People v. Howard

Decision Date21 May 1974
Docket NumberNo. 10,10
Citation391 Mich. 597,218 N.W.2d 20
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward HOWARD, Defendant-Appellant.
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Dept., Michael R. Mueller, Wayne County Pros. Atty., for plaintiff-appellee.

State Appellate Defender Office by Judith K. Munger, Asst. Defender, Detroit, Sharon M. Sloan, Researcher on Brief, for defendant-appellant.

Before the Entire Bench.

COLEMAN, Justice.

Defendant is appealing a jury verdict finding him guilty of armed robbery. This was affirmed by the Court of Appeals in an unpublished opinion. People v. Howard, No. 13083 (1973).

The incident occurred on December 3 1970 at the O'Mack Bar in Detroit. Two men committed the robbery. One was armed with a pistol, the other with a sawed-off shotgun. The patrons were made to lie on the fllor and surrender their valuables.

On December 18th, an automobile was stopped because it was being driven without lights after dark and was on the wrong side of the street. Defendant was a passenger in the rear seat. The driver had a sawed-off shotgun standing between his legs, the butt of the gun resting on the floor. Defendant subsequently was arrested for the armed robbery of the O'Mack Bar.

The first witness at trial, a barmaid, identified defendant as being the robber holding the shotgun. She had previously identified him in a lineup. When shown the shotgun, at first she identified it as the one used in the robbery and on further examination, she said it looked like the one used in the robbery.

The next witness, a customer, also made an in-court identification of defendant as being the man with the shotgun. He said that he thought the shotgun taken from the car was approximately four inches longer than the robbery weapon. A second barmaid identified defendant. She testified that the shotgun was similar to the one used in the robbery. Another employee gave similar testimony. She also recalled identifying defendant when shown some photographs after the robbery.

The fifth witness was a customer. He identified defendant as the robber with the shotgun. When shown the weapon he said it was similar to the one used in the robbery. Another customer could not positively identify defendant but he did say the shotgun was similar to the robbery weapon.

The next witness identified himself as the robbery who was holding the pistol. He identified defendant as being his partner in this particular crime. He said defendant used a sawed-off shotgun. When shown the weapon produced in court, he said it was similar to the robbery weapon.

Following this testimony the jury was excused and a separate record was made to determine if the shotgun should be admitted into evidence. One of the arresting officers testified regarding the aforementioned circumstances of the arrest, also including the fact that the two in the back seat of the car ducked down when the police approached. The prosecutor and defendant's attorney presented arguments and briefs. After deliberating overnight, the court ruled in favor of admissibility.

When the jury was returned, the arresting officer testified. The prosecution moved to introduce the weapon. Defendant's counsel objected. After admitting the evidence, the court, without request, cautioned the jury as follows:

'There has been no testimony that this is the sawed off shotgun. Now, you will remember that. So I am admitting that gun into evidence for your consideration; it is up to you to determine under the facts and circumstances of the arrest, and who was arrested at the time, and what was found; you will assess the weight that you will give to that Exhibit in this case.'

Defendant presented one witness. His mother-in-law said he spent the night of the robbery in her house.

In the Court of Appeals defendant alleged two instances of reversible error. He said the trial court did not give correct instructions regarding the alibi defense. There was no objection to the instructions at trial. The Court of Appeals noted the judge's frequent references to the prosecutor's duty to prove all elements of the offense and the defendant's involvement beyond a reasonable doubt. The Court of Appeals noted the judge's frequent reminders that the defendant was not obligated to prove anything. The Court of Appeals was 'satisfied the jury understood that this defendant's alibi defense need only to have raised a reasonable doubt to justify acquittal.' We are convinced there was no error in the instructions.

Also challenged was the court's admitting the shotgun into evidence. The Court of Appeals said that the shotgun

'was sufficiently connected with the offense for which defendant was on trial to warrant its introduction into evidence. The fact that the sawed off shotgun was not specifically identified as the weapon used in the robbery but was only identified as being similar to the one used in the robbery goes to the weight of the evidence and not its admissibility.'

