Docket No. 8199.
Decided February 17, 1971.
Appeal from Recorder's Court of Detroit, Robert E. DeMascio, J. Submitted Division 1 December 11, 1970, at Detroit. (Docket No. 8199.) Decided February 17, 1971.
George W. Griner was convicted of first-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.
Donald E. Gratrix (by James C. Howarth), for defendant.
The defendant was convicted by a jury of murder in the first degree, MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). He now appeals that verdict alleging several errors.
At 8 p.m. on July 16, 1968 the defendant shot his ex-wife Alma with a shotgun. The defenses were temporary insanity and self-defense. Several neighbors testified that they saw the defendant shoot the deceased. There was some variation in the testimony as to whether he shot her as she was running away from him or as she was lying on the ground. The defendant said he couldn't remember what happened after the deceased started running. The deceased had no weapon with her. The pathologist stated that Mrs. Griner was 4 feet 11 inches tall and weighed 105 pounds. He said she died from two shotgun wounds in her back.
The first error alleged is that a non- res gestae witness known to the prosecution long before trial but not indorsed on the information until the date of trial should not have been allowed to testify against the defendant. The prosecutor stated that the reason for the delay in adding the witness, the defendant's daughter, was that the police were not aware of what she was going to testify to until a short time before the date of the trial. The objection of the defense was that they only had seven days' notice of the motion to indorse.
MCLA § 767.40 (Stat Ann 1970 Cum Supp § 28.980) provides that names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine. The ultimate question for a reviewing court is whether the trial court abused its discretion, with the burden ordinarily on the party asserting the abuse. People v. Talison (1970), 21 Mich. App. 459. The defendant has shown no prejudice resulting from the late indorsement. We find no abuse of the trial court's discretion.
Next the defendant argues that the facts in this case do not demonstrate sufficient evidence of premeditation and deliberation to support a first degree murder conviction. Deliberation and premeditation can be inferred from the character of the weapon used, the wounds inflicted, the circumstances surrounding the killing, the acts, conduct, and language of the accused before and after the killing, and the improbability of the story told by him. People v. Wolf (1893), 95 Mich. 625. We have reviewed the evidence and we think it was sufficient to support a first-degree murder conviction. The Michigan cases cited by the defendant are factually distinguishable.
It is also argued that the defendant was not properly advised of his constitutional rights so that certain inculpatory statements allegedly made by him would be inadmissible into evidence. While we agree that Patrolman Plemmons' attempt to give the Miranda warnings to the defendant was legally deficient, it does not follow that trial error was committed. The requirements set forth in Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974), apply to questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom. All of the statements in question were volunteered. Volunteered statements of any kind are not barred and their admissibility is not affected by the Miranda decision. One was made before the defendant was taken into custody. Some were made to relatives while the defendant was in custody in a police car at the scene of the crime, and one was a question the defendant asked of the police while riding to the police station. These statements were not the result of police interrogation. They were properly admitted into evidence.
Next it is contended that certain statements allegedly made by the deceased were improperly excluded on the grounds of hearsay. The defendant argues that testimony of previous threats by the deceased against the defendant was admissible where the defense was self-defense. That is an accurate statement of the law. Brownell v. People (1878), 38 Mich. 732. The facts elicited during the trial did not support a theory of self-defense, and so the testimony of previous threats by the deceased was properly held inadmissible as hearsay evidence. People v. Durham (1912), 170 Mich. 598. The trial court did give an instruction on self-defense over the objection of the prosecutor. We hold that that was error, but since it was in the defendant's favor he cannot complain about it. People v. Collins (1968), 380 Mich. 131.
The last argument is that it was error for the trial court to prevent a psychiatrist from testifying as an expert as to statements made to him by a relative of the defendant when these statements formed part of the basis of the expert's opinion. The psychiatrist was allowed to state that his opinion was based on an examination of the defendant and the social history he obtained in a rather brief interview with the defendant's daughter. The prosecutor objected to the psychiatrist relating what the daughter told him on the ground that it was hearsay. We find no error in the court's sustaining that objection.