People v. Brown , 137 Mich. App. 396 ( 1984 )

V. J. Brennan, P.J.

Defendant-appellant, Sidney Brown, was charged with an open count of murder, MCL 750.316; MSA 28.548, for the death of Brenda Day, who died from a neck laceration. He was ultimately convicted of second-degree murder, MCL 750.317; MSA 28.549, after a six-day jury trial commencing on August 26, 1981, and ending on September 2, 1981. Defendant was sentenced to a term of life imprisonment and appeals as of right.

Defendant’s first trial on the charge began on March 3, 1981. The trial lasted ten days and ended in a mistrial when the jurors were unable to reach a verdict. .

Before the second trial, the prosecutor moved to endorse four witnesses who had not testified at the first trial. One witness requested was Beverly Mandoka, who was the complainant in another case against defendant. In the Mandoka case, defendant had been charged and convicted of assault with intent to murder for stabbing Mandoka on July 9, 1980, the evening before the instant offense. That conviction has been affirmed by this Court. After an evidentiary hearing on August 7, 1981, over defendant’s objections, Mandoka was endorsed as a witness while the other proposed witnesses were not endorsed.

At defendant’s second trial, defendant moved to dismiss the case for violation of the 180-day rule, MCL 780.131; MSA 28.969(1). The trial court denied defendant’s motion to dismiss, finding that the people had "met the requirements of the statute by bringing it to trial within six months and by retrying it within six months of the time the first jury was discharged”.

On July 9, 1980, the decedent, Day, was living with her cousin, Dianne Mandoka, in an apartment on Champion Street in Battle Creek. That evening, around 8:00 p.m., Day was in the Park-view Bar several blocks from her apartment when she met Victor Boone. Boone offered to buy her a drink and the two of them danced together. After Boone returned from a trip to the bathroom, he found defendant talking with Day at the bar. Defendant appeared angry and told Boone to wait until he got through talking with Day.

Boone and a friend, Jerome Watkins, left the bar and started walking. When they passed the apartment building on Champion Street they saw Day’s roommate, Dianne Mandoka, sitting out on the porch and drinking with Francisco Lopez, so they walked up to the porch. Boone went inside the apartment to talk with the two little girls living there. Watkins stayed on the porch, but soon got into an argument with Lopez and left. Thereafter, one of the little girls came into the house and said, "My mother’s out there bleeding”. Boone testified that he went downstairs and saw Day lying on the ground. Dianne Mandoka had also gone downstairs to attend to Day. Boone also noticed defendant walking away from the scene. He and Francisco Lopez caught up to defendant, and Boone asked him why he cut the girl, to which defendant turned around and allegedly responded, "Do you want part of this?” Defendant had a bloody knife in his right hand. Boone then called the police and observed defendant enter the Hart Hotel a short distance away. Boone led the police into the hotel, struck defendant on the side of the face, and the police placed both Boone and defendant under arrest. Jerome Watkins was also arrested.

Dianne Mandoka testified that around 12:30 a.m. Lopez came over to the apartment. A couple of hours later, Watkins and Boone arrived and then defendant and Day came walking back to the apartment at about 2:30 a.m. Each was carrying a beer. Mandoka stated that defendant and Day were holding hands and laughing. Lopez also testified that the couple appeared to be having a good time together holding hands and laughing as they walked. When they walked up to the porch, Day sat on Lopez’s lap and kissed his cheek. Defendant saw Boone through the apartment window and said to Day, "There’s that Motherfucker you was dancin’ with.” Dianne Mandoka and Myra Day, the victim’s niece, both testified that defendant asked day to go downstairs so that he could talk to her. Lopez stated that defendant said he had to leave the apartment and Day could go with him if she wanted. Watkins testified that defendant told Day, "I’m tired of this shit. I want to talk to you.” Watkins left and went to the Hart Hotel.

Defendant and Brenda Day walked downstairs together. Both Dianne Mandoka and Day’s brother-in-law, Harold Morseau, who lived below them, stated that they heard Day say, "Quit, Sidney.” Mandoka stood up and looked over the railing to see Day lying on the ground and defendant standing by her. She could see blood coming from the victim’s left ear. She then went downstairs. According to Mandoka, Lopez asked defendant what he had done, to which defendant allegedly stated, "You can have her now.” Lopez stated defendant answered, "Why don’t you go and ask her.”

