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November 16, 1981


D. C. Riley, P.j., and Cynar and H. R. Gage,* JJ.

The opinion of the court was delivered by: Cynar

Defendant appeals as of right from his conviction for first-degree felony murder, contrary to MCL 750.316; MSA 28.548. Following a jury trial, which took place between April 24 and May 2, 1979, defendant received the mandatory sentence of life imprisonment.

On Thursday, January 15, 1976, the victim, 16-year-old Cynthia Rae Cadieux, ate dinner with her family at their home in Roseville, Michigan, and then left to visit a friend. After visiting at the home of the friend for a short time, Miss Cadieux left to walk to a nearby drug store at about 8:30 p.m.

On Friday, January 16, 1976, at approximately 1:50 a.m., a passing motorist discovered the victim's body in the snow on the side of Franklin Road in Oakland County, Michigan. The body was nude and a gaping wound, 1-1/4 inches long by 3/8 inch wide was found on the forehead. The police were summoned to the scene, but a search of the area turned up no tangible physical evidence which would explain the presence of the body.

John Burton, M.D., a forensic pathologist, then chief medical examiner for Oakland County, performed an autopsy upon the victim and testified at trial. The pathologist found discolored marks on the victim's skin above the elbows which in his opinion were caused by the presence of bands used to tie the victim's arms. Various other bruises and scrapes were found on the body. Dr. Burton concluded that the cause of death was a skull fracture and brain contusion due to an injury to the head caused by a blunt instrument.

The pathologist's examination of the victim's vagina revealed that it was dilated, with tears and scratches. He found, based upon a reasonable medical certainty, that these injuries were caused by forced penetration from a penis. An examination of the victim's anus revealed that it too was dilated and contained scratches on the inside. The pathologist found that, based on a reasonable medical certainty, these injuries were caused by the forced penetration of a penis. The pathologist also found evidence of a forced penetration of the victim's mouth. While no sperm was found, Dr. Burton did not find that to be unusual in cases of forced penetration. The pathologist had performed over 22,000 autopsies.

Because of a lack of evidence, the case lay relatively dormant for approximately two years. However, in April, 1976, an event took place which eventually would lead to the defendant's arrest. At that time, Gary Krowl was an inmate at the Michigan state parole camp in Jackson, Michigan. A few days before Krowl was to be paroled, he had a chance meeting with the defendant, an old childhood friend from Roseville. After a brief discussion, defendant asked Krowl if he could help him obtain clothes he needed to escape from the prison camp. After agreeing to help him procure the needed clothes, Krowl asked defendant why he wanted to leave the parole camp, since it was the best part of the prison system.

Defendant replied, "You don't understand, wasn't about to do a murder for nobody and had to go". Defendant further explained that he and Raymond Heinrich, a mutual friend from Roseville, had picked up a "chick" in Roseville and "had sex with her". Defendant told Krowl that he and Heinrich had picked up the girl near Papa Joe's in Roseville. Defendant related how he "took her ass off" and "Ray punched her up" before they "kicked the bitch out in the snow and she froze her ass off". This incident had taken place a few months prior to the conversation of April, 1976. Defendant wanted to leave the prison system because he had been questioned once concerning the murder and he was afraid that if Ray Heinrich were questioned, defendant would be implicated in the murder. Two weeks after being paroled, Krowl received a phone call from the defendant who stated that he had successfully escaped from prison.

In January, 1978, the second anniversary of the murder, the Roseville police appeared on television, asking anyone with information regarding the crime to come forward. Krowl saw this televised plea for assistance, recalled his conversation with defendant, and went to the police with his information.

On February 6, 1978, Detective Richard Scott of the Roseville Police Department arrested the defendant at an apartment building in Roseville on an escape warrant. At the station, the defendant was interrogated and told by police that they had enough evidence to charge him with the murder of Cynthia Cadieux. Although the police did not tell the defendant the date of the murder, defendant stated that he could not have committed the crime because he knew where he was on January 15, 1976. When asked if he could help the police on this matter, defendant replied, "Yes, I can help you". He was then asked if the police had the "right people" and defendant replied, "Yes, you got the right people". Defendant admitted to Detective Scott that he drove the car; however, defendant claimed that Ray Heinrich was the only one to hit the girl because that was Heinrich's "bag". Defendant submits nine issues for our determination.

I. Was reversible error committed at the preliminary examination when the people's witnesses were allowed to testify, subject to further proof of the corpus delicti, as to extra-judicial statements made by defendantl ?

Defendant contends that the examining magistrate committed error requiring reversal by allowing testimony concerning inculpatory statements made by the defendant prior to the establishment of the corpus delicti. Michigan law holds that proof of the corpus delicti must be demonstrated independent of a defendant's confession, and that evidence of the confession is inadmissible until the corpus delicti is thus shown. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). The rule applies equally to the preliminary examination. People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975).

The body of Cynthia Cadieux was discovered on January 16, 1976, and an autopsy was thereafter performed by Oakland County Chief Medical Examiner, Dr. John Burton. Dr. Burton subsequently retired, moved to the State of Washington, and thereafter refused to voluntarily appear at the preliminary examination. Dr. Burton informed the prosecutor that since he did not like to fly in an airplane and that since his 95-year-old mother was in Washington, he would not voluntarily return to Michigan. The people were thus forced to compel the witness to return to Michigan pursuant to the Uniform Reciprocal Act for the Production of Witnesses. *fn1

In light of these facts, the examining magistrate decided to proceed as far as possible on the first day of the preliminary examination and to continue the hearings when the presence of Dr. Burton could be secured. The preliminary examination commenced with the people's first two witnesses establishing that the nude and battered body of a young female was found in a snowbank in Oakland County. Ordinarily, the next witness should have been Dr. Burton but, as noted, he was not available. Instead, Gary Krowl testified as to inculpatory statements made by defendant. Defense counsel objected to allowing this testimony until the corpus delicti had been established. The magistrate held that Krowl's testimony would be tentatively received subject to subsequent introduction of proof of the corpus delicti independent of the statements or confession of the defendant. Additionally, the magistrate permitted defense counsel to reserve cross-examination of Krowl until the corpus delicti was established.

Later, the prosecutor asked the magistrate if the testimony of Detective Richard Scott of the Roseville Police Department could be adjourned. Defense counsel objected to the adjournment; he could see no reason for not proceeding. Therefore, Detective Scott's testimony was taken subject to the earlier provisions for allowing further cross-examination pending independent proof of the corpus delicti.

The corpus delicti of first-degree murder includes proof: (1) of a death; (2) that such death was caused by a criminal agency or instrumentality; and (3) of the element distinguishing first-degree murder from second-degree murder, here, that the death occurred during the perpetration or attempted perpetration of a rape. See Allen, supra, adopting the Dissent of Judge (now Justice) Levin at 39 Mich App 483, 494; 197 NW2d 874 (1972), and People v Hawkins, 80 Mich App 481; 264 NW2d 33 (1978). The underlying corpus delicti does not include the identity of the perpetrator. Allen, supra, 505, People v Randall, 42 Mich App 187, 189-190; 201 NW2d 292 (1972).

In the instant case, the people made a good faith effort to introduce their case in accordance with the dictates of Allen, supra. When the presiding magistrate at the preliminary examination was confronted with the realities of a busy schedule and a recalcitrant witness, he arrived at a fair solution. The prosecution was allowed to proceed with the available witnesses, but their testimony was not to be considered until the corpus delicti was subsequently proven by evidence independent of the inculpatory statements. There was substantial compliance with the dictates of Allen, particularly so, since this was a non-jury proceeding. This assignment of error is rejected.

II. Did the circuit court abuse its discretion in denying defendant's request for substitution of appointed counsel ?

Defendant maintains that the trial court abused its discretion by denying his request for substitution of appointed counsel with the result that defendant had to retain his own counsel.

While an indigent defendant is guaranteed the right to be represented by counsel, an accused has no right to have counsel of his own choosing appointed nor does he have the right to have his appointed counsel replaced on a whim. People v Krist, 93 Mich App 425; 287 NW2d 251 (1979).

An indigent defendant is not constitutionally entitled to the appointment of an attorney of his choice. People v Eddington, 77 Mich App 177; 258 NW2d 183 (1977), Krist, supra. Nevertheless, he may be entitled to have his assigned lawyer replaced upon a showing of adequate cause. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), People v Bradley, 54 Mich App 89; 220 NW2d 305 (1974). The decision regarding substitution is entrusted to the trial court's discretion and will not be overturned on appeal absent an abuse of that discretion. Eddington, supra.

On April 6, 1978, a hearing was held before the Macomb County Circuit Court pursuant to a motion to withdraw made by attorney Keller, who at the time had been appointed to represent defendant. Mr. Keller indicated that his motion to withdraw was based upon a request by defendant. Keller indicated that the defendant was dissatisfied with his services because he was unable to secure a sodium pentothal test for the defendant and he was unable to secure defendant's removal from the Macomb County jail to the Jackson state prison. The circuit Judge, in response to those allegations, unequivocally informed the defendant that a sodium pentothal test was inadmissible and in any event he would not order such a test even pursuant to motion. In regard to the transfer to the Jackson state prison, the trial Judge indicated that such a move was beyond the powers of defense counsel. Finally, the trial court stated that Keller was, in its opinion, one of ...

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