Leave to appeal was granted 389 Mich. 807 (1973).

Defendant has made two attacks concerning admission of the shotgun. He claims the evidence was irrelevant because it was not found in defendant's possession nor was it specifically identified as the robbery weapon. Even assuming that the gun was admissible, defendant claims its prejudicial effect was so great that it was an abuse of discretion to admit it.

How are we to evaluate the relevancy of the proffered evidence? Defendant has cited this passage by Justice Cooley in Stewart v. People, 23 Mich. 63, 9 Am.Rep. 78 (1871) concerning the use of impeachment evidence:

'The proper test for the admissibility of evidence ought to be, we think, whether it has a tendency to affect belief in the mind of a reasonably cautious person, who should receive it and weigh it with judicial fairness.' (P. 75).

Justice Cooley further said the judge 'ought to be allowed a reasonable discretion in such cases' which 'ought not to be set aside except in a clear case of abuse.' (P. 76.)

This preeminent jurist understood the difficulty of trying to devise a mechanical test for determining relevancy. The trial judge must draw upon his own wisdom and experience in making a decision. It is not within the role of the appellate courts to second guess such judgment. They should intervene only when clear abuse is shown.

Our statutes and court rules reflect this conclusion. M.C.L.A. § 769.26; M.S.A. § 28.1096 says in part:

'No . . . verdict shall be . . . reversed or a new trial be granted by any court of this state in any criminal case, on the ground of . . . improper admission or rejection of evidence . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.'

Also see GCR 1963, 529.1.

In the instant matter, the trial judge heard the testimony, saw the witnesses, listened to arguments and read the briefs. He decided that the shotgun should be admitted. He told the jury, in effect, to 'receive it and weigh it with judicial fairness.' Compare People v. Kelly, 386 Mich. 330, 192 N.W.2d 494 (1971).

Defendant argues that the shotgun was not relevant and if relevant, that the probative value of the otherwise admissible evidence was outweighed by its prejudicial effect. It also has been argued that its probative value in this instance amounts to little or none at all in light of the several positive identifications and other strong testimony which almost certainly would have led to defendant's conviction without admission of the gun into evidence.

The fact that defendant had access to a sawed-off shotgun which at a minimum was similar to the one used in the commission of the crime is adequate at least to establish relevancy.

The argument that proof of access to the shotgun tagged defendant as a 'bad boy' and therefore was prejudicial to a fair trial is also of flimsy fabric. Although it is conceded that the probative value was not conclusive, there was real probative value in the evidence that the defendant was identified as the robber with a shotgun and he did have access to a sawed-off shotgun which was similar to and could have been the one used by defendant at the time of the robbery. As the judge properly instructed immediately upon admission of the gun, the jury was to give the evidence whatever weight it deemed appropriate.

It further is noted that no objection was made during the showing of the gun to the various witnesses and the questioning regarding identification of the gun. Only after the completion of the testimony and a motion to admit into evidence was there a motion to suppress. By this time, whatever prejudice may have flowed from the gun was a Fait accompli. The technical hurdle of admission was accompanied by the judge's statement that there had been no testimony that this 'is' the sawed-off shotgun. It was relevant and was submitted for jury consideration and assessment of weight.

Prejudice is not borne out by facts. Indeed, one of defendant's arguments is that there were so many positive identifications, including that of the other man admittedly with defendant in the perpetration of the armed robbery, that the evidence of the shotgun was not needed at all for conviction. In other words, defendant contends that the prosecutor was guilty of 'overkill'.

Argument is made that such evidence might have had sufficient probative value had it been part of a chain of circumstantial evidence, but was not necessary here.

On the face of it, this theory is subject to some limitations and use of discretion if it is not to become 'form without substance.' For instance, if such evidence is to be used in a weak case against the defendant but not in a strong case, we could distort the reflection of justice.

Practically speaking, the prosecutor normally does not have the gift of 'second sight'. He...

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