People v. Griffen

• Decision Date: 19 October 1971
• Docket Number: Docket No. 9363,No. 1,1
• Citation: 36 Mich.App. 368,194 N.W.2d 104
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon Maurice GRIFFEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 104

194 N.W.2d 104

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.

Oct. 19, 1971.

Released for Publication Feb. 9, 1972.

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 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.

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 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 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 ran by her home about 25 feet from where she was standing, and that Griffen was that man.

The shooting occurred on February 7, 1968. Eleven months later, on January 17, 1969, Clare Haynes identified Griffen in a lineup. Her description of the gunman matched that of the other eyewitnesses except that some of the witnesses said that the gunman had a goatee and Clare Haynes did not remember seeing a goatee.

Three months after Griffen was arrested, on April 11, 1969, Robert Copeland was arrested for another crime, the murder of a Beer truck driver. At Griffen's trial, Copeland testified that Griffen had told Copeland that he had killed the milk truck driver.

Before the trial, on August 8, 1969, Copeland gave the prosecutor a statement implicating Stanley Mitchell in the beer truck driver killing. The murder charge against Copeland was dismissed later that month. On November 1, 1969, Oscar Cooper was also arrested for the beer truck driver killing. It was a few weeks later, November 19, 1969, that Copeland first gave the prosecutor a statement implicating Griffen in the murder of the milk truck driver.

At Griffen's trial Copeland testified that at a party in October 1968, before either Griffen or Copeland had been arrested, and subsequently, in April 1969, after they both had been arrested and while they were in the county jail, Griffen told him that he had killed the milk truck driver.

Copeland testified that Griffen said that he shot the milk truck driver on the spur of the moment because the driver had just seen him leaving an apartment where he had killed a woman who was supposed to testify against one of Griffen's relatives. That story was inconsistent with the testimony of James Moore, who said that the gunman alighted from an automobile, put gloves on, and then walked over to the milk truck and shot the driver. It was also inconsistent with the testimony of a police officer who said that the police were not able to discover any other shooting on the same day in the area where the milk truck driver was killed.

Griffen took the stand and denied that he committed the crime. He said that he was unable to account for his whereabouts at the time the crime was committed because he was not arrested until almost a year later and he had no recollection of the day the killing occurred.

When Griffen testified he had not previously been convicted of committing a crime, he was asked by the prosecutor, over his lawyer's objection, whether he had ever been in the army. He admitted that he had not been in the army and later admitted that he had not registered for the draft.

The prosecutor also assiduously cross-examined Griffen concerning his employment record and whether Gloria Jackson had ever worked for him.

Gloria Jackson was called by the people as a rebuttal witness. She testified that she had worked for Griffen as a barmaid at a speakeasy that he operated in his apartment, that Griffen owned two handguns, ¹ and that she had gone to the police on the encouragement of a Father Ward to report what the defendant 'done to me.' What Griffen had 'done' to her was not elaborated upon. Father Ward operated a halfway house to which Gloria Jackson had been paroled after she left the Adrian Girls Training School.

During his jury argument the prosecutor stressed Gloria Jackson's testimony that she had gone to the police at the suggestion of Father Ward, that she had given the police a statement and defense counsel had been given an opportunity to read the statement and after reading it he had decided not to cross-examine her regarding the contents of her statement: 'I ask you why (defense counsel) didn't cross-examine after spending five minutes reading that statement?' The prosecutor also asked the jury to consider 'the credibility of a man who doesn't register for the draft' and his 'employment of Gloria Jackson.'

The prosecutor's questions and argument manifestly exceeded permissible bounds.

Griffen was on trial for a capital offense. The issue to be decided by the jury was whether he was the gunman who killed the milk driver. The people's case was far from conclusive. Clare Haynes, the only witness who claimed she could identify the gunman, conceded that she had seen a full view of his face for not more than a second. The details of Robert Copeland's testimony that Griffen had admitted committing the crime were inconsistent with established facts; moreover, Copeland had a possible motive for fabricating his testimony.

The meritorious issue may well have been resolved against Griffen because the jury was deflected from temperate consideration of the real issue by the introduction of irrelevant, inflammatory testimony concerning his past.

The observations of the Michigan Supreme Court in People v. Pinkerton (1889), 79 Mich. 110, 114, 44 N.W. 180, are in point:

'in a criminal case, we do not think it competent to compel a respondent who is a witness to answer questions, irrelevant to the issue, having a tendency to bring in other charges. Whatever latitude is proper in cross-examination to test veracity, it cannot properly introduce independent issues, against the person who is both witness and respondent.'

In the cited case, Jennie Pinkerton's conviction of keeping a house of ill fame was reversed because, among other errors, there had...