People v. Brown

• Decision Date: 18 August 1983
• Docket Number: Docket No. 63290
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacqueline BROWN, Defendant-Appellant. 126 Mich.App. 763, 337 N.W.2d 915
• Court: Court of Appeal of Michigan — District of US

Page 915

337 N.W.2d 915

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacqueline BROWN, Defendant-Appellant.

Docket No. 63290.

126 Mich.App. 763, 337 N.W.2d 915

Court of Appeals of Michigan.

Submitted Feb. 7, 1983.

Decided July 6, 1983.

Released for Publication Aug. 18, 1983.

[126 MICHAPP 764] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Rosemary A. Gordon, Asst. Pros. Atty., for the people.

Socorro G. Arce, Detroit, for defendant-appellant.

Before MAHER, P.J., and R.B. BURNS and MARUTIAK, ^* JJ.

MAHER, Presiding Judge.

Defendant was convicted after a bench trial of manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. Sentenced to from 2 to 15 years in prison, she appeals as of right.

In the early morning hours of January 2, 1981, Vincent Williams, his half-brother, Russell Williams, and three other men were standing on the corner of Linwood and Virginia Park in Detroit when a grey Buick pulled up to the opposite side of the street. The car contained defendant and Bennie Ruth Audison. Vincent Williams and one of his companions approached the car and engaged the women in a conversation. The conversation became heated and the two women departed. However, they returned five minutes later. Ms. Audison got out of the car and produced a gun. She fired two shots, causing Vincent Williams and his brother to flee. Ms. Audison returned to the car. Defendant then attempted to turn the car around but succeeded only in sliding into a building. Vincent Williams and his brother approached the vehicle. Ms. Audison emerged, brandished a gun and threatened to kill one of the men. Defendant then got out of the car and told Ms. Audison to "shoot the mother fucker". Ms. Audison fired another[126 MICHAPP 765] shot which struck Vincent Williams, who died the following day.

A joint trial of defendant and Ms. Audison was commenced on June 8, 1981, but, on that day, defendant's oral motion for severance was granted by the trial court. Ms. Audison's trial began the following day resulting in her conviction for manslaughter and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was tried and convicted later that year.

Defendant raises two issues which we discuss in the order presented.

First, defendant argues that the trial court erred in denying her pretrial motion for the transcript of codefendant Audison's earlier trial. On August 17, 1981, defendant, an indigent, moved for production of portions of the transcript of codefendant Audison's trial. At the hearing on the motion defense counsel requested, in particular, transcripts of defendant's testimony and of the testimony of any eyewitnesses linking defendant to the homicide. The trial court denied the motion. The court noted that a transcript of the Audison trial was being prepared for Ms. Audison's appeal, ¹ that it would be ready before defendant's trial and that preparation of another copy would be unduly expensive. In addition, the court reminded defense counsel that the defendant's previous attorney had been present during her testimony at the Audison trial.

The United States Supreme Court in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), ruled that a state must provide an indigent defendant with a transcript of his earlier trial if a transcript is needed for an effective defense. The Britt Court recognized that whether [126 MICHAPP 766] the request for a free transcript should be granted depends on two factors: (1) the value of the transcript to the defendant and (2) the availability of alternative means which would fulfill the same functions as a transcript. The Court indicated that, as to the first factor, the defendant need not show that a transcript of his earlier trial would be valuable to him:

" * * * Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. * * * [E]ven in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses." (Emphasis added, footnote omitted.) 404 U.S. 228, 92 S.Ct. 434, 30 L.Ed.2d 404.

This Court has consistently followed the Britt analysis. See People v. Glass, 38 Mich.App. 735, 197 N.W.2d 140 (1972); People v. Hampton, 89 Mich.App. 434, 280 N.W.2d 461 (1977); People v. Hughes, 93 Mich.App. 333, 287 N.W.2d 226 (1979), rev'd on other grounds 411 Mich. 517, 309 N.W.2d 525 (1981).

This case, however, is distinguishable from Britt in a critical respect. In Britt, the defendant requested a transcript of his own earlier trial. In this case, the defendant asked for a copy of the transcript of her codefendant 's trial. A situation similar to the one we confront in the instant case, however, was presented to this Court in People v. Kelley, 49 Mich.App. 720, 212 N.W.2d 750 (1973). In Kelley, three men, Clark, Hall and Kuykendall, were convicted of the murder of David Lipton. At the trial, several witnesses testified, including Sue Valentine who saw the assailants seconds before [126 MICHAPP 767] the murder. Subsequently, the convictions were vacated on the prosecutor's motion and the murder investigation was reopened. Five persons, including the defendant, were then charged with the murder. The defendant was tried separately from the other four and after the people had secured their convictions. Prior to his trial, the defendant moved for the production of the transcript of the trial of the original three suspects. Only the testimony of Sue Valentine was produced. The defendant was later convicted of the murder. On appeal, the defendant argued that the failure to produce the entire transcript was error. This Court disagreed, reasoning as follows:

"[W]e perceive the prior testimony sought, but not produced, did not establish crimination of defendant, but only the corpus delicti of the incident, an issue which defense counsel practically conceded at the outset of trial. Moreover, the testimony defendant sought to be produced did not even criminate Clark, Hall, or Kuykendall. Of those who testified in both trials, only Sue Valentine's testimony tended to establish the guilt of any particular person. Thorough examination of the record reveals defense counsel was well versed in the details of the evidence produced in the prior trial, and we are not satisfied that transcription of the testimony there adduced was the only means for obtaining that information.

* * *

* * * [W]e decline to rule that production of prior testimony establishing a rather mundane corpus delicti of the same crime in another case against another defendant is necessary in order to provide a subsequent defendant with a fair trial." 49 Mich.App. 725, 726, 212 N.W.2d 750.

In effect,...