People v. Webb, Docket No. 27284

• Decision Date: 21 March 1978
• Docket Number: Docket No. 27284
• Citation: 266 N.W.2d 483,82 Mich.App. 182
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee WEBB, Defendant-Appellant. 82 Mich.App. 182, 266 N.W.2d 483
• Court: Court of Appeal of Michigan — District of US

Page 483

266 N.W.2d 483

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee WEBB, Defendant-Appellant.

Docket No. 27284.

82 Mich.App. 182, 266 N.W.2d 483

Court of Appeals of Michigan.

March 21, 1978.

Released for Publication June 14, 1978.

[82 MICHAPP 183] Solomon & Stern by Barry E. Solomon, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Raymond P. Walsh, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P. J., and KAUFMAN and McDONALD, ^* JJ.

PER CURIAM.

Defendant Robert Lee Webb and a codefendant, one Henderson, were charged with two counts each of first-degree murder, M.C.L.A. § 750.316, M.S.A. § 28.548. The date of the offense was March 10, 1975, in the City of Detroit.

[82 MICHAPP 184] On September 24, 1975, defendant filed a motion to sever the trials of himself and Henderson, claiming that the positions were antagonistic. The motion was heard and denied on October 7, 1975. Trial commenced on November 24, 1975, in Recorder's Court and continued until December 5, 1975.

On December 12, 1975, the jury returned a verdict of guilty on both counts of the charged offense in regard to defendant. The jury was unable to reach any verdict as to Henderson. On December 23, 1975, defendant was sentenced to two concurrent terms of life imprisonment. Appellate counsel having been appointed, defendant appeals as of right.

At the beginning of the trial, both defendants renewed their respective motions to sever and these motions to sever were again denied.

The decision to try codefendants jointly or separately is in the discretion of the trial court. M.C.L.A. § 768.5; M.S.A. § 28.1028. To find an abuse of discretion where a trial court has denied a motion for severance, it must be shown that the joint trial worked to prejudice the rights of at least one of the defendants.

In the present case, defendant claims that the Court abused its discretion in denying a motion to sever because the defense theories of the codefendants were antagonistic. In particular, defendant claims that his codefendant's theory of the case was that defendant alone committed the offense, making the codefendant a victim of circumstances. Defendant contends that he should not have been required to defend against the accusations of his codefendant.

The case law supports defendant's position. In People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976), [82 MICHAPP 185] the Michigan Supreme Court dealt squarely with the question of a joint trial where the codefendants accuse each other of the crime. The Hurst court stated:

"The general rule is that a defendant does not have a right to a separate trial. Joinder of defendants for a trial is usually within the discretion of the court. However, '(a) severance should be granted when the defense of several defendants jointly indicted are antagonistic to each other'. 5 Wharton's Criminal Law and Procedure, § 1946; Anno: Right to severance where two or more persons are jointly accused, 70 A.L.R. 1171.

"The commentary accompanying the American Bar Association Standards Relating to Joinder and Severance states: 'it has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other.

" 'A separate trial will be ordered where the defenses of the accused are antagonistic * * *.' State v. Klein, 97 Conn. 321, 116 A. 596, 597 (1922).

" 'Where defenses are antagonistic and one defendant accuses the other, thus making it impossible for the defendants asking for a severance to have a fair trial, the severance should be granted.' People v. Meisenhelter, 381 Ill. 378, 45 N.E.2d 678, 684 (1942)." (Footnote omitted.) 396 Mich. at 6, 238 N.W.2d at 8.

Quoting from People v. Braune, 363 Ill. 551, 557, 2 N.E.2d 839, 842 (1936), the Hurst court set forth the prejudicial impact of a joint trial involving antagonistic defendants:

" 'The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other. Any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial.' " 396 Mich. at 7, 238 N.W.2d at 9.

[82 MICHAPP 186] In State v. Thibodeaux, 315 So.2d 769 (La.1975), also cited with approval in Hurst, supra, the Louisiana Supreme Court reversed the denial of a pretrial motion for severance where it appears from the arguments of counsel that the defense theories would conflict:

"The only evidence adduced at the hearing held on the motion was the testimony of counsel for Thibodeaux, who testified that the gravamen of his intended defense of Thibodeaux would be to establish that the contraband forming the basis of the prosecution, which was found in an apartment shared by the defendants, was the sole property of Sallettes and that Thibodeaux had no knowledge of its existence.

