People v. Burks
| Decision Date | 25 January 1971 |
| Docket Number | Docket No. 6241,No. 1,1 |
| Citation | 30 Mich.App. 102,186 N.W.2d 18 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Clay BURKS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Ass'n, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and HOLBROOK and VANDER WAL, * JJ.
The defendant was tried on a charge of second degree murder M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549) and found guilty by a jury of manslaughter M.C.L.A. § 750.321 (Stat.Ann.1954 Rev. § 28.553). On appeal, he seeks a new trial on two grounds, one based on the recanting affidavits of two witnesses for the prosecution and the other on the statements of five other persons that they would have testified on behalf of the defendant. All affiants allege that threats were made against them and because of the threats they either did not testify or perjured themselves at the trial.
Such information as contained in the affidavits is asserted to be in the nature of new evidence. Such evidence, if newly discovered, can form the basis for the granting of a new trial if it meets with the requirements as set out in People v. Keiswetter (1967), 7 Mich.App. 334, 151 N.W.2d 829. Such a determination is directed to the sound discretion of the trial court. People v. Nickopoulous (1970), 26 Mich.App. 297, 182 N.W.2d 83. The trial court has denied defendant's motion for a new trial. Giving due regard to the superior opportunity of the trial court to appraise the credibility of the trial witnesses and the several affiants, we cannot say that the court abused its discretion in denying defendant's motion.
At trial, defendant attempted to put into evidence the police record of the person whom he was convicted of killing. The law on this point is clear and of long standing: The character of the deceased in a homicide prosecution is material only when a plea of self defense is interposed. People v. Garbutt (1868), 17 Mich. 9; People v. Stallworth (1961), 364 Mich. 528, 111 N.W.2d 742; People v. Johnson (1969), 382 Mich. 632, 172 N.W.2d 369; People v. Bell (1969), 14 Mich.App. 80, 165 N.W.2d 283. No plea of self defense having been entered by defendant, there was consequently no proper foundation for admitting...
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...and the several affiants, we cannot say that the court abused its discretion in denying defendant's motion." People v. Burks, supra, 30 Mich.App. 102, 186 N.W.2d 18, at p. 19 (1971). Thus Michigan courts recognize, as does the federal system, that the decision to grant a new trial is usuall......
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...292 N.W. 539 (1940).12 Accord, People v. Cellura, Supra; People v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961); People v. Burks, 30 Mich.App. 102, 186 N.W.2d 18 (1971); People v. Redmond, 30 Mich.App. 117, 186 N.W.2d 92 (1971); People v. Rapier, 43 Mich.App. 297, 204 N.W.2d 339 (1972).......
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People v. Burks, 6
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