People v. Bedford
| Decision Date | 25 August 1977 |
| Docket Number | Docket Nos. 28164,29636 and 29758 |
| Citation | 78 Mich.App. 696,260 N.W.2d 864 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary BEDFORD, Audrey Watson, Haven Edward Walk, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Robert W. Stern, Detroit, for Bedford.
Robert E. Slameka, Detroit, for Watson.
M. Jon Posner, Detroit, for Walk.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Anne Wethesholt, Robert H. Butler, Asst. Pros. Attys., for plaintiff-appellee.
Before J. H. GILLIS, P. J., and BRONSON and ROBINSON, * JJ.
The three defendants were charged with first-degree murder for the beating death of Glenda Williams. The information alleged that the defendants went to Ms. Williams' apartment and beat her for two days until she died. It was also alleged that the decedent's boyfriend, Garry Lewis, was forced to participate in the beating.
Defendant Walk waived a jury trial. After a joint trial, all three defendants were found guilty of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. They appeal as of right.
Of the many issues raised by the defendants, eight merit discussion.
First, defendants claim it was error for the trial judge to allow an endorsed res gestae witness's name to be stricken because the witness was chargeable as an accomplice. 1
The prosecutor originally endorsed Carl Stankey as a res gestae witness. There had been testimony at the preliminary examination that Stankey was present with the three defendants when the beating of Glenda Williams began and that he handed one of the defendants a gun which was used to threaten Garry Lewis. At trial, the prosecutor moved to strike Carl Stankey's name from the witness list on the ground that he was a chargeable accomplice to the murder and therefore within an exception to the general rule that the prosecutor must produce all res gestae witnesses. See M.C.L.A. § 767.40; M.S.A. § 28.980.
It is proper for the court to strike before trial a voluntarily endorsed res gestae witness who is an accomplice. People v. Potts, 55 Mich.App. 622, 223 N.W.2d 96 (1974). The reason for requiring production of a voluntarily endorsed witness where there is no motion to strike is that a defendant has a right to rely on the fact that such witness will be present. People v. Mitchell, 48 Mich.App. 361, 364, 210 N.W.2d 509 (1973). But, where the endorsed witness's name is stricken, defendants can no longer rely on production of the witness and thus cannot complain of the prosecution's failure to produce that witness.
In the instant case, Carl Stankey's name was stricken on December 23, 1975, during the prosecution's case in chief. 2 The defense rested on January 12, 1976.
On the facts of this case, we do not find that the failure of the prosecution to produce Carl Stankey requires reversal. Defendants could not have relied on the prosecution producing this witness, except for the short span of time when he was endorsed. The record shows that defense counsel knew Stankey had been a witness to the incident from the testimony at the preliminary examination. The defense had adequate time to produce the witness before it rested. Here, defendants were not prejudiced; they knew of the witness, had tried unsuccessfully to locate him before trial, had sufficient time to locate the witness after the witness's name had been stricken and, most importantly, did not request a continuance or claim that they were denied adequate time to try to produce the witness. On these facts, striking the voluntarily endorsed witness was not reversible error.
Defendants' next contention is that the trial judge erred by refusing to allow defense counsel to read into evidence the entire preliminary examination transcript for impeachment purposes. Defendants claim that they were unable otherwise to impeach Garry Lewis, who was illiterate.
This contention is meritless. It is within the discretion of the trial judge how much of a preliminary examination transcript can be admitted for impeachment purposes. People v. Kramer, 240 Mich. 98, 215 N.W.2d 62 (1927); People v. Hunt, 30 Mich.App. 94, 186 N.W.2d 34 (1971); People v. Graves, 15 Mich.App. 244, 166 N.W.2d 480 (1968).
In the instant case, after some confusion, defense counsel was allowed to refresh the witness's recollection by reading relevant portions of the preliminary examination transcript to the witness after eliciting an inconsistent statement. The jury thus had the inconsistent statements from the preliminary examination before them. See People v. Graves, supra, at 245, 166 N.W.2d 480. It was not an abuse of discretion for the trial judge to refuse to allow defense counsel to read the entire transcript into evidence.
