People v. Erb, Docket No. 15885

• Decision Date: 26 July 1973
• Docket Number: No. 2,Docket No. 15885,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl William ERB, also known as Wyatt Erp, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 51

211 N.W.2d 51

48 Mich.App. 622

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl William ERB, also known as Wyatt Erp, Defendant-Appellant.

Docket No. 15885.

Court of Appeals of Michigan, Division No. 2.

July 26, 1973.

Released for Publication Oct. 12, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Walter W. Turton, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and McGREGOR and VanVALKENBURG,* JJ.

McGREGOR, Judge.

Defendant was found guilty by a jury of attempted armed robbery. M.C.L.A. § 750.92; M.S.A. § 28.287; M.C.L.A. § 750.529; M.S.A. § 28.797. He appeals as of right.

The alleged offense occurred in a party store owned by one Smith. Defendant arrived in a taxi, and told the driver to wait for him while he went into the party store. Approximately 3 or 4 minutes after entering, defendant approached Smith and announced, 'This is a holdup'. Smith noted that the defendant had his right hand in his pocket, suggesting that he had a gun in his pocket. When defendant approached Smith, he pushed a store employee named Hernandez towards the back of the store. Seeing this, Smith backed away from the defendant and, noticing a neighbor boy entering the store, called out, 'Go call the law'. With this announcement, the defendant left the store. Smith followed the defendant out of the store and told the taxi driver waiting outside to call the law.

After the selection of the jury, defense counsel presented a motion to sequester the witnesses, which was denied by the trial judge.

Defendant contends that the trial court abused its discretion in refusing to sequester the witnesses.

The general court rules clearly define the matter of discretion:

'The matter of sequestering of witnesses is discretionary with the (trial) court. People v. Burns, 67 Mich. 537, 35 N.W. 154 (1887); People v. Martin, 210 Mich. 139, 177 N.W. 193 (1920).' People v. Likely, 2 Mich.App. 458, 461, 140 N.W.2d 529, 530 (1966); People v. Sawicki, 4 Mich.App. 467, 145 N.W.2d 236 (1966).

'The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.' Sawicki, supra, 473, 145 N.W.2d 239 citing Spalding v. Spalding, 355 Mich. 382, 384--385, 94 N.W.2d 810, 811 (1959).

'* * * (R)equests to sequester should ordinarily be granted. People v. Hall, 48 Mich. 482, 487, 12 N.W. 665, 667 (1882). However, our cases also hold that sequestration of witnesses is a matter for the discretion of the trial court * * * On the facts in this case, refusal to sequester Dr. Robey, a rebuttal expert witness, was not an abuse of the trial court's discretion.' People v. Martin, 386 Mich. 407, 424--425, 192 N.W.2d 215, 224 (1971).

In People v. Insley, 36 Mich.App. 593, 596--597, 194 N.W.2d 2022, (1971), the Court found that:

'the trial judge's denial of defendant's motion to separate did not show any considered judgment whatsoever. It was purely arbitrary and did not consider whether the witnesses should be sequestered. Furthermore, the reason given for not granting the motion--that the trial should be public--is unsupportable. Although a public trial is guaranteed by the Constitution, our legislature has specifically provided that 'for good cause' witnesses may be excluded. * * * Accordingly, we find the trial court's decision, giving no valid reasons, was an abuse of discretion.'

The Court continued by saying, however:

'Although the court's decision was erroneous, it alone does not constitute reversible error. People v. Hall, 48 Mich. 482, 487, 12 N.W. 665, 667 (1882). Defendant has not shown that the failure to separate the witnesses resulted in such prejudice to his cause that the jury would have reached a different result had the motion been granted. People v. Lewis, 31 Mich.App. 433, 438, 188 N.W.2d 107, 110 (1971). Two of the witnesses testified substantially the same at preliminary examination as they did at trial. People v. Williams (6 Mich.App. 412, 149 N.W.2d 245 (1967)). More importantly, there was no major dispute among the prosecution's witnesses concerning the alleged assault, relative to defendant's actual behavior. Accordingly, this issue alone does not merit a reversal.' Insley, supra, 597,194 N.W.2d 20, 23.

