People v. Davis

• Citation: 333 N.W.2d 99,122 Mich.App. 597
• Decision Date: 06 May 1983
• Docket Number: 58294,Docket Nos. 57407
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James F. DAVIS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Alphonse KOCSIS, Defendant-Appellant. 122 Mich.App. 597, 333 N.W.2d 99
• Court: Court of Appeal of Michigan (US)

Page 99

333 N.W.2d 99

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James F. DAVIS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Alphonse KOCSIS, Defendant-Appellant.

Docket Nos. 57407, 58294.

122 Mich.App. 597, 333 N.W.2d 99

Court of Appeals of Michigan.

Submitted April 12, 1982.

Decided Jan. 20, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 600] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Karl E. Kraus, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen. (Davis) and Leonard J. Malinowski, Asst. Atty. Gen. (Kocsis), for the People.

John W. Ujlaky, Lansing, for defendant-appellant Davis.

John D. Schwedler, Bad Axe, for defendant-appellant Kocsis.

[122 MICHAPP 601] Before DANHOF, P.J., and R.B. BURNS and WAHLS, JJ.

PER CURIAM.

Defendants are two of four defendants jointly tried by jury for five offenses: kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581; felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277; carrying a firearm or dangerous weapon with unlawful intent, M.C.L. Sec. 750.226; M.S.A. Sec. 28.423; carrying a dangerous weapon in a motor vehicle, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424; and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

Defendant Davis appeals his conviction of all five charged offenses; defendant Kocsis appeals his conviction of kidnapping and felonious assault. Defendant Kocsis's only claim of error concerns the prosecutor's failure to endorse and produce certain alleged res gestae witnesses and will be addressed infra.

Davis first argues that he was deprived of effective assistance of counsel by the joint representation of all of the defendants by retained counsel. He must show actual prejudice. People v. Mendez, 101 Mich.App. 735, 300 N.W.2d 327 (1980).

There has been no such showing. All four defendants testified, completely denying the truth of the complainant's testimony that he had been kidnapped, threatened with a pair of brass knuckles and a pistol, and tied up. Given the nature of the defense asserted, that there had been no criminal activity whatsoever, counsel was not required to draw a line of demarcation as to the relative culpability of his clients. Compare People v. Gardner, 406 Mich. 369, 279 N.W.2d 785 (1979), reh. den. 407 Mich. 1150 (1979), cert. den. 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). Davis did not lose the benefit of arguments that the evidence linking him to the crime was weak or [122 MICHAPP 602] suspect. Compare People v. Bentley, 402 Mich. 121, 261 N.W.2d 716 (1978).

Davis's claim that the verdict was against the great weight of the evidence has not been preserved for appeal as defendant has not moved for a new trial. People v. Cage, 83 Mich.App. 534, 269 N.W.2d 213 (1978).

Davis further argues he was denied a fair trial by prejudicial pre-trial publicity. Two members of the jury heard or read news accounts of the case. However, each stated that he could render an impartial verdict despite possible recollection of news accounts of the crime. Knowledge of publicity concerning a criminal case does not automatically render a juror unfit to serve unless the juror has a preconceived opinion concerning defendant's guilt or innocence which cannot be laid aside. M.C.L. Sec. 768.10; M.S.A. Sec. 28.1033, People v. Dixon, 84 Mich.App. 675, 270 N.W.2d 488 (1978). Davis failed to show that any juror had an opinion of the case which prevented him from rendering an impartial verdict according to the evidence at trial.

Davis also claims that the trial judge erred in denying counsel's motion for a mistrial on the ground of juror misconduct. After the jury began deliberating, it was revealed that a juror had been seen speaking to the wife of a prosecution witness after the selection of the jury but before taking of any testimony. After the jury returned a verdict of guilty the judge and defense counsel questioned the juror. The juror had not discussed the case with the witness's spouse and did not realize until her husband testified that he was in fact a witness in the case.

The trial judge did not abuse his discretion in concluding that Davis failed to show that the juror's conduct affirmatively prejudiced his right to [122 MICHAPP 603] a trial before an impartial and fair jury. See People v. Schram, 378 Mich. 145, 142 N.W.2d 662 (1966). In the absence of such showing, reversal is not warranted. People v. Provost, 77 Mich.App. 667, 259 N.W.2d 183 (1977), rev'd on other grounds 403 Mich. 843, 271 N.W.2d 777 (1978).

