People v. Clark

• Decision Date: 13 August 1975
• Docket Number: Docket No. 21176
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe CLARK, Defendant-Appellant. 63 Mich.App. 334, 234 N.W.2d 511
• Court: Court of Appeal of Michigan — District of US

Page 511

234 N.W.2d 511

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe CLARK, Defendant-Appellant.

Docket No. 21176.

63 Mich.App. 334, 234 N.W.2d 511

Court of Appeals of Michigan.

Aug. 13, 1975.

Released for Publication Nov. 5, 1975.

Leave to Appeal Denied Jan. 9, 1976.

[63 MICHAPP 335] McKinley & Jerkins by Roman T. Plaszczak, Kalamazoo, for defendant-appellant.

[63 MICHAPP 334] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

[63 MICHAPP 335] Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

D. E. HOLBROOK, Judge.

Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279. He was sentenced to prison for a period of 18 months to 10 years. From his conviction and sentence defendant appeals as of right.

On this appeal, defendant raises four issues, only one of which we need consider.

In support of the charge against the defendant, the prosecutor introduced evidence at trial which tended to show that the defendant arrived at the parking lot adjacent to the place of employment of the complaining witness shortly before 7 a.m. on the day in question. It further tended to show that the defendant approached the complaining witness and struck him in the face with a tire iron without provocation and without any blows being struck by the complaining witness. Defendant admitted being at the parking lot on the day in question, and admitted striking the complaining witness but defendant, his brother and his brother's friend all testified that the complaining witness had struck the first blow. They further testified that defendant never struck the complaining witness with a tire iron, but only with his bare fist, and that he never had a tire iron in his hand during the incident in question. During the course of the trial, the prosecutor sought to introduce into evidence a tire iron which was admittedly not the tire iron alleged to have been used during the assault. The prosecutor stated that he wished to enter the tire iron into evidence as a similar and accurate facsimile[63 MICHAPP 336] of the one allegedly used in the assault. Defense counsel objected, after establishing that the witness who was testifying at the time could not identify the tire iron present in the courtroom at reasonably similar to the one allegedly used in the assault. At that time the trial judge sustained the objection. Defense counsel that went on to use the proposed exhibit in his own cross-examination of witnesses. He asked one prosecution witness:

'Q. Now, referring to people's proposed exhibit number 6, was this object that Mr. Clark--you say Mr. Clark had in his hand, longer or shorter than that?

'A. I'd say it's about the same size.

'Q. Lengthwise; is that correct?

'A. Yes.

'Q. But you are absolutely positive that it was bigger around than that?

'A. Yes.'

Later he asked the same witness:

'Q. Okay. Now, referring to this object that you saw, was it curved as similar to people's proposed exhibit number 6, or was it straight?

'A. It was straight.'

Later, in questioning another witness the following occurred:

'Q. If this person who struck Mr. Harmon had what has been marked people's proposed--or, an object as large as people's proposed exhibit number 6 in his hand, do you think you could have seen it?

'Q. Do you understand my question, Mrs. Tisdale?

'A. Umm-hmm.

'Q. If this person who you saw hit Mr. Harmon had [63 MICHAPP 337] an object as large as this in his hand, would you have seen it?

'A. Well, probably if it's that color. It might not have been that color. But where I was at, where I stood, I wouldn't have seen it. It was just so quick. And I couldn't have seen it no way.'

After defense counsel had thus used the proposed exhibit for his own purposes, the prosecution again offered it into the evidence as an exhibit. At this point, the prosecution had just elicited testimony from a witness who claimed that the tire iron offered into evidence was identical with the tire iron he claimed to have observed the defendant use during the assault. Defense counsel again objected to the admitting of the tire iron into evidence. The basis of his objection was clearly that prior witnesses were unable to say that the tire iron offered into evidence and the tire iron allegedly used by defendant were identical:

'I object,...