The Insley decision holds that a two-prong test must be met before a defendant will benefit from this assignment of error. First, it must be shown that the denial was the result of a 'seasoned decision' and not arbitrary. Even if it was not such a product, the defendant must show on appeal that the denial prejudicially harmed his case in order to pass from harmless error to prejudicial error.

In denying the motion to sequester, the trial court commented:

'This is a discretionary matter and I have studied over the nature of the case and the list of the witnesses. I can see no reason to exclude the witnesses. I am using my discretion, and have thought it over carefully, and I will deny the motion.'

Even though the trial judge failed adequately to explain his reasons for denying the motion to sequester and thus erred, such error does not amount to more than harmless error.

During the robbery, when Smith noticed the neighbor boy entering the store, he told the boy to call the law. This apparently confused the child and he left immediately. This child was neither endorsed by the prosecutor nor produced at trial. Defendant did not object to this failure on the part of the prosecutor, nor was any motion presented to produce this witness until this appeal was brought. The record does not show that the neighbor boy actually witnessed the attempted armed robbery.

'All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. * * * Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.' M.C.L.A. § 767.40; M.S.A. § 28.980.

The general rule is evidenced by the statutory provision and has been the basis for attaching to the prosecutor an affirmative duty to comply therewith. People v. Unsworth, 43 Mich.App. 741, 743, 204 N.W.2d 759, 761 (1972). But, even where the prosecutor has failed to comply, this Court has noted that reversal is not always mandated; this is true especially where counsel fails to preserve the issue through an objection or a motion. See People v. Williams, 42 Mich.App. 278, 282 note 8, 201 N.W.2d 286, 288 (1972), and People v. Jackson, 43 Mich.App. 569, 572, 204 N.W.2d 367, 368 (1972). The rule has also been construed to extend only to witnesses known to the prosecutor at the time the information is filed. People v. Robinson, 30 Mich.App. 48, 49--50, 186 N.W.2d 53, 54--55 (1971). In People v. Loggins, 17 Mich.App. 388, 389, 169 N.W.2d 519, 520 (1969), it was stated:

'An examination of the record fails to indicate that defense counsel presented a motion for the indorsement of any witnesses nor at any time objected to the prosecutor's failure to indorse the witnesses. Moreover, there is no indication that the prosecution knew the identity of the witnesses. The duty of the prosecution to indorse witnesses must necessarily be limited to witnesses whose identity is known.'

This issue is without substantial merit.

Defendant relied upon the alibi defense as one of his primary defenses. Defense counsel called two witnesses to establish this defense. Their testimony was given significant attention in the closing argument of defense counsel, after which the court gave its instructions. Defense counsel infers that the court's instruction shifted the burden of proof to establish his alibi:

'The defendant in this case claims the defense of what is called 'alibi,' and that is, in simple English, that he was at another place at the time of the commission of the crime charged, and I instruct you that this sort of defense is a proper one, and is as legitimate, If proven, as any other defense. You should consider all the evidence bearing on that point and carefully examine it, and if, in view of the evidence, you have any reasonable doubt as to whether the defendant was at some other place at the time the crime was committed, you should give him, the defendant, the benefit of any doubt and find him not guilty. But, ladies and gentlemen of the jury, you are to scrutinize any evidence in relation to it, as an alibi is a defense easy to prove and hard to disprove. Therefore, you should be careful and cautious in examining the evidence in regard to it.' (Emphasis added.)

The use of the words by the trial judge 'if proven' was unfortunate, in that the jury could erroneously receive the impression that the defendant had the burden of proof. It is clear that, once the alibi is properly noticed and evidence produced to establish it, the court has an affirmative duty to give an adequate instruction explaining the defense. Failure to so properly instruct on the defense of alibi requires reversal. People v. Nawrocki, 8 Mich.App. 225, 227, 154 N.W.2d 45, 46 (1967).

If the alibi defense is accepted by the jury, a defendant cannot be convicted. This does not mean, however, that the burden of proving the defense is upon the defendant; to the contrary, it is the duty of the prosecution to show beyond a reasonable doubt that the defendant did commit the crime and that, therefore, the defendant was at the...