People v. Berry

• Decision Date: 06 July 1978
• Docket Number: Docket No. 77-3638
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Henry BERRY, Defendant-Appellant. 84 Mich.App. 604, 269 N.W.2d 694
• Court: Court of Appeal of Michigan — District of US

Page 694

269 N.W.2d 694

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Henry BERRY, Defendant-Appellant.

Docket No. 77-3638.

84 Mich.App. 604, 269 N.W.2d 694

Court of Appeals of Michigan.

July 6, 1978.

Released for Publication Sept. 18, 1978.

[84 MICHAPP 606] Durance, Sheldon & Rhead by Robert J. Rhead, Midland, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Doyle A. Rowland, Pros. Atty., Richard L. Lee, Jr., Thomas C. Panian, Asst. Pros. Attys., for plaintiff-appellee.

Before ALLEN, P. J., and CYNAR and FREEMAN, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of conspiring to utter and publish a forged instrument. M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. § 750.249; M.S.A. § 28.446, on February 24, 1977. He was sentenced to 3 to 14 years in prison and now appeals of right.

At trial it was first shown that on March 11, 1976, someone passed a forged check. The key prosecution witness, Nadine Walmsley, was then called. She was allegedly defendant's accomplice and coconspirator in the charged offense, but had [84 MICHAPP 607] been granted immunity from prosecution in exchange for her testimony. Walmsley testified as to how she assisted defendant in passing a forged check on March 11, 1976, as well as on other dates during the preceding three months.

On appeal, defendant contends that he cannot be convicted of a conspiracy charge where his sole alleged coconspirator received immunity from prosecution. Defendant reaches this conclusion by analogy from cases which have held that where all but one coconspirator is acquitted, the remaining coconspirator cannot be convicted on a conspiracy charge. People v. Alexander, 35 Mich.App. 281, 192 N.W.2d 371 (1971). See generally, Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 A.L.R.2d 700. This result is based on the fact that a conspiracy is a partnership in criminal purposes that requires more than one conspirator. There is no such thing as a one-man conspiracy, and once all alleged coconspirators are acquitted, what would remain would be a one-man conspiracy. People v. Alexander, supra, at 282, 192 N.W.2d 371; People v. Atley, 392 Mich. 298, 310, 220 N.W.2d 465 (1974).

Defendant's analogy is not valid, however. When alleged coconspirators are acquitted, a finding of not guilty of the charged conspiracy has been made. When alleged coconspirators are granted immunity (or when they are unavailable for prosecution for some reason), no determination as to their guilt has been made. A grant of immunity is not inconsistent with guilt. The instant defendant may still be convicted despite his sole codefendant's immunity from conviction. This holding is in accord with the decision of other jurisdictions which have passed on similar situations. See Anno: [84 MICHAPP 608] Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 A.L.R.2d 700, 722.

Defendant also attacks the actual testimony of Walmsley, the coconspirator. Walmsley testified to other instances when she and defendant passed bad checks. Defendant claims such testimony was improper, but we find that it fell squarely within the similar acts statute, M.C.L. § 768.27; M.S.A. § 28.1050. The testimony showed a similar method of operation over a period of time and strongly supported the conspiracy charge. The evidence was quickly presented and not belabored by the prosecution. Defendant also contends that the immune testimony of an accomplice-conspirator is suspect and should be safeguarded by a cautionary instruction. The short answer to this contention is...