People v. Espinosa
| Decision Date | 19 June 1985 |
| Docket Number | 77495,Docket Nos. 75945 |
| Citation | 142 Mich.App. 99,369 N.W.2d 265 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony James ESPINOSA, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Roberto ESPINOSA, Defendant-Appellant. 142 Mich.App. 99, 369 N.W.2d 265 |
[142 MICHAPP 100] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Christopher S. Boyd, Pros. Atty., and Annette M. Gray, Asst. Pros. Atty., for the People.
James R. Neuhard, State Appellate Defender by R. Steven Whalen, Detroit, for Anthony Espinosa.
George C. Bush, Saginaw, for Donald Espinosa.
Before SHEPHERD, P.J., and HOLBROOK and M.F. SAPALA *, JJ.
Defendants appeal separately as of right from their jury convictions in a joint trial. The jury convicted each defendant as charged of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant Anthony Espinosa was also found guilty of carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. The trial court sentenced each defendant to life imprisonment for the murder convictions and the mandatory, consecutive two-year [142 MICHAPP 101] term for felony-firearm. The court sentenced Anthony Espinosa to from three to five years' imprisonment for carrying a concealed weapon. We reverse and remand for a new trial of both defendants on all charges except the carrying a concealed weapon charge against Anthony Espinosa. The trial court abused its discretion by denying defendants' motions for separate trials. Defendant Anthony Espinosa's conviction of carrying a concealed weapon is affirmed.
Initially, defendants (who are brothers) were charged jointly. Defendants moved for separate trials, contending that their defenses would be mutually antagonistic. Counsel for Anthony Espinosa stated by affidavit that a joint trial "would put both defendants in a position of either both having to testify or both refraining from testifying in order to avoid a situation of mutual accusations in front of a jury". Each defense attorney stated that his client denied shooting the decedent and contended that the codefendant was in possession of the gun at the time of the killing. Counsel for Donald Espinosa noted that the witnesses at the preliminary examination differed as to which defendant was the shooter. The trial court granted the motions for severance.
Thereafter, the people again moved to consolidate the cases on the ground that the prosecution would advance an aiding and abetting theory as to each defendant. According to the prosecutor, it was not important to the people's theory that a determination be made of who fired the fatal shots and, therefore, the defendants' theories were not truly antagonistic. The trial court granted the motion to consolidate and later denied a second defense motion for separate trials. Although neither defendant testified at trial, each defense attorney argued that his client did nothing to cause [142 MICHAPP 102] the victim's death. Counsel for Donald Espinosa argued as follows:
The case arose from the shooting of Dennis Napier outside the home of William Clark on December 4, 1982. There had been much drinking and card playing. Among those present were the defendants, Napier, William and Kenneth Clark, Irene Gilyard, Donald Espinosa's wife (Marcia), Kenneth Clark's wife (Deborah), and Michelle LaFave, an acquaintance of the decedent.
Gilyard testified that a fight erupted between the defendants and Napier. In the midst of the fight, an object fell from Anthony Espinosa's pants. Marcia Espinosa picked up the object and ran into a bedroom. Anthony Espinosa followed her. A short time later, Anthony Espinosa emerged from the bedroom with a gun in his right hand and fired two shots at Napier, who was fleeing from the home. Defendants then ran out [142 MICHAPP 103] the front door. Outside she saw Donald Espinosa waving the gun at Napier. Donald "asked him did he want some of this". Anthony Espinosa stood nearby and said "Shoot the motherfucker". At that point, Gilyard observed the Clarks grab Donald Espinosa. As Gilyard ran away from the fray, she heard shots. The last person she saw holding the gun was Anthony Espinosa.
Michelle LaFave testified that she saw defendants and Napier fighting. Marcia Espinosa ran into the bedroom. Anthony Espinosa followed. Anthony Espinosa came out of the bedroom with a gun in his hand. He had the gun approximately 45 seconds before LaFave heard shots. In addition, LaFave observed Donald Espinosa with the gun about seven seconds after the shots were fired.
Deborah Clark testified that she was exiting from the home with the victim, Napier, when she heard shots. She saw the defendants, Napier, and the Clarks fighting near the side of the home. Donald Espinosa held the gun with both hands, arms extended in the direction of the crowd. A few seconds later, this witness heard shots as she fled the scene.
Kenneth Clark was the sole witness who claims to have seen the fatal shots fired. He testified that Anthony Espinosa followed Napier after he ran from the house. Along the side of the home, Anthony Espinosa took aim and fired two or three shots at Napier. The victim collapsed amid some bushes near a neighboring home. Donald Espinosa then took the gun from the codefendant.
A forensic pathologist found three gunshot wounds on the victim's body. Each wound was inflicted from very close range, i.e., no more than six inches.
Whether to hold separate trials is a matter within the sound discretion of the trial court. M.C.L. [142 MICHAPP 104] Sec. 768.5; M.S.A. Sec. 28.1028. "When moving for severance, the defendant must clearly, affirmatively, and fully show that his substantial rights will be prejudiced by joint trial." People v. Byrd, 133 Mich.App. 767, 776, 350 N.W.2d 802 (1984), lv. den. 419 Mich. 960 (1984). Severance should be granted where the defendants' separate defenses are antagonistic. People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976); People v. American Medical Centers of Michigan, Ltd, 118 Mich.App. 135, 145, 324 N.W.2d 782 (1982). Moreover, even where the defendants do not directly accuse one another of being the guilty party, the court should order separate trials if the proofs, combined with the defense theories, pit the defendants against each other. Hurst, supra, 396 Mich. at p. 9, 238 N.W.2d 6. "Any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial." Id., p. 7, 238 N.W.2d 6, citing People v. Braune, 363 Ill. 551, 2 N.E.2d 839 (1936). As this Court held in People v. Sargent, 124 Mich.App. 485, 489, 335 N.W.2d 13 (1983):
In this case, the defendants moved for severance before trial. Their motions were accompanied by affidavits which specified a key inconsistency in their defenses, namely, that each would accuse the other of causing the victim's death. Although neither defendant testified at trial, the defense attorneys urged the jury to draw mutually antagonistic conclusions from the confused recollections of the various witnesses....
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