People v. Williams

• Decision Date: 27 March 1973
• Docket Number: Docket No. 13336,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee WILLIAMS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 180

207 N.W.2d 180

45 Mich.App. 630

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee WILLIAMS, Defendant-Appellant.

Docket No. 13336.

Court of Appeals of Michigan, Division No. 1.

March 27, 1973.

Released for Publication May 15, 1973.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Edward R. Wilson, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and ADAMS, ^* JJ.

ADAMS, Judge.

Defendant was convicted of first-degree murder (M.C.L.A. § 750.316; M.S.A. § 28.548) by a Detroit Recorder's Court jury and now appeals as of right.

Issue I

Did the trial court commit reversible error by admitting into evidence as a dying declaration the deceased's hearsay statement as to who shot him?

Mrs. Donna Rutledge, wife of deceased victim Arthur Rutledge, testified that at about 5:00 a.m. on June 12, 1971 she was awakened by shots, ran outside, and found her wounded husband lying in the street. In response to Mrs. Rutledge's query as to where he was shot, her husband replied, 'All over', and when asked the identity of his assailant responded, 'Billy Williams'. Mrs. Rutledge related that the deceased was moaning and as his final utterance in her presence exclaimed, 'Oh, God help me'. The trial judge admitted this testimony as a dying declaration exception to the hearsay rule.

At approximately 5:25 a.m. Mr. Rutledge was pronounced dead on arrival at a hospital. The examining pathologist testified that decedent succumbed to gunshot wounds of the chest and abdomen and opined that a person with such wounds could possibly remain conscious for a period of thirty seconds to five minutes.

Although Mr. Rutledge uttered no statement explicitly indicating an expectation of imminent death, no such utterance is required for a dying declaration. In People v. Arnett, 239 Mich. 123, 131--132, 214 N.W. 231, 234 (1927), the Court stated:

'All authorities hold that the (dying) declarations must be sanctioned by belief on the part of the declarant that he is about to die; otherwise they are but hearsay. The rule admitting dying declarations is one of necessity and prevails only in case they are sensed by the declarant as Dying statements. When Mr. Henkel made the statements was he conscious of impending death? Some wounds certify death. Such a wound was given the sheriff. He was not asked if he was aware of impending death or informed that his death was imminent, nor did he express himself on the subject, so far as this record discloses. When the first bullet ripped its course through his vitals, his hours were numbered. His stoical bearing, restraint of emotions and retention of opinion or knowledge on the subject of dissolution do not at all rule the admissibility of his statements. (Citation omitted.) To say he did not sense impending death would accord him less than ordinary intelligence.' (Emphasis by the Court.)

See also People v. Gorman, 252 Mich. 603, 605--606, 233 N.W. 430 (1930).

The evidence in this case clearly demonstrates that Mr. Rutledge sensed his impending death at the time he spoke the statement. The trial judge properly admitted it into evidence.

Issue II

Did the trial court commit reversible error by permitting the prosecutor to impeach a witness called by the prosecution by reading to him the substance of a statement which the witness had previously made to the police and by calling the officer in charge of the case to repeat what the witness had told him?

The prosecution endorsed the name of John Ross upon the information as a res gestae witness. Prior to trial, Ross had given police officers a signed statement averring that on the evening before the shooting defendant had offered to reward him if he would reveal the whereabouts of Arthur Rutledge. When called to testify at defendant's trial, Ross admitted that he had spoken to the police, acknowledged that a written statement had been prepared and identified his signature on the document, but denied having made certain portions of the statement and claimed he could not recall other portions. After a perusal of the writing failed to refresh Ross' memory, the prosecutor questioned him regarding the statement and later called a police witness to describe the document's contents. Defendant objected to these procedures and now contends that they resulted in the improper admission of incompetent evidence.

While res gestae witnesses are frequently considered to be eyewitnesses, they are not necessarily so. The res gestae classification is not restricted to those who have personally observed the act in question. See People v. Etter, 81 Mich. 570, 45 N.W. 1109 (1890); People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934); People v. Jelks, 33 Mich.App. 425, 190 N.W.2d 291 (1971). Where, as here, a witness's contact with a defendant is reasonably contemporaneous with the crime and tends to show the state of mind with which a criminal act was done, that evidence comprises a part of the res gestae. The witness qualifies as a res gestae witness. Maher v. People, 10 Mich. 212 (1862); People v. Ake, 362 Mich. 134, 106 N.W.2d 800 (1961).

