People v. Medina

100 Mich. App. 358 (1980) 298 N.W.2d 648

PEOPLE
v.
MEDINA

Docket No. 43690.

Michigan Court of Appeals.

Decided September 5, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Patrick M. Meter, Chief Assistant Prosecuting Attorney, for the people.

John A. Lydick and Steve Sonenberg, Assistant State Appellate Defenders, for defendant on appeal.

Before: DANHOF, C.J., and M.J. KELLY and G.R. CORSIGLIA,^[*] JJ.

PER CURIAM.

Following a nonjury trial, defendant was found guilty of felony murder, contrary to MCL 750.316; MSA 28.548, on October 30, 1978. On December 4, 1978, defendant was sentenced to life imprisonment. He appeals as of right.

Defendant argues that the evidence submitted at the preliminary examination was insufficient to bind him over on a charge of felony murder. Specifically, defendant claims the evidence is insufficient to establish a robbery, an essential element of the offense. The primary function of the preliminary examination is to "determine if a crime has been committed and, if so, if there is probable cause to believe the defendant committed it". People v Duncan, 388 Mich 489, 499; 201 NW2d 629, 633 (1972). The standard of review in such matters was set forth in People v Paille #2, 383 Mich 621, 627; 178 NW2d 465, 468 (1970), wherein the Court emphasized that it is the function of an appellate court to determine whether, as a matter of law, the examining magistrate clearly abused his discretion in binding the defendant over.

Applying that standard to the case at bar, we hold that the magistrate did not err in binding defendant over. Defendant was charged with feloniously killing Terry Leroy Cooper in the perpetration or attempted perpetration of an armed robbery. Sufficient evidence was produced at the preliminary examination to bind defendant over on this charge. Testimony indicated that the victim was known to be carrying his billfold just prior to departing with defendant's group. The victim was seen alive with this group approximately one-half hour before he was found stabbed and left to die on the roadside. No billfold or wallet was found on his person or in the immediate area. The various injuries inflicted upon the victim were indicative of a struggle. Defendant was seen carrying a butcher knife several times during the course of the evening. The dimensions of the fatal stab wound were consistent with the size of the butcher knife. These circumstances and others lead to the conclusion that a robbery was committed and that the victim was killed during the perpetration thereof. People v Terlisner, 96 Mich App 423; 292 NW2d 223 (1980), People v Spalla, 83 Mich App 661, 666; 269 NW2d 259, 261 (1978).

Defendant next argues that testimony regarding a bar room incident prior to the alleged crime was improperly admitted.

At trial, a bartender testified that defendant engaged in a scuffle with another bar patron shortly before midnight on the night of the homicide. After defendant had knocked the patron off his chair, the bartender expelled defendant and his group from the premises. No objection was lodged by defendant at the time the testimony was introduced. Absent manifest injustice, matters not objected to at trial are not preserved for appellate review. People v Stinson, 88 Mich App 672, 674; 278 NW2d 715, 716 (1979). We find no miscarriage of justice on these facts. The testimony was properly admitted as part of the res gestae because it shed light on defendant's acts, conduct, and demeanor just prior to the incident, the identity of the group he was with, and the sequence of events. People v Henderson, 25 Mich App 28, 32; 180 NW2d 903, 905 (1970), People v Savage, 225 Mich 84, 86; 195 NW 669 (1923).

Defendant also argues that the trial court erred in admitting testimony by a forensic serologist to the effect that blood found on defendant's clothes and in the automobile defendant was riding in matched that of the victim but did not match the blood of defendant or his companions.

In support of his claim, defendant relies on People v Sturdivant, 91 Mich App 128; 283 NW2d 669 (1979). Sturdivant, a rape case, involved testimony that 80% of the general population secretes their blood type in their body fluids and 20% do not. Based on tests, it was revealed that both the complainant and defendant Sturdivant were non-secreters. This Court held that the evidence was improperly admitted because it was used solely for the purpose of including the defendant in a class of possible defendants (20% of the general population).

We reject defendant's argument. This holding is not to be construed as an approval or disapproval of Sturdivant, supra, (except for Judge KELLY, the writer of Sturdivant who still approves it). Rather, we distinguish Sturdivant from this case because the blood-type evidence in the present case was not used solely to include defendant in a large possible group of defendants but to exclude defendant and his companions as sources of the blood found in the automobile and on its occupant's clothing; it was used as evidence that the blood originated from the victim. This testimony was properly admitted.

Finally, defendant argues that the technique used by the prosecutor in questioning and impeaching his own witness was reversible error.

During his case in chief, the prosecutor called four witnesses to testify to the events immediately before, during, and after the slaying of Terry Cooper. At trial, each witness was unresponsive when asked questions about the details of the incident. The prosecutor was allowed, over defendant's objection, to impeach the witnesses via prior testimony.

The conditions under which a party may impeach his own witness are set forth in MRE 607:

"The credibility of a witness may be attacked by

"(1) an opposing party; or

"(2) the calling party if

"(A) the calling party is the prosecutor and he is obliged to call the witness,

"(B) in a civil case, the witness is an opposite party or employee or agent of an opposite party, or

"(C) the witness's testimony was contrary to that which the calling party had anticipated and was actually injurious to the calling party's case."

The people argue that impeachment was proper under MRE 607(2)(C). We agree.

The record demonstrates that the witnesses' testimony was different than the favorable testimony the prosecutor expected. In prior proceedings, the witnesses vividly described defendant's involvement in the brutal stabbing of Terry Cooper. However, at trial the same witnesses were unresponsive and reluctant to reconstruct the details. Their testimony was "actually injurious" to the people's case. MRE 607(2)(C) The people were misled by the witnesses and thereby prejudiced. People v Sherman Hall, 77 Mich App 456, 460; 258 NW2d 517, 519-520 (1977).

Affirmed.

NOTES

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