People v. Bailey

• Citation: 193 N.W.2d 405,36 Mich.App. 272
• Decision Date: 01 October 1971
• Docket Number: No. 3,Docket No. 9802,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis BAILEY, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 405

193 N.W.2d 405

36 Mich.App. 272

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis BAILEY, Defendant-Appellant.

Docket No. 9802.

Court of Appeals of Michigan, Division No. 3.

Oct. 1, 1971.

Released for Publication Jan. 21, 1972.

Vernon D. Kortering, Muskegon, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.

R. B. BURNS, Presiding Judge.

Louis Bailey appeals from his armed robbery ¹ conviction. The defendant's sole objection on appeal concerns the trial testimony of a Muskegon police officer. To understand defendant's objection it is necessary to recount the eyewitness testimony of the robbery's victim, Viz., a clerk at the Muskegon grocery store in which the robbery occurred.

The clerk identified the defendant at a pretrial lineup and at trial as one of the five armed bandits who robbed the store. The clerk's identification of Bailey at the lineup was somewhat less than positive. ² The clerk was positive, however, in her identification of one Charles Salis as the person who choked her and dragged her to the rear of the store during the robbery.

Subsequent to the clerk's identification testimony, the police officer testified that Salis and Bailey had frequently associated with each other prior to the robbery. Defendant objects to this 'guilt by association' ³ testimony as being immaterial, irrevelant, and prejudicial.

We begin analysis of defendant's testimonial objection by noting and giving respect to the considerable amount of judicial discretion associated with evidentiary admissibility. People v. Williams (1969), 15 Mich.App. 683, 167 N.W.2d 358. Supporting his argument of immateriality and irrelevancy, the defendant cites the case of United States v. Smith (C.A. 6, 1968), 403 F.2d 74. In Smith, as in this case, an issue involving testimonial evidence was presented but any further analogy to the Smith case is illusory. The objectionable testimony in Smith came from a prosecution witness who stated that the defendant had 'just got out of the penitentiary.' ⁴

The rule disallowing evidence of former convictions to prove a presently-charged crime is an evidentiary axiom. ⁵ People v. Matthews (1969), 17 Mich.App. 48, 169 N.W.2d 138. See, also, 1 Wharton, Criminal Evidence (12th ed), § 232, pp. 492, 493. The testimony to which defendant objects, unlike the Smith case, involves evidence of defendant's prior relationship to a man who was positively identified as one of the robbers. Defendant does not rely on any other case to support his contention that such evidence is incompetent. Our own analysis of the law indicates that the general rule gravitates against the defendant's position. ⁶

The test of evidentiary relevancy in Michigan was stated by Justice Cooley in Stewart v. People (1871), 23 Mich. 63, 75:

'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 preson, who should receive and weigh it with judicial fairness.' ⁷ See, also, United States v. Craft (C.A. 6, 1969), 407 F.2d 1065.

Thus, if the proffered testimony of the police officer in this case tends to establish, in the mind of a reasonably cautious person, the proposition that defendant participated in the robbery, then it is relevant. Such evidence need not be conclusive of the ultimate issue. A single piece of circumstantial evidence rarely proves the ultimate fact. Whitaker v. Erie Shooting Club (1894), 102 Mich. 454, 60 N.W. 983. Furthermore, the relevance of a given piece of evidence may in whole or in part depend on the introduction of other competent evidence. 1 Wigmore, Evidence (3d ed), § 28, p. 410. See, also, People v. Doyle (1870), 21 Mich. 221, and People v. Lewis (1933), 264 Mich. 83, 249 N.W. 451.

The jury performs the function of assigning persuasive values to relevant evidentiary matters, and the judicial duty of excluding evidence from this jury function should be exercised with great caution.

It is clear that identify may be proven by circumstances pointing towards one person. ⁸ In this case the fact of prior acquaintance between Bailey and Salis would tend to affect the belief of a reasonably cautious person on the question of Bailey's presence at the robbery. Human experience indicates that total strangers are not likely to spontaneously commit a crime together. At least a few minutes of association are necessary to communicate intentions. It is true, of course, that mere association or friendship with a felon does not prove one guilty of committing a crime with him, but it cannot be contradicted that the friend or associate is more likely a suspect than a complete stranger.

