People v. Ernest Edwards

R. B. Burns, P. J.

Defendant was charged with having murdered Robert Stevens while attempting to rob him (felony murder). MCLA 750.316; MSA 28.548. Depending upon the jury’s assessment of the credibility of assorted witnesses, both prosecution and defense, the evidence presented justified any of the following findings of fact: that defendant killed Stevens while attempting to rob him; that defendant killed Stevens, but not during an attempted robbery; or that Stevens was killed by someone other than defendant. Accordingly, the jury was instructed as to four possible verdicts: guilty of first-degree murder, of second-degree murder, or of manslaughter; and not guilty.¹ Defendant was convicted of second-degree murder. He appeals.

I.

At defendant’s trial John Longuemire testified that Chester Blake had, prior to his death, admitted killing Stevens. Pursuant to objection by the prosecutor, the trial judge instructed the jury to disregard Longuemire’s testimony. Defendant claims that the trial court erred reversibly in so doing. Defendant concedes that any admission of guilt by Blake does not come within the traditional exception to the hearsay rule for declarations against proprietary or pecuniary interest. However, defendant asks us to join many other jurisdictions which have expanded the exception for declarations against interest to include declarations against penal interest. That we cannot do..

Once a rule has been promulgated by the Supreme Court of this state, that rule may not be altered by this Court, however outdated or unwise we may think the rule. People v Getterson, 31 Mich App 124, 127-128 (1971); People v Alvin Reed, 43 Mich App 556 (1972).

The instant case is indistinguishable from People v Sartori, 168 Mich 308, 316-317 (1912), which case has never been overruled:

"6. Respondent’s witness Joseph Martini testified that he had a talk with Antonio Sacciucci the day after the tragedy. It was the theory of respondent that Sacciucci was the man who committed the murder, and several suspicious acts and circumstances were testified to against him. Martini was asked:

" 'Q. Did you have any talk with him there about who did the killing?

" A. Yes, sir.’.

"He was then asked for the conversation, which was objected to as hearsay, and the objection was sustained. The ruling was correct. Whether Sacciucci would have answered that he saw some one else commit the murder, or whether, as the record indicates was expected, he would say that Sacciucci told him that he himself committed the murder, would be alike hearsay. The acts of Sacciucci having some relation to the crime and tending to show that he committed it instead of Sartori were competent and were admitted; his declarations, statements, and admissions not part of the res gestae were not competent.”

At the time of Sartori’s trial Antonio Sacciucci was not available to testify because he had left the country. Therefore, if declarations against penal interest were admissible as an exception to the hearsay rule, the Supreme Court would have permitted Joseph Martini to testify about Sacciucci’s alleged admission.

The Sartori decision has not been overruled by the recent case of Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). In Chambers one Gabe McDonald made a sworn and written statement to Chambers’ attorneys, admitting guilt of the crime with which Chambers was charged and exonerating Chambers. At trial McDonald repudiated his statement. The trial court refused to allow defense counsel to examine McDonald as an adverse witness and refused to accept into evidence McDonald’s written admission, because not a declaration against proprietary or pecuniary interest. The trial court also refused to allow 3 witnesses to testify as to other inculpatory statements of McDonald. The Supreme Court reversed, not because a hearsay exception limited to proprietary or pecuniary interest is unconstitutional, but because the refusal of the trial court to allow examination of McDonald as an adverse witness, its refusal to admit McDonald’s sworn statement, and its refusal to allow testimony by others as to additional inculpatory statements by McDonald combined to deny Chambers a fair trial. The Supreme Court was also impressed with the extrinsic evidence presented by Chambers corroborating McDonald’s statement. The high Court concluded:

"[T]he exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial, rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.” 410 US at 302-303; 93 S Ct at 1049; 35 L Ed 2d at 313.

In the instant case defendant presented no extrinsic evidence to corroborate Blake’s alleged confession and Blake’s statement was not made under oath or in writing, indicia of trustworthiness.

II.

In its instructions the trial court informed the jury that second-degree murder differed from first-degree murder because "done under sudden impulse without premeditation or previous intention” and that manslaughter is an intentional killing done under "sudden passion caused by some provocation”. Defendant claims that the trial court failed to adequately distinguish between second-degree murder and manslaughter. We disagree.

Had the trial court told the jury no more than that second-degree murder results from "sudden impulse” and manslaughter results from "sudden passion”, we would agree with defendant that the instructions were deficient. However, defendant bases his claim of error on fragments of a lengthy instruction taken put of context. The adequacy of instructions must be determined from the instructions as a whole, not from fragments. People v Dye, 356 Mich 271, 279 (1959). In the instant case the jury was instructed clearly and at length to find defendant guilty of manslaughter if they determined that he killed Robert Stevens, but not during an attempted robbery, if defendant’s reason had been overwhelmed by some provocation, and if there had not been adequate time for defendant’s passion to cool. We are convinced that the jury understood the difference between first-degree murder, second-degree murder, and manslaughter, and that the jury’s verdict of guilty of second-degree murder was a finding by them that defendant’s reason had not been overwhelmed by passion.

III.

The presentence report submitted to the trial court prior to defendant’s sentencing detailed defendant’s juvenile record. Although the transcript of the proceeding at which defendant was sentenced does not indicate whether the court considered defendant’s juvenile record in assessing an appropriate sentence, the likelihood that defendant’s sentence was influenced by the court’s knowledge of his juvenile record is so strong we remand for resentencing, order that a new presentence report be prepared, omitting any reference to defendant’s juvenile record, and order that the Court Administrator assign a judge from other than the Tenth Circuit to resentence defendant. People v McFarlin, 41 Mich App 116 (1972); People v Chappell 44 Mich App 204 (1972); cf. People v Hildabridle, 45 Mich App 93 (1973).

Affirmed, except as to sentence. Remanded for resentencing.

T. M. Burns, J., concurred.

1 It was anticipation of this very type of case that prompted the decision in People v Wimbush, 45 Mich App 42 (1973), and its disagreement with People v Bufkin, 43 Mich App 585 (1972).