Defendant Walk contends that the admission of a prior statement of defendant Audrey Watson, after the names of all codefendants had been deleted, violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because the statement still clearly referred to codefendant. 3
We need not decide whether admission of the statement violated Bruton, as we find that any possible error was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); People v. Williams, 19 Mich.App. 291, 172 N.W.2d 515 (1969), rev'd on other grounds, People v. Gardner, 385 Mich. 392, 189 N.W.2d 229 (1971).
The references to "other persons" were not significant, other evidence against defendant Walk was overwhelming and the judge, not a jury, was the trier of fact. Given these factors, any possible error was harmless beyond a reasonable doubt.
Defendant Walk also argues that the automatic exclusion of testimony by an alibi witness not listed in the notice of alibi, M.C.L.A. § 768.21; M.S.A. § 28.1044, violates due process.
Defense counsel for Walk called five alibi witnesses to testify that defendant Walk was at home during the time he allegedly participated in the murder of Glenda Williams. The name of a sixth alibi witness, defendant's brother, was inadvertently omitted from the notice of alibi. 4
M.C.L.A. § 768.21; M.S.A. § 28.1044, as amended, makes the exclusion of unlisted alibi witnesses mandatory. See People v. Jackson, 71 Mich.App. 395, 249 N.W.2d 132 (1976).
People v. Jackson, supra, rejected a due process and equal protection attack on this statute. Jackson found the statute to be a reasonable protection against an "eleventh-hour defense" and possible perjury. It thus did not violate due process on its face or as applied to the facts of that case.
We follow Jackson and hold that there was no denial of due process here, where the testimony of the excluded witness was cumulative.
Also, defense counsel's inadvertent omission of the alibi witness's name from the notice of alibi did not amount to ineffective assistance of counsel under People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), or a serious mistake requiring reversal under People v. Degraffenreid, 19 Mich.App. 702, 173 N.W.2d 317 (1969). The omission resulted only in cumulative alibi testimony from being presented. Defendant Walk was not precluded from presenting an alibi defense. Cf. People v. Bynum, 64 Mich.App. 186, 235 N.W.2d 105 (1975).
Defendant Walk next contends that the trial judge failed to state specifically the facts upon which he based his verdict of guilty of second-degree murder and that we must therefore remand for more specific findings. GCR 1963, 517.1. 5
The only factual issue in this case was whether defendant Walk participated in the beating or whether he was at home. The judge found that he participated in the beating with malice aforethought. This is a sufficient finding under GCR 1963, 517.1.
In any event, as stated in People v. Jackson, 390 Mich. 621, 627, n.3, 212 N.W.2d 918, 921 (1973):
Defendants Bedford and Watson argue that the trial court erred in denying their motion for a severance from defendant Walk.
It is within the discretion of the trial judge to grant or deny a severance. M.C.L.A. § 768.5; M.S.A. § 28.1028.
People v. Clark, 57 Mich.App. 339, 341, 225 N.W.2d 758, 759 (1975), stated the applicable standard for appellate review:
See, also, People v. Smith, 73 Mich.App. 463, 252 N.W.2d 488 (1977).
In the instant case, defendants Bedford and Watson have not shown how they were substantially prejudiced by a joint trial. They mention one objection by Walk's counsel to the introduction of evidence. A single objection, however, does not demonstrate such hostility among counsel as to require a severance. Cf. People v. Rowls, 28 Mich.App. 190, 184 N.W.2d 332 (1970). Similarly, the fact that defendant Walk chose to testify did not necessarily prejudice the other defendants. Walk's testimony, if anything, helped the other defendants.
Thus, the trial court's denial of defendants' motion for a severance was not an abuse of discretion.
Defendant Bedford argues that the trial court erred by allowing Garry Lewis and...
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