People v. Bruno

• Decision Date: 15 February 1971
• Docket Number: Docket No. 6841,No. 2,2
• Citation: 186 N.W.2d 339,30 Mich.App. 375
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael D. BRUNO and Thomas F. Davis, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 339

186 N.W.2d 339

30 Mich.App. 375

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael D. BRUNO and Thomas F. Davis, Defendants-Appellants.

Docket No. 6841.

Court of Appeals of Michigan, Division No. 2.

Feb. 15, 1971.

Rehearing Denied April 1, 1971.

Released for Publication May 3, 1971.

Leave to Appeal Denied June 29, 1971.

Joseph W. Louisell, Louisell & Barris, Detroit, for Michael D. bruno.

Anthony Renne, Renne & Welter, Bloomfield Hills, for Thomas F. Davis.

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

Before QUINN, P.J. and DANHOF and CARROLL, ^* JJ.

DANHOF, Judge.

The defendants were charged in a two count information with extortion M.C.L.A. § 750.213 (Stat.Ann.1962 Rev. § 28.410) and conspiracy to commit extortion M.C.L.A. § 750.157a (Stat.Ann.1970 Cum.Supp. § 28.354(1)). At the conclusion of the trial, a motion for a directed verdict of acquittal on count II the conspiracy charge, was granted, but count I the extortion charge, was allowed to go to the jury which brought in a guilty verdict against both defendants. They have appealed alleging numerous errors.

We will consider first the questions presented by defendant Bruno. He argues that the court erred in denying his motion for a directed verdict of acquittal on count I because the prosecution failed to show that he uttered any threats of physical violence to the complainant.

The complaining witness, Donald Spalla, who managed a bowling alley in Pontiac, gave the following testimony at the trial. On May 11, 1967 at approximately 9 p.m. Mr. Bruno telephoned Mr. Spalla at the bowling alley, said his name was Mike Delucca, and asked him to stay there for an hour or so because of an important business matter. At about 9:30 p.m. the defendants and Mr. Jebrail came to the bowling alley together. Mr. Bruno asked if they could go some place for a discussion, and Mr. Spalla took them to his office. They told Mr. Spalla they were sent by Mrs. Patricia Kelly to pick up $4600. Mr. Spalla denied owing the money, and Mr. Bruno said Mr. Spalla was making a mistake, that he did owe it, and they weren't out there to argue about whether or not he owed the $4600. Then defendant Davis leaned over him and said:

'Let's not fuck around; because don't think your pretty head is going to stop you, because I will put your fucking head right through that wall. Don't think that you are not going to pay the $4600, because you have a nice business and you have a nice father and a nice wife; so, take your choice.'

Mr. Bruno then asked Mr. Davis to step back adding that he could handle this in a lot better fashion, than going through this toughness. Then Mr. Bruno said to Mr. Spalla, 'I think you should come up with the money, Don, because they mean business,' and asked Mr. Spalla when he could have the money. Mr. Bruno asked Mr. Davis and Mr. Jebrail to leave the office and Mr. Bruno put his arm around Mr. Spalla's shoulder and said, 'Look, Don, we are cumbaries; ¹ you don't want to have any more trouble than you have to have; so, just play along and have the money.'

M.C.L.A. § 750.213 (Stat.Ann.1962 Rev. § 28.410) states:

'Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty (20) years or by a fine of not more than ten thousand (10,000) dollars.'

The testimony of Mr. Spalla clearly constituted sufficient evidence to submit the case to the jury. People v. Brant (1966), 5 Mich.App. 315, 146 N.W.2d 710. Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may be prosecuted, indicted, tried and on conviction punished as if he had directly committed such an offense. M.C.L.A. § 767.39 (Stat.Ann.1954 Rev. § 28.979).

The next question is whether the court erred in allowing the prosecution to read into the record testimony given by Phillip Jebrail upon a preliminary examination which was not the basis for the issuance of the information in this case. This issue assumes facts which are not supported by the record. The information in this case was filed as a result of the preliminary examination held on February 9, 1968, March 6, 1968, and March 29, 1968. It was the testimony of Phillip Jebrail, given on March 29, 1968, which was read to the jury. That was not error.

Next it is argued that the trial court erred in not Sua sponte instructing the jury to disregard the testimony of Patricia Kelly and William Jebrailupon directing a verdict of acquittal on count II because their testimony was admitted simply because the information contained a conspiracy count naming Patricia Kelly as a co-conspiractor. No authority is cited for this proposition. Generally, failure to object to instructions or failure to request additional instructions forecloses appellate review. People v. Jackson (1970), 21 Mich.App. 132, 175 N.W.2d 41; GCR 1963, 516.2. No manifest injustice occurred.

It is also asserted that the trial court erred in permitting the prosecutor to impeach Patricia Kelly and William Jebrail and in failing to instruct the jury that material used to impeach those two witnesses was not evidence in the case. Both Mrs. Kelly and Mr. Jebrail were Res gestae witnesses as to the conspiracy count. As such the prosecutor was obliged by law to call them and they were subject to impeachment the same as if they had been called by the defendants. M.C.L.A. § 767.40a (Stat.Ann.1954 Rev. § 28.980(1)). After the jury had been instructed on the law, the prosecutor specifically asked for an instruction limiting the impeachment statements. The trial judge then asked the defense lawyers if they wanted such an instruction. The lawyers for both defendants stated that they were satisfied. We hold that this constituted a waiver of the defendants' right to such an instruction.

Next it is urged that the trial court erred in allowing the prosecutor to cross-examine Patricia Kelly and William Jebrail without showing that they were hostile, or that he had been taken by surprise. As has been stated previously in this opinion, the prosecutor had the right by statute to impeach Res gestae witnesses. The two cases cited by defense counsel are so unlike the instant case as to make any discussion of them unnecessary.

It is also claimed that the trial court committed error in allowing the prosecution to play a tape of a telephone conversation between the complainant and Patricia Kelly after the complainant testified as to its content and before the accuracy of that conversation was attacked. No authority is cited in support of that position. The proper foundation necessary to permit the admission of sound recordings was set forth in People v. Taylor (1969), 18 Mich.App. 381, 171 N.W.2d 219, leave to appeal granted (1970), 383 Mich. 794. These requirements were fulfilled in the present case.

Error is alleged because the trial court did not interview the jurors to ascertain whether they had read a newspaper article which contained a prejudicial statement about codefendant Davis. When the trial judge asked Mr. Davis' attorney if he was asking him to interrogate the jury, the attorney replied, 'No, I...