People v. Crown , 75 Mich. App. 206 ( 1977 )

75 Mich. App. 206 (1977) 254 N.W.2d 843

PEOPLE
v.
CROWN

Docket No. 26131.

Michigan Court of Appeals.

Decided April 19, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and Lee W. Atkinson, Chief Appellate Attorney, for the people.

Weed & Weed, P.C., for defendant.

Before: DANHOF, C.J., and T.M. BURNS and J.E. McDONALD,^[*] JJ.

PER CURIAM.

The parties submit the following agreed statement of facts:

"On January 1, 1975, the body of Lawrence Olson was discovered along with that of his wife, Edith Olson, in the front yard of their home at 1824 Cadillac Drive in the Township of Lansing, County of Ingham, State of Michigan. Lawrence Olson was dead at the scene of two gun shot wounds to the head. Edith Olson was taken to a local Lansing hospital where she died on February 4, 1975.

"On March 28, 1975, the Defendant John Crown was arrested by the Lansing Police and charged with the murder of Lawrence and Edith Olson.

"On March 31, 1975, and April 2, 1975, 6013 Selfridge Boulevard, was searched by the State Police without a warrant and various items were seized for evidence.

"On April 10, 1975, a preliminary examination was conducted in the Mason District Court of Ingham County. Rudolf Castelli who had also been charged with the murder of the Olsons testified at the examination in return for complete immunity on the Olson murders and breaking and entering.

"Castelli testified at the preliminary examination and at the trial regarding his actions with the Defendant on December 31, 1974, and January 1, 1975. Castelli testified that he, the Defendant and a man named Hutch had gone out on New Year's Eve, December 31, 1974, to break and enter various homes, driving Hutch's car. He further testified that the three of them burglarized one home, which was identified as the Courser home, and then continued on to the Olson home. Castelli admitted to possessing a .22 revolver and the Defendant had a .22 derringer.

"Witness Castelli then testified that while he and the Defendant were participating in a breaking and entering of the Olson home, the Olsons pulled in their driveway and blocked in Hutch's car. Castelli further testified that he knocked Lawrence Olson down, and struck him with the gun he had and then backed the Olson car out on the street. Castelli left the Olson car on the street and walked up by the garage and testified that the Defendant and Hutch were standing near Lawrence Olson, who was on the ground. He testified that he had a conversation with the Defendant and Hutch and then left the scene and drove away the Olson car. Castelli then testified that after he emptied Edith Olson's purse, he met the Defendant, Hutch, Shirley Curtis, the girl friend of the Defendant, and Sandy Howe at the Cozy Lounge in the City of Lansing.

"The Defendant was subsequently bound over to stand trial and after a series of pretrial motions, including a motion for change of venue, trial commenced on July 14, 1975, in Traverse City, Grand Traverse County, Michigan.

"The jury found the Defendant guilty of Count I, felony murder of Lawrence Olson, Count II, felony murder of Edith Olson, and Count III, premeditated murder of Lawrence Olson. The jury acquitted the Defendant of the premeditated murder of Edith Olson."

On September 17, 1975, defendant was sentenced to three terms of life imprisonment.

In this appeal as of right defendant makes 22 assignments of error on the part of the trial court. We discuss them seriatim.

1. The trial court did not err in ruling that there had been probable cause to arrest the defendant. People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971), is inapposite. Not only was the informant not anonymous, but he provided the police with shell casings determined to have been fired from the gun used in the murders. Better physical evidence corroborating the informant's statement is difficult to imagine.

2. The trial court did not err in denying defendant's motion to suppress evidence taken in warrantless searches of the house in which defendant was living. The owner of the house, Mrs. Howe, freely consented to the search, by her own testimony. The evidence used at trial was found in rooms used by all the occupants. See People v Chism, 390 Mich 104, 134-137; 211 NW2d 193 (1973).

3. The trial judge did not err in denying defendant's motion to require the prosecution to elect between the charges of felony murder and premeditated murder. See People v Fullwood, 51 Mich App 476; 215 NW2d 594 (1974).

4. The trial court did not err in denying defendant's motion to be permitted 20 peremptory challenges for each of the four capital counts. See GCR 1963, 511.5, MCLA 768.13; MSA 28.1036.

5. There is no merit to the contention that the trial court failed to follow the statutory procedure for granting immunity from prosecution to a witness. Defendant cites no statutory requirement that wasn't met.

6. The trial court did not abuse its discretion in denying defendant's motion for a jury view. Such questions are for the trial judge to decide. MCLA 768.28; MSA 28.1051. Where, as here, the judge gave cogent reasons for denying the request, an abuse of discretion cannot be said to have occurred. See People v Curry, 49 Mich App 64; 211 NW2d 254 (1973).

7. The trial court did not err in quashing the subpoenas of the witnesses sought to be examined before the jury on the results of polygraph examinations of an uncharged "confessor" to the murders. Such evidence is inadmissible. People v Frechette, 380 Mich 64; 155 NW2d 830 (1968). This rule cannot be "updated" without a factual record upon which to reevaluate the rule. As an aside, we question the relevance of the truthfulness of the confessor's belief that he committed the murders.

8. Defendant cites no authority for the proposition that it was error to allow the prosecutor to examine a defense expert concerning his findings. Even if the facts could be stretched to bring this episode under the work product rule of United States v Nobles, 422 US 225; 95 S Ct 2160; 45 L Ed 2d 141 (1975), we can envision no prejudice to the defendant arising from the ruling. No mention was made of the witness's retention by the defense and the testimony was not unfavorable to the defense.

9. The trial court did not err in refusing to declare a mistrial when a witness described a Miranda rights form as having defendant's signature on it. We can add nothing to the trial court's well considered opinion on the question. There was, quite simply, no prejudicial error.