In People v. Tucker (1969), 19 Mich.App. 320, 172 N.W.2d 712, evidence that defendant's dog was present at the home of the rape victim was certainly less than conclusive on the question of defendant's guilt, yet it was admitted for jury consideration. The probative value of the evidence in Tucker and in this case may be slight, but as long as its admission tends to cast a shadow of guilt it must be admitted for the jury's determination as to the extent of that shadow.

The evidence that Bailey and Salis were associates before the crime, when considered along with the positive identification of Salis as one of the robbers, would tend to support the not-so-positive identification of Bailey. Such a tendency renders this testimonial evidence relevant.

The defendant's objection on the ground of 'materiality' is without merit since the evidence was introduced to prove a matter in issue. ⁹

We cannot perceive of any countervailing policy of why, even though relevant, this evidence should not have been presented for the jury's consideration. See People v. Jordan (1970), 23 Mich.App. 375, 178 N.W.2d 659.

Affirmed.

LEVIN, Judge (dissenting).

The majority and I are in agreement that it is the function of the court to decide what evidence is admissible--in this case, whether the objected-to evidence was of probative value.

My colleagues write that 'the relevance of a given piece of evidence may in whole or in part depend on the introduction of other competent evidence', and that 'identity may be proven by circumstances point towards one person'. I have no quarrel with those general observations.

Their opinion continues: 'It is true, of course, that mere association or friendship with a felon does not prove one guilty of committing a crime with him, but it cannot be contradicted that the friend or associate is more likely a Suspect than a complete stranger'. (Emphasis supplied.)

They conclude: 'the evidence that Bailey and Salis were associates before the crime, when considered along with the positive identification of Salis as one of the robbers, would tend to support the not-so-positive identification of Bailey. Such a tendency renders this testimonial evidence relevant'. (emphasis supplied.)

The tendency is, however, far too tenuous to be of probative value. I therefore dissent.

I.

The defendant, Louis Bailey, was convicted by jury verdict of armed robbery. ¹

The victim, a clerk in a grocery store, testified that five black boys robbed her at gunpoint. Bailey and four other persons charged with the crime were tried together. Four of the defendants, including Bailey, were convicted. Subsequently, Bailey was granted a new trial because of Bruton error. ² This appeal is from Bailey's conviction at his second trial.

At Bailey's second trial, he was tried alone. The victim again testified that Bailey was one of the robbers. She also testified that another of the robbers, Charles Salis, had grabbed and choked her and then dragged her to the rear of the store during the robbery.

A City of Muskegon police detective testified that it was his duty to investigate serious crimes. Over objection, he was permitted to say that he had known both Charles Salis and Louis Bailey before August 19, 1969, the date on which the crime was committed, and that they had associated together before that date. He had seen both of them together in crowds on street corners and he had seen them in the area where they lived. They lived within two blocks of each other. In response to the question whether he had seen them chum around together, he responded, 'I have seen them together on a number of occasions with other people, yes'.

The people's case against Bailey rested entirely on the identification testimony of the victim. The success or failure of Bailey's defense depended on whether he could create a reasonable doubt in the minds of the jurors concerning the accuracy of the victim's identification testimony. Bailey contends that, in allowing the detective to testify concerning Bailey's association with Salis, the trial judge erroneously permitted the jurors to infer guilt by reason of his association with Salis whose conduct was the most aggravated of all the assailants since he had been identified by the victim as the assailant who had grabbed and choked her and dragged her to the rear of the store.

In response the people argue, and the trial judge and the majority agree, that the detective's testimony was of probative value because the jury could properly reason that it was unlikely the victim was mistaken in identifying Bailey if another of the persons she identified was one of his friends.

II.

To begin with, it is not as improbable as one might hastily conclude that the victim of a crime would mistakenly identify as a participant in the commission of a crime a friend of another person also identified as a participant. When the 1970 census was taken, there were 44,631 persons living in Muskegon; 6,411 were black. ³ When the crime was committed in August 1969, Salis was 18 years old and Bailey was 21. In 1970, there were 584 black men between the ages of 15 and 24 living in Muskegon.

The...