People v. Vieau

357 N.W.2d 736, 136 Mich. App. 670

• Court: Michigan Court of Appeals
• Decided: August 20, 1984
• Docket: Docket 56409
• Status: Published

Opinions

Per Curiam.

After a jury trial, defendant was convicted of first-degree premeditated murder, MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and appeals as of right.

Defendant was charged with the murder of Gary Williams. Defendant’s wife, Sheryl Vieau, testified that she was living with Williams at the time of the alleged offense. The night before the killing, she began working at the Dixie Tavern in Mackinaw City. Defendant visited the tavern several times that evening in order to talk to her. On the night of the killing, defendant again came into the tavern five or six times. When defendant’s wife left work, she discovered that one of the tires on the car loaned to her by Gary Williams was flat. All of the spare tires in the trunk of the car were also flat. Defendant walked by at that time and made a remark about the flat tire. It was his wife’s opinion from the manner in which defendant made the remark that he had flattened the tire. She then telephoned Gary Williams and he agreed to come and pick her up. Defendant asked her if she would go with him to the Commodore Club. She told him that Gary was on his way to pick her up. Defendant said, "I’ll get you. I have a gun in the car. I will wait for Gary on the highway if I have to, but I will get you”. He then left.

When Gary Williams arrived, he took a tire out of the car he was driving and began to change the flat. Defendant pulled up in his car and said, "[d]on’t move, boy, or I’ll shoot you. Sheryl get out of the car or I’ll kill him. Sheryl get out of the car”. Defendant then fired several shots and Gary Williams fell. About 15 seconds later, several more shots were fired and defendant’s wife was injured.

Sheryl Vieau was married to defendant at the time of trial. Defendant claims that the court erred in admitting her testimony against the defendant at trial over defendant’s spousal privilege objection. The trial judge held that the testimony was permissible under the rule adopted in Trammel v United States, 445 US 40; 100 S Ct 906; 63 L Ed 2d 186 (1980). On appeal, defendant claims that the trial judge erred by holding that the decision in Trammel, supra, precludes the application of the Michigan statute concerning spousal privilege, MCL 600.2162; MSA 17A.2162. We agree. The question of marital privilege in Michigan is clearly governed by statute and is unaffected by Trammel, supra. See People v Wadkins, 101 Mich App 272, 282-284; 300 NW2d 542 (1980); People v Thompson, 111 Mich App 324, 331; 314 NW2d 606 (1981); see also People v Zabijak, 285 Mich 164, 177; 280 NW 149 (1938).

Nevertheless, although the trial court erred in applying the modified federal common-law rule adopted in Trammel, supra, instead of the Michigan statute, we find that Sheryl Vieau’s testimony was properly admitted. The Michigan spousal privilege rule is embodied in MCL 600.2162; MSA 27A.2162, which states in part:

"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other. ” (Emphasis added.)

In People v Love, 127 Mich App 596, 602; 339 NW2d 493 (1983), this Court held that the statutory exception to spousal privilege in cases "where the cause of action grows out of a personal wrong or injury done by one to the other” applies to prosecution of a crime committed against a third person where it is part of the same criminal transaction as a crime committed against the testifying spouse. In the present case, defendant shot Williams at the same time and as part of the same transaction during which he also shot at Sheryl Vieau, for which defendant was separately charged with assault with intent to murder Sheryl Vieau. We recognize that People v Love differs factually from the instant case in that there the crime against the testifying spouse was charged and tried together with the crime against the third person. Here, the prosecutor’s motion to consolidate the two cases was denied, and hence the crime against the third party, Williams, was tried separately. However, we deem the statutory exception applicable regardless of whether the crimes against the third person and the spouse are tried separately or together. State v Briley, 53 NJ 498, 507; 251 A2d 442 (1969), quoted with approval in People v Love, supra, p 601.

Defendant has raised a number of other claims on appeal, none of which merit substantial discussion. With regard to defendant’s claim that the court erroneously instructed the jury as to consideration of lesser included offenses, defendant failed to object to the instruction, and consequently, we decline to address this issue as not preserved for appellate review. People v Handley, 415 Mich 356, 360; 329 NW2d 710 (1982); People v Marland, 135 Mich App 297; — NW2d — (1984).

We find no reversible error in the bailiff’s off-the-record communication to the jury, made pursuant to the trial judge’s request and prior to commencement of deliberations, that the judge would not be giving any further instructions and that the jury could begin deliberations.

With regard to defendant’s claims of improper prosecutorial argument, we find no impropriety requiring reversal of defendant’s conviction.

We find no abuse of discretion in the trial judge’s decision to admit evidence concerning a cut in the valve stem of the right rear tire of the car driven by Sheryl Vieau. We also find no deliberate suppression of evidence by the prosecution.

Lastly, we find that a reasonable jury could find the elements of premeditation and deliberation proved beyond a reasonable doubt.

Affirmed.