We find without merit Davis's claim that various alleged omissions in jury instructions resulted in reversible error. Contrary to his assertion, the record reveals that the jurors were in fact admonished against outside contacts prior to the first recess on the first day of trial. This was all that was required in the absence of a request or objection by defense counsel and in the absence of any showing of prejudice. People v. Buero, 59 Mich.App. 670, 229 N.W.2d 880 (1975).

The trial court's instructions on kidnapping did not inject a new legal theory, not contained in the information, against which defendant was required to defend. In language tracing that found in the kidnapping statute, the information charged that defendants:

"[F]eloniously and forcibly seized and confined or inveigled or kidnapped one Richard John Phillips, with intent to extort money or other valuable thing from Richard John Phillips, or caused Richard John Phillips to be secretly confined and imprisoned in this state against his will or caused Richard John Phillips to be held for service against his will; contrary to MSA 28.581; Section 750.349, CL 1948." (Emphasis added).

The statute proscribes several alternative methods of kidnapping. People v. Bergevin, 406 Mich. 307, 279 N.W.2d 528 (1979). The trial court instructed the jury on "secret confinement". CJI 19:1:01. The court's failure to also instruct the jury on kidnapping with intent to extort money or [122 MICHAPP 604] other valuables, CJI 19:1:03, simply limited the jury's consideration to one alternative which was entirely consistent with the prosecution's theory of the case.

Davis contends that reversible error occurred when the trial court failed, in the absence of a request by defense counsel, to "devise an appropriate instruction dealing with" defendants' defense of consent. The trial court instructed the jury that it had to find defendants intentionally and forcibly confined the complainant, Phillips, "against his will". Taken as a whole, the instructions were fair and adequately put the jury on notice that the prosecution had to prove that the complainant did not voluntarily accompany defendants. Accordingly, there was no reversible error. People v. Palma, 111 Mich.App. 684, 315 N.W.2d 182 (1981).

Defendants Davis and Kocsis both claim reversible error occurred when the prosecutor failed to endorse and produce several alleged res gestae witnesses who were present in or near the bar where the complainant was prior to his leaving with defendants.

Defense counsel affirmatively waived the production of Captain James Staubor at trial. Therefore, defendants' claim that the prosecution's failure to call him requires reversal is without merit. See People v. Geer, 22 Mich.App. 47, 176 N.W.2d 721 (1970).

David argues that the prosecutor should have endorsed and produced all persons present in the bar. Kocsis claims Danny McGuire, in particular, should have been called. A companion of McGuire's, Russ Boyer, was an endorsed witness and testified at trial. McGuire and Boyer, who first reported the apparent abduction to the police shortly after it occurred, both went to the police [122 MICHAPP 605] on the night of the occurrence to give statements. Boyer gave a statement, but McGuire could not because he was too intoxicated.

Neither defendant moved for a hearing on the issue of the endorsement or production of these individuals during or following trial. Consideration of this issue is foreclosed on appeal, People v. Pearson, 404 Mich. 698, 722, 273 N.W.2d 856 (1979), unless, absent review, manifest injustice will result. People v. LeFlore, 96 Mich.App. 557, 293 N.W.2d 628 (1980), lv. den. 409 Mich. 927 (1980). We find no manifest injustice here. Nothing in the record indicates McGuire or any other person present in the club observed, or could have observed, anything of assistance to defendants' case.

Defendant Davis further claims his convictions for felonious assault, carrying a dangerous weapon with unlawful intent and carrying a dangerous weapon in a vehicle violate the guarantee against double jeopardy. ¹

In People v. Bouknight, 106 Mich.App. 798, 802, 308 N.W.2d 703 (1981), Judge Cavanagh wrote:

"The courts of this state have employed two tests in considering whether the guarantee against double jeopardy has been violated because of "double punishment." The first test, commonly known as the Blockburger test, concentrates on the statutory elements of each crime. If, legally, each statutory provision requires proof of a fact which the other provision does not, there is no double jeopardy. Blockburger v. United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932), Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374; 280 NW2d 793 (1979). The second test looks to the factual [122 MICHAPP 606] proofs involved in the particular case. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Under the second test, if the facts developed during trial indicate that the violation of one provision is not severable from a violation of the second provision, then the former blends into the latter so as to constitute one single wrongful act. This second test has been modified by the Supreme Court to provide that if the Legislature has manifested an intent to make the two offenses separate and...