Lopez testified that he came down the stairs and saw Day and defendant fighting with each other at the base of the steps. Lopez saw defendant hit Day once on the neck, and she immediately fell down, but he did not see anything in defendant’s hand at this time. Lopez pursued defendant at the behest of Mandoka. Boone, who was also in the area, hollered to "watch out” because defendant had a knife. Lopez then noticed defendant did have a knife in his right hand. He went to his car and obtained a knife to follow defendant. Boone and Lopez followed defendant several blocks to the Hart Hotel, by this time, the police were right behind them. Battle Creek police officer Robert Baker testified that Boone accused defendant of stabbing Day. In reply, Baker stated that defendant said, "Yea, Motherfucker, I did and you’re lucky it wasn’t you.” Officer Hattis testified to hearing a similar remark. The police subsequently arrested defendant and Boone. Outside they also arrested Jerome Watkins, who was carrying a meat cleaver in his sock. Watkins also had a .22 caliber automatic pistol in his pants, but discarded it before the police arrived.

Lopez took the police back to the apartment building to help Day. During the trip, he threw away the knife he was carrying. Police later found that knife and confronted Lopez with it. He admitted it was his. Defendant did not have any weapons on him when arrested, but a knife with human blood on it was found on the counter in the lobby of the Hart Hotel near where Boone and Lopez confronted him. Donald Krupp, a forensic scientist, ran tests on the two knives and meat cleaver. There was no trace of blood on Lopez’s knife or the meat cleaver. The knife found on the counter contained type B human blood.

Paula Day, the victim’s sister, stated that defendant and Brenda had lived together off and on, but had broken up a few weeks before the incident. Cheryl Morseau, another of the victim’s sisters, testified similarly. She also testified that she was awakened around 2:30 a.m. on July 10, 1980, and then heard defendant exclaim to someone, "You can have her now,” as he was walking away.

The pathologist who performed the autopsy, Dr. Malcolm Young, testified that Day had a laceration of the left side of the neck between the jaw and bony process of the skull. The wound was caused by a stabbing with a thin, sharp, instrument such as a knife, a piece of glass or even a thin piece of wood. The stab cut one or more of the blood vessels in the neck and caused Day to bleed to death. The cut on the neck was vertical, with "clean” or straight edges. It was three-quarters of an inch long and two and one-quarter inches deep.

Detectives Erick Bush and Robert Belote of the Battle Creek Police Department testified that they interviewed defendant about 5:00 a.m., a few hours after his arrest. There were two sessions. An audio recording was made of both. The second session was held soon after the first one because the first tape was inaudible. Bush and Belote attested that defendant appeared alert and in control of himself and that he did not appear to be intoxicated.

Beverly Mandoka testified that she was divorced from defendant in March, 1979. However, in July, 1980, she was living again with him. On July 9, 1980, at about 6:00 p.m., Mandoka told him that it was all over between them and that he had to leave. She told him this because he was seeing Brenda Day, but did not relate to defendant that this was the reason. Defendant left the living room where he had been sitting on the couch and went to collect his clothing. He came out of the bedroom with a knife in his hand. He stabbed Mandoka four times, one of the times being on the left side of the neck. She was also stabbed once on her shoulder and twice on her breast.

Defendant raises several allegations of error, none of which require reversal. We agree with Judge Quinnell that the 180-day rule was not violated and we adopt his analysis on this issue. However, we disagree with his determination that admission of Beverly Mandoka’s similar-act testimony was reversible error.

Both incidents occurred after defendant had been rejected by a woman. In both he made statements indicating his displeasure with the turn of events, and both times he made remarks after-wards indicating that his actions were in retribution for the rejection. Defendant stabbed both women in the left side of the neck, just below the ear. Moreover, the prior act established defendant’s possession of a knife and, thus, opportunity. It showed his identity and scheme or system in doing the act, i.e., stabbing an unfaithful partner in the neck. Careful instructions were given the jury to minimize prejudice to the defendant. We find that there was no abuse of discretion in allowing this testimony.

People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978), rev’d on other grounds 408 Mich 69; 288 NW2d 583 (1980), sets forth the requirements that must be met before evidence of other similar bad acts may be introduced at trial. First, there must be substantial evidence that defendant actually committed the other acts. Second, there must be some special circumstances pertaining to the similar acts which tend to prove defendant’s motive, intent, absence of mistake or accident, scheme, plan or system in committing the charged offense. MCL 768.27; MSA 18.1050. MRE 404(b) adds opportunity, preparation, knowledge and identity to this list. Finally, such factor must be material to the determination of defendant’s guilt of the charged offense. In other words, evidence of similar bad acts may only be admitted when the element of which they are probative is genuinely disputed. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). The admission of similar-act testimony is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.

