People v. Barbara

• Decision Date: 29 April 1970
• Docket Number: Docket No. 8150,No. 2,2
• Citation: 179 N.W.2d 105,23 Mich.App. 540
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BARBARA, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 105

179 N.W.2d 105

23 Mich.App. 540

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph BARBARA, Jr., Defendant-Appellant.

Docket No. 8150.

Court of Appeals of Michigan, Division No. 2.

April 29, 1970.

Leave to Appeal Denied July 16, 1970.

Released for Publication Aug. 28, 1970.

Ivan E. Barris, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for appellee.

Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN ^*, JJ.

FITZGERALD, Judge.

Joseph Barbara, Jr., the defendant in the instant case, was charged with the extortion of Mrs. Peter (Delores) Lazaros contrary to C.L.1948, § 750.213 (Stat.Ann. § 28.410). Defendant stood mute to the charge and a plea of not guilty was entered on his behalf. Following several adjournments, the trial commenced on August 1, 1969. Objection was raised by the defense to holding the trial at that time since the complaining witness was pregnant. The matter was submitted to a jury on August 12, 1969, which found the defendant guilty of the crime with which he was charged. On September 19, 1969, defendant was sentenced to serve 7 to 20 years in prison.

During the course of the trial, Mrs. Lazaros testified that Joseph Barbara, Jr., came to her home while her husband was in prison and, through the use of threats uon the lives of members of her family, was successful in efforts to rape and extort money from her. It was alleged that defendant informed Mrs. Lazaros that if she did not cooperate, he would have her husband killed in prison. Complainant charged that similar threats were made on her son's life.

The complainant feared for her husband's life and informed no one of these events until some six months later when her husband returned from prison. A complaint was then filed with the State Police which resulted in defendant's arrest.

Testimony was also elicited from Nicholas Lazaros, father of Peter Lazaros, to the effect that defendant had come to the Lazaros home while his son and daughter-in-law were at the police station. Threats were made and defendant pushed the elder Lazaros to the ground. Evidence was also introduced that Barbara had agreed to help Peter Lazaros on his appeal from a previous criminal conviction and that Lazaros was angry because things had not gone as well as anticipated.

Following the prosecution's rebuttal, the name of Tischia Lazaros, mother of Peter Lazaros, was reindorsed upon the information. Her name was originally on the information, but it was removed during trial. She corroborated the testimony previously given by her husband, Nicholas Lazaros.

Several issues are raised on this appeal; the first concerns the question of whether the continuous injection by witnesses Peter and Delores Lazaros of extraneous matters in the presence of the jury deprived defendant of his right to a fair trial by an impartial jury. The allegedly prejudicial matters concern references made which imply that defendant and his attorneys were connected with the 'Mafia', thus inferring a guilt by association. Defendant argues that in light of the remarks made, the judge's instructions to the jury, striking all references to the above subject, were not sufficient because of the inflammatory nature of these utterances.

The people argue that defendant's attorneys deliberately phrased questions which were calculated to bring out references to the 'Mafia', thus inviting error for purposes of having a mistrial declared.

In People v. Wolke (1968), 10 Mich.App. 582, 583, 159 N.W.2d 882, this Court addressed itself to questionable evidence injected into a trial. The Court discussed the question of when objectionable evidence will be held to so prejudice a jury that a new trial must be granted. In analyzing the applicable authorities, it was found that two standards exist; namely, that once a prejudicial remarks is made, the 'ink spot' may not be blotted from the minds of a jury by express instructions. On the other hand, recognition was also given to a line of cases which presumed that a jury considers only the testimony permitted by a court to stand. This Court held that he choice of which standard to apply ultimately rests upon the degree of prejudice generated by the objectionable evidence. Only if the testimony is inherently prejudicial or inflammatory will there be an 'ink spot' on the minds of the jurors which cannot be erased.

In the case at bar, we are dealing with unresponsive, irrelevant, and spontaneous answers volunteered by two witnesses. In 2 Gillespi, Michigan Criminal Law and Procedure (2d ed.), § 600, p. 778, it is stated:

'Error cannot be predicated upon the fact that a witness gives an improper or irrelevant answer where the question was a proper one and neither the court nor counsel was at fault. Improper testimony offered by a witness and promptly struck out by the court on objection is not reversible error. * * * A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and if what he says or does improperly is likely to do much mischief, it is presumed that the judge will apply the proper corrective measures in his instructions if requested to do so.'

A review of the problem with which we are faced leads to the inescapable conclusion that if error could be easily predicated on the improper utterances of a witness, it would be most difficult ever to conduct a proper trial. People v. Droste (1910), 160 Mich. 66, 125 N.W. 87.

Unresponsive answers, irrelevant in nature alone, are not sufficient to cause reversible error. The instructions to disregard the utterances made were quite sufficient to instruct the jury on those matters not properly before them and cured the possibility of prejudice to defendant.

The next question discussed concerns an alleged error in permitting the prosecution to call Mrs. Tischia Lazaros in rebuttal to help prove its case in chief. Defendant asserts that such a last minute action, after the defense had rested its case in rebuttal, unfairly prejudiced defendant's rights. The people argue that the question of reopening the proofs is solely within the court's discretion and, further, that the testimony only related to matters which they had previously introduced.

In support of this assignment of error, defendant relies on our previous decision in People v. Sacharczyk (1969), 16 Mich.App. 710, 168 N.W.2d 639. However, the facts are readily distinguished from those in the case at bar. In Sacharczyk, it was held that the allowance of rebuttal evidence was improper because the witness there...