People v. Bryan, Docket No. 77-3006

• Decision Date: 05 September 1979
• Docket Number: Docket No. 77-3006
• Citation: 284 N.W.2d 765,92 Mich.App. 208
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas J. BRYAN, Defendant-Appellant. 92 Mich.App. 208, 284 N.W.2d 765
• Court: Court of Appeal of Michigan — District of US

Page 765

284 N.W.2d 765

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas J. BRYAN, Defendant-Appellant.

Docket No. 77-3006.

92 Mich.App. 208, 284 N.W.2d 765

Court of Appeals of Michigan.

Sept. 5, 1979.

Rehearing Denied Oct. 29, 1979.

Released for Publication Nov. 9, 1979.

[92 MICHAPP 212] James R. Neuhard, State App. Defender by Lynn Chard, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., Thomas J. Rasdale, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and BRONSON and CYNAR, JJ.

CYNAR, Judge.

Following a jury trial in early May of 1977, defendant was convicted of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284. On June 13, 1977, he was sentenced to concurrent terms of 25 to 40 years imprisonment on each count. Defendant now appeals as of right.

The charges against defendant arose out of an incident in Bay City on the evening of April 7, 1976, in which the complainant, Albin Trojanowicz, was struck on the head with a hammer and stabbed with a knife. Defendant and two others, Brian Miller and Rick Miller, were arrested and bound over on assault charges as a result of this incident. Defendant was tried separately from the other defendants.

At the trial Donald Elder testified that he was drinking with defendant and the Millers on the afternoon of the offense. At one point defendant suggested that he and Elder "go and raise some hell and get in trouble", but Elder declined this offer.

[92 MICHAPP 213] Diane Blair testified that she was riding in a car with defendant and the Millers on the evening of the offense. Defendant was in possession of a knife at that time. When the occupants of the car noticed a man who appeared drunk walking down the street, either defendant or Brian Miller suggested that they "roll" him. Defendant and Brian Miller left the car, the latter carrying a hammer, and Rick Miller drove to his mother's house. The witness further testified that shortly thereafter defendant and Brian Miller appeared, both with bloody hands. At that time defendant said that they had killed a man and Brian Miller admitted striking someone with a hammer. Defendant and Brian Miller then washed and concealed the hammer. Ilene Miller, the mother of the two codefendants Miller, testified that she noted blood on defendant's hand and that she helped defendant dispose of a knife and a hat he had been wearing.

The complainant, Albin Trojanowicz, died prior to trial from causes not related to the assault and his preliminary examination testimony was read into the record at trial. He testified that he was walking home that evening when he was attacked by what he thought were two men. He stated that he was hit on the head and struck in the stomach. He testified that he remembered blood splashing and then recalled nothing until he awoke in the hospital. Medical testimony established that the complainant had been struck on the head and stabbed on the side. He had bled profusely and would have died had he not been treated.

Unknown to the occupants of the car that evening, an undercover operation in an unrelated matter, consisting of several officers, had spotted the vehicle. They saw two men leave the vehicle but did not witness the assault. When a passerby [92 MICHAPP 214] discovered the complainant and contacted the police, a bulletin was put out on the car. Twenty-five minutes later the vehicle was stopped. At the time defendant was its only occupant. The arresting officers noticed blood near the driver's side of the car and on defendant's shoes. Evidence at trial showed that this blood type matched the blood type of the victim. Both the knife and the hammer were retrieved and admitted as exhibits at trial.

Defendant's defense was that of intoxication. He claimed he had consumed 25 to 30 beers and a pint of schnapps on the day in question and that he did not intend to commit the crimes. He did admit striking the victim in the chest, allegedly in response to something he had said, but denied possessing a knife at that time. The arresting officers testified that defendant did not appear intoxicated to them.

Defendant also introduced evidence to explain the blood found in the car and on his shoes. Defendant's brother, Mark Bryan, testified that on April 4, 1976, he had been in a fight and knocked unconscious. When he awoke defendant was holding his head. Medical records indicated that the blood found on the tennis shoes, Levi's, and on the automobile at the time of defendant's arrest matched the blood type of defendant's brother.

I. Use of defendant's statements.

Defendant initially alleges that the prosecution denied defendant a fair trial by its use of statements made by defendant shortly after arrest.