Identity was placed in issue during defense counsel’s opening statement and through cross-examiantion. There were four men present at the apartment that night and Jerome Watkins’s whereabouts was unknown. Watkins had a meat cleaver in his possession. Defendant’s theory of defense was that the people had not shown beyond a reasonable doubt that defendant, and not one of the other men or even an accident, was the cause of Day’s death. Identity, therefore, was genuinely controverted. There was also no doubt that defendant was Mandoka’s assailant.

Thus, the second requirement, that the acts have some special quality of similarity, and a fourth requirement, that the probative value outweighs the prejudicial effect, must be examined. The prosecution argues that both incidents occurred after defendant had been rejected in some manner by a woman. The stabbing was also identical in that the laceration was located on the neck under the left ear, an area which can be said to be calculated to cause death, as well as the fact that the victims were intimately known by the defendant. In both instances, the assailant faced the victim (Mandoka stated that she could see defendant as he hit her and Lopez attested that he saw defendant facing Day). Furthermore, while possession of a knife is not a separate rationale justifying admission of similar-act testimony, it serves to further indicate identify. As in Golochowicz, supra, p 322, it is a close question as to whether the similarity of the acts suggests a modus operandi, and the decision on such a close question does not suggest an abuse of discretion.

Turning to the final prerequisite, whether the probative value outweighed its prejudicial effect, we believe that the instant case is distinguishable from Golochowicz, supra, where the Supreme court held that the evidence was more unfairly prejudicial than probative of identity. First, the similarity of the offenses in Golochowicz, while close, was not as strong as here. Golochowicz dealt with a murder case where both victims had been strangled, but the similar-act victim had also been brutally beaten. Here, no such significant difference existed. Moreover, here the trial court took special care not only to give cautionary instructions at the beginning and close of trial concerning similar-act testimony but also interrupted Mandoka’s testimony and emphasized again its limited purpose. Such would have a mitigating effect on the prejudice to defendant.

Finally, and most importantly, is the fact that not only was the similar-act testimony in Golochowicz more dissimilar because the victim was also beaten, but the nature of that killing, described by the court as "distracting, indeed horrifying”, was particularly gruesome and, thus, highly prejudicial. Here, the fact that Mandoka survived makes the evidence of her incident with defendant less likely to be so inflammatory as to distract the jury unduly. For these reasons, we conclude that it was not an abuse of discretion to allow Mandoka to testify concerning her being stabbed by defendant.

Defendant also argues that there was insufficient evidence on premeditation and deliberation to support a first-degree murder instruction.

In Michigan, murder " 'is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.’ ” People v Aaron, 409 Mich 672, 713; 299 NW2d 304 (1980), quoting People v Potter, 5 Mich 1 (1858). First-degree murder involves the additional element of premeditation or deliberation. People v Vertin, 56 Mich App 669, 672; 224 NW2d 705 (1974). Premeditation is measured in time; time to permit a reasonable person to subject the nature of his response to a second look. In this connection, relevant factors in ascertaining whether an accused took "a second look” include: (1) the previous relationship between the parties; (2) the accused’s actions prior to the killing; (3) circumstances of the killing itself; and (4) the accused’s conduct after the homicide. People v Jeffrey Johnson, 113 Mich App 650, 661; 318 NW2d 525 (1982), lv den 417 Mich 1100.2 (1983).

Defendant contends that at the time the prosecution rested and defendant moved for a directed verdict, there was insufficient evidence of premeditation or deliberation. Therefore, the present inquiry is whether the evidence produced at trial at the time of defendant’s motion for directed verdict, viewed in a light most favorable to the prosecution, was sufficient enough that "a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt”. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885 (1980). Here, the nature of the killing, a stabbing, is sufficient to allow the jury to infer malice. In any event, defendant only challenges the sufficiency of evidence with respect to the element of premeditation or deliberation.

As to the element of premeditation, we find that there was more than sufficient evidence under the standards announced in Hampton, supra.

After a review of the record, we find that the other allegations of error are without merit.

Affirmed.

Shepherd, J., concurred.