People v. Bradford

• Decision Date: 02 April 1968
• Docket Number: No. 3,Docket No. 2379,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lionel BRADFORD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 373

160 N.W.2d 373

10 Mich.App. 696

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lionel BRADFORD, Defendant-Appellant.

Docket No. 2379.

Court of Appeals of Michigan, Division No. 3.

April 2, 1968.

Rehearing Denied May 28, 1968.

Released for Publication Aug. 16, 1968.

Leave to Appeal Denied Sept. 30, 1968.

Tat Parish and James B. McQuillan, St. Joseph, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John T. Hammond, Pros. Atty., Berrien County, St. Joseph, for appellee.

Before HOLBROOK, P.J., and BURNS and GILLIS, JJ.

HOLBROOK, Presiding Judge.

Defendant-appellant, Lionel Bradford, was found guilty by a jury on February 6, 1963, of the crime of assault with intent to commit murder. ¹ He was sentenced to a term of 20 to 40 years, On May 31, 1966, defendant's motion for new trial was denied by the trial court. His motion for delayed appeal to this Court was granted August 8, 1966.

Pertinent to defendant's appeal are the following facts: During the early morning hours of November 5, 1962, 2 policemen were shot and gravely wounded by 2 gunmen while stopping an automobile to investigate a local burglary in Benton Harbor, Michigan. LeRoy Payne was subsequently arrested. He confessed to the shooting and implicated defendant as his accomplice. Payne's confession was coerced by the police. He was the chief witness for the prosecution at defendant's trial where he named defendant as his accomplice.

In an affidavit made at Ionia State Reformatory, Ionia, Michigan, on August 31, 1965, Payne recanted his trial testimony implicating defendant, stating that the testimony given was false and made under police duress.

Restated, the questions raised by defendant for review will be treated in proper order as follows:

1. Did the trial court commit error in refusing defense counsel's motion to exclude witness Payne's testimony as untrustworthy as a matter of law?

At trial witness Payne implicated defendant as his accomplice in the shooting of the 2 police officers. He testified that he knew defendant and related his version of the events in question. He also testified for the prosecution and defense in great detail of physical harm inflicted during police interrogations to which he was subjected. Witness Payne's testimony was certainly to be considered and weighed with no small amount of suspicion. Yet for the trial judge to exclude it as untrustworthy as a matter of law would result in an invasion of the jury's exclusive and unquestioned province as the trier of fact.

In People v. Treichel (1924), 229 Mich. 303, 200 N.W. 950, the fact situation and question raised were very similar to that herein. There the implicating accomplice was slapped into a confession by a sheriff. The Michigan Supreme Court by Mr. Justice Wiest stated on p. 309, 200 N.W. on p. 952:

'Defendants may not urge the exclusion of the testimony of Howard Long on the ground he was led to confess by trickery, deceit, brutality or promises. He was not on trial. Methods and means employed to get him to confess went to the jury along with his testimony, and it was for the jury to say, under the circumstances, what weight, if any, they would give to what he said in court.'

The jury in the instant case was made aware of the circumstances surrounding and leading to witness Payne's implication of defendant. The trial court gave instructions which were extremely favorable to defendant on this matter ² and did not commit error in denying defense counsel's motion for exclusion of witness Payne's testimony as a matter of law.

Defendant further contends that the principles which led to the development of exclusionary rules for forced confessions should be equally applicable to the admission of confessional testimony of accomplices. The following statement from People v. Ferguson (1965), 376 Mich. 90, 97, 135 N.W.2d 357, 360, indicates that this question is an open one in this State:

'It is unnecessary to discuss extending the rule in People v. Hamilton (1960), 359 Mich. 410, 102 N.W.2d 738, to confessional testimony of an accomplice, because nothing appears of record to show that Miller was illegally detained or, if so. that it was for the purpose of extracting a confession. We need go no further, inferring nothing as to the merits of the question.'

In view of People v. Treichel, supra, and absent precedent for extending the rule in People v. Hamilton, supra, to confessional testimony of an accomplice, we decline to extend it.

2. Was the evidence sufficient to convince beyond a reasonable doubt? ³

The trial court, in ruling on defendant's motion for new trial, indicated that in his opinion the prosecution probably would not have been able to obtain a conviction against defendant without Payne's testimony.

