People v. Grimmett, Docket No. 7630

• Decision Date: 29 October 1970
• Docket Number: No. 1,Docket No. 7630,1
• Citation: 183 N.W.2d 839,27 Mich.App. 509
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GRIMMETT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 839

183 N.W.2d 839

27 Mich.App. 509

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GRIMMETT, Defendant-Appellant.

Docket No. 7630.

Court of Appeals of Michigan, Division No. 1.

Oct. 29, 1970.

Released for Publication Feb. 26, 1971.

Clifford Paskel, Gittleman & Paskel, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and LEVIN and CHURCHILL ^*, JJ.

CHURCHILL, Judge.

George Grimmett was convicted by jury trial of assaulting John Kubon with intent to commit the crime of murder ¹ and is now serving a life sentence. The undisputed evidence disclosed that three men entered Shaker's Market, a small Detroit store, on December 22, 1968, with the apparent intent to commit robbery armed. One of the men had in his hand a .22 caliber revolver and told Kubon, a customer in the store, to turn around. Kubon did so and was rewarded for his compliance with a bullet in the back.

As one claim of error on appeal, defendant asserts that there was insufficient evidence to support a jury finding that he participated in the crime. Four witnesses identified him as the man with the gun. Subsequent to the shooting, the gun, which was identified by ballistics testimony as the gun used in the crime, was traced to Grimmett. A girl friend of Grimmett testified that Grimmett told her that he, Grimmett, had shot someone at a grocery store on Canfield, the street where the store was located. Grimmett testified and denied participation in the crime. He explained that another person had given him the gun after the shooting. The evidence was ample to warrant the jury's finding of Grimmett's guilt beyond a reasonable doubt.

Defendant now claims that he did not have effective and competent trial counsel. Far from being a sham or farce, defendant's trial was a vigorously contested adversary proceeding. There was nothing that trial counsel did or failed to do which supports defendant's claim. See People v. Crawford (1969), 16 Mich.App. 92, 167 N.W.2d 814, and People v. Higginbortham (1970), 21 Mich.App. 489, 175 N.W.2d 557.

The people called Clarence Johnson as a witness. He testified that at one time he had the gun in his possession and that it had disappeared from under his pillow. On cross-examination Johnson denied that he had sold the gun to Jimmie Lee and repeated his testimony that it had simply disappeared from under his pillow. On redirect examination Mr. LaBret, assistant prosecuting attorney, asked: 'Mr. Johnson, isn't it true that you, in fact, gave this gun to George Grimmett, isn't that true?' The defense attorney objected, saying: 'Your Honor, this is a prosecution witness. I don't know what Mr. LaBret is doing.' The Court said: 'Well, I think under the circumstances, this is proper redirect examination.'

On appeal defendant claims that the Court improperly permitted the prosecution to lead its witness and also that the question was outside the scope of proper redirect examination. The objection was ambiguous. Viewed with hindsight, we conclude that defense counsel was objecting to a leading question and the Court, misunderstanding the objection, ruled on it as it went to scope. The question was leading and the objection might better have been sustained. The witness, however, in response to the leading question did not follow the lead. To the contrary, he related the same story as to how he lost possession of the gun. There was other evidence that Grimmett obtained possession of the gun. Under these circustances the error was not prejudicial.

The gun was obtained by the police from Jimmie Lee. Jimmie Lee was called by the people and testified that he purchased the gun from Grimmett two days after the shooting. Defendant claims on appeal that the trial court erred in overruling defendant's objection to Lee's testimony concerning the conversation that occurred between Lee and Grimmett at the time Lee purchased the gun. Defendant raises both relevancy and hearsay objections to this evidence. As in People v. Higgins (1901), 127 Mich. 291, 86 N.W. 812, the fact that Grimmett owned and carried the revolver was pertinent. Technically, the evidence of the conversation was not offered to prove the truth of the matter asserted and was not hearsay. It was, rather, evidence of an act, part of which was verbal. This distinction is not significant here, however, because if hearsay, it would fall under the admissions exception. The court did not err in overruling the objection to the conversation.

On direct examination of defendant, after development of defendant's testimonial version of the sale of the gun to Jimmie Lee, (from which it did not appear that Lee's aunt was present at the sale) the record continues as follows:

'Q. (by defense counsel.) All right. Did Jimmie Lee's aunt ever talk to you in the presence of Jimmie Lee about the gun?

'A. Yes, she did.

'Q. And what was that conversation?

'The Court. That's hearsay.

'The Assistant Prosecuting Attorney. Well * * *

'Q. (by defense counsel). Did you, in fact, ever return the twenty dollars to Jimmie Lee.'

It must be inferred that the conversation with the aunt occurred after completion of the sale and transfer of the gun by Grimmett to Jimmie Lee and that the conversation was not a part of the transaction. The trial court obviously concluded that defendant wanted to bring out the conversation as proof of matters asserted by the aunt or by him, or by both. We uphold his conclusion that evidence of the conversation would be objectionable hearsay. Certainly the trial judge has the authority to exclude objectionable evidence on his own motion. He interfered very little with the conduct of trial by counsel. There was no error here.

Finally, defendant claims right to relief by reason of matters related to the timing of his prosecution and by reason of the relation of this case to another case. The calendar of significant events is as follows:

December 22, 1966 Shaker Aubrey and John Kubon shot at Shaker's Market--Aubrey died.

December 27, 1966 complaint against Grimmett and others for murder of Aubrey

January 22, 1968 jury trial in murder case commenced

January 24, 1968 mistrial...