Martin Rueger was found lying on the ground at his home in Saginaw. The car door was open and the motor running. The back doors were open, the window of one of the doors was broken and the house was ransacked. Two portable television sets, a check protector, some clothing, three purses, a copper coffee urn, and an electric broom were missing. An autopsy revealed that Rueger had been shot five times and had bled to death. Testimony given at trial by persons in the neighborhood clearly established that the breaking and entering and subsequent shooting occurred during daylight hours, probably sometime between 8:00 and 10:00 a.m.

One year later, in October, 1979, Teresa Beville contacted the police and informed them that a woman named Brenda Whetstone had shot Martin Rueger. Ms. Beville stated that she met Brenda in the summer of 1975, that she and Brenda had a homosexual relationship, eventually moving to Flint where they shared an apartment together, and that in October, 1978, Brenda and a Monica Blair brought to the apartment a television set, a vacuum cleaner, clothes, and some purses. Ms. Beville further stated that on that occasion Brenda explained that she believed she had just shot a man and was relieved when she heard on television that the man was dead so she did not have to worry about being identified. The information Ms. Beville gave the police earned her a $5,000 reward, although she did not know about the reward until after meeting the police.

As a result of the information given the police, charges of first-degree felony murder and felony-firearm were filed against defendant November 5, 1979. Count I of the information reads as follows:

"MURDER FIRST DEGREE--FELONY

did feloniously, while in the perpetration or attempted perpetration of a Breaking and Entering of an Occupied Dwelling With Intent to Commit Larceny, kill and murder one MARTIN RUEGER; Contrary to Sec. 750.316, C.L. 1970, as amended; M.S.A. Sec. 28.548."

Count II charged possession of a firearm while committing a felony. At trial, Teresa Beville took the stand and testified, even though she knew she did not need to testify in order to get the reward. She described the shooting as follows:

"Well, she said that he drove up behind them as they were leaving the house, getting ready to leave. They was in the car. And he went around to the back of the car and she said she could see him, his mouth moving, like he were trying to remember the license plate. He came around to the passenger's side of the car and she shot him. She said she shot him three times and she got out and shot him some more."

Defendant was tried by a jury, and on April 1, 1980, was found guilty of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On June 16, 1980, defendant was sentenced to mandatory life in prison to be served consecutively to the mandatory two year prison term for felony-firearm. She appeals of right raising three issues noted below. 1 At oral argument on appeal, this Court sua sponte raised the issue of whether a defendant may be convicted of a felony murder when the underlying felony set forth in the information was not an enumerated felony under M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. The Court asked the parties to submit briefs on the issue. Those briefs have been submitted.

Defendant's issues (2) and (3), if valid, would require reversal of defendant's conviction and remand for a new trial. Defendant's issue (1) and the issue raised sua sponte by this Court, if valid, only require that the conviction be modified to reduce the offense to murder in the second degree and that the matter be remanded for resentencing on second-degree murder. People v. Allen, 390 Mich. 383, 386, 212 N.W.2d 21 (1973). We first discuss defendant's issues (2) and (3).

At the preliminary examination held October 25, 1979, one Leona Goff, testified that she had been in the same dormitory at the county jail with defendant and at that time defendant had confided to her that she shot Martin Rueger. At the time of trial, March 26 through April 1, 1980, the prosecution was unable to find Leona Goff to subpoena her as a witness. Due to the witness's unavailability, and after hearing testimony from several witnesses relating to attempts to find the witness, the trial court allowed the preliminary examination testimony to be read to the jury pursuant to MRE 804(b)(1). 2

Quoting extensively from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), defendant argues that the prosecution failed to exercise due diligence in keeping track of the witness during the five-month period between preliminary examination and trial. Counsel contends that a higher degree of effort was required in this case because the charge was first-degree murder and because defendant had a constitutional right of confrontation. We do not quarrel with the admonitions in Roberts, supra, or with the claim that due diligence must be shown. We simply disagree with the conclusion that the prosecution failed to exercise due diligence. The determination of due diligence rests within the sound discretion of the trial court. People v. Fournier, 86 Mich.App. 768, 778, 273 N.W.2d 555 (1978). Due diligence requires that everything reasonable, not everything possible, be done. People v. Riley Williams, 57 Mich.App. 199, 202, 225 N.W.2d 691 (1974).

We have examined the record and find the prosecution made substantial efforts to locate the witness. Prior to trial the prosecutor had tried to find Ms. Goff and had even subpoenaed Rose Goff, Leona Goff's mother. When Rose Goff failed to appear, the prosecutor obtained a bench warrant. Later, Rose Goff did appear and testified she did not know of her daughter's whereabouts and knew of no family member who would know. The prosecutor stated he tried to reach Ms. Goff's brother at the Grass Lake and the Muskegon correctional facilities, but the brother never answered. The process server testified that when he could not find Leona Goff at her last known address, he checked with the post office and with Consumers Power but found no forwarding address had been given. Two individuals checked with the Department of Social Services and found Leona Goff was not drawing welfare anywhere in Michigan. A trial court's determination on due diligence will be overturned on appeal only where a clear abuse of discretion is shown. People v. Bell, 74 Mich.App. 270, 275, 253 N.W.2d 726 (1977). Given the extensive efforts to find the witness, we find no abuse of discretion.

We now turn to defendant's issue (3) mentioned earlier. Did error occur when the prosecution on redirect examination elicited testimony from Teresa Beville, the prosecution's chief witness, as to defendant's heroin addiction and an alleged knife attack? We think not.

Although defendant is correct in asserting that the testimony in question does not fall within the similar acts doctrine set forth in MRE 404(b), 3 the testimony was relevant to responses made by the witness upon rigorous cross-examination by defense counsel. Repeatedly, upon cross-examination of Ms. Beville, counsel inquired why she waited a year to inform the police and why she finally decided to reveal the incident. Near the end of cross-examination, the witness responded:

"A. Well, me and my roommate--well, he knew about the situation because I told him. And after that incident that night before at this house, and me thinking about all the things she had done to me and was continually doing, might have done to somebody else, I decided the best thing to do was bring it on out in the open." (Emphasis supplied.)

Upon redirect examination the prosecutor picked up the theme by inquiring as follows:

"You had indicated on cross examination that during this year period of time before you called the police with your information, that Brenda had done some things to you?"

In response to this question and a follow up question, the witness related that defendant was on heroin and that on one occasion defendant came to the witness's home and threatened her with a knife. It is obvious that the evidence of defendant's heroin addiction and the knife incident came to light because defense counsel "opened the door". Defendant cannot complain of admission of testimony which defendant invited or instigated. People v. Barker, 97 Mich.App. 253, 257, 293 N.W.2d 787 (1980).

In addition to having invited the testimony, defendant failed to object to its introduction at trial. It is well settled that a claim on appeal which was not raised at trial cannot be considered in the appellate court, unless a clear injustice is demonstrated. People v. Eroh, 47 Mich.App. 669, 209 N.W.2d 832 (1973); People v. Scott, 23 Mich.App. 568, 179 N.W.2d 255 (1970). Because defendant invited the testimony in the first place, such injustice cannot be shown.

We next turn to consideration of the...

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    • Court of Appeal of Michigan — District of US
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