"Thus, the thrust of Thibodeaux's defense is directly accusatory of Sallettes, requiring him, in effect, to stand trial before two accusers, the state and Thibodeaux. Under these circumstances, justice requires that the joint charge be severed to allow the separate trial of each defendant." 315 So.2d at 770-771.

The record in the present case reveals that the trial court was aware of the claimed antagonism of the defense theories in sufficient time to have granted defendant's motion for severance. The motion to sever was first made prior to trial and this motion was heard and denied on October 7, 1975.

The motion was raised again by defendant at the start of the joint trial.

When the motion was renewed at the start of the trial, in response to the court's inquiry as to whether the reasons were any different from those contained in the motion prior to trial, the following occurred:

[82 MICHAPP 187] "MR. ARDUIN (defense attorney): No, your Honor, but I do want to tell the Court that these defenses, your Honor, are inconsistent and they are antagonistic, and I believe, your Honor, because of the inconsistencies of the defense, that my client will not be receiving a fair trial if your Honor has us go ahead and try this case together.

"That's my motion your Honor.

"THE COURT: That's a luxury that's pretty hard to afford in this court, as busy as we are."

The codefendant also requested the severance of these trials and the court's response was that it thought it would be a fair trial if both parties were tried jointly.

A reading of this discussion indicates that the trial court was put on notice of a potential conflict between the defendants and this conflict became clearly apparent as the defendants began to present their cases and continued throughout the argument and testimony. The trial thus became the type of prejudicial confrontation between codefendant contemplated by the court in Hurst and Thibodeaux. The trial court, having been advised of this upcoming conflict, erred in failing to grant defendant's motion to sever the trial.

Defendant also alleges misconduct on the part of the jurors and error on the part of the court for allowing testimony of a key witness to be recreated after the transcript of that testimony could not be prepared. Defendant also claims that he was denied his right to appeal for a portion of the transcript could not be produced and the court held a hearing to reconstruct the testimony and settle the record. Since none of these last enumerated items are apt to reoccur at the subsequent trial of this defendant, it is not necessary to write [82 MICHAPP 188] further concerning any of the other claimed reasons for appeal.

The denial of the motion to sever was prejudicial error. The conviction of the defendant is reversed and the matter is remanded for trial.

D. E. HOLBROOK, Presiding Judge (dissenting).

This writer is constrained to respectfully disagree with the result required by the majority in their opinion. It appears to this writer that defendant-appellant received a fair trial and that no prejudice resulted to him in being tried with codefendant Henderson. Defendant-appellant Webb had been a guest of Henderson in his apartment for several weeks before the two murders, which are the subject of this criminal proceeding, occurred. Both men had girl friends living with them in the apartment. Webb's girl friend left the apartment on March 8, 1975, two days before the murders. There was testimony (not Henderson's) in the case to indicate that Webb thought Big Jim was hiding her. Big Jim was one of the victims of the murder. Big Jim and the other victim were in Big Jim's apartment on the first floor where the murders occurred and Henderson's apartment was on the third floor of the same apartment building.

On the morning of the offense, March 10, 1975, Webb and Henderson went downtown to get Webb's two welfare checks. After obtaining the checks, Webb cashed one check and purchased a shotgun for $48 at a pawnshop. Then both men had a drink at a bar and visited a friend of Webb. It is unclear where they obtained the shells for the shotgun, but evidently they had them for when they arrived at the apartment Webb had the shotgun and Henderson had a sack of shells. Previous to returning to the apartment Webb purchased a [82 MICHAPP 189] bottle of gin or vodka, took it with him to Henderson's apartment and drank it with Patricia Young, a friend who came over from another apartment in the same building. Neither Henderson nor his girl friend drank any of it. There was no dispute of the fact that the gun was at the apartment and that Webb had it. Webb testified that he bought the gun for his father. He further testified that about 1:30 in the afternoon of the day in question, he left the apartment and went to his mother's home...