Since Ross was properly endorsed and called by the prosecution as a res gestae witness, the people were entitled to impeach his credibility by use of his prior inconsistent statement. M.C.L.A. § 767.40a; M.S.A. § 28.980(1) provides:

'Witnesses whom the people are obliged by law to call as res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.'

Such impeachment testimony did not establish the prior statement as substantive evidence so as to permit the prosecutor to argue the truth of it to the jury. Consequently, cross-examination as to the prior statement should be controlled by the trial judge so that it does go to the issue of credibility and is not used as a subterfuge to place before the jury the entire contents of the prior statement. See Issue V, Infra. The trial judge instructed the jury to limit their consideration of the impeachment testimony to the issue of Ross' credibility. Defendant's allegation of error is without merit.

Issue III

Did the trial court commit reversible error by ruling that the prosecution had made a good-faith effort to produce two witnesses and by allowing their preliminary examination testimony to be read to the jury?

At the preliminary examination, Mrs. Lucille Sparks testified that she had been parked in her car four houses away from where deceased was shot. She heard him hailed by the name 'Arthur' from a green 1971 Chevrolet from which the shots came. As the only eyewitness to the murder, her testimony was crucial to the people's case.

The following actions were taken by the prosecution to obtain the presence of Lucille Sparks at the trial: Sergeant Dougal, the police officer in charge of the case, sent the police to her house to find her on the night before she was supposed to testify. They could not locate her. In the morning and also at noon on November 30, 1971, Sergeant Dougal called the witness's house and spoke with a youngster who told him that Mrs. Sparks was not at home. The following day Sergeant Dougal testified that he thought the witness might be in Detroit, although he acknowledged that he had not asked the Federal authorities to help locate her. Just before a court reporter read Mrs. Sparks' preliminary examination testimony into the record, the trial judge had Sergeant Dougal call the witness's place of work in an effort to find her. Officer Dougal then told the court that she was not at work and added that her employer said he had been trying to call her for two days but could not locate her.

While it is true that M.C.L.A. § 768.26; M.S.A. § 28.1049 permits the people to utilize a witness's preliminary examination testimony 'whenever the witness giving such testimony can not, for any reason, be produced at the trial', this statute is circumscribed by the constitutional right of a defendant to be confronted by a res gestae witness against him. The prosecutor in this case had a duty to show due diligence and a good-faith effort to obtain the presence of the witnesses before their absence could be excused and their preliminary examination testimony used at trial.

In People v. Brown, 38 Mich.App. 69, 75, 195 N.W.2d 806, 809 (1972), this Court said:

'We determine that the defendant had a right to have the indorsed Res gestae witness present at trial because he was one of only two Res gestae witnesses who purportedly viewed the crime. His testimony at the preliminary examination was highly damaging to the defendant, and the fact that Sergeant Charrier may have been subject to cross-examination at the preliminary examination does not satisfy the right to confrontation since that right also includes 'the occasion for the jury to weigh the demeanor of the witness.' Barber v. Page (390 U.S. 719, 724--725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255, 260 (1968)); People v. Nieto, 33 Mich.App. 535, 538, 190 N.W.2d 579 (1971).'

In the present case, Lucille Sparks was the only witness to the murder. She testified at the preliminary examination that the car from which the bullets were fired was very similar to the car owned by defendant. Her testimony must have been very damaging to the defense.

There is no evidence in the record that a subpoena was issued for Lucille Sparks or that the prosecution made any attempt to locate her until the trial started. See People v. Zabijak, 285 Mich. 164, 171--172, 280 N.W. 149 (1938). There is no evidence that the witness had left the state or even the city. In this case, a trial date of November 15, 1971 was set on August 16, 1971. The lack of diligence by the people in securing the presence of vital res gestae witness Lucille Sparks is reversible error. People v. McIntosh, 389 Mich. 82, 204 N.W.2d 135 (1973)....