10. The trial court did not err reversibly in ruling that no prior convictions for felonies occurring more than ten years prior to trial would be admissible to impeach the credibility of witnesses. Defendant's argument that rules for impeachment of witnesses should be different from those relating to impeachment of the accused is answered by existing precedent. See People v Falkner, 389 Mich 682; 209 NW2d 193 (1973), People v Sesson, 45 Mich App 288; 206 NW2d 495 (1973), People v James, 36 Mich App 550; 194 NW2d 57 (1971).

11. There was no error in the jury instructions relating to the credibility of an accomplice who had been granted immunity from prosecution. The substance of the instructions requested by defendant was given, albeit not in the exact language requested. The requirements of People v Love, 43 Mich App 608; 204 NW2d 714 (1972), if applicable to the instant case, were met.

12. The trial court did not err in failing to sua sponte reinstruct the jury on the use of "common scheme" testimony. There was no request for the instruction at the close of the proofs, there was no objection to its omission, and there was no prejudice in the trial court's failure to give it.

13. The trial court did not err in instructing on defendant's potential guilt as an aider and abettor. The evidence introduced at trial supported the theory that defendant aided in the shooting of either or both of the Olsons, as well as the theory that he alone did the shootings. People v Lamson, 44 Mich App 447; 205 NW2d 189 (1973), controls.

14. The trial court did not err in not instructing the jury on lesser included offenses on the felony-murder counts.

None of the defendant's proposed instructions dealt with lesser included offenses to felony murder. Defendant objected to the murder instructions only insofar as they defined premeditation. Effective January 1, 1976, in every first-degree murder case the trial court must instruct on second-degree murder, even absent a request, as second-degree murder is a necessarily lesser included offense. People v Jenkins, 395 Mich 440, 443; 236 NW2d 503 (1975), People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975), People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975), People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975). The failure to instruct the jury on manslaughter in a first-degree murder case is not error absent a request for such an instruction. People v Henry, supra.

The trial in the case at bar occurred in 1975 prior to the effective date of the above rule concerning second-degree murder.

15. Defendant is correct in arguing that the findings of the jury were, in part, reversibly inconsistent.

The information charged defendant with four counts of first degree murder:

Count 1 — felony murder of Mr. Olson Count 2 — felony murder of Mrs. Olson Count 3 — premeditated murder of Mr. Olson Count 4 — premeditated murder of Mrs. Olson.

The jury was instructed on all four counts. They were told that they had two possible verdicts as to felony murder of Mrs. Olson, guilty or not guilty. On Count 4, premeditated murder of Mrs. Olson, the jury was instructed on lesser included offenses, including second-degree murder and manslaughter.

The jury returned a verdict of guilty on Counts 1, 2 and 3. They found defendant not guilty on Count 4. The obvious inconsistency is in finding defendant guilty of felony murder of Mrs. Olson (Count 2) but not guilty of premeditated murder, second-degree murder or manslaughter of Mrs. Olson (Count 4).

Felony murder is second-degree murder with the additional element of the perpetration or attempt to perpetrate an enumerated felony. People v Carter, supra at 437. On Count 2, then, the jury, in effect, found defendant guilty of second-degree murder in the killing of Mrs. Olson. On Count 4, the jury found defendant not guilty of second-degree murder in the killing of Mrs. Olson. Being inexplicably inconsistent with the verdict on Count 4, the verdict of guilty on Count 2 cannot stand. People v Goodchild, 68 Mich App 226, 237; 242 NW2d 465 (1976). See, Anno: Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 ALR3d 259, 282.

16. Defendant is correct in arguing that the trial court erred in sentencing him to three life sentences.

Since the verdict of guilty of felony murder of Mrs. Olson cannot stand, the sentence on that count must be vacated.

It was also improper to give defendant two life sentences for the commission of one crime, the first-degree murder of Mr. Olson. See People v Carter, supra, People v Goodchild, supra, at 236, 237. One of the life sentences given for the murder of Mr. Olson must be vacated.

17. We assign no error to the trial court's denial of defendant's motion to dismiss based upon the failure to endorse Gerry Ward as a res gestae witness.

Defendant's motion for a new trial was not based in any part upon the res gestae witness question. The issue thus is not preserved for appeal. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). Moreover, it was not shown at trial nor does it appear from the instant record that Gerry Ward was either an alibi witness or a res gestae witness.

18. It was not error to deny defendant's motion for a directed verdict on the premeditated murder counts. Whether there was premeditation or not was for the jury to determine. There was more than enough evidence of the circumstances surrounding the killing from which premeditation could reasonably be inferred to sustain the verdict of guilty beyond a reasonable doubt let alone sufficient to submit the question to the jury. See People v Meier, 47 Mich App 179; 209 NW2d 311 (1973).

19. The trial court's instructions to the jury, while extensive, were properly set forth with no undue emphasis or repetition.

20. The issue concerning failure to instruct on intervening cause of Mrs. Olson's death is moot.

21. The issue concerning denial of defendant's motion to require the prosecutor to elect which counts would go to the jury has been answered supra.

22. The trial court did not err in denying defendant's motion for a mistrial because of the jury selection procedures. The trial judge indicated that more jurors would be called if needed. They were not needed. Defendant ran out of peremptory challenges while there were still jurors left in the original pool. There was no violation or prejudice.

Defendant's conviction of the felony murder of Mrs. Olson is reversed. Defendant's convictions of the felony murder and premeditated murder of Mr. Olson are affirmed.

Defendant's life sentence for the felony murder of Mrs. Olson is reversed and vacated. Defendant's life sentence for the felony murder of Mr. Olson is reversed and vacated. Defendant's life sentence for the premeditated murder of Mr. Olson is affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.