People v. Mancill

M. J. Kelly, P. J. Defendant was charged with first-degree murder, MCLA 750.316; MSA 28.548, and murder in the perpetration of rape, MCLA 750.316; MSA 28.548. At the conclusion of plaintiffs case, the prosecutor consented to dismissal as to the felony-murder charge. Defense counsel then moved for directed verdict on the premeditated first-degree murder count and all lesser included offenses. The trial court reduced the charge to second-degree murder, left open the question of lesser included offenses and at the close of all proofs included a charge as to voluntary manslaughter, MCLA 750.321; MSA 28.553. The defendant was jury convicted of manslaughter, sentenced to 5 to 14 years in prison and appeals of right raising three issues. The main issue and the only one we feel requires discussion is as to the sufficiency of the evidence. The victim, a 17 year-old girl, was found strangled to death lying near a residential street corner — 257 — between the curb and the sidewalk about 7:40 a.m. on September 30, 1975. The evidence against the defendant was circumstantial. The victim’s brother testified that the defendant, whom he had never seen before, picked the victim up at their house in the mid-afternoon of September 29, 1975. Defendant was employed as a cab driver and picked up the victim in his cab. A brother and sister of the defendant testified that the victim was brought to their house in the late afternoon or early evening of the same day by the defendant. Defendant, the brother and sister, the victim and others listened to music and drank rum at the Mancill residence. A witness who had been a fare in that cab the following morning testified that she was picked up by the defendant before 7 a.m. on September 30th in the vicinity of the place where the body was found. The medical examiner testified that the victim was strangled to death about 2 to 2-1/2 hours after having eaten Chinese food. He found evidence of sexual intercourse and oral and anal sperm residue. Defendant’s mother admitted that defendant had told her he had been messing around with a girl named Valerie and that Valerie was going to cause him some trouble. The victim’s name was Valerie Griffin. A hotel operator identified a registration card bearing the signature Mr. and Mrs. Mancill, dated September 29, 1975, indicating check-in time 9:15 p.m.; check out time, 11:15 p.m. A girl friend of Valerie’s testified that she had received a phone call in the early morning hours of September 30th wherein Valerie stated she was home. Valerie’s brother Willie testified that he was home and awake during the early morning hours of that day and that Valerie did not come home. — 258 — The defendant did not testify but a written and signed statement given to the police by the defendant was read to the jury. Defendant admitted that he had picked up Valerie Griffin in front of her house the afternoon before her death. He. said they went to a bar for a while, then to the family house where they and defendant’s brothers and sisters and a friend drank rum and beer. He said that he and the victim then left in his cab and went to another bar. That they later went to a Chinese Restaurant where Valerie got a carryout order, that they then proceeded to Junior’s Hotel where they registered as Mr. and Mrs. Mancill. Various sexual activities were described and then the statement was: " 'Then it was time to go and she did not wash up before we left. " T left her on Mack and St. Jean. She was supposed to be getting on the bus. I got in my cab and picked up a guy right after I left her.’ ” Although there is a jumble of confusion about the hours on September 29th there is rough harmony until the night of the 29th turned into the day of the 30th. The defendant’s wife by whom he had two small children testified that defendant was at her home on the east side of Detroit that early morning: "Q What time did he come home? "A I would say about between twelve and one o’clock, somewhere around in there. "Q All Right. What time did he leave in the morning, if he left? "A I would say about five or six. "Q Did he sleep anywhere in your apartment that night? "A Yeah. — 259 — "Q Where? "A In bed.” This testimony was vigorously challenged by the prosecuting attorney because on cross-examination the defendant’s wife continually stated that the day involved was a Friday that she was talking about whereas in fact the September 29th was on a Monday and the body was found on Tuesday, the 30th. The jury of course was the one to assess her credibility. The doctor who performed the autopsy stated that her stomach contained undigested fresh food eaten not more than 2 or 2-1/2 hours before death, which death was caused by manual strangulation. Defendant states that the fundamental question on appeal is whether the jury must have had a reasonable doubt that it was the defendant who killed the deceased. We hold that a jury submissible issue was framed. "The jury is the sole judge of all of the facts presented. It may choose to believe or disbelieve any or all of the evidence. That is the essence of a right to a jury trial. * * * Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve.” People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975). We hold that the people presented circumstantial evidence of defendant’s guilt to the jury because sorting out the conflicts in the testimony the jury could have disbelieved defendant’s exculpatory statements and could have inferred that defendant, on a sexual and alcoholic binge with the victim, strangled her and tossed her body on the ground sometime during the early morning hours of September 30th. It is for the jury to determine — 260 — whether it was logical for her to have tripped off to catch a bus after the events of September 29th; the jury saw the defendant’s wife and could have disbelieved her testimony. The jury was not required to accept the defense theory that a phantom killer murdered her sometime after defendant went on his way to pick up a fare (of which there was no evidence). Actually what the defense urges on us is that we take the exculpatory items contained in his statement and hold that these exculpatory statements require us to find a reasonable hypothesis inconsistent with guilt and consistent with innocence. If the defendant’s statement had not been admitted in any particular we would have had evidence that the victim willingly disappeared into the defendant’s company; that they indulged for hours in drinking and stopping off from place to place; that they registered in a hotel showing a check-in time of 9:15 and a check-out time of 11:15 (which may mean nothing more than that the room was paid for for two hours) the night before the death; that Chinese food was purchased and carried out and contained in the victim’s intestines; that the body was found semi-clothed with the purse lying nearby and with jewelry unremoved; that defendant’s presence was unaccounted for until shortly before the body was found when he picked up a fare within a few blocks of that vicinity. Defendant also asks us to find that since the jury returned a verdict of voluntary manslaughter they must have had a reasonable doubt as to the homicide or they would have found him guilty of second-degree murder. This interesting issue may cause some consternation at higher levels but we are required to follow the Supreme Court decisions of this state which mandate the giving of instruc — 261 — tions on included offenses whether the trial judge believes the evidence supports the lesser charge factually or not. "It is for the trier of fact to determine if the prosecution has 'negate[d] every reasonable theory consistent with the defendant’s innocence of the crime charged’.” People v Fuller, 395 Mich 451, 455; 236 NW2d 58 (1975). Affirmed. J. H. Gillis, J., concurred.