However, in addition to Payne's testimony, 2 police officers identified defendant at trial as 1 of the 2 gunmen. Although defendant sought to discredit their testimony by cross-examination, the credibility of the witnesses was within the province of the jury and therefore we conclude that the evidence if believed by the jury, was sufficient to convince beyond a reasonable doubt.

3. Does the newly discovered evidence (Payne's recanting affidavit) entitle defend to a new trial?

This Court has quoted People v. Smallwood (1943), 306 Mich. 49, 55, 10 N.W.2d 303, 305, 147 A.L.R. 439 on several occasions for the proposition that a 'court is not impressed by the recanting affidavits of witnesses who attempt to show that they perjured themselves at the trial.' People v. Dailey (1967), 6 Mich.App. 99, 102, 148 N.W.2d 209; People v. Miniear (1967), 8 Mich.App. 591, 155 N.W.2d 222. The trial judge, even though the recanting witness was not produced on the hearing of the motion for new trial, ⁴ was able to form an opinion of the weight to be given the recanting affidavit. In denying the motion for new trial the trial court commented as follows:

'He (LeRoy Payne) informed me in open court that he had done wrong, and that they (Payne and defendant) had done wrong. * * *

'Another thing, his statement (the recanting affidavit) that he lied when he testified that Bradford was with him is not substantiated by his telling who was, and that is a very crucial point in my opinion, in whether or not he is to be believed now, or what he said under oath at the trial.'

We concur in the trial court's opinion and note that in the Smallwood case the recanting witness named 2 other persons in asserting the innocence of the defendant.

Also of interest is the fact that Payne's recantation is dated August 31, 1965, evidencing a lapse of more than 2 years. Because of this fact, Payne's allegations in the recanting affidavit of being 'afraid for my life' and 'fear of further torture or death' while incarcerated in Berrien county during defendant's trial compelled his implicating of defendant, are subject to disbelief.

4. Does the prosecutor's elicitation of defendant's prior criminal record as alleged by defendant require a new trial?

On re-direct examination of Officer Yost, one of the identifying police officers, the prosecutor entered into the following colloquy:

'Q. Now, officer, in connection with your police work over the years, had you previously come in contact with the defendant, Lionel Bradford?

'A. I have.

'Q. And do you recall how long ago or on how many occasions?

'A. Well, it was several years ago on the armed robbery that he was on.

'Q. And you worked that case?

'A. I was one of the officers that worked it.

'Q. Were you one of the officers that worked that case?

'A. Yes.

'Q. And at that time you came in contact with the defendant?

'A. I did.

'Q. Do you recall how long a period of time, or how many times you might have seen him during that time?

'A. I seen him quite a few times.

'Q. And have you subsequently come in contact with him in your police work?

'A. Yes.

'Q. Can you tell the court and jury--I realize this is a hard question, but I think it's a fair question--approximately how many times over the period of your police work have you come in contact with Lionel Bradford?

'A. You mean other than the armed robbery he was on?

'Q. No, altogether, including that incident.

'A. Oh, I have seen him a dozen times or more.'

Defendant contends that this examination is error constituting a denial of due process and requires a new trial. He also contends that defense counsel's failure to object did not constitute a waiver and cites Henry v. State of Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 in support of his contention.

Examination of the trial transcript reveals that defense counsel opened the door on cross-examination to the above quoted colloquy between the prosecutor and Officer Yost as follows:

(By defense counsel)

'Q. Now, Officer, Yost, isn't it true that before this shooting incident you knew LeRoy Payne? That is, the one that jumped out of the driver's side and shot you? You knew him before that, didn't you?

'A. Knew of him.

'Q. And you had seen him around town?

'A. Yes.

'Q. And you also knew Mr. Bradford before this shooting incident didn't you?

'A. I did.

'Q. And you had had occasion to see him around town?

'A. I had.'

The fact that Officer Yost knew defendant prior to the date of the crime charged was first brought out by defense counsel. It appears that this was a deliberate trial tactic on his part, I.e., defense counsel weighed the advantages and disadvantages of his questioning Officer Yost and decided he would rather emphasize to the jury that the defendant was well known to the police officers prior to the crime charged as against the possibility that the jury might become aware of the fact that defendant had previous contact with the police. Henry v. State of Mississippi, supra, although dealing with admission of illegally obtained evidence, is analogous and provides in headnote 9 of Lawyers Edition an answer to the violation of due process alleged by defendant.

'If an...