At trial Sergeant Edward LaPlant, one of the arresting officers, testified that he asked defendant what had happened shortly after his arrest. Defense counsel objected before the officer could state defendant's response to the question. He requested a mistrial, claiming that the prosecutor had told [92 MICHAPP 215] him that defendant had made no statements. In response the prosecutor agreed that he had said there were no statements by defendant. However, he added that he had never said there were no "remarks" made by defendant at the time of his arrest.

After considerable argument by counsel, defendant's motion for a mistrial was denied. The trial judge did order a Walker ¹ hearing to determine the voluntariness of the alleged statements. In the course of this hearing Sergeant LaPlant testified that defendant was advised of his Miranda ² rights at the time of his arrest. He testified that immediately thereafter defendant denied having done anything wrong. He further stated that later on he talked to defendant at the police station. However, at that point the witness was cut off by the prosecutor who stated:

"I have to hold it here for a second. All I asked him was what did he say at the scene when he was arrested, and so that's where we are at this point. Anyhow, there was subsequent questioning at the station, but we hadn't gotten to that bridge yet."

Subsequently, defense counsel waived the production of another officer who was present at the scene of the arrest. The trial judge ruled that the statements made by defendant were voluntary. The prosecutor then indicated that he intended to present additional evidence of statements made to another officer, Sergeant Lochinski. This led to an exchange between counsel and the trial judge as to the need for an additional Walker hearing. At one [92 MICHAPP 216] point defense counsel accused the prosecution of trickery and asserted that all statements should be disclosed at one time. In response the following exchange occurred:

"PROSECUTOR: In fact, your Honor, I think that Mr. Caprathe is making a mountain out of a mole hill, I'm sufficiently satisfied with the evidence at this time. At this time, I'll abjure the use of any statements. I believe they're admissible. It's not worth the hassle.

"THE COURT: I'm concerned with the statement you made prior to this. You said in view of the fact they do not want them presented you will not present the exculpatory statements.

"PROSECUTOR: Yes. I'll leave the whole area alone. No statements from the defendant.

"THE COURT: All right. That eliminates all problems, doesn't it?"

Later in the trial, defendant chose to testify in his own behalf. In the course of cross-examination the following exchange occurred:

"Q What did you first tell the police, by the way, when they arrested you?

"A I told them I didn't know nothing about it.

"Q Told them you didn't know nothing about it, right?

"A Yes.

"Q And later on did you change your story a little bit?

"A That's just it. I can't remember what happened at the police station.

"Q Did you tell the police the story that you had given your car to Brian Miller and that he had dropped you off at the house, and that Brian and Ricky and Diane had driven somewhere? Did you tell them that story?"

At this point defense counsel objected on the [92 MICHAPP 217] ground that no Walker hearing had been held to determine the voluntariness of this latter statement. The objection was overruled and the cross-examination continued as follows:

"Q Did you make that statement to the police?

"A Not that I know of.

"Q But did you give them that story?

"A Not that I know of.

"Q Did you tell them Brian Miller had come back to the house with Ricky and Diane and stopped the car there and told you, 'Hey, things look bad. You better get out of here.'

"A Would you repeat that?

"Q Did you tell the police that they had dropped you off at the house, they had come back a short time later, Brian borrowed your car from you, said, 'I need to use it for a while.' He came back a short while later and said, 'Hey, things look really bad. You better get out of here.'

"A No, I didn't.

"Q You didn't make that statement to them, or you don't remember?

"A I don't remember it, no."

It is clear from this record that the prosecutor handled this case in a less than exemplary manner. By telling defense counsel that defendant had made no "statement" at the time of his arrest, he forestalled the holding of a Walker hearing until the middle of trial, an obviously inconvenient time for such a hearing. Moreover, his explanation for his prior comment, differentiating "statements" from "remarks", is not convincing.

We further find fault with his tactic of withholding at the ordered Walker hearing the fact of defendant's subsequent statement. It should have been obvious to him at this point that the trial judge would order a Walker hearing for Any statement[92 MICHAPP 218] made by defendant. Nor was it proper for the prosecutor to make use of defendant's statements after stating that no such statements...