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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CLARENCE WATSON HERNDON, Defendant-Appellant.

FOR PUBLICATION June 15, 2001 9:05 a.m. No. 216239 Washtenaw Circuit Court LC No. 97-008395-FC Updated Copy August 31, 2001

Before: M.J. Kelly, P.J., and Whitbeck and Collins, JJ. WHITBECK, J. Defendant Clarence Herndon appeals as of right his jury conviction of first-degree murder of a corrections officer. The trial court sentenced him to life imprisonment without parole, to be served consecutively to the prison sentence he was serving at the time of the killing. We affirm his conviction, but remand for administrative correction of clerical errors in his judgment of sentence.
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I. Basic Facts Tammy Sperle worked in the prison store at the Huron Valley Men's Facility (HVMF) in Washtenaw County. Herndon worked at the prison store for about four weeks in the summer of 1994; at least part of that time was with Sperle. Though Sperle evidently had no complaints about Herndon's conduct, she asked prison officials to reassign him to another position elsewhere in the prison when an injury Herndon sustained prevented him from being able to lift heavy items, as the job required. When removed from his position at the prison store, Herndon filed a grievance. He also tried to be reinstated at the prison store several times, with the latest attempt on December 13, 1995. Sperle went to work at the prison store on February 5, 1996. She met with Herndon and other inmates who served on the prison store committee, which met between 8:00 a.m. and 10:00 a.m. The store committee generally made recommendations to the storekeeper, Sperle, regarding
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MCL 750.316.

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what items to stock and the price at which to sell items. At this meeting, the committee members were given samples of soup to determine if the prison store should sell it. At approximately 11:30 a.m., prison employee John Jeffries spoke with Sperle on the telephone, but when he walked past the prison store at 11:45 a.m., he noticed that it was closed. When Perry Taylor, an HVMF employee who worked in the prison warehouse, went to the store between 1:15 p.m. and 1:30 p.m. to deliver supplies, he discovered Sperle's body on the floor. Sperle was lying on her back, her arms were extended, and she was surrounded by blood. Taylor used his key to enter the storeroom from a hall, but saw that another door that led to the front entrance to the prison yard was open. When he saw Sperle's body, Taylor immediately notified the corrections officer sitting outside the door that Sperle needed medical attention. Harvey Dutcher, a hearing investigator at the prison, responded to the calls for help. He observed that Sperle looked as if she had been beaten badly, her face was bloody, and some of her teeth had been knocked loose. Dutcher checked for Sperle's pulse and when he did not feel one, he started cardiopulmonary resuscitation (CPR), but failed to revive Sperle. When Lola Garland, a resident nurse manager at the prison, arrived at the scene she performed mouth-tomouth resuscitation while Dutcher performed chest compressions. She observed that Sperle's chest did not rise as expected when she blew air into Sperle's mouth. Garland believed that the victim was already dead because Sperle's skin was pale and cold. Dutcher and Garland both noticed a cup of instant soup lying on the floor a few inches from Sperle's body. James Whiteman, a nurse at the prison, joined Dutcher and Garland in less than a minute after he received the distress call. Dutcher and Garland were already performing CPR on Sperle, but air was not entering Sperle's lungs. Whiteman, who observed that Sperle's facial bones were broken, tried to open Sperle's airway, but noticed that a cord was bound around her neck so tightly that it was imbedded in her skin and not visible to a casual observer. Whiteman then cut the cord off Sperle's neck and again began to perform CPR. He or another medical professional who responded to the call for help administered medication to Sperle to stimulate her heart, but Sperle never regained a pulse. Because Sperle's neck had become so swollen from the cord wrapped around her neck, Whiteman and an emergency medical technician performed a tracheotomy on Sperle in the hope that they would be able to get air into her lungs. The emergency medical professionals continued to attempt to revive Sperle as they transported her to the hospital, but never succeeded. Sperle was pronounced dead at the hospital. Prison officials sounded an alarm at 1:45 p.m. According to Sergeant Lee Boardman and Ronald Koch, resident unit officers (RUO) in Herndon's housing unit at HVMF, the alarm required prison employees to lock all doors and secure the inmates in their cells so the employees could account for all the inmates. Neither man knew why the alarm had sounded, but they were instructed to do a room-to-room search to determine if any inmates had abrasions, marks, or cuts on their hands. Boardman and Koch both observed that Herndon had cuts and bruises around his fingers or knuckles; he was the only inmate with wounds that looked fresh. After checking the other inmates, RUO Koch and resident unit manager (RUM) Dennis Hammond returned to Herndon's cell to ask him how he injured his hands. When Herndon gave

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conflicting stories, they placed him in handcuffs and took him to a segregation area, where Herndon was strip-searched and his shoes were confiscated. Prison officials subsequently searched Herndon's cell and seized a blue jacket with dark stains, a pair of green pants, and a pair of damp gloves. Their investigation into Herndon's whereabouts before, during, and after the murder revealed that, following the prison store committee meeting, HVMF staff checked Herndon into his cell at 10:35 a.m. Herndon was released for lunch at approximately 11:55 a.m. and did not return until 12:50 p.m., even though he was only supposed to be gone thirty-five to forty minutes. At 1:00 p.m. Herndon was released unescorted with other inmates to go to the field house or to the yard. Ervin Brown, an inmate who worked in the prison laundry in February 1996, was able to account for some of Herndon's time on the day of the murder. Brown said that Herndon brought him soup at approximately 10:00 a.m. Herndon then approached Brown in the laundry room at about 1:00 or 1:15 p.m. Brown thought that Herndon looked nervous or tense and had some blood on his face, which Brown removed with a soapy towel. Herndon reportedly asked Brown to wash his jacket and a pair of gloves, which Brown saw had blood on them. Brown asked Herndon if something was wrong and Herndon purportedly replied, "[D]on't worry about it. The less you know the better." Herndon then left the laundry, but returned approximately forty minutes later to retrieve the laundered jacket and gloves. At that time he gave Brown a pair of pants and a shirt to be washed immediately. Brown saw what appeared to be blood spots on the pants and told Herndon that he wanted to know what was going on and Herndon replied that "in a few minutes they were going to find a body." Brown said that he put the shirt and bloody pants in the blood pathogen hamper because the police did not "go into" that hamper, but before he could wash the clothes, the emergency siren sounded and he had to return to his cell for the inmate count. The prison was locked down for the next four or five days, during which time Brown learned of Sperle's murder. He then contacted RUM Hammond to reveal what he knew. Brown showed RUM Hammond Herndon's bloody pants, which were still in the hamper. DNA analysis conducted as part of the investigation into this crime revealed that Herndon's pants, jacket, and shoes had blood on them that matched Sperle's blood. Fingerprint analysis revealed that one of Herndon's fingerprints was on the soup container that was lying on the floor next to Sperle's body. Herndon, who testified at trial, disclaimed any part in the murder and denied that the shoes and clothing introduced into evidence belonged to him. He explained that following the prison store committee meeting he gave inmates Brown and Johnson soup samples. According to Herndon, he injured his knuckles when he passed the soup sample through the food slot in Johnson's cell. He also said that he did not go to the dining room on the day of the murder. Instead, he went to the day room and had his soup sample for lunch. He was locked up from 12:45 p.m. until 1:00 p.m., when he went to the utility room to play chess. When he heard the alarm, he returned to his cell. Because his theory was that another inmate killed Sperle, Herndon called several other inmates to testify regarding who they believed had a reason or opportunity to commit the murder. For instance, one inmate stated that he saw inmate and prison store worker James Friar, who looked nervous, sitting on a bench near the prison store at around the time of the murder. Also, two weeks before the murder, inmate Steven Foster, another prison store -3-


worker, reportedly threatened to kill Sperle and, on the day of the murder, he cut himself shaving and used a towel to wipe away the blood. Despite this evidence on behalf of the defense, the jury convicted Herndon of Sperle's murder. II. Arguments On Appeal By our count, and even when combining arguments as logic dictates, Herndon has raised no less than eighteen issues in his appeal. While some issues stand alone, the vast majority relate to the evidence admitted or excluded at trial, with issues regarding pretrial procedure comprising the next largest category. For the most part, though Herndon has done his best to make each of these issues appear to be constitutional in nature, this is a routine appeal in the sense that most of the issues he raises are raised frequently in other appeals and properly considered without an analysis that focuses on constitutional principles. With plentiful case law defining the analysis on the majority of these issues, we attempt to avoid muddying the legal waters by providing only a brief examination of all but one of these issues. That single issue, which merits publication, is the one we address first: whether MCL 750.316(1)(c), prohibiting murder of corrections officers, violates due process. III. The Murder Statute A. Standard Of Review Whether a statute violates due process2 is a question of constitutional law this Court reviews de novo.3 B. Constitutionality At the time Sperle was murdered, the first-degree murder statute, MCL 750.316, provided in relevant part: (1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life: * * * (c) A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, with knowledge that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.
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US Const, Am XIV; Const 1963, art 1,

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