People v. Daleo

• Decision Date: 25 October 1972
• Docket Number: No. 12310,No. 2,12310,2
• Citation: People v. Daleo, 204 N.W.2d 315, 43 Mich.App. 386 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam Salvatore DALEO, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 315

204 N.W.2d 315

43 Mich.App. 386

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam Salvatore DALEO, Defendant-Appellant.

No. 12310.

Court of Appeals of Michigan, Division No. 2.

Oct. 25, 1972.

Released for Publication Feb. 22, 1973.

Leave to Appeal Denied Jan. 26, 1973.

Fred A. York, Towner, Rosin & York, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Don L. Milbourn, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On January 18, 1971, the defendant was convicted by a jury of armed robbery pursuant to M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to a term of from 1 to 5 years imprisonment and appeals as of right.

Three gunmen on the afternoon of June 2, 1970, held up and robbed a grocery store in Fraser, Michigan. Louis Clark, Robert Kyle, and Lenny Springer were arrested and charged with the robbery. The trio admitted participating in the robbery and tendered guilty pleas to a reduced charge of larceny from a person. In addition, Lenny Springer also told the authorities that the defendant, Salvatore Daleo, had planned the robbery and had assisted in its execution by driving one of the 'get away' cars. Springer's revelation led to defendant's arrest on June 22, 1970.

At defendant's trial, the prosecution placed the self-confessed participants in the robbery (Messrs. Clark, Kyle, and Springer) on the stand. Their testimony indicated that on June 1, 1970, the day before the robbery, they met with the defendant at Kyle's residence in Detroit to plan the crime. They testified further that on the day of the robbery, June 2, 1970, the defendant drove past the grocery store, pointed it out to them as the place to be robbed, then waited in a car a short distance away until the robbery was consummated.

There is some indication that the robbery under consideration was not executed in a very professional fashion. Although, as previously indicated, there were two cars to be used in the getaway, when Kyle and Springer came out of the store to make their escape, both cars were gone and the two participants ran across a field near the market until they were captured by the police.

After the prosecution rested, the defendant took the stand in his own defense. On direct examination he stated that the only place he had ever met Clark, Kyle and Springer was at a truck yard he managed when they had come there seeking employment. The defendant also testified that the three men returned to the truck yard three or four times and that the last time he saw them, they became argumentative and angry because no jobs were available at that time. Furthermore, the defendant explained that he had never been to the Kyle residence in Detroit.

Thereafter, the trial court permitted the prosecution to recall Kyle and Springer for the purpose of rebutting the defendant's testimony. Both witnesses testified that they had never sought employment at the defendant's truck yard, and that prior to the armed robbery in the instant case they had met the defendant at Kyle's home in Detroit to plan and execute the armed robbery of a gasoline station.

Immediately following this rebuttal testimony and again after the closing arguments, the trial court instructed the jury that: (1) the testimony of Kyle and Springer was not to be used as evidence of the defendant's guilt and (2) the testimony was only to be used to rebut the defendant's testimony regarding the manner in which he became acquainted with the witnesses.

The defendant raises three issues on appeal which we will discuss and decide in the manner presented below.

1. Did the trial court commit reversible error by allowing Kyle's and Springer's testimony concerning previous armed robberies allegedly planned by the defendant into evidence after the prosecution had rested?

For a proper resolution of this issue, we must determine at the outset whether or not the testimony given by Kyle and Springer after the defense had rested was in fact rebuttal testimony.

In People v. Utter, 217 Mich. 74, 83, 185 N.W. 830, 834 (1921), and in People v. DeLano, 318 Mich. 557, 570, 28 N.W.2d 909 (1947), our Supreme Court defined rebuttal evidence as follows:

'Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain, or disprove evidence produced by the other party and tending directly to weaken or impeach the same.'

In the instant case, the defendant testified that the only times he had contact with Clark, Kyle, or Springer was on three or four occasions when they came to the truck yard seeking employment. He also testified that he had never been to Kyle's residence in Detroit. Thereafter Kyle and Springer were recalled and explained that that had never sought employment at the truck yard and that in May, 1970, they met with the defendant at Kyle's Detroit residence for the purpose of mapping out and executing an armed robbery of a gasoline station. This latter testimony clearly contradicted and tended to directly impeach the defendant's testimony. Therefore, under the definition announced in Utter and DeLano, supra, we conclude that the testimony of Kyle and Springer, given after the prosecution and defense had rested, was rebuttal testimony.

The defendant argues, however, that the rebuttal testimony of Kyle and Springer was not properly admissible after the defense had rested since it should have been offered by the prosecution during its case in chief as evidence of a plan or scheme between the defendant and the two witnesses to commit armed robberies similar to the one in question. We cannot agree.

As a general rule, the admissibility of rebuttal testimony, which could have been offered by the prosecution during its case in chief, rests within the sound discretion of the trial court; and we will not disturb the trial court's decision unless a clear abuse of that discretion has been shown. People v. Utter, Supra; People v. DeLano, Supra; People v. Finnister, 33 Mich.App. 283, 189 N.W.2d 835 (1971); People v. Hallaway, 25 Mich.App. 604, 181 N.W.2d 546 (1970); People v. Barbara, 23 Mich.App. 540, 179 N.W.2d 105 (1970). Therefore the question now becomes whether or not the trial court abused its discretion.

Here the fact that the rebuttal witness's testimony tended to show the commission of another crime (I.e., the armed robbery of a gasoline station) is not reason in and of itself to exclude the testimony since the inadmissibility of an evidential fact for one purpose does not prevent its admissibility for another purpose...