People v. Falkner

• Decision Date: 27 September 1971
• Docket Number: Docket No. 10338,No. 2,2
• Citation: 193 N.W.2d 178,36 Mich.App. 101
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Edward FALKNER, Jr., a/k/a Roy Edward Faulkner, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 178

193 N.W.2d 178

36 Mich.App. 101

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Edward FALKNER, Jr., a/k/a Roy Edward Faulkner, Jr.,

Defendant-Appellant.

Docket No. 10338.

Court of Appeals of Michigan, Division No. 2.

Sept. 27, 1971.

Released for Publication Jan. 17, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal of right from a jury verdict of guilty of first degree murder. ¹ We recite the facts and allegations of fact. On the evening of August 20, 1968, Ernest Rotholer and his wife were sitting on the front porch of their home in the city of Jackson. Because of oncoming darkness Mr. Rotholer decided, it was testified by his wife, to put his car away and close the garage door. While awaiting her husband's return she heard a 'terrific blast of something.' Hearing another noise in the back of the house, she ran toward the sound and found her husband lying unconscious on the floor between the back porch and kitchen. She screamed for assistance. A neighbor responded, but death had already ensued.

The record tends to establish that the search for the murderer focused upon the defendant because of information supplied by a secret informant and two subsequently discovered material witnesses, Zonnie Armstrong and Jacqueline Edmond.

At the trial both of these witnesses testified that defendant came to an apartment where Zonnie Armstrong had been staying sometime between 9 and 9:30 P.M. on the night of the fatal shooting. He claimed he had a gun and offered to let either Miss Edmond or Miss Armstrong shoot it. At his invitation Miss Edmond accompanied him outside where he picked up an unidentified object beside the house. The two proceeded down an alley adjacent to the Rotholer property. Defendant saw the reflection from a flashlight and allegedy said to his companion, 'Let's shoot that man.' For her own reasons, the girl kept on walking and left defendant behind. Momentarily thereafter she heard a shot followed by a scream. She returned immediately to the apartment where Zonnie Armstrong had remained while the foregoing events transpired. Shortly thereafter defendant entered the apartment and is said to have announced: 'I think I shot someone.' Miss Armstrong testified on trial that defendant informed her two days later that anyone who incriminated him would be killed.

All of the foregoing was relayed to the police. Both Miss Armstrong and Miss Edmond were placed in protective custody. Defendant was arrested and charged with first degree murder.

Upon trial by jury, defendant was found guilty as charged. He was sentenced to life in solitary confinement at hard labor.

On appeal defendant asserts initially that the introduction into evidence of colored photographs of the decedent's body constituted reversible error because of the prejudice engendered thereby, and that the photographs were unessential to the state's case as being merely cumulative and prejudicially inflammatory. Five pictures were taken at the scene of the crime. Some show decedent as found at the site of the killing; one shows the body of the victim taken just prior to the postmortem examination.

We examine this issue.

In People v. Bergin (1969), 16 Mich.App. 443, 447, 448, 168 N.W.2d 459, 461, 462, this court quoted with approval 23 C.J.S. Criminal Law § 852(1), pp. 352, 353, as to the test of admissibility of photographs which it is claimed might prejudice the jury:

'As a general rule, where photographs are otherwise properly admitted, it is not a valid objection to their admissibility that they tend to prejudice the jury. Ordinarily photographs are not inadmissible merely because they bring vividly to jurors the details of a shocking crime or tend to arouse passion or prejudice, as in the case of unpleasant, gruesome, or horrifying photographs. The test of admissibility in such cases is whether the probative value of the photographs outweighs their probable prejudicial effect. Accordingly, photographs should be excluded where their logical relevancy will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture.'

It was the theory of the prosecution that the deceased was killed by a shotgun fired at relatively close range. The photographs, shocking indeed, showed decedent's body literally pockmarked by small pellets. We hold that the pictures, identified as detailing the nature and extent of the wounds inflicted, were admissible for the purposes of clarifying and illustrating testimony relating to the victim's appearance and condition immediately after death. We reject the claim that their sole evidentiary purpose was to create inflammatory prejudice. As otherwise nonobjectionable, they were admissible. Their admissibility was within the discretion of the trial judge. We perceive no abuse thereof. See People v. Bergin, Supra.

As part of his second assignment of error, defendant has incorporated in 'Appendix II' of his brief numerous reproductions of newspaper articles alluding to a period of racial strife in Jackson sometime prior to the trial of this cause. He contends that the temper of the community was such that the prosecutor was obligated to be scrupulously fair in order to prevent prejudice against a black defendant charged with what purported to be a senseless, racially motivated killing. With this general principle we agree, but we must examine the specifics. It is contended that even though the prosecutor may not have committed any single act so grossly prejudicial as to require reversal of the judgment of conviction, that nonetheless defendant was denied a fair trial because of the cumulative effect of three alleged instances of misconduct by the prosecutor. We address ourselves to them.

First, objection is made to the cross-examination of defendant's alibi witnesses concerning their alleged membership in a group known as the Black Messengers. We have read the trial transcript with painstaking care. There was testimony adduced that the accused was a member of this organization. Having chosen to testify, the alibi witnesses placed their credibility in issue and they could be questioned concerning the relationship between them and the accused and all the attendant circumstances thereof. See People v. Durham (1912), 170 Mich. 598, 136 N.W. 431. We are not persuaded that the single reference to the Black Muslims, during the questioning of Phillip Smith, contravened the proscription of M.C.L.A. § 600.1436 (Stat.Ann.1962 Rev. § 27A.1436) which provides in relevant part: 'No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.' ²

Defendant also objected to the prosecutor's eliciting testimony from Zonnie Armstrong concerning defendant's threat that anyone who testified against him would be killed. Testimony showing conduct and declarations of the defendant subsequent to commission of a crime, when the behavior indicates a consciousness of guilt or is inconsistent with innocence, is admissible. Evidence of attempts by the acused to induce witnesses not to testify may properly be considered by the fact finders. See 62 A.L.R. 136 and cases cited therein.

As the final instance of misconduct by the prosecutor, objection is made to the following excerpts from the state's closing argument commenting upon the failure of defendant's sister to testify in his behalf:

'At this point, I wonder if you considered why his sister Diane wasn't called as one of the defense witnesses, and perhaps, you might consider perhaps Diane in fact was the go-between among the defense witnesses. Not being a witness is no reason why she should not have been in the courtroom apparently. In any event, certainly one would wonder why she was not called as a defense witness.'

We must examine the contention in the context of the testimony concerning defendant's sister's involvement in the case. Conflicting statements had been made by defense witnesses as to whether defendant's sister had been present in an apartment which she shared with her husband, Ardell Robinson, and the defendant, and where defendant was alleged to have been at the time of the fatal shooting.

The whole crucial defense was alibi. The comment upon failure to call one who was alleged by one defense witness to have been present at the place where defendant was claimed to have been at the time the fatal shot was fired, was well within the limits of permissible argument. See People v. Hunter (1922), 218 Mich. 525, 528, 188 N.W. 346, 347. Mr. Justice Bird observed:

'The statute (citation omitted) protects the defendant from comment or criticism for not taking the witness stand, but the protection is not extended to witnesses. If a witness knows facts which will be helpful to defendant in making his defense, and he is competent and within the reach of defendant, his failure to produce him ought properly to be a subject of comment by the prosecutor.'

Nothing in the records suggests that the accused's sister was not available. There was some testimony that she knew facts helpful to the defense of alibi. We can find no error upon which reversal could be predicated in this comment, nor upon it in combination with the others hereinbefore discussed.

The prosecutor did exceed the bounds of permissible comment by suggesting that the sister may...