People v. Butler, Docket No. 7999
| Citation | 30 Mich.App. 561,186 N.W.2d 786 |
| Decision Date | 17 February 1971 |
| Docket Number | No. 3,Docket No. 7999,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. BUTLER, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
Robert W. Cary, Mollison, Hadsell & Cary, Niles, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.
Before T. M. BURNS, P.J., and R. B. BURNS and MUNRO *, JJ.
Defendant appeals from his jury trial conviction of breaking and entering. M.C.L.A § 750.110 (Stat.Ann.1965 Cum.Supp. § 28.305).
The facts in this matter are that on December 18, 1967, the defendant, Leroy Tipton, Richard Jones, Leonard Green, and Duane Baker were in a tavern in the City of Benton Harbor. During the early morning hours the defendant, Tipton, Jones, and Green drove around in Tipton's car and stopped near the C & O Railroad depot. Jones and Green broke into the depot and while the defendants were there the police arrived; the defendant and Tipton fled in Tipton's car but were soon apprehended. Jones and Green were also caught a short distance from the depot and all four were charged with the crime of breaking and entering.
At the defendant's trial Jones pleaded the Fifth Amendment and refused to testify but Green testified that the defendant and Tipton were parties to a mutual plan to break into the C & O Depot and that this plan had been discussed at the tavern in Benton Harbor. Green further testified that the defendant left Tipton's car and helped smash some of the depot windows but returned to Tipton's car and fled with him upon the arrival of the police cruiser. Both the defendant and Tipton testified that there had been a gathering at the tavern in Benton Harbor but denied any discussion or scheme relating to the C & O Railroad depot. They both admitted that the four of them had driven around and stopped at the C & O yard but both the defendant and Tipton claimed that when Jones and Green left the car they did not go with them and when they ascertained the intentions of Jones and Green they were surprised, did not want to participate and requested Jones and Green to return to the car. The jury verdict in this matter indicates that the jury accepted the testimony of Green over that of Tipton and the defendant.
On appeal defendant contends he was denied a fair trial for a number of reasons, (1) prosecution misconduct, (2) judicial indiscretion, and (3) failure to prove guilt beyond a reasonable doubt.
On the issue of prosecution misconduct Duane Baker, an employee of the C & O Railroad, was an indorsed witness at the preliminary examination of Jones and Green arising out of this same incident and he there testified that Jones and Green had approached Baker with a plan to break into the depot since he had the keys and safe combination but that he refused to become implicated. He also then testified that Leroy Tipton and defendant were in the bar but that they had no part in the conversation. Defendant contends that this testimony would have been favorable to him, because an inference could have been drawn from the testimony that Jones and Green were planning to break into the depot using Baker as an accomplice rather than the defendant and Tipton and that defendant did not know of the plan.
At the time of the defendant's trial Duane Baker had not been indorsed on the information and the prosecution then offered to indorse him at the time of trial. Up to that time, although almost nine months had elapsed following the commission of the crime, the witness had never been formally charged or advised he was implicated in the crime. On the second day of defendant's trial when the prosecution moved to indorse Duane Baker as a witness the prosecutor stated he had never seen witness Baker until that morning and further wanted Mr. Baker to understand that he would be under investigation regardless of whether he testified at the trial. Defendant contends that the prosecution's advising witness...
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Matter of J.W.Y.
...would then have been presented to [the witness] by the court without any threats or implication of retaliation. See People v. Butler, 30 Mich.App. 561, 186 N.W.2d 786 (1971). The facts before us conform precisely to the procedure proposed by the Smith court. Upon the government's in-court s......
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