People v. Clark

• Decision Date: 08 June 1983
• Docket Number: Docket No. 59737
• Citation: 124 Mich.App. 410,335 N.W.2d 53
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary B. CLARK, Defendant-Appellant. 124 Mich.App. 410, 335 N.W.2d 53
• Court: Court of Appeal of Michigan — District of US

Page 53

335 N.W.2d 53

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary B. CLARK, Defendant-Appellant.

Docket No. 59737.

124 Mich.App. 410, 335 N.W.2d 53

Court of Appeals of Michigan.

Submitted Oct. 13, 1982.

Decided March 22, 1983.

Released for Publication June 8, 1983.

[124 MICHAPP 411] 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 A. George Best, II, Asst. Pros. Atty., for the People.

Hoffa, Chodak & Robiner by Norman R. Robiner, Detroit, for defendant-appellant on appeal.

Before MAHER, P.J., and BRONSON and CYNAR, JJ.

PER CURIAM.

Defendant was convicted of second[124 MICHAPP 412] -degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. He was sentenced to concurrent prison terms of from 15 to 40 years and 10 to 15 years. He appeals by right.

Defendant claims that evidence seized pursuant to a search warrant should have been suppressed. The warrant was based on an affidavit containing the hearsay statements of Johnny Lyons. The affidavit allegedly did not show that Lyons was a reliable informant. While we agree that the police officer's affidavit did not explicitly state facts concerning Lyon's reliability, we find that other facts stated in the affidavit supported an inference that Lyons was reliable. The affidavit identified Lyons and his connection with the offense for which evidence was sought. It consisted almost entirely of Lyons's specific factual observations. The affiant personally corroborated Lyons's statement that a stabbing had occurred at 20420 Florence Street. Lyons's admissions were clearly against his penal interest; he was not granted immunity from prosecution for his role in the breaking and entering. Although the affidavit could have contained more information (which was then available) establishing Lyons's reliability, we believe it was sufficient to support the issuance of the warrant. See People v. Thomas, 86 Mich.App. 752, 757-759, 273 N.W.2d 548 (1978); People v. Atkins, 96 Mich.App. 672, 678-680, 293 N.W.2d 671 (1980).

The testimony of a prosecution witness that he had been threatened by defendant's brother was admissible for a limited purpose, to explain the prior inconsistent statement of the witness. A satisfactory cautionary instruction could have been given to shield defendant from any prejudice. [124 MICHAPP 413] Since defendant later waived the jury, the absence of a cautionary instruction could not have hurt him.

Defendant claims that evidence of his flight from the crime scene was improperly admitted as substantive evidence of his guilt. We disagree. In People v. Cismadija, 167 Mich. 210, 215, 132 N.W. 489 (1911), our Supreme Court stated that a jury may not consider flight as substantive evidence of criminal guilt. The Court later stated that evidence of flight might be considered as evidence of guilty knowledge (of possession of liquor), although it was not substantive evidence of guilt and was not itself sufficient to warrant a conviction. People v. Burbank, 234 Mich. 600, 604, 208 N.W. 687 (1926). The Court next stated that flight may be as consistent with innocence as with guilt; although it is not substantive evidence of guilt, it might bear on a defendant's purpose and intent. People v. MacCullough, 281 Mich. 15, 29, 274 N.W. 693 (1937). In its only lengthy discussion of the issue, the Court said that evidence of a defendant's flight was admissible although it was "of itself no evidence of guilt". People v. Cammarata, 257 Mich. 60, 66, 240 N.W. 14 (1932).

We think that the Supreme Court's opinions on this subject, while seemingly contradictory, can be reconciled. The term "substantive evidence", as used by the Court in Cismadija, Burbank and MacCullough, obviously had a far narrower meaning than it has today. The Court's statements indicated that evidence of flight could be evidence of purpose, intent or knowledge, all now considered "substantive" matters. We believe it can no longer be said that flight is not admissible as substantive evidence. Evidence of flight is admissible where relevant and material. Such...