194 N.W.2d 104 (Mich.App. 1971), 9363, People v. Griffen

Docket Nº:Docket No. 9363.
Citation:194 N.W.2d 104, 36 Mich.App. 368
Opinion Judge:Before LEVINand QUINN and V J BRENNAN, JJ
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Maurice GRIFFEN, Defendant-Appellant.
Attorney:[36 Mich.App. 370] Armand D. Bove, Harper Woods, for appellant. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for appellee.
Judge Panel:Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.
Case Date:October 19, 1971
Court:Court of Appeals of Michigan

Page 104

194 N.W.2d 104 (Mich.App. 1971)

36 Mich.App. 368

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Leon Maurice GRIFFEN, Defendant-Appellant.

Docket No. 9363.

Court of Appeals of Michigan, Division No. 1.

October 19, 1971

Released for Publication Feb. 9, 1972.

Page 105

[36 Mich.App. 370] Armand D. Bove, Harper Woods, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for appellee.

Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.

QUINN, Judge.

Convicted by a jury of murder of the second degree, M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549), defendant was sentenced and he appeals.

Two of the alleged errors relied on for appellate relief were not saved for review, namely: the claimed error in the charge of the court to the jury and the [36 Mich.App. 371] claim that the pretrial identification process vitiated the in-court identification.

Defendant's request for expert witnesses at trial was denied and this denial is asserted as reversible error. Defendant requested that he be furnished a surveyor to survey the area of the crime in order to determine distances involved. The trial judge furnished defendant with a survey map of the block in question which contained pertinent distances and photographs of the street. We find no reversible error in the denial of defendant's request for a surveyor.

An artist for the FBI made a composite sketch for a police 'wanted' circular. Defendant requested production of the artist at trial. The artist was in Washington, D.C. at the time, and the trial judge denied the request. The sketch was not introduced in evidence and two eyewitnesses indicated that the sketch did not resemble the man they saw. Defendant's claim of reversible error in denying his request for production of the artist is not sustained by the record.

During his charge to the jury, the trial judge said:

'I may say that I don't believe this jury is going to have much difficulty in arriving at the conclusion that a felonious homicide was committed, and that the homicide was second degree murder.'

The comment was improper, and if the fact that a homicide had been committed had been disputed, it would require reversal, People v. Wichman (1968), 15 Mich.App. 110, 166 N.W.2d 298. However, the fact that a homicide had been committed was not disputed at trial. The contest was over who did it and defendant's defense was that he did not do it. If the comment was error, it was not reversible error.

[36 Mich.App. 372] During its deliberations, the jury requested that portions of witness Copeland's testimony relating to statements made by the defendant to Copeland in the county jail be read back to them. This was done and defendant objected because Copeland's cross-examination was not read. The trial judge overruled the objection and defendant contends this was reversible error. What the jury requested was read; there was no direct conflict between Copeland's testimony on direct and cross-examination. The reading of testimony back to the jury and the extent thereof is a matter of discretion, People v. Shuler (1904), 136 Mich. 161, 167, 98 N.W. 986. This record does not establish abuse of that discretion.

Defendant requested that his assigned counsel be dismissed. This request was granted but at the judge's request, counsel remained to help defendant, if needed. Counsel conducted the voir dire examination of the jury and cross-examined some witnesses. Defendant's claim of reversible error because he was denied his right to proceed in propria persona is not sustained on this record.

Finally, defendant's contention that he was denied a fair trial is not sustained on this record. Most of the turmoil, chaos

Page 106

and confusion relied on to support this claim was created by defendant.

Affirmed.

LEVIN, Presiding Judge (dissenting).

The defendant, Leon Maurice Griffen, was convicted of murdering a milk truck driver.

A number of witnesses saw a man running from the scene of the crime. At the trial none of the [36 Mich.App. 373] witnesses could identify Griffen as the gunman except Clare Haynes. She testified that she saw a full view of the gunman's face for 'a second